judgement:
Civil Appeal No. 2409 of 1969.
From the Judgment and order dated the 19th July, 1968 of the Andhra Pradesh High Court in Writ Petition No. 1994 of 1964.
K. Rajendra Chowdhary and Mrs. Surendra Krishnan for the Appellant.
I. N. Sinha, Sol.
General, Girish Chandra for Respondents.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by certificate is directed against the judgment of the High Court of Andhra Pradesh dated July 19, 1968.
It is not in dispute that appellant Mohd. Faisuddin Khan is 780 a citizen of India, and was declared an evacuee by an order of the Deputy Custodian of Evacuee Property, Hyderabad, dated September 18, 1951.
His property, consisting of a building and 350 acres of land, was declared to be evacuee property.
The Custodian of Evacuee Property issued a notice to the appellant on April S, 1961 calling upon him to surrender possession of the property.
That was followed by a notification dated January 20, 1962, of the Central Government, under section 12 of the , hereinafter referred to as the Act, by which that government acquired all properties which had been declared to be evacuee properties, for a purpose connected with the relief and rehailitation of displaced persons, including payment of compensation.
The appellant, challenged the aforesaid notification as unconstitutional and applied for writ of certiorarai on a proper construction of ss.12 and 15 of the Act.
In its impugned judgment, the High Court has taken the view that on publication of the notification under section 12(1) of the Act, the right, title and interest of the evacuee was extinguished in the evacuee property and it vested absolutely in the Central Government free from all encumbrances.
That, in the view of the High Court, was unconditional, and was not made to depend upon the fixation or payment of compensation under section 13, notwithstanding the fact that the principles for payment of compensation had not been agreed upon between the Governments of India and Pakistan and had not therefore been fixed.
It has also been held that the words "or otherwise" in article 31(5) (b) (iii) of the Constitution are sufficiently wide and the protection of the article extends to the relevant provisions of the Act so that there could be no successful challenge on the basis of article 31(2).
The evacuee feels aggrieved and has filed the present appeal.
It has been argued by counsel for the appellant that the view taken by the High Court is not correct, and that acquisition of the appellant 's property under section 12 of the Act was not immune from challenge under article 31(5) (b) (iii) of the Constitution because no compensation had been.
paid or was proposed to be paid for the acquired property.
It will be recalled that a notification was issued by the Central Government under section 12 of the Act to acquire the property of the appellant for rehabilitation of displaced persons.
That notification was published in the gazette and, by virtue of sub section
(2) of that section, the right, title and interest of the appellant in that property (which was admittedly evacuee property) was extinguished and the property vested "absolutely in the Central Government free from all encumbrances.
" Section 13 of the Act provides for the payment of compensation for such acquisition "in accordance with such principles and in such manner as may be agreed upon between the Governments of India and Pakistan.
" Section 14 of the Act goes further and provides for the constitution of a compensation pool.
The appellant has, however, been deprived of the benefit of these provisions because it is the admitted case of the parties that the agreement envisaged by section 12 has not been arrived at so far between the two 781 Governments.
Even so, that.
would not, in our opinion, justify the argument of counsel for the appellant that clause (2) of article 31 of the Constitution would become applicable, for clause 5 (b) (iii) of that article expressly provides as follows: "(5) Nothing in clause (2) shall affect . . . . . . . (b) the provisions of any law which the State may here after make. . . . . . . (iii) in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other country, or otherwise, with respect to property declared by law to be evacuee property." (Emphasis added).
It would thus appear that clause (2) of article 31 will not avail the appellant because there is an express provision in clause (5) that it shall not affect the provisions of any law which the State Government may make either in pursuance of an agreement with the Government of any other country "or otherwise".
So even in the absence of an agreement with the Government of Pakistan, it was permissible for the State to make the Act, and its provisions would not be affected by anything contained in clause (2) of article 31 of the Constitution.
It would follow that there is nothing wrong with the view that compensation would have been payable to the appellant under sec.
13 of the Act, in accordance with such Principles and in such manner as might have been agreed upon between the Governments of India and Pakistan, but not otherwise.
The appellant is therefore not entitled to claim such compensation in the absence of the agreement, and there is nothing wrong with the conclusion arrived at by the High Court in the impugned judgment.
The counsel for the appellant tried to argue that the evacuee property in question could not have vested in the Central Government until compensation for its acquisition had been determined and paid.
The argument is however quite futile in face of the clear provision of sub section (2) of section 12 of the Act that on the publication of the notification under sub section (1), the right, title and interest of the evacuee shall be extinguished in the evacuee property and it "shall vest absolutely in the Central Government free from all encumbrances.
" There is thus no force in this appeal and it is dismissed but, in the circumstances of the case, without any order as to the costs.
V.P.S. Appeal dismissed.

summary/full:
When a notification is published under section 12(1) of the , under section 12(2) the right, title and interest of the evacuee in the evacuee property is extinguished and the property vests absolutely in the Central Government free from all encumbrances.
Section 13 of the Act provides for the payment of compensation for such acquisition in accordance with the principles agreed upon between the Government of India and Pakistan.
No such principles of compensation had, however, been agreed upon between the two Governments.
The appellant was declared an evacuee and his property as evacuee property.
When the notification under section 12 was issued, he challenged it but the High Court dismissed his writ petition holding that the vesting in the Central Government was unconditional and did not depend upon the fixation or payment of compensation under section 13.
Dismissing the appeal to this Court, ^ HELD: (1) In the face of the clear provision in section 12(2), it could not be contended that the evacuee property did not vest in the Central Government until compensation for its acquisition had been determined and paid.
[781F] (2) The appellant could not rely on article 31(2) because, article 31(5) expressly provides that it shall not affect the provisions of any law which the State may make either in pursuance of an agreement with the Government of any other country "or otherwise".
So even in the absence of an agreement with the Government of Pakistan, it is permissible for the State to make the Act, and its provisions would not be affected by anything contained in article 31(2).
[781CD] (3) Under section 13, compensation would have been payable to the appellant in accordance with any principles agreed upon between the Government of India and Pakistan.
Therefore, in the absence of such an agreement, the appellant would not be entitled to claim any compensation.
[781 E]


judgement:
Civil Appeal No. 1815 of 1969.
Appeal by Special Leave from the Judgment and Decree dated the 3rd October, 1964 of the High Court of Judicature at Patna in Appeal from Original Decree No. 152 of 1959.
P.K. Chatterjee and Rathin Das for the Appellant.
S.V. Gupte and B.P. Singh for Respondents 1 2.
1003 Santok Singh for Respondents 3 4.
The Judgment of the Court was delivered by CHANDRACHUD, J.
One Trilok Prasad Singh, who was the last male holder in his line, died on May 12, 1948 leaving behind his widow Kachnar Kuer and his step mother Sheo Kuer.
On February 12, 1956 Kachnar Kuer executed two registered deeds.
By one of these she adopted a son to her deceased husband and by the other, which is described as a Deed of Arpan nama, she created a religious endowment in the name of Sri Gopalji and appointed her mother in law Sheo Kuer as a shebait.
Respondents 1 and 2, claiming to be reversioners, filed suit No. 16 of 1956 in the court of the First Subordinate Judge, Gaya, for a declaration that the two deeds were void and illegal and were not binding on their reversionary interest.
Kachnar Kuer was defendant 1, the adopted son was defendant 2 and Sheo Kuer was defendant 3 to the suit.
During the suit, the defendants were evidently of one mind and they contended by their written statements that the impugned deeds were executed under the authority given by the deceased Trilok Prasad Singh and that respondents 1 and 2 had no right to bring the suit after June 17, 1956 when the came into force The trial court dismissed the suit holding that Trilok Prasad Singh had given authority to Kachnar Kuer to make an adoption and to create an endowment and therefore both the deeds were valid.
Against the dismissal of their suit, respondents 1 and 2 filed First Appeal No. 152 of 1959 in the High Court of Patna.
By its judgment dated October 3, 1964 the High Court allowed the appeal and decreed the suit holding that Trilok Prasad Singh had not given authority to Kachnar Kuer to take a son in adoption and under the Banaras School of Hindu Law by which the parties were governed, an adoption made by a widow without the authority of her husband was invalid.
The High Court also held that Trilok Singh had not authorised Kachnar Kuer to create a religious endowment over any part of his property and since by the Arpan nama a large piece of property was dedicated to the deity the dedication was void.
On the question whether, after the coming into force of the , respondents 1 and 2 as reversioners could maintain the suit, the High Court held that on the material date Kachnar Kuer was not in possession of the property and therefore her limited estate could not ripen into an absolute estate under the .
Kachnar Kuer made an application to the High Court for a certificate of fitness to appeal to this Court and the High Court by its order dated May 10, 1965 granted a certificate of fitness under Article 133(1) (b) of the Constitution.
But after the petition of appeal was lodged in this Court, Kachnar Kuer joined hands with respondents 1 and 2 and purported to enter into a compromise dividing the 1004 property left by Trilok Prasad Singh between themselves.
The appellant, Sheo Kuer, who was appointed as a shebait under the deed of Arpan nama has thereafter, obtained special leave to appeal to this Court from the judgment of the High Court.
We are, in this judgment, concerned with Sheo Kuer 's appeal, not with the appeal filed by Kachnar Kuer by certificate.
The High Court has rejected the evidence led to show that 'Trilok Prasad Singh had given authority to Kachnar Kuer to make an adoption to him.
The finding that the adoption is without the authority of the husband and therefore void is not challenged before us either by Kachnar Kuer or by the adopted son and that finding must there.
fore be confirmed.
Since the evidence on the other question as to whether Trilok Prasad Singh had given authority to Kachnar Kuer to create a religious endowment was closely linked with the question regarding the authority to adopt and since the pattern of evidence on both the questions is identical, the High Court held that Kachnar Kuer did not either have the authority of her husband to instal the deity or dedicate any 1 property to the deity.
This finding is not challenged before us by Sheo Kuer, the shebait appointed under the Arpan nama, and therefore we must proceed on the basis that the dedication was created by Kachnar Kuer without the authority of her husband.
The point involved for determination in the appeal thus relates to the powers of a Hindu female on whom property has devolved upon the death of her husband, to alienate the property for religious purposes.
This question has been the subject matter of several decisions Of the Indian High Courts as also of the Judicial Committee.
These decisions, beginning with one of the earliest pronouncements on the subject in Collector of Masulipatam vs Cavly Vencata, upto the decision of this Court in Kamala Devi vs Bachu Lal Gupta have been discussed with fullness and clarity of Mr. Justice Bijan Kumar Mukherjea in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust.
It is unnecessary to analyse the various Decisions which the learned author has considered because the true position on the subject is crystalised in the decision in Kamala Devi 's case.
The law must now be taken as well settled that a Hindu widow possessing a widow 's estate cannot alienate the property which has devolved on her except for special purposes.
To support an alienation for purely worldly purposes she must show necessity but she has a larger power of disposition for religious and charitable purposes or for Those purposes which are supposed to conduce to the spiritual` welfare of her husband.
As pointed out by the Privy Council in Sardar Singh vs Kuni Behari, the Hindu system recognises two sets of religious acts: those which are considered as essential for the salvation of the soul of the deceased and others which, though not essential or obligatory, are still pious observances which conduce to the bliss of the .
deceased 's soul.
The powers of a Hindu female to alienate property are wider in respect of acts which conduce to the spiritual benefit of 1005 her deceased husband.
The widow is entitled to sell the property, even the whole of it, the income of the property is not sufficient to cover the expenses for such acts.
In regard to alienations for pious observances, which are not essential or obligatory, her powers are limited to alienating only a small portion of the property.
Applying the principles accepted in Kamala Devi 's case, the simple question for decision, in view of the fact that the Arpan nama was executed for a merely pious purpose and not for an essential or obligatory purpose is whether the alienation effected by Kachnar Kuer in favour of the deity is of a reasonable portion of her husband 's property.
Respondents 1 and 2, in paragraph 7 of their plaint, passingly mentioned that Kachnar Kuer had transferred "a considerable portion" of the properties left by her husband.
In paragraph 13 of the written statement which Kachnar Kuer filed on behalf of herself and her adopted son, it was stated that in view of the fact that Trilok Prasad Singh had left about 150 Bighas of land, the alienation of about 30 Bighas in favour of the deity could not be said to be unreasonable or excessive.
One hundred and fifty Bighas are treated in the area as roughly equal to 90 acres so that 30 Bighas come to about 18 acres.
Whether the alienation for a pious purpose is of a reasonable portion of the property must necessarily depend upon the total extent of the property which has devolved upon the widow.
The mere circumstance that a 100 acres are alienated by the widow for a pious purpose will not justify the setting aside of the alienation on the ground that 100 acres is large property.
The High Court, without adverting to the fact that the widow had alienated only a one fifth portion of the property which had devolved upon her, held that "a dedication of a large part of the property, more than 18 acres of land, cannot be defended on the part of a holder of a widow 's estate ".
This is all that the High Court has to say on the point and obviously, what it has said is not enough or relevant for invalidating the alienation.
Whether the alienation is of a reasonable portion of the property is not a matter to be decided on precedents because what is reasonable must depend upon the facts and circumstances of each case.
But an alienation of a one fifth portion cannot be said to be unreasonable or excessive.
The finding of the High Court must therefore be set aside and along with it its judgment allowing the reversioner 's appeal and decreeing their suit.
We therefore hold that the Arpan nama executed by Kachnar Kuer in favour of the deity is lawful and valid.
In the result we allow the appeal, set aside the judgment of the High Court and direct that the suit filed by respondents 1 and 2 shall stand dismissed with costs.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Kachnar Kuer, on whom the property of her late husband devolved, executed two registered deeds.
By one of these she adopted a son to her deceased husband and by the other, a deed of Arpan nama she created a religious endowment in the name of Shri Gopalji, appointing her mother in law Sheo Kuer, the appellant as the shebait.
The respondents claiming to be the reversioners filed a suit for declaration that the two deeds were void, illegal and not binding on their reversionary interest.
That suit was dismissed on the ground that the late husband of Kachnar Kuer had given authority to her to make an adoption and to create an endowment.
On appeal, the High Court reversed the findings of the trial court and decreed the Suit.
The High Court however, granted a certificate of fitness ' under article 133(1)(b) of the Constitution and since after obtaining the certificate, Kachner Kuer purported to compromise the suit with the reversioners, Sheo Kuer, the shebait came up in appeal by special leave.
Allowing the appeal, ^ HELD.
(i) It is well settled that a Hindu widow possessing a widow 's estate cannot alienate tho property which has devolved on her except for special purposes.
The powers of a Hindu female to alienate property are wider in respect of acts which conduce to the spiritual benefit of her deceased husband.
The widow is entitled to sell the property, even the whole of it, if the income of the property is not sufficient to cover the expenses for such acts.
In regard to alienations for pious observations, which are not essential or obligatory, her powers are limited to alienations of only a small portion of her property.
[1004 F, H, 1005 A] (ii) Whether the alienation for a pious purpose is of a reasonable portion of the property must necessarily depend upon the total extent of the property t which has devolved upon the widow.
[1005 D] (iii) The reasonability of the alienation of a portion of the property depends on the facts and circumstances of each case, but an alienation of 1/5th portion cannot be said to be unreasonable or excessive.
[1005 F] Collector of Masulipatam vs Cavaly Vencata 8 M.I.A. 529, Sadar Singh vs Kunj Behari 491 I.A. referred to Kamala Devi vs Bachu Lal Gupta, [1957] S.C.R. P. 452 applied.


judgement:
ivil Appeal No. 21 of 1955.
Appeal under Article 133(1)(c) of the Constitution of India against the Judgment and Order dated the 12th January 1954 of the Pepsu High Court in Civil Misc.
No. 182 of 1953.
M. C. Setalvad, Attorney General of India, Veda Vyas and Jagannath Kaushal, (Naunit Lal, with them),for the appellant.
The respondents did not appear.
September 15.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The appellant was a candidate for election to the Legislative Assembly of the State of PEPSU from the Dhuri Constituency, and having secured the largest number of votes was declared duly elected.
The first respondent who is one of the electors in the Constituency filed the petition out of which the present appeal arises, for setting aside the election on the grounds, inter alia, (1) that the nomination of one Mali Singh had been wrongly rejected by the returning officer, and (2) that the ap pellant was guilty of the corrupt practice of bribery.
The Tribunal held that both these grounds were made out, and accordingly set aside the election.
It further recorded a finding in terms of section 99 (1) (a) of the Representation of the People Act No. XLIII of 1951 that the appellant was proved to have committed the corrupt practice of bribery as mentioned in section 123(1) of the Act.
The Appellant thereupon filed in the High Court of Patiala and East Punjab States 450 Union an application under Article 227 attacking the finding of the Tribunal that he was guilty of bribery.
The order of the Tribunal in so far as it set aside his election was not challenged.
By order dated 12 1 1954 the High Court upheld the findings of the Tribunal, and dismissed the application, and by order dated 7 6 1954 granted a certificate for appeal to this Court under Article 133(1)(c).
That is how the appeal comes before us.
On behalf of the appellant, the learned AttorneyGeneral raised two contentions: (1) The finding that the appellant was guilty of bribery was reached in disregard of the mandatory provisions of section 83, and that it was besides open to other legal objections; and (2) the finding recorded under section 99 of the Act was bad, because no notice was given to the appellant, and no enquiry held as required by the proviso to section 99.
This point was not taken in ' the application under Article 227, and was sought to be raised at the time of the argument in the High Court; but the learned Judges declined to entertain it.
(1) On the first question, the complaint of the appellant is that in the election petition the allegations relating to bribery were vague and wanting in particulars, and that the petition should accordingly have been dismissed under sections 83 and 85 of the Act; that the charge that was sought to be proved at the hearing was at variance with the charge as alleged in the petition, and that the Tribunal had erred in giving a finding of bribery on the basis not of the allegations in the petition but of the evidence adduced at the trial.
The allegations in the petition relating to this charge are as follows: "The sweepers of Small Town Committee, Dhuri were each granted good work allowance at Rs. 5 p.m. for three months only during Election days, simply because they happened to be voters in the said Constituency, vide letter No. ST/1(4)/52/20702 dated 7th December, 1951.
All this was done to induce these sweepers to vote for the respondent No. 1, The allowance was against the Rules", 460 The reply of the appellant to this charge was as follows: "The sweepers of Small Town Committee represented to me in writing that their pays should be increased, and they also quoted the pays that the employees of other Small Town Committees and Municipal Committees were getting.
The representation was forwarded to the Secretariat.
The Secretariat examined it on merits, passed legal orders.
Such concessions were also shown to other employees of the various Small Town Committees and Municipal Committees in Pepsu before and after this case.
This was an official act done in the routine and not to induce the sweepers to vote for respondent No. 1".
On these averments, the following issue was framed: "5.
Whether the sweepers of Small Town Committee, Dhuri, were granted good work allowance at Rs. 5 p.m. for three months only during the election days in order to induce them to vote for the Respondent No. 1?" At the trial, the petitioner examined the Darogba of the Small Town Committee (P.W. 28), and five sweepers, P.Ws. 12, 13, 14, 39 and 40, and their evidence was that sometime in November 1951 the appellant came to Dhuri, enquired about the number of sweepers in the service of the Committee, and offered to raise their pay if they would vote for him, that the sweepers thereupon held a meeting and considered the suggestion of the appellant, and then decided to vote for him, if the pay was increased.
It must be stated that the appellant was then Minister for Health, and was in charge of Local Administration.
On 28 11 1951 he passed an order on a memorial sent by the sweepers that their pay would be increased by Rs. 5 per mensem.
Objection to the order was taken by the Department, and thereupon, the appellant passed the modified order dated 7 12 1951 granting good work allowance for a period of three months from December 1951 to February 1952.
The Tribunal accepted the evidence on the side of the petitioner that the appellant offered to increase the salary of the sweepers in 1951, and held that the order dated 461 7 12 1951, granting good work allowance for the election period was the outcome of the bargain come to in November 1951, and that the charge of bribery had been established.
It is contended for the appellant that in the petition there was no mention of the bargain on which the finding of bribery by the Tribunal was based, that the charge in the petition related only to the order dated 7 12 1951, and that accordingly it was not open to the petitioner to travel beyond the petition and adduce evidence in proof of a bargain which had not been pleaded.
This is to put too technical and narrow a construction on the averments.
The charge in the petition was not merely that the appellant had passed the order dated 7 12 1951 but that he had passed it with a view to induce the sweepers to vote for him.
That clearly raised the question as to the circumstances under which the order came to be passed, whether it was in the course of official routine as the appellant pleaded, or under circumstances which were calculated to influence the voters.
Issue 5 put the matter beyond doubt, when it pointedly raised the question whether the grant was "for three months only during the election days in order to induce them (the sweepers) to vote for the respondent No. I".
Under the circumstances, the complaint that the evidence and the finding as to the bargain went beyond the pleadings and should be ignored appears to be without any substance.
It may be that the allegations in the petition are not as full as they might have been; but if the appellant was really embarrassed by the vagueness of the charge, it was open to him to have called for particulars; but he did not do so.
At the trial, the petitioner first adduced evidence, and his witnesses spoke to the bargain in November, 1951.
It is stated on behalf of the appellant that he objected to the reception of the evidence on the question of bargain, as it was not pleaded.
But this is denied by the petitioner in his affidavit filed in the High Court dated 3 12 1953.
Even apart from this, the witnesses on behalf of the petitioner gave evidence on this point on the 8th and 11th 462 November, 15th and 16th December, 1952, and on the 2nd February, 1953.
Then the appellant entered on his defence.
On 26 2 1951 he examined R.W. 4, a member of the Small Town Committee, to rebut the evidence on the side of the petitioner, and himself went into the box and deposed to the circumstances under which the order came to be passed.
Having regard to the above facts, there is and can be no complaint that the appellant was misled, or was prejudiced by the alleged defect in the pleadings.
The contention that is urged for him is that the petition should have been dismissed under section 83 for want of particulars.
This was rightly rejected by the High Court as without force, and we are in agreement with it.
It is next contended that there is no evidence or finding that the sweepers were entitled to vote in the Constituency, or that the appellant was a candidate as defined in section 79(2) at the time when the bargain was made.
But the allegation in the petition is clear that the order dated 7 12 1951 was made with a view "to induce the sweepers to vote for the appellant".
The reply of the appellant to this was that the order was made in the course of official routine and "not to induce the sweepers to vote" for him.
Far from there being any specific denial that the sweepers were electors, the reply of the appellant proceeds on the basis that they were entitle to vote.
This objection was not raised before the Tribunal, and, as pointed out by the High Court, P.W. 12 does say in his evidence that he is a voter.
This contention must accordingly be overruled.
Nor is there any substance in the contention that there is no proof that the appellant was a candidate at the time of 'the bargain.
this again is an objection which was not taken before the Tribunal, and on the evidence of the witnesses examined on the side of the petitioner which was accepted by the Tribunal, the appellant would be a prospective candidate as defined in section 79(b) of the Act.
The finding that the appellant is guilty of bribery is therefore not open to attack.
(2) It is next contended that the order of the 463 Tribunal in so far as it recorded a finding that the ap pellant had committed the corrupt practice specified in section 123(1) is bad, as no notice was given to him as required by the proviso to section 99 and no opportunity to show cause against it.
Section 99 runs as follows: "99.
(1) At the time of making an order under section 98 the Tribunal shall also make an order(a) whether any charge is made in the petition of any corrupt or illegal practice having been committed at the election, recording (i) a finding whether any corrupt or illegal practice has or has not been proved to have been committed by, or with the connivance of, any candidate or his agent at the election, and the nature of that corrupt or illegal practice; and (ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt or illegal practice and the nature of that practice, together with any such recommendations as the Tribunal may think proper to make for the exemption of any persons from any disq ualifications which they may have incurred in this connection under sections 141 to 143.
Provided that no person shall be named in the order under sub clause (ii) of clause (a) unless(a) he has been given notice to appear before the Tribunal and to show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the Tribunal, and has given evidence against him, of calling evidence in his defence and of being heard The point for decision is whether it was obligatory on the part of the Tribunal to issue notice under the above proviso to parties to the election petition before recording a finding under section 99(1)(a).
The contention of the appellant is that under section 99 (1) (a) the Tribunal has to record the names of all persons 59 464 who are proved to have been guilty of corrupt or illegal practice, that that would include both parties to the petition as well as non parties, that the proviso requires that notice should be given to all persons who are to be named under section 99 (1) (a), subclause (ii), and that the appellant was accordingly entitled to fresh notice under the proviso.
It is argued that if the language of the enactment is interpreted in its literal and grammatical sense, there could be no escape from the conclusion that parties to the petition are also entitled to notice under the proviso.
But it is a rule of interpretation wellestablished that, "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence".
(Maxwell 's Interpretation of Statutes, 10th Edition, page 229).
Reading the proviso along with clause (b) thereto, and construing it in its set ting in the section, we are of opinion that notwithstanding the wideness of the language used, the proviso contemplates notice only to persons who are not parties to the petition.
The object of giving notice to a person under the proviso is obviously to give him an opportunity to be heard before a finding is given under section 99 (1) (a) (i) that he has committed a corrupt or illegal practice.
This clearly appears from clause (b) of the proviso, which enacts that the person to whom notice is to be given should have an opportunity of crossexamining witnesses who had been examined before and given evidence against him, of calling his own evidence and of being heard.
This is in accordance with the rule of natural justice which requires that no one should be condemned without being given an opportunity to be heard.
The reason of the rule, therefore, requires that notice should be given to persons who had had no previous opportunity in respect of the matters mentioned in sub clause (b) to the pro 465 viso.
Such for example would be witnesses, and possibly agents of the parties, as observed in Nyalchand Virchand vs Election Tribunal(1), though it is not necessary to decide that point, but it cannot refer to parties to the petition who have had every opportunity of taking part in the trial and presenting their case.
Where an election petition is founded on a charge of corrupt practice on the part of the candidate, that becomes the subject matter of enquiry in the petition itself.
, If at the trial the Tribunal came to the conelusion that the charge had been proved, then it has to hold under section 100(2) (b) that the election is void, and pass an order to that effect under section 98 (d).
Section 99 (1) enacts that the finding of corrupt practice under section 99 (1) (a) (i) or naming a person under section 99 (1) (a) (ii) should be at the time of making an order under section 98.
If the contention of the appellant is to be accepted, then the result will be that even though there was a full trial of the charges set out in the petition, if the Tribunal is disposed to bold them proved it has first to give notice of the finding which it proposes to give, to the parties, and hold a fresh trial of the very matters that had been already tried.
That is an extraordinary result, for which it is difficult to discover any reason or justification.
It was argued by the learned Attorney "General that the giving to a party to a proceeding a second opportunity to be heard was not unknown to law, and he cited the instance of an accused in a warrant case being given a further opportunity to recall and cross examine prosecution witnesses after charge is framed, and of a civil servant being given an opportunity under Article 311 to show cause against the action proposed to be taken against him.
In a warrant case, the accused is not bound to crossexamine the prosecution witnesses before charge is framed, and in the case of civil servants, the decision that they are entitled to a second opportunity was based on the peculiar language of sections 240(2) and (3) of the Government of India Act, 1935, and Article 311 of the Constitution.
They are (1) [1953] 8 Election Law Reports 417, 421, 466 exceptional cases, and do not furnish any safe or useful guidance in the interpretation of section 99.
The appellant also sought support for his contention that notice should be given under the proviso even to persons who are parties to the election petition, in the provision in section 99 (1) (a) (ii) that the Tribunal might make such recommendations as it thinks proper for exemption of any persons from any disqualifications which may have been incurred under sections 141 to 143.
The argument is that the disqualifications mentioned in section 143 could only be with reference to candidates, as they relate to default in filing return of election expenses or in filing false returns, that before the Tribunal could take action under this provision it would have to give notice to the persons affected thereby who must necessarily be parties to the petition, and that if the proviso applies when action is to be taken under section 143, there is no reason why it should not apply when action is to be taken under the other sections of the Act as well.
The fallacy in this argument is in thinking that notice to a person is requisite for making a recommendation under section 99(1) (a) (ii).
Section 99(1) (a) (ii) deals with two distinct matters naming persons who are proved to have been guilty of corrupt and illegal practices, and recommending whether there should be any exemption in respect of the disqualifications mentioned in sections 141 to 143, and the proviso, properly construed, requires notice only in the former case and not the latter.
It will be noticed that while in cases falling within sections 139 and 140 the disqualification is automatic and immutable, in cases falling within sections 141 to 143 the Election Commission has power to grant exemption under section 144 of the Act.
It is to guide the Commission in exercising its powers under section 144, that the Tribunal is directed in section 99 (1) (a) (ii) to make any recommendations with reference thereto.
The jurisdiction of the Tribunal in respect of this matter is purely advisory.
There is nothing to prevent the Commission from taking up the question of exemption under section 144 suo motu, even though the 467 Tribunal has made no recommendation.
Indeed, there is nothing to prevent the person adversely affected from applying directly to the Commission for exemption.
While, therefore, there is compelling reason why a person should have an opportunity of showing cause before he is named, there is none such when the question is one of recommendation.
As we construe the proviso, it confers no right on any person, party or stranger, to be heard on the question whether he should be recommended for exemption from the disqualifications under sections 141 to 143.
The provision for exemption in section 99 (1) (a) (ii) therefore does not lend any support to the contention of the appellant that notice should be given to parties to the petition under the proviso before they are named.
Reliance was also placed by the appellant on the decision of the Election Tribunal in Kesho Ram vs Hazura Singh(1), wherein it was held by a majority that notice under the proviso to section 99 should be given to the parties to the petition also.
For the reasons given above, we do not agree with the decision of the majority.
Our conclusion is that while the persons to be named under section 99(1)(a)(ii) would include both parties to the petition as well as non parties, the proviso thereto applies only to persons who had no opportunity of taking part in the trial, and that, therefore, whether notice should issue under the proviso will depend on whether the person had an opportunity to cross examine witnesses who had given evidence against him and to adduce his own evidence.
This conclusion is in accord with the law in England.
Under section 140 sub clause (1) of the Representation of the People Act, 1949, an election Court has to state in its report the names of all persons who are found guilty of corrupt and illegal practice but "in the case of some one who is not a party to the petition nor a candidate on behalf of whom the seat or office is claimed by the petition", the court has to issue notice to him, give him an opportunity of being (1) (1953] 8 Election Law Reports 320.
468 heard by himself, and calling evidence in his defence.
It was sugested for the appellant that the law as enacted in section 99 makes a deliberate departure from that under section 140(1) of the English Act.
The difference in the wording between the two sections is due to the difference in the arrangement of the topics of the two statutes, and there is no reason to hold that with reference to the substance of the matter, there was any intention to depart from the English law on the subject; nor is there any reason therefor.
In the present case, the appellant was a party to the petition, and it was his election that was being questioned therein.
He had ample opportunity of being heard, and was, in fact, heard, and therefore there was no need to issue a notice to him under the proviso to section 99 before recording a finding under section 99 (1) (a) (ii).
Further, even if we agree with the contention of the appellant that notice under the proviso should be given to a party to the petition, seeing that the reliefs which could be claimed in the election petition under section 84 are those mentioned in section 98, and that action under section 99 (1) (a) is to be taken at the time when the order under section 98 is pronounced, there is no insuperable difficulty in treating the notice to the party in the election petition as notice for purposes of the proviso to section 99(1) (a) as well.
This reasoning will not apply to persons who are not parties to the petition, and a notice to them will, be necessary under the proviso, before they axe named.
In the result, all the contentions urged in support of the appeal fail, which must accordingly be rejected.
As the respondent has not appeared to contest the appeal, there will be no order as to costs.

summary/full:
Where the respondent in an election petition contended that the allegations in the election petition were vague and wanting in particulars, but did not call for any particulars which it was open to him to do and was not found to have been misled or in any way prejudiced in his defence, it was not open to him to contend that the petition was liable to be dismissed for non compliance with the provisions of section 83 of the Act.
Clauses (a) and (b) of the proviso to section 99 of the Representation of the People Act read together leave no scope for doubt that clause (a) contemplates notice only to such persons as were not parties to the election petition and it is, therefore, not obligatory on the Tribunal under cl.
(a) to issue notices on such persons as were parties in order that it may name them for disqualification under sub clause (ii) of section 99(1)(a) of the Act.
Clause (b) to the proviso obviously has the effect of excluding such persons as have already had the opportunity of cross examining witnesses, calling evidence and of being heard, which the clause seeks to afford.
The Indian and the English Law on the matter are substantially the same.
Kesho Ram vs Hazura Singh, [1953] 8 Election Law Reports 320, overruled.
The jurisdiction that sub clause (ii) of section 99(1)(a) of the Act confers on the Tribunal for making recommendation for exemption 458 from disqualifications mentioned in sections 141 to 143 is purely advisory.
Where it omits to do so, aggrieved parties have access to the Election Commission which under section 144 has the power to act suo motu.
No person, be he a party or a stranger, has a right to be heard by the Tribunal on the question of such exemption and, therefore, no question of any service of notice under the proviso in this regard can arise.
Even supposing that the proviso requires notice on a party to the election petition, the notice to him of the election petition itself can be treated as a notice under the proviso.


judgement:
Civil Appeals Nos. 1848 and 1849 of 1974.
Appeals by Special Leave from the Judgment and Orders dated the 27 11 1973 & 23 5 74 of the Delhi High Court in L.P.A. No. 172/73 and Civil Writ No. 237 of 1974 respectively.
Hardyal Hardy, section K. Mehta, K. R. Nagaraja and P. N. Puri for the Appellants.
1062 Mrs. Shyamla Pappu and Girish Chandra for Respondents 1 3.
R. N. Sachthey for Respondents 4 5.
The Judgment of the Court was delivered by SARKARIA, J.
This judgment will govern the disposal of these two appeals which arise out of a common judgment of the High Court of Delhi dismissing the writ petitions filed by the appellants and others, under Article 226 of the Constitution.
On November 27, 1972, the Administrator of Delhi, made an order under section 5 of the Indian Telegraphs Act.
1885 (for short, the Act) authorising the Superintendent of Police, North District, to take temporary possession "until further orders" of certain specified telephones installed in rooms and cabins of the building known as Coronation Hotel, Fatehpuri, Delhi.
The order reads as under: "Whereas the Administrator of Delhi is satisfied that illegal forward trading (satta) in agricultural commodities is being practised on a large scale through the following telephones installed in the rooms/cabins in the premises of the Coronation Hotel, Fatehpuri, Delhi, thereby affecting adversely the price of the supply essential to the life of the community.
Whereas public emergency exists and the Administrator, Delhi is satisfied that the continuation of satta at the aforesaid premises through the telephones given above is prejudicial to public interest and as such it is necessary to take temporary possession of all the aforesaid telephones from the premises in question." Another order in similar terms was made on December 4, 1972 by the Administrator for taking over certain other telephones.
Four subscribers, who were affected by these orders challenged their validity by writ petitions in the High Court.
A Bench of the High Court allowed those petitions and quashed the orders in question on the ground that resort cannot be had to section 5(1) of the Act for taking temporary possession of the subscribers ' telephones.
The General Manager, Telephones, Delhi also, made orders on November 28, 1972 and December 5, 1972, purporting to act under Rule 422 of the Indian Telegraphs Rules, 1951, (for short, the Rules) for disconnecting the telephones and non exchange lines.
One of those orders, dated November 28, 1972, may be extracted as a specimen: "The Delhi Administration has certified vide order No. F5/20/72/C HG dated 27 11 1972 that public emergency exists and that continuation of "satta ' at the premises of Coronation Hotel Fatehpuri through the telephones is pre judicial to public interest.
1063 The undersigned in exercise of the powers conferred under rule 422 of Indian Telegraphs Rules, 1951 hereby orders to disconnect the telephones and Non exchange Lines mentioned in the list supplied by Delhi Administration (copy attached).
" Thereupon the appellants filed C.W. 470 of 1973 in the High Court praying for a writ to quash these orders of the General Manager and for restoration of their telephone connections.
This writ petition was heard by a learned Single Judge of the High Court who allowed the same and quashed the impugned orders and further directed that the telephones be restored to the appellants.
Aggrieved, the Union of India and other respondents carried a special appeal to the appellate Bench of the High Court.
Before the appellate Bench it was contended that the impugned action was bad because: (a) no prior notice in regard to the same was given to the appellants; (b) the Divisional Engineer did not apply his mind and record his own satisfaction about the existence of any emergency and as such there was a contravention of Rules 421 and 422 which had to be read together; (c) the reason given in the impugned order, to the effect, that the appellants were making illegal and improper use of their telephones inasmuch as they were transmitting messages and information in regard to satta business which had been banned, was irrelevant and extraneous to Rule 422 under which the impugned action has been purportedly taken; (d) the emergency contemplated by Rule 422 is not the same as a 'public emergency ' declared under s.5, but is an emergency arising out of the breakdown of the telecommunications due to a technical defect, labour trouble, vis major, fire or the like, the existence of which was to be established to the satisfaction of the Divisional Engineer and not any extraneous authority.
Stress was laid, in this connection, on the fact that the word "emergency" in Rule 422 is not qualified by the prefix "public", instead, the words used are "any emergency".
The High Court negatived these contentions.
In its opinion, the requirement of notice could be dispensed with under r. 422 if the General Manager, Telephones, was satisfied that the telephones were being used by the subscribers for illegal forward trading and that such use was contrary to public interest in view of the existence of "economic" emergency.
It further held that the words "any emergency" in Rule 422 include an 'economic emergency ', and on the basis of the certificate in regard to the existence of an "economic emergency" issued under section 5, by the Delhi Administration.
The Divisional Manager was competent in exercise of his powers under Rule 422 to pass the impugned orders.
In the result, it set aside the decision of the learned Single Judge and dismissed the writ petition with the observation that "the telephone authorities should treat these disconnections as temporary and allow the petitioners to get back their connections, if the General Manager is satisfied that the emergency caused by the shortage in supply of the commodities on which the forward trading was banned, was over".
1064 Hence these appeals.
The contentions canvassed before the High Court have been repeated before us.
Before dealing with the same, it will be worthwhile to have a look at the relevant statutory provisions.
Section 5 of the Act provides: "(1) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do, take temporary possession (for so long as the public emergency exists or the interest of the public safety requires the taking of such action) of any telegraph established, maintained or worked by any person licensed under this Act.
(2) On the occurrence of any public emergency or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub section.
" The material rules are these: "421.
Disconnection of telephones.
Where the Divisional Engineer is satisfied for reasons to be recorded in writing that it is necessary to do so, he may, after giving the subscriber a notice in writing for a period which shall not except in emergent cases be less than 7 days, disconnect the telephone, and in such case, the subscriber shall be entitled to refund of rent for the unexpired portion of the period for which the connection or service was given.
1065 422.
Right of disconnection in emergency.
The Divisional Engineer may, in the event of any emergency, disconnect any subscriber, with or without notice.
In case such disconnection exceeds a period of seven days, the subscriber shall be entitled to proportionate refund of rent.
Illegal or improper use of telephones.
A subscriber shall be personally responsible for the use of his telephone.
No telephone shall be used to disturb or irritate any person or for the transmission of any message or communication which is of an indecent or obscene nature or is calculated to annoy any person or to disrupt the maintenance of public order in any other manner contrary to any provision of law." Section 5(1), if properly construed, does not confer unguided and unbridled power on the Central Government/State Government/Specially Authorised Officer to take possession of any telegraph.
Firstly, the occurrence of a 'public emergency ' is the sine qua non for the exercise of power under this section.
As a preliminary step to the exercise of further jurisdiction under this section the Government or the authority concerned must record its satisfaction as to the existence of such an emergency.
Further, the existence of the emergency which is a pre requisite for the exercise of power under this section, must be a 'public emergency ' and not any other kind of emergency.
The expression 'public emergency ' has not been defined in the statute, but contours broadly delineating its scope and features are discernible from the section which has to read as a whole.
In sub section (1) the phrase 'occurrence of any public emergency ' is connected with and is immediately followed by the phrase "or in the interests of the public safety".
These two phrases appear to take colour from each other.
In the first part of sub section
(2) these two phrases again occur in association with each other, and the context further clarifies, with amplification, that a 'public emergency ' within the contemplation of this section is one which raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or the prevention of incitement to the commission of an offence.
It is in the context of these matters that the appropriate authority has to form an opinion with regard to the occurrence of a 'public emergency ' with a view to taking further action under this section.
Economic emergency is not one of those matters expressly mentioned in the statute.
Mere 'economic emergency ' as the High Court calls it may not necessarily amount to a 'public emergency ' and justify action under this section unless it raises problems relating to the matters indicated in the section.
Rules 421 and 422 occur in serial order in a section of Part V under the group caption, "Telephone connections and other services".
Rule 421 requires the Divisional Engineer to record his satisfaction, supported by reasons, for the proposed disconnection of the telephone.
It further requires that authority to give a notice in writing to the subscriber.
Such notice shall ordinarily be of not less than seven 1066 days.
In emergent cases, the period of this notice can be less than seven days.
But even in emergent cases under this Rule, the notice cannot be dispensed with altogether.
Rule 422 empowers the Divisional Engineer to disconnect any subscriber 'in the event of any emergency ' with or without notice.
The existence of "any emergency" to the satisfaction of the Divisional Engineer, appears to be a necessary pre requisite to the exercise of the power under this rule.
It is significant that while section 5 speaks of the occurrence of a 'public emergency ', satisfaction with regard to the existence of which is to be recorded by the appropriate authority mentioned in that section, Rule 422 purports to empower the Divisional Engineer to take action thereunder in the event of "any emergency".
The scope of the words "any emergency" in Rule 422 is apparently wider than the expression "public emergency" used in section 5.
It follows that the satisfaction is regard to the existence of "any emergency" under Rule 422 is to be of the Divisional Engineer.
He has to arrive at such satisfaction rationally on relevant material which may include any certificate or report of the appropriate Government as to the occurrence of a 'public emergency '.
The requirement of recording such satisfaction by the Divisional Engineer, with reasons therefor, is implicit in the Rule.
That will be a minimal safeguard against arbitrary exercise of this drastic power.
In this connection, it will not be out of place to mention here, that sub section (2) of section 5 which made the Certificate of the Central/State Government conclusive proof as to the existence of a 'public emergency ', stood deleted and replaced by a different provision, at the time when the impugned action was taken in this case.
That is an additional reason for holding that it was the Divisional Engineer who had to form his own opinion as to the existence of an emergency, before taking action under r. 422.
Having heard the Counsel on both sides, we are of opinion, that the impugned Order suffers at least from one apparent defect of jurisdiction.
Assuming that the General Manager was competent to make an order under Rule 422, the power has been exercised mainly on a ground which is not a relevant consideration under this Rule.
This ground as recited in the Delhi Administration Notification of December 4, 1972 and reproduced in the impugned order of the General Manager, Telephones, is that illegal forward trading (satta) in agricultural commodities is being practised in a large scale through the telephones in question at the premises of Coronation Hotel, Fatehpuri.
In other words, the impugned action has been taken chiefly on the ground that the appellants have been making improper or illegal use of these telephones.
This being the position, the appropriate course to be followed was that laid down in Rule 427 read with Rules 416 and 421.
But this was not done.
It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performances are necessarily forbidden.
It is all the more necessary to observe this rule 1067 where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice.
Now, in the present case, if the telephones of the appellants were to be disconnected on the ground of misuse, then they had to give, in consonance with the principles of natural justice, opportunity to the appellants to explain their conduct before taking action under Rule 427 read with Rules 416 and 421.
Resort to the wrong and more drastic course provided in Rule 422, on a ground which was not germane to an action under that Rule, vitiates the impugned order, particularly when it is manifest that in making the impugned order, the General Manager was influenced more by this ground and less, if at all, by the existence of 'public emergency ' certified by the Delhi Administration.
For the foregoing reasons we accept these appeals, allow the writ petitions, quash the impugned orders and direct the respondents to restore the telephone connections to each of these appellants.
However in the circumstances of the cases we make no order as to costs.
S.R. Appeals allowed.

summary/full:
The appellants ' telephones were disconnected and taken temporary possession of by the Superintendent of Police, North District and the General Manager, Telephones respectively on various dates acting under the instructions of the Administrator, Delhi, who was personally satisfied that illegal forward trading (satta) in agricultural commodities was being practised on a large scale by them through their telephones.
The Orders were purportedly made under section 5(1) of the Indian Telegraphs Act, 1895, and Rule 422 of the Indian Telegraphs Rules, 1951.
These orders were assailed by the appellants by a writ petition under article 226 of the Constitution which was allowed by a single Judge of the High Court, resulting in a special appeal by the Union of India, which was accepted.
Negativing the contention of the appellants/respondents viz.; that the impugned action of disconnection and temporary taking over of the telephones was bad because: (a) No statutory notice was ever given as required under Rules 421 and 422.
(b) The Divisional Engineer did not apply his mind and record his own satisfaction about the existence of "any emergency" and as such there was a contravention of Rules 421 and 422 which had to be read together.
(c) The reason given in the order to the effect that the appellants were making illegal and improper use of the telephones by transmitting messages and information in regard to Satta business which had been banned, was irrelevant and extraneous to Rule 422.
(d) The emergency contemplated by Rule 422 is not the same as "public emergency" declared under section 5, but "any emergency", the existence of which was to be established to the satisfaction of the Divisional Engineer and not any extraneous authority, the appellate Bench of the High Court held, (i) that, the requirement of notice could be dispensed with under Rule 422 by the General Manager Telephones, if he was satisfied that the telephones were being used by the subscribers for illegal forward trading (ii) that, such use was contrary to public interest in view of the existence of "economic" emergency (iii) that the words " any emergency" in Rule 422 includes an "economic emergency" and (iv) that, on the basis of the certificate in regard to the existence of an 'economic emergency" the Divisional Manager was competent to pass the impugned order in exercise of his powers under Rule 422.
While allowing the appeals by special leave the Court, ^ HELD : (1) section 5(1) of the Indian Telegraphs Act, 1895, if properly construed does not confer unguided and unbridled power on the Central Government/State Government/Specially Authorised Officer to take possession of any telegraph.
[1065 C] 1061 (2) Conditions pre requisite for the exercise of power under this section and Rule 422 are: (a) the occurrence of a "public emergency" not any other kind of emergency.
(b) recording of its satisfaction as to the existence of such an emergency by the Government or the Authority concerned on grounds germane to an action under the rule [1065 C D] (3) The expression "public emergency" has not been defined in the statute.
Read as a whole, s.5, with the two phrases in sub section (i) viz. "occurrence of any public emergency" and "or in the interest of public safety", clarifies that a "public emergency", within the contemplation of that section, is one which raises problems concerning the interest of public safety", the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order, or the prevention of incitement to the commission of an offence.
It is in the context of these matters that the appropriate authority has to form an opinion with regard to the occurrence of a "public emergency" with a view to taking further action under section 5.
[1065 D F] (4) "Economic Emergency" is not one of these matters expressly mentioned in the statute.
Mere "economic emergency" may not necessarily amount to a "public emergency" and justify action under section 5 unless it raises problems relating to the matters indicated therein.
[1065 F G] (5) Notice under Rule 421 cannot be dispensed with.
The scope of the words "any emergency" in Rule 422 is wider than the expression "public emergency" under section 5.
The subjective satisfaction as to the existence of "any emergency" under Rule 422 is that of the Divisional Engineer, on a rational basis on relevant material which may include any certificate or report of the appropriate Government as to the occurrence of a "public emergency".
The requirement of recording such satisfaction by the Divisional Engineer with reasons therefor, is implicit in the Rule.
That will be a minimal safeguard against arbitrary exercise of the drastic power.
[1066 A, C D] (6) The ground for disconnection and taking over temporary possession of the telephones viz., 'that illegal forward trading (satta) in agricultural commodities is being practised" amounts to "improper or illegal use of telegraphs and is not a relevant consideration under Rule 422.
The appropriate course to be followed was that laid down in R. 427 read with Rr. 416 and 421, after giving an opportunity to explain their conduct, in consonance with the principles of natural justice.
[1066 F G] (6) It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and other modes of performance are necessarily forbidden.
It is all the more necessary to observe this rule where the power is of a drastic nature and, its exercise in a mode other than the one provided, will be violative of the fundamental principle of natural justice.
Resort to the wrong and more drastic course provided in rule 422, on a ground which was not germane to an action under that rule violates the impugned order, particularly when it is manifest, in the instant case that the authority was influenced more by this ground and less, if at all, by the existence of "public emergency" certified by the State [1066 H, 1067 A B]


judgement:
Civil Appeal No. 824 of 1968.
Appeal by Special Leave from the Judgment and order dated the 23 8 1967 of the Allahabad High Court in Civil Misc.
(Review) application No. 32 of 1966 (in S.A. 4357/65).
J. P. Goyal for the Appellant.
V. section Desai and V. N. Ganpule for Respondent No. 1.
The Judgment of the Court was delivered by SARKARIA, J.
The following pedigree table illustrates the relationship of the parties: Hira Lal=Smt.
Naraini Devi (plaintiff).
(died in 1925).
Kapoor Chand Nemi Chand Chandra Bhan (died in 1954) (Judgment debtor) (died in 1930) =Smt.
Ramo Devi, (extinct) (Respondent 1) Decree holder.
5 L390 SCI/76 56 Smt.
Ramo Devi, widow of Kapur Chand (shown in the above pedigree table) obtained a money decree against her husband 's brother Nemi Chand.
In execution of her decree she got attached one half share in the double storeyed House No. 4416, situated at Agra representing it to be of the judgment debtor.
Naraini Devi, widow of Hira Lal, filed an objection petition under 0.21, r. 58, Code of Civil Procedure against that attachment claiming the house to be her property.
That objection was dismissed by the executing court on the 16th July, 1962.
Thereafter, she filed a suit under 0.21, r. 63, Code 11 of Civil Procedure to establish her claim.
The suit was decreed by the trial court.
On appeal, the District Judge reversed the judgment t and dismissed the suit.
Naraini Devi 's second appeal was summarily dismissed by the High Court.
She filed a review petition which was rejected by the High Court on August 23, 1967.
Hence, this appeal by special leave.
i It is common ground between the parties that under a registered J award dated January 4, 1946, the plaintiff Smt.
Naraini Devi was given a life interest in the house in dispute.
The appellant 's contention is that her limited interest in the house was enlarged into that of a full owner by the operation of sub section
(1) of section 14 of the Hindu Succession Act.
As against this, the respondents maintain that her case falls under sub section
(2) of section 14.
The question thus turns on a construction of the award exhibit 2.
We have examined an English rendering of this document filed by the appellant, the correctness of which is not disputed` by the respondent.
This award states in clear, unmistakable terms that she, Naraini Devi would be entitled to the rent of this house in lieu of maintenance for her life time, and after her death, her sons, Kapoor Chand and Nemi Chand will be owners of half share each of this house.
This award further partitions this house between Kapoor Chand and Nemi Chand and allots specific portions thereof to the two brothers.
A part of this house was in the occupation of a tenant at Rs. 32/ per month.
Naraini Devi was given a right to get that rent.
A part of it was in the personal occupation of Kapoor Chand.
The award protects and assures his right of remaining in possession of the same.
A reading of this document as a whole, leaves little doubt that the only interest, in this house created in favour of the widow was that she would be entitled to its rent and no more for her life time.
Thus the award confers on her only a restricted estate in the house within the meaning of sub section
(2) of section 14 which says: "Nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restrict ed estate in such property." Mr. Goyal however, submits that her case would fall within this Court 's ruling in Badri Prasad vs Smt.
Kanan Devi(1) according to (1) ; 57 which, if the widow has a pre existing right in the property, then the A case will fall under sub section
(1), and sub section (2) which is in the nature of a proviso to sub section (1) of section 14 will not be attracted.
The rule in Badri Prasad 's case (supra) is not applicable here.
Ill that case the widow had acquired a share in the property by virtue of the Hindu Women 's Right to Property Act, 1937, on the death of her husband, which took place after the coming into operation of that Act.
In the present case, Smt.
Naraini Devi 's husband died in 1925.
In the presence of her sons, the widow did not get any share or interest in the house left by her husband under the Hindu Law as then applicable.
In short, she had no pre existing right or interest in the house in question.
It was the award dated January 4, 1946, that created a restricted estate for her in the house in question.
Her case thus falls; squarely within the ambit of sub section
(2) of section 14 of the Hindu Succession Act.
Her interest therefore, came to an end on her death which took place during the pendency of these proceedings.
For reasons aforesaid the appeal fails and is dismissed with no order as to costs.

summary/full:
'N ' a widow of 'H ', who, under the Hindu law then applicable and in the presence of her three sons did not get any share or interest in the house left by her late husband and therefore got a life interest by virtue of a registered award filed 3 suit under order 21 Rule 63 C.P.C. to establish her claim to the property that had been attached in execution of the decree against her second son obtained by her eldest daughter in law. 'N 's suit was decreed by the trial Court.
The first appellate court reversed that decree.
The second appeal and he review in the High Court failed.
On appeal by special leave, rejecting the contention that "the appellants limited interest was enlarged into that of a full owner by the operation of sub sec.
(I) of Section 14 of the Hindu Succession Act, the Court ^ HELD: (I) A reading of the award as a whole, leaves little doubt, that the only interest in the house created in favour of the widow was that she would be entitled to its rent, and no more for her life time.
[56 F] (2) In the present case, the appellant did not get any share or interest in the house left by her husband under the Hindu Law as then applicable.
She had no pre existing right or interest in the property.
[57 B] (3) The award created a restricted estate for her in the house, and [57 B] (4) The ease fell squarely within the ambit of sub section (2) of section 14 of the Hindu Succession Act and her interest came to an end on her death.
[57 C] Badri Prasad vs Smt.
Kanan Devi ; , not applicable.