judgement:
l Appeals Nos.
51 and 52/61 Appeals from the judgment and decree dated September 23, 1959, of the Allahabad High Court (Lucknow Bench) at Lucknow in C. M. Applications Nos. 15 (O.J.) and 16 (O.J.) of 1957 respectively.
C. B. Agarwala and C. P. Lal, for the Appellants (in both the appeals).
A. V. Viswanatha Sastri, and K. L. Arora, for Respondent No. 1 (in both the appeals).
February 7.
The Judgment of the Court was delivered by SARKAR, J.
These two appeals have been heard together.
The, appellants in each case are the State of Uttar Pradesh, for short called U. P. and some of its officers and the respondents in one appeal are Lakshmi Ice Factory and certain of its workers and in the other the Prakash Ice Factory and certain of its workers.
These appeals involve a question of construction of certain provisions of the U. P. , hereafter referred to as the Act.
By a Notification issued on February 10, 1956, the Government of U. P. referred certain disputes which had cropped up between each of the Ice Factories and its respective workmen, to an Industrial Tribunal for adjudication.
The details of these disputes are not material for these appeals.
The Tribunal heard the matters but failed to pronounce its award in open court.
Instead, on November 8, 1956, the Registrar of the Tribunal informed the Ice Factories that the award of the Tribunal had been submitted to the Government.
On December, 15, 1956, the award was published in the U. P. Gazette and it appeared from this publication that the award was dated November 8, 1956.
On December 26, 1956, the Regional Conciliation Offi cer appointed under the Act " called upon the Ice 61 Factories to implement the award immediately.
Thereupon the Tee Factories moved the High Court at Allahabad on January 3, 1957 under article 226 of the Constitution for writs quashing the award and prohibiting the Government and the workmen from taking steps to implement it.
They contended that the award sought to be enforced was a nullity as it had not been pronounced in open court as required by certain rules to which reference will presently be made.
By a judgment passed on September 23, 1959, the High Court allowed the petitions of the Ice Factories and issued writs quashing the Notification publishing the award.
The appeals are against this judgment of the High Court.
Section 3 of the Act gives the Government power in certain circumstances to make provisions by general, or special order (1) for appointing Industrial courts, (2) for referring any industrial dispute for adjudication in the manner provided in the order and (3) for matters incidental or supplementary to the other provisions of the order.
Under this power the Government had issued an Order dated July 14, 1954 and this Order is hereafter called the "Statutory Order.
" It was under powers conferred by the Act read with the Statutory Order that the Government had issued the Notification of February 10, 1956.
In exercise of powers conferred by el. 8 of the Statutory Order the Government had set up the Tribunal.
Clause 9 of the Statutory Order provides for the procedure to be followed by the Tribunal.
Sub clause (7) of this clause is in these terms: "The decision of the Tribunal shall be in writing and shall be pronounced in open court and dated and signed by the member or members of the Tribunal, as the case may be, at the time of pronouncing it.
" Clause 11 of the Statutory Order gives power to Government to refer any industrial dispute to the Tribunal.
Sub clause (9) of el. 9 of the Statutory Order 62 gives power to the Tribunal to make Standing Orders relating to its practice and procedure.
Under this sub clause the Tribunal framed certain Standing Orders.
Standing Order No. 36 provided.
"Judgment shall be pronounced in open court either immediately after the close of the arguments or on a subsequent date of which previous notice shall be given to the parties.
It shall then be signed and dated by the Tribunal.
" Acting presumably under Standing Order No. 36, the Tribunal in the present case bad fixed a date on which it would pronounce its judgment in open court.
This date does not appear on the record but on September 25, 1956, the Tribunal informed the parties that the date for pronouncing the award had been changed to October 9, 1956.
On that date, however, the award was not pronounced in open court, nor was any intimation of any other date for its pronouncement given to the parties.
The lee Factories first came to know of the making of the award from the letter of the Registrar of the Tribunal dated November 8, 1956 earlier referred to.
The award had in fact never been pronounced in open court.
The first question is whether the provisions in sub el.
(7) of el. 9 are imperative.
The High Court held that they were and thereupon quashed the Notification publishing the award.
The appellants contend that the High Court was in error and that the provisions are only directory and that the failure of the Tribunal to pronounce the award in open Court did not result in the award becoming void.
The Ice Factories contend for the contract view.
Mr. Aggarwala for the appellants referred us to the rule of construction stated in Maxwell on Interpretation of Statutes, 10th ed.
at p. 381, which is as follows : ",Where the prescriptions of a statute relate to the performance of a public duty and 63 where the invalidation of acts done in neglect of them, would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words as 'directory only".
Ho said that sub el.
(7) of cl. 9 of the Statutory Order imposed a public duty on the Tribunal and as none of the contesting parties to the proceedings before the Tribunal had any control over it, the provision in the Statutory Order as to how the Tribunal is to discharge its duty must be regarded as merely directory and therefore a disregard of that provision by the Tribunal would not render the thing done by it a nullity.
It seems to us that the rule read from Maxwell is not applicable to this case.
It applies only when to hold the prescriptions in a statute as to the performance of a public duty to be imperative would work injustice and hardship without serving the object of the statute.
None of these conditions are present ill the statute now before us.
The rule may be illustrated by reference to the case of Montreal Street Railway Co. vs Normandin(1) which is cited in Maxwell 's book.
That was a case in which certain Statutory provisions as to how the jury list was to be revised had not been followed and the question arose whether the verdict of a jury empannelled out of a list revised in disregard of the provision was a nullity.
It was hold that the verdict was not a nullity as the provision regarding the revision of the jury list was merely directory.
It was further held that the object of the provision was to distribute the burden of jury equally between all liable to it, to secure effective jurors likely to attend and lastly to prevent packing of the jury.
It was said that "It does far less harm to allow cases tried by a jury formed as this one was (1) ; 64 with the opportunities there would be object to any unqualified man called into the box, to stand good, than to hold the proceedings null and void.
So to hold would not, of course, prevent, the courts granting new trials in cases where there was reason think that a fair trial had not been had": P. 176).
The case in hand is wholly different.
The proceedings that were had before the Tribunal would not become null and void if we hold el.
9(7) of the Statutory Order to be imperative,.
A view that the provision was imperative would cause no serious hardship to any one.
The Government can always require the Tribunal to pronounce, its decision in open court extending, if necessary for the purpose.
he time fixed for giving its decision.
Either party of the proceeding can also ask the Government to call upon the Tribunal to pronounce its award in open court.
There is no doubt that the Government will go call upon the Tribunal when the defect s brought to its 'notice for the Government itself referred the matter to the Tribunal for if decision.
As soon as the Tribunal pronounces it,; award in open court, the proceedings will become fully effective.
It is also an accepted rule of construction that enactments regulating the procedure in courts are usually imperative : Maxwell on Interpretation of statues 10th ed.
p. 379.
It further appears to us that the object of the legislature would be defeated by reading cl.
9(7) of the Statutory Order as containing a provision which is merely director vs We now proceed to ascertain that object from the, other provisions in the Statutory Order, the Act and connected legislation.
Section 6 of the IT.
P. Act provides as follows : (1) When an authority to which an industrial dispute has been referred for 65 adjudication has completed it,% enquiry, it shall, within such time as may be ,specified, submit its award to the State Government.
(2) The State Government may. enforce for such period as it may specify all or any of the decisions in the award.
It was under this section that the Tribunal submitted it,% award to the Government and the Government issued the Notification in the Gazette dated December 15, 1956 earlier mentioned and directed that the award be enforced for a period of one year from the date of the publication.
Since the award has to be submitted to the Government by the Tribunal under section 6 of the Act, the award has to be in writing, for a verbal award cannot obviously be submitted to the Government.
It would therefore appear that the provision in sub cle.
(7) of el. 9 of the Statutory Order that the decision of the Tribunal shall be in writing is imperative, This would be an indication that the other provisions in the same sub clause connected with it were intended to be equally imperative.
Then we find that el.
18 of the Statutory Order is in these terms : "The Tribunal or the adjudicator shall hear the dispute and give its or his decision within 180 days (excluding holidays but Dot annual vacations observed by courts subordinate to the High Court) from the date of reference made to it or him by the State Government and shall thereafter as soon as possible, supply a copy of the same to the parties to the dispute. . .
Provided that the State Government may extend the said period from time to time.
" It seems to us that the provision in this clause in clearly mandatory.
The Tribunal has no power to make an award after the time mentioned in it; if it had, the proviso to el.
18 would be wholly unnecessary.
The result therefore is that it is 66 obligatory on the Tribunal to give its decision within 180 days from the date of the reference.
A decision given, that is an award made, beyond this period would be a nullity.
Now when cl. 18 talks of giving a decision, it can only mean giving it in the manner indicated in sub cl, (7) of cl. 9 of the Statutory Order, that is, by pronouncing it in open court, for that is the only manner of giving a decision which that order contemplates.
It would follow that the terms of cl.
9(7) were imperative, for otherwise no one would know whether the terms of el. 18 of the Statutory Order had been complied with, that is to say, no one would know whether the award was void or not.
The provisions of cl.
IS may thus be rendered nugatory by holding el.
9(7) to be only directory.
It would follow that unless the provision as to the pronouncement of the award in open court was mandatory, the intention of the framers of the Statutory Order would be defeated.
Sub clause (2) of cl. 24 of the Statutory Order also leads to the same conclusion.
That sub clause is in these terms : "Clerical or arithmetical mistakes in decisions or awards, or errors arising therein from any accidental slip or omis sion may, within one month of giving the decision or award be corrected by the Tribunal or the adjudicator, either of its or his own motion or on the application of any of the parties.
" Under this rule therefore clerical or arithmetical errors or slips may be corrected within one month of the giving of the decision and the parties have the right to apply for such corrections within that time.
The Tribunal has no right to correct an error beyond that time.
Nor has a party a right to move the Tribunal for making any such corrections after the time has expired.
In order that the intention of cl. 24 (2) may be, given effect to, it is necessary that the date of the 67 giving of the decision should be known.
It cannot promptly be known to the parties unless the award is pronounced in open court.
If any other Manner of the giving of the decision was permissible as would be the result if it was not obligatory to pronounce the decision in open court, then a party may be deprived of its right under cl. 24 to move the Tribunal for correction of errors.
It is for this reason that cl.
9(7) provides that the decision shall be dated and signed at the time of pronouncing it in open court.
This signing and dating of the award after its pronouncement in open court makes it possible to see whether the terms of cls.
18 and 24 (2) have been complied with in any case.
The third thing which to our mind indicates that pronouncement in open court is essential is cl. 31 of the Statutory Order.
That clause is in these terms : "Except as provided in this Order and in the Industrial Disputes (Appellate Tribunal) Act, 1950, every order made or direction issued under the provisions of this Order shall be final and conclusive and shall not be questioned by any party thereto in any proceedings.
" The Industrial Disputes (Appellate Tribunal) Act, 1950 provides for appeals from decisions of certain Industrial Tribunals to the Appellate Tribunal established under it.
Clause 31 therefore makes a decision of the Tribunal on a reference to it final subject to an appeal if any allowed under the Industrial Disputes (Appellate Tribunal) Act, 1950.
Under a. 7 of the Act of 1950, an appeal shall lie to the Appellate Tribunal from any award or decision of an Industrial Tribunal concerning certain specified matters.
Now an Industrial Tribunal mentioned in section 7 includes a Tribunal set up under a State law which law does not provide for an appeal : see a. 2(o)(iii) of the Act of 1950.
The U. P. Act does not provide for any appeal expressly but cl. 31 of the Statutory Order makes a decision of the Tribunal final subject to 68 the provisions of the Act of 1950.
It would therefore appear that an appeal would lie under the Act of 1950 to the Appellate Tribunal constituted under it from a decision of a Tribunal set up under the Statutory Order.
Now under a. 10 of the Act of 1950, an appeal is competent if preferred within thirty days from the date of the publication of the award where such publication is provided for by the law under which the award is made, or from the date of the making of the award where there is no provision for such publication.
Now the U.P. Act or the Statutory Order does not provide for any publication of an award.
Therefore an appeal from the Tribunal set up under the Statutory Order has to be filed within thirty days from the making of the award.
Hence again it is essential that the date of the making of the award shall be known to the parties to enable them to avail themselves of the right of appeal.
This cannot be known unless the judgment is pronounced in open court for the date of award is the date of its pronouncement.
Hence again pronouncement of the judgment in open court is essential.
If it were not so, the provisions for appeal might be rendered ineffective.
For all these reasons it seems to us that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and judgments not so pronounced would therefore be a nullity.
In the view that we have taken it is unnecessary to deal separately with Standing Order No. 36.
The provisions of that Standing Order and cl.
9(7) of the Statutory Order are substantially the same.
They should therefore be interpreted in the same way.
In any case since we have held the el.
9(7) of the Statutory Order to be imperative.
it would not matter whatever view is taken of the Standing Order for the latter cannot affect the former.
69 Mr. Aggarwala then argued that cl.
9(7) of the Statutory Order and Standing Order No. 36 were ultra vires as being in conflict with the Act under which they had been framed.
His contention was this : Under section 6 of the Act all that the Tribunal has to do is to submit its award to the Government after the conclusion of the enquiry before it.
The section does not require the Tribunal to pronounce its decision in open court.
The provisions in the Statutory Order and the Standing Order both of which were made under powers contained in the Act, were therefore in conflict with section 6 and of no effect.
Hence he contended that the question whether the provisions of cl.
9(7) of the Statutory Order or of the Standing Order No. 36 were imperative did not really arise.
It seems to us that this contention of Mr. Aggarwala is without any foundation.
Section 6 when it requires that the Tribunal shall submit its award to the Government necessarily contemplates the making of the award.
Neither section 6 nor any other provision in the Act provides how the award is to be made.
Under section 3(g) however the Government has power by general or special.
order to provide for incidental or supplementary matters necessary for the decision of an industrial dispute referred for adjudication under any order made tinder section 3. 'rho provision as to the pronouncement of the decision in open court in (19(7) of the Statutory Order clearly is within the power,; contemplated in section 3(g).
Section 6 does not prohibit the making of such a provision.
Its main purpose is to direct that the Tribunal shall submit the award to the Government so that it may be enforced.
It has nothing to do with the manner in which the 'Tribunal is to make 70 its award.
A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with section 6.
The result is that these appeals fail and are dismissed with costs.
Appeals dismissed.

summary/full:
The Government of Uttar Pradesh under section 3 of the U.P. , and the Statutory orders framed thereunder referred certain.
disputes between the respondent Ice Factories and the respective workmen to an Industrial Tribunal.
The Tribunal heard the matters but failed to pronounce its award in open court, as required under the clause 9 (7) of the Statutory Orders.
Instead the Registrar of the Tribunal informed the Ice Factories that the award of the Tribunal had been submitted to the Government.
The award was published in the U.P. Gazette and the Regional Conciliation officer called upon the Ice Factories to implement the award immediately.
The Ice Factories moved the High Court at Allahabad alleging that the award was a nullity as it had not been pronounced in open court as required under the clause 9 (7) of the Statutory Orders and asking for writs to quash it.
High Court issued the writs quashing the Notification publishing the award.
The questions are whether the provisions of sub cl.
(7) of cl. 9 of the Statutory Orders are imperative or merely directory and whether that sub clause is ultra vires as being in conflict with the Act under which it had been framed.
Held, that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and a judgment not so pronounced would therefore be a nullity.
The provision in sub cl.(7) of cl. 9 of the Statutory Order is imperative and not directory.
Held, further, that the provisions as to the pronouncement of the decision in open court contained in cl. 9 (7) of the Statutory Order was clearly within the powers contemplated in section 3 (g) of the Act and section 6 of the Act does not prohibit the making of such provisions.
A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with section 6 of the Act.
Montreal Street Railway Co. vs Normandin, ; , referred to.


judgement:
Appeal No. 280 of 1961.
Appeal by special leave from the judgment and order dated August 2, 1960, of the Rajasthan High Court in D. E. Civil Misc.
(Election) Appeal, No. 1 of 1960.
G.S. Pathak, A. V. Viswanatha Sastri, section N. Andley and P. L. Vohra, for the appellant.
G. C. Mathur, for the respondent No. 2. 1962.
February 8.
This appeal by special leave arises out of an election petition filed by the appellant challenging the validity of the election of respondent No. 1, Lal Singh on several grounds.
The appellant is an elector in the Chittorgarh Constituency and the election which led to the present petition was held in March.
1957, for the Rajasthan Legislative Assembly from the said constituency.
As a result of the election, respondent No. 1 was declared to have been duly elected on the 11th March, 1957.
He secured 7272 votes whereas respondent No. 2 Laxman Singh s/o Maharawal Sir Bijey Singh secured 7261 votes and respondent No. 3 Chhoga lal secured 569 votes.
The appellant 's case was that respondent No. 1 's election wag invalid inasmuch as he had practiced corrupt practices at the said election.
According to the appellant, respondent No. 1 procured or abetted or attempted to procure either by himself or by his agents or by other persons with his connivance or that of his agents the reception of invalid votes and as a result of the said votes, the result of the Election had been materially affected The appellant stated in detail the manner in which the said invalid votes bad been procured.
The appellant further pleaded that respondent No. 1, his agents and other persons with the connivance of respondent No. 1 or that of his agents published such 116 statements of facts (Exts. 3 & 6) which were false and which they either believed to be false or did not believe to "be true, in relation to the personal character or conduct of respondent No.2 which were likely to prejudice the prospect of respondent No. 2 at the election.
It is on these two grounds that the appellant claimed a declaration that the election of respondent No. 1 was invalid.
He also claimed that respondent No. 2 should be declared to have been validly elected.
Respondent No. 2 filed his written statement supporting the petition but he did not appear before the Tribunal at the hearing.
Respondent No. 3 did not appear at all, while respondent No. 1 denied all the allegations made by the appellant and contended that the election petition filed by the appellant should be dismissed.
On the pleadings of the parties, the Election Tribunal framed as many as 26 issues.
In substance it held that the several allegations made by the appellant in respect of the receipt of invalid votes bad not been proved and so the first ground on which respondent No. 1 's election was challenged by appellant, could not succeed.
In regard to the second ground on which respondent No. 1 's election was challenged by the appellant, the Tribunal held that Ext.
3 had been published by the agent of respondent No. 1 but not with his express consent and in regard to Ext.
6, the Tribunal was not satisfied that, it had been published by respondent No. 1 's agent.
That is how even the second ground made by the appellant disputing the validity of respondent No. 1 's election did not succeed.
In the result, the election petition was dismissed.
Against the said decision, the appellant preferred an appeal in the Rajasthan High Court.
The High Court confirmed the finding of the Tribunal on the first point in regard to the receipt of invalid votes.
It is true that the High Court was not 117 satisfied with the approach adopted by the Tribunal in dealing with this part of the case and it thought that some of the reasons given by the Tribunal in support of its conclusions were not satisfactory.
Even, so, the High Court felt that the final conclusion of the Tribunal was, on the whole, correct and need not be reversed.
Thus both the Tribunal and the High Court have recorded findings against the appellant on the first part of his case.
In regard to the second contention raised by the appellant, the High Court has accepted the finding of the Tribunal about the publication of Ext.
In regard to the other document Ext.
6, the High Court has reversed the conclusion of the Tribunal and hold that the said document had been published for the benefit of respondent No. 1 and differing from the view taken by the Tribunal, the High Court has hold that the Publication of both the pamphlets was with consent of respondent No. 1 and so was outside the purview of section 100(2) of the Representation of the People Act 1951 (43 of 1951) (hereinafter called the Act).
Having thus found that the two pamphlets had been published by the agent of respondent No.1 and with his consent, the High Court preceded to examine the question as to whether the material allegations made against respondent No. 2 by the said pamphlets were true or false.
The High Court bold that the said material allegations were false and it came to the conclusion that they were calculated to effect prejudicially the prospects of the election of respondent No.2.
The High Court was however, not satisfied that the said allegations had relation to the personal character or conduct of respondent No. 2 and so it held that the corrupt practice alleged by the appellant against respondent No. 2 on the strength of the said two pamphlets under section 123(4) of the act had not been proved.
, The result was that though the High Court differed from the Election Tribunal in regard to some of the findings recorded 118 by the Tribunal on the second ground, its ultimate conclusion was the same as that of the Tribunal.
The appeal preferred by the appellant was accordingly dismissed.
It is against this order that the appellant has come to this Court by Special leave.
In this appeal, the only question which we are called upon to consider is whether the two pamphlets justify the contention of the appellant that respondent No. 1 has committed a corrupt practice under section 153(4).
The question as to whether respondent No. 1 's election has been materially assisted by the receipt of invalid votes, is concluded by concurrent finding of ' fact recorded against the appellant and so we have not allowed Mr. Sastri to dispute the correctness of that finding.
Before dealing with the short point raised for our decision under section 123(4) of the Act, it is necessary to set out the material portion of the pamphlets on which the appellant 's case of corrupt practice is based.
The relevant portion in the pamphlet Ext.
3 to which objection is taken by the appellant reads thus . (1) Enemy of Democracy? (2) Agent of the foreigners strangling the freedom of Bharat? (3) Supporter and collaborator of the conspiracy of Pakistani attack on Bharat? (4) Bringer of tyrannical rule of Rajas in Rajasthan? (5) Destroyer of Hindu Muslim unity by raising the slogan of Ram Rajya? (6) Purchaser of the opponents of the Congress by means of Money? 119 "Maharawal of Dangarpur, Shri Laxman Singh, who was defeated in the last election by thousands of votes, has come to mislead the people of Chittor, has come to push back the backward district of Chittor by 100 years, has come to destroy the peace and tranquility of Chittor under cover of communal organisation, has come to provide means to the public to spend their hard earned money on drinking orgies, has come to intensify again the tyranny of Raja Maharajas in Rajasthan, has come to make a gift of Kashmir to the aggressor Pakistan, has come to enslave India again by collaborating with Pakistan and Pakistan 's friends.
He is a friend of Raja Maharajas and an enemy of cultivators and laborers.
He wants to grant land to Bhooswamis and thereby oust the cultivators and wants to establish once more his pagent by exploitation of the hard labour of cultivators.
" The other pamphlet contains substantially the same portion and so it need not be reproduced.
It is urged for the appellant that in describing respondent No. 2 as the agent of foreigners strangling the freedom of Bharat.
the personal character of respondent No. 2 has been falsely and adversely criticised.
The same comment is made in respect of the description of respondent No. 2 as the supporter and collaborator of the conspiracy of Pakistani attack on Bharat and in support of this argument, reliance has been placed on the further statement in the pamphlet that respondent No. 2 had come to make a gift of Kashmir to the aggressor Pakistan and had come to enslave India by collaborating with Pakistan and Pakistan 's friends.
It is also argued that describing respondent No. 2 as the purchaser of the opponents of the Congress by means of money, attracts the provisions of 123 (4).
It is mainly on these three allegations in the 120 pamphlet that the case of the appellant rests and the argument is that by making these allegations, the private character of respondent No. 2 has been falsely vilified and that the said vilification was reasonably calculated to prejudice the prospects of his election.
On the other hand, for respondent No. 1 Mr. Mathur who appeared amicus curaie at our request has contended that the three allegations, though false, cannot be said to touch or effect the private character of respondent No. 2.
He has argued that in dealing with section 123 (4), it is necessary to make a distinction between the personal or private character or conduct of a candidate and his public or political character.
Mr. Mathur 's contention is that though the criticism made against respondent No. 2 by the impugned pamphlet may be extravagant, unreasonable.
and false, it is nevertheless criticism made against him in his public and political character and as such, a. 123 (4) cannot be invoked.
It is, therefore, necessary to determine the true scope and effect of the relevant provision in a. 123 (4).
Section 123 deals with corrupt practices and amongst them, is the corrupt practice specified by subjection (4).
That sub section reads thus : "The publication by a candidate or his agent or by any other person, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, or retirement from contest, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election.
" It would thus be seen that the publication in question must be by a candidate or his agent or by any other person ; the said publication should be 121 in regard to a statement of fact which is false and which he either believes to be false or does not believe to be true ; that it must have relation to the personal character or conduct of the candidate, or should have relation to the candidature with drawl or retirement from contest of any candidate and that it should be a statement reasonably calculated to prejudice the prospects of that candidate 's election.
All the requirements of this subsection, except one, are held to have been satisfied by the High Court.
The only requirement of the sub section which has not been satisfied according to the High Court is that the statement has no relation to the personal character or conduct of respondent No. 2.
Mr. Sastri contends that this finding of the High Court is erroneous in law.
It would be noticed that in prescribing the requirement that the false statement should have relation to the personal character of the candidate, a distinction is intended to be drawn between the personal character of the candidate and his public or political character.
The provision postulates that if a false statement is made in regard to the public or political character of the candidate, it would not constitute a corrupt practice even if it is likely to Prejudice the prospects of that candidate 's 'election.
This assumption is presumably based on the theory that the electorate being politically educated and mature, would not be deceived by a false criticism against the public or political character of any candidate.
The public and political character of a candidate in open to public view and public criticism and even if any false statements are made about the political views of a candidate or his public conduct or character, the electorate would be able to judge on the merits and may not be misled the allegations by any false allegations in that behalf.
It is on this theory that false statements of fact effecting the public or political character of a candidate are not brought 122 within the mischief of sections 123(4).
In order that the elections should be free, it is necessary that the electorate should be educated on political issues in a fearless manner and so, the Legislature thought that full and ample scope should be left for free and fearless criticism by candidates against the public and political character of their opponents.
But the position with regard to the private or personal character of the candidate is very different.
Circulation of false statements about the private or personal character of the candidate during the period preceding elections is likely to work against the freedom of election itself inasmuch as the effect created by false statements cannot be met by denials in proper time and so the Constituency has to be protected against the circulation of such false statements which are likely to effect the voting of the electors.
That is why it is for the protection of the constituency against acts which would be fatal to the freedom of election that the statute provides for the inclusion of the circulation of false statements concerning the private character of a candidate amongst corrupt practices.
Dissemination of false statements about the personal character of a candidate thus constitutes a corrupt practice.
Though it is clear that the statute wants to make a broad distinction between public and political character on the one hand and private character on the other, it is obvious that a sharp and clear cut dividing line cannot be drawn to distinguish the one from the other, In discussing the distinction between the private character and the public character, sometimes reference is made to the " 'man beneath the politician" and it is said that if a statement of fact affects the man beneath the politician it touches private character and if it affects the politician.
It does not touch his private character.
There may be some false statements of fact which clearly affect the private character of 123 the candidate ; if, for instance, it is said that the candidate is a cheat or murderer there can be no doubt that the statement is in regard to his private character and conduct and so if the statement is shown to be false, it would undoubtedly be a corrupt practice Similarly, if the economic policy of the party to which the candidate belongs or its political ideology is falsely criticised and in strong words it is suggested that the said policy and ideology would cause the ruin of the country, that clearly would be criticism, though false, against the public character of the candidate and his political party and as such, it would be outside the purview of the statute.
But there may be oases on the border line where the false statement may affect both the politician and the man beneath the politician and it is precisely in dealing with cases on the border line that difficulties are experienced in deter mining whether the impugned false statement constitutes a corrupt practice or not.
If, for instance, it is said that in his public life, the candidate has utilised his position for the selfish purpose of securing jobs for his relations, it may be argued that it is criticism against the candidate in his public character and it may also be suggested that it nevertheless affects his private character.
Therefore, it is clear that in dealing with corrupt practices alleged under is.
123(4) where we are concerned with border line cases, we will have to draw a working line to distinguish private character from public character and it may also have to be borne in mind that in some cases, the false statement may affect both the private and the public character as well.
In the present case, we are satisfied that the allegation made in the pamphlet that respondent No. 2 is a purchaser of the opponents of the Congress by means of money clearly attracts the 124 provisions of sections 123(4).
In plain terms, the statement amounts to an allegation that respondent No. 2 buys by offering bribes the votes of the opponents of ' the Congress.
Bribery is itself a a corrupt practice and if it is said against a candidate that the practices the corrupt practice of buying the votes of the opponents of the Congress by means of bribery, that clearly and unequivocally affects his private character.
Offering a bribe in an election introduces an element of moral turpitude and it cannot be denied that a person who offers bribe loses reputation as an individual in the eyes of the public.
The statement alleges that the bribes are offered by respondent No. 2 for the pur pose of election and in that sense it may be that it is his public character which is falsely criticised.
But,in our opinion, it would be idle to contend that it is a false statement only against the public character of respondent No. 2.
Having regard to the moral turpitude involved in the offering of the bribe, the statement in question undoubtedly affects his private character as well.
Unfortunately, in dealing with this point, the High Court does not appear to have considered this statement at all.
It has dealt with this problem in very general terms.
It has observed that the impugned statements all refer to the Maharawal as one of those various persons of his class who as a body appear to be responsible in the opinion of the writer for the political mischiefs referred to in the statements, land that a general reading of the document shows that the attack upon him is a part of a bigger Organisation of individuals who do not appear to be as the writer thinks, well inclined towards the progress of the country.
It is perfectly true that in dealing with the contention that the false statement contained in the pamphlet amounts to a corrupt practice under as. 123(4), it is necessary to read the document as a whole before determining the effect of any particular objectionable statement.
125 But reading the document as a whole, we see no justification whatever for the view expressed by the High Court that the criticism made in the document is, directed against a body of persons and not against respondent No. 2 himself.
The failure of the High Court to deal with the several specific statements on which the argument of the appellant is based, has introduced a serious infirmity in its final conclusion.
If only the High Court had considered whether the allegation that respondent No. 2 was the purchaser of opponents of the Congress by means of money, we are inclined to think that the High Court would not have brushed aside.
the appellant 's case with the general observations which it has made in its judgment.
We are, therefore, satisfied that the appellant is right in contending that the false statement of fact to which we have just referred constitutes a corrupt practice under as.
123(4) of the Act.
In that view of the matter, it is unnecessary to consider whether the other impugned statements of fact also ,attract the provisions of as.
123(4).
In the result we must reverse the finding of the High Court that publication of the impugned pamphlets does not constitute a corrupt practice under as.
123(4).
The result of this conclusion inevitably is that the election of respondent No. 1 must be declared to be invalid because there is no doubt that the corrupt practice proved in this case falls under section 191(b) and is outside the purview of section 100(2).
That takes to us the question as to whether respondent No. 2 can be declared to have been validly elected at the election in question.
This question will have to be decided in the light of provisions of section 101(b) of the Act.
The said section provides, inter alia, that " 'if any person who has lodged a petition has, in addition to calling in question the election.
of the returned candidate, 126 claimed a declaration that any other candidate has been duly elected and the Tribunal is of opinion that but for the votes obtained by such returned candidate by corrupt practices such other candidate would have obtained a majority of the valid votes, the Tribunal shall after declaring the election of the returned candidate to be void declare such other candidate to have been duly elected.
" This question has not been considered by the High Court and it cannot be decided unless the relevant facts are examined on the merits and that normally would mean our remanding the case to the High Court for the decision of the point in accordance with law.
We do not, however, propose to adopt such a course in view of the fact that it would be futile to give any further 'lease of life to this petition.
The election which is challenged took place in 1957 and in fact we are now on the verge of fresh elections which would take place this month That is why we think it would serve no purpose in sending the matter back for the decision of the question as to whether on the evidence adduced in the case, respondent No. 2 can be declared to have been validly elected.
The result is, the appeal is allowed and the election of respondent No. 1 is get aside.
Since respondent No. 1 did not appear, there would be no order as to costs.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
Respondent 1 was declared elected to the Legislative Assembly.
His election was challenged, inter alia, on the ground that he had committed the corrupt practice under section 123 (4) of the Representation of People Act, 1951 of making false statements in relation to the personal character or conduct of Respondent 2, a defeated candidate The statements were contained in a pamphlet issued by the agent of Respondent 1 with his consent.
Among other statements the pamphlet contained a false statement that the Respondent 2 wits "purchaser of the opponents of the Congress by means (if money".
Respondent 1 contended that the statement related to the public or political character of Respondent 2 and not to his private character and did not fall within take mischief of section 123 (4).
Held, that the statement related to the personal character of Respondent 2 and Respondent 1 was guilty of the corrupt practice under section 123 (4) of the Act.
The offending statement amounted to an allegation that Respondent 2 bought the votes of the opponents of the Congress by offering bribes.
Bribery was itself a corrupt practice and an allegation of bribery involved moral turpitude and clearly and unequivocally affected the private character of Respondent 2. 115


judgement:
Appeal No. 175 of 1951.
Appeal by Special Leave from the Order and Decree dated the 30th March, 1951, of the High Court of Judicature at Patna (Ramaswami and Rai JJ.) in Miscellaneous Appeal No. 19 of 1951 arising out of the Order dated the 18th December, 1950, of the 'Court of the Additional Sub Judge Second at Gaya in Title Suit No. 47 of 1950.
N. C. Chatterjee (Rameshwar Nath, with him) for the appellant.
M. C. Setalvad Attorney General for India, and Mahabir Prasad, Advocate General of Bihar (B. J. Umrigar with them) for the respondent.
February 3.
The Judgment of the Court was delivered by MAHAJAN J.
This appeal by special leave arises out of an application made by the State of Bihar against the Gaya Electric Supply Co. Ltd. under section 34 of the Indian Arbitration Act for stay of proceedings in a suit filed by the company on 28th September, 1950.
The facts relevant to this enquiry are these.
574 A licence of or the supply of electric energy in the town of Gaya was obtained by one Khandelwal in the year 1928 under the .
With the required sanction of the Government the licence was transferred to the company in 1932.
By a notification dated 23rd June, 1949, the licence was revoked by the Government with effect from 9th July, 1949.
Thereupon the company filed a suit against the State for a declaration that the revocation of the licence was arbitrary, mala fide and ultra vires.
During the pendency of the suit negotiations started between the company and the State for a settlement of the dispute and ultimately on 28th October, 1949, a deed of agreement was arrived at between them.
The effect of the agreement and the correspondence referred to therein was substantially as; follows : (a) That the company would withdraw the suit No. 58 of 1949 unconditionally on 25th October, 1949.
(b) That within three days of the withdrawal of ,the suit the State of Bihar would make an advance payment of rupees five lakhs to the company, and, simultaneously the company would formally hand over the possession of the undertaking to an authorized officer of the Government.
(c) That both parties will make their respective valuations within three months of talking over the undertaking and any balance of money found due to the company as per Government valuation will be paid to the company and in case of overpayment the excess paid to the company on account of the " on account payment " of rupees five lakhs will be refunded to the, Government.
(d) That in the case of any difference or dispute between,the parties over the payment of the balance which may be found due after valuation such dispute shall be submitted to the sole arbitration of a single arbitrator who should be a high government officer of the provincial government of rank equal to or higher than a Divisional Commissioner and his award shall be binding and final on both parties.
575 The arbitration clause is contained in a letter dated 13th October, 1949, and was substantially accepted by the company in its letter dated 17th October, 1949.
As set out by the State Government in its application under section 34, it runs as follows " In the case of any difference or dispute between the parties over the valuation as arrived at by the Government and that arrived at by the company, such difference or dispute, including the claim for additional compensation of 20 % shall be referred to arbitration. " In pursuance of the agreement the respondent took over the undertaking on 28th October, 1949, and also made a payment of rupees five lakhs to the company.
On the 19th January, 1950, the company sent a statement of valuation of the assets amounting to RS.
22,06,072, to the Chief Electrical Engineer, Bihar.
The Chief Electrical Engineer characterized the valuation of 22 lakhs by the company as fantastic and stated that according to a rough valuation the amount would be ' approximately five lakhs and that the final valuation would be settled after the company had furnished a detailed history of the plants and machineries.
The company declined to give any further details and stated that time was of the essence of the. contract and it would be extended from 28th January, to 15th February, 1950 On 6th April, 1950, the Chief Electrical Engineer intimated that the 'valuation amounted to Rs. 6,56,221.
No reply to this letter was received and the State Government intimated to the company that as difference and dispute had arisen relating to valuation, Mr. M. section Rao, I.C.S. was being appointed as sole arbitrator to decide the dispute.
On 28th September, 1950, the company instituted the suit, the subject matter the application for stay, after necessary notice under section 80 of the Code of Civil Procedure.
In the plaint it was alleged ,that as the State Government had failed and neglected to make its valuation or to make payment to the 576 company by the 15th March, 1950, it committed a breach of the agreement and by reason of this breach the company had rescinded the agreement and had forfeited the sum of five lakhs paid as advance by the State.
The company prayed inter alia for the reliefs of declaration that the, electrical undertaking belonged to them, for damages, for appointment of receiver and for injunction.
On the 9th October, 1950, the State Government filed the present appli cation under section 34, of the Indian Arbitration Act.
It was stated therein that the company had with a, dishonest and mala fide motive and with a view to avoid the decision of the matter in dispute in arbitration instituted the suit on incorrect and false allegations.
that the arbitration agreement was still subsisting and valid and binding on the parties and could not be taken as having been rescinded as alleged by the company, that the cause of action as alleged in the plaint being noncompliance with the agreement the suit arose out of and related to the agreement and was covered by the arbitration clause and that the State Government was ready and willing to have the dispute settled by arbitration.
The company denied the allegations of mala fides and pleaded that the arbitration clause was no longer in existence and that even assuming it to be in existence, the suit was in no way connected with the 'same and it was contended that the suit should not be stayed.
The subordinate judge held that the suit was no in respect of any matter agreed to be referred, and that the court had no ' jurisdiction to stay the proceedings.
In the result the stay application was dismissed.
Against this order the State Government appealed to the High Court.
The High Court held that the dispute in the suit was one which arose out of or was in respect of the agreement and that the question in the suit was directly within the scope of the arbitration clause.
By an order of this court dated 22nd May, 1951, the company was granted special leave ' under article 136(1) of the Constitution. ' 577 Section 34 of, the Indian Arbitration Act runs thus "Where any party to an arbitration comment Cost any legal proceedings against any other party to the agreement in respect of any matter agreed to be ,referred, any party to such legal proceedings may, apply to the judicial authority before which the proceedings are pending to stay the proceedings, and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at ,the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of 'the arbitration, such authority may make an order staying the proceedings.
" From the language of the section it is quite clear that the legal proceeding which is sought to be stayed must be in respect of a matter which the parties have agreed to refer and which comes within the ambit of the arbitration agreement.
Where, however, a suit is commenced as to a matter which lies outside the submission, the court is bound to refuse a stay.
In the words of Viscount Simona L. C. in Heyman vs Daruins Ltd ' (1).
the answer to the question whether a dispute falls within an arbitration clause in a contract must depend on (a) what is the dispute, and (b) what disputes the arbitration clause covers.
If the arbitration agreement is broad and comprehensive and embraces any dispute between the parties "in respect of" the agreement, or in respect of any provision in the agreement, or in respect of anything arising out of it, and one of the parties seeks to avoid the contract, the dispute is referable to arbitration if the avoidance of the contract arises out of the terms of the contract itself. ' Where, however, the party soaks to avoid the contract for reasons dehors it, the arbitration clause cannot be resorted to as it goes along with other terms of the contract.
In other words, a party cannot rely on a term of the contract (1) , 578 to repudiate it and still say the arbitration clause should not apply.
If he relies upon a contract, be must, rely on it for all purposes .
Where, however, an arbitration clause is not so comprehensive and is not drafted in the broad language which was, used in the House of Lords,case, namely ' "in respect of" any agreement, or in respect of something, arising out of it", that proposition does not hold good.
The arbitration clause is a written submission agreed to by the parties in a contract and like every written submission to arbitration must be considered according to its language and in the light of the circumstances in which it is made.
Now as regards the first question, viz., what is the present dispute about, the answer is to be gathered from paragraphs 14 to 17 of the plaint.
It is averred therein that the Government of Bihar committed breach of the agreement and failed to make any, valuation of the undertaking or pay the balance of the compensation money, that time being of the essence of the contract, the defendant failed and neglected to complete the valuation within the time originally fixed or the extended time, and that by reason of the breach of contract the plaintiff rescinded the agreement and forfeited the sum of rupees five lakhs and that it is entitled to compensation for the wrongful deprivation of the use of its property.
No claim has been made in the plaint for the valuation of the undertaking or for the payment of any compensation for the undertaking; on the other hand, the claim in the suit is founded on the rescission of the agreement containing the arbitration clause and on a breach of that agreement.
These are matters which may well be said to arise out of the agreement and if the arbitration clause was broadly worded and stated that all disputes arising out of the agreement would be referred to arbitration, it could then probably have been said that the scope of the suit was within the ambit of the arbitration clause, but the clause here is differently worded.
The clause here is that if any difference.
or dispute arises between the parties over the payment of the 579 balance which may be found due after valuation such dispute shall be submitted to the sole arbitration of a single arbitrator.
The scheme of the agreement is that the Government was to make a valuation as laid ' down in the within three, months of taking over the undertaking and any balance of money found due to the company as per Government valuation was to be paid by the Government, and in case of over payment, the excess paid to the company on account of the "on account payment" of rupees five lakhs mentioned in paragraph 1 had to be refunded to government.
In the case of any difference between the parties over the valuation as arrived at by the Government and that arrived at by the company, such difference or dispute, including the claim for additional compensation of twenty per cent.
had to be referred to arbitration a scope of it is arbitration clause is a very narrow one.
It only confers jurisdiction on the arbitrator on the question of valuation of the undertaking pure and simple and does not say that all disputes arising out of the agreement or in respect of it will be decided by arbitration.
Questions relating to the breach of contract or its rescission are outside the reach of this clause.
The arbitrator has not been conferred the power by this clause to pronounce on the issue whether the plaintiff was justified in claiming that time was of the essence of the contract and whether the State Government committed a breach of the contract by not making a valuation within the time specified.
This clause is therefore no answer to the company 's querry "Show me that I have agreed to refer the subject matter of the suit to an arbitrator.
" Besides this clause in the agreement there is nothing else which can deprive the court of its jurisdiction to decide the plaintiff 's suit as brought.
Ramaswami J., with whom Rai J. concurred, held that upon a perusal of the term,; of the contract and of the correspondence it was obvious that no stipulation was made that the compensation money 75 580 should be paid within the period of three months, that on the contrary, the intention of the parties that the Government would pay compensation money only after the award had been made by the arbitrator.
Now this is the very point which would be in issue in the suit itself, and the learned Judge was in error in considering and deciding this point in this enquiry under section 34.
The validity of the plaintiff 's contention in the suit cannot be gone into by that court exercising jurisdiction under this section as its function is a very limited one.
The only point in such cases to be decided is whether the claim which is brought whether it is good, bad or indifferent comes within the submission to arbitration.
It may be that there are grounds upon which the defendant would be able to satisfy the proper tribunal that the plaintiff 's claim was frivolous and vexatious, but those considerations, as pointed out by Banks L. J in Monro vs Bognor Urban Council (1), are material only if the question to be considered is whether the case made was a frivolous and vexatious one and ought to have had no weight at all upon the question of what the plaintiff 's claim in fact was and one can only find out what his claim is by looking at the plaint.
The learned Judges in the High Court seem to have thought that the arbitration clause here had been drafted broadly and that all "disputes arising out of or in respect of the agreements were referable to arbitration.
Their reliance on the decision of the Calcutta High Court in Harinagar Sugar Mills Ltd. vs Skoda India Ltd.(") in support of the decision indicates the error.
In that case the arbitration clause was drafted in a comprehensive language and stated that a dispute arising out of the agreement had to be referred to arbitration.
Their reference to the case of Governor General in Council vs Associated Livestock Farm Ltd. (3) also shows that they were under the same erroneous impression.
In this case the arbitration clause was in these terms : (1) [1915] 3 K.B. i67.
(2) (3) A.I.R. 1948 Cal, 230, 581 "Any dispute or difference arising out of the contract shall be referred to the arbitration of the officer sanctioning the contract whose decision shall be final and binding.
" It is obvious that these decisions could have no relevance to the arbitration clause as drawn up in the present case.
If the nature of the claim is as we have indicated above, it seems plain that it does not come within the scope of the submission.
In our judgment, therefore, the decision of the learned Subordinate Judge was right and the Judges of the High Court were in error in reversing it.
In the result the only course open to us is to allow the appeal with costs and to say that the plaintiff 's claim is not within the scope of the submission and that the petition under section 34 was rightly dismissed by the Subordinate Judge.
Appeal allowed.
Agent for the appellants Rajinder Narain.
Agent for the respondent P. K. Chatterji.

summary/full:
If the arbitration agreement is broad and, comprehensive and embraces any dispute between the parties in respect of the agreement, or in respect of any provision in the agreement, or in respect of anything arising out of it, and one of the parties seeks to avoid the contract, the dispute is referable to arbitration if the avoidance of the contract arises out of the terms of the contract itself.
Where, however, the party seeks to avoid the contract for reasons dehors it, the arbitration clause cannot be resorted to as it goes along with other terms of the contract.
In other words, a party cannot rely on a term of the contract to repudiate it and still say the arbitration clause should not apply.
Where, however, an arbitration clause is not so comprehen sive and is not drafted in the broad language namely " in respect of " any agreement, or "in respect of something arising out of it", that proposition does not hold good.
The arbitration clause is a written submission agreed to by the parties in a contract and like every written submission to arbitration must be considered according to its language and in the light of the circumstances in which it is made.
Disputes which arose between the State of Bihar and an Electric Supply Company whose licence had been revoked by the State were settled by an agreement which provided that the State should make an advance payment of Rs. 5 lakhs to the company, and the company should hand over the undertaking to the State.
The undertaking was to be valued, within 3 months and if any money was found due to the company as per the Government valuation over 5 lakhs it will be paid to the company and if the valuation was less than 5 lakhs the company would refund the excess received by it.
The agreement, contained an arbitration clause which ran as follows: " In the case of any difference or dispute between the parties over the valuation as arrived at by the Government and that arrived at by the company any such difference or dispute including the claim for additional compensation of 20% shall be referred to arbitration.
" The company instituted a suit against the State alleging that the State bad failed to make its valuation.
and to make, payment of the excess within the time fixed and as time was of the essence of the contract, it had rescinded the agreement, and praying for a declaration that the undertaking belonged to it, for damages and appointment of a receiver.
The State applied under section 34 of the Arbitration Act for stay of the suit: Held, that the scope of the arbitration clause was very narrow; it conferred jurisdiction on the arbitrator only on the question of valuation of the undertaking pure and simple.
Questions relating to the breach of contract or its rescission were outside the scope of the clause and the suit could not be stayed under section 34.
Heyman vs Darwins Ltd. (119421 A.C. 356) referred to.
Harinagar Sugar Mills Ltd. vs Skoda (India) Ltd. (A.I.R. and Governor General in Council vs Associated Livestock Farm Ltd. ([1937] distinguished.


judgement:
Appeal No. 356 of 58.
Appeal by special leave from the judgment and order dated January 21, 1955, of the Bombay High Court in Civil Revision Application No. 813 of 1953.
section T. Desai, section N. Andley and Rameshwar Nath, for appellant.
I. N. Shroff, for the respondent.
99 1961.
August 9.
The judgment of the Court was delivered by SHAH, J.
Pot No. 68 Town Planning Scheme No. 1 Jamalpur Ahmedabad, part of survey No. 405 Mouje Rajpur Hirpur admeasuring approximately 38 Gunthas was owned by, Bai Jekor and her two sisters.
By a lease dated October 15, 1934, this plot of land was granted in lease by the owners in perpetuity to Gajjar Ramanlal Gordhandas and his brother at annual rental of Rs.558.
The lesseesGajjars sublet by a lease dated February 7, 1946, the plot also in perpetuity to Narsaji Chenaji Marwadihereinafter referred to as the respondent at an annual rental of Rs. 1,425.
The respondent by deed dated April 25, 1947, sublet the plot to Subhadra hereinafter referred to as the appellant it an annual rental of Rs. 2,225.
In all these three deeds, it was recited that the lessees may construct buildings on the land and for obtaining sanction in that behalf, the lessors shall make applications to the Collector or any other authority for that purpose.
The plot on the dates of the three leases was assessed for agricultural purposes.
Under the Bombay Land Revenue Code V of 1879, land assessed for agricultural purposes may be used for non agricultural purpose if permission in that behalf is granted by the Collector.
The appellant applied for permission for conversion of user of the land to non agricultural purposes, and the Collector of Ahmedabad by order dated November 11, 1949, sanctioned conversion of the user.
Thereafter, the appellant by application dated October 27, 1950, applied to the Court of Small Causes., Ahmedabad for fixation of standard rent of the plot under section 11 of the Bombay Rents, Hotel and Lodging Houses Rates, Control Act 57 of 1947 hereinafter referred to as the Act.
The respondent contended that the land when granted in lease being agricultural, the provisions of Bombay Act did not apply thereto ;ad the application, was not maintainable.
The 100 Court of Small Causes upheld the contention of the respondent and dismissed the application.
This order was confirmed in appeal to the District Court at Ahmedabad and in a revision application to the High Court of Judicature at Bombay.
The, appellant has, with special leave, appealed to this court against the order of the High Court.
It is common ground that till November 11, 1949, the plot was assessed for agricultural purposes under the Bombay Land Revenue Code.
In the year 1947, the plot was undoubtedly lying fallow, but on that account, the user of the land cannot be deemed to be altered.
User of the land could only be altered by the order of the Collector granted under section 65 of the Bombay Land Revenue Code.
Section 11 of the Bombay Act 57 of 1947 enables a competent court upon application made to it for that purpose to fix standard rent of any premises.
But s.11 is in Part 11 of the Act and by section 6 cl.
(1), it is provided that in areas specified in Schedule I Part II applies to premises let for residence, education, business, trade or storage.
There is no dispute that Part II applied to the area in which the plot is situate ; but before the appellant could maintain an application for fixation of standard rent under section 11, she had to establish that the plot of land leased was "premises" within the meaning of section 5 (8) of the Act and that it was let for residence, education, business, trade or storage.
For the purposes of this appeal, it is unnecessary to consider whether the plot was let for residence, education, business, trade or storage.
The expression ",premises" is defined by section 5 (8) and the material part of the definition is : "In this Act, unless there is anything repugnant to the subject or context x x x x (8) " 'premises" means (a) any land not being used for agricultural purposes, 101 (b) any building or part of a building let separately (other than a farm building) including (i) the garden, grounds, garages and out houses if any, appurtenant to such building or part of a building, (ii) any furniture I supplied by the landlord for use in such building or part of a building, (iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof.
x x x x Reading section 5 sub cl.
(8) with section 6(1), it is manifest that Part If of the Act can apply in areas specified in Sch.
II to lands (not being used for agricultural purposes) let for residence, education, business, trade or storage.
The material date for ascertaining whether the plot is " 'premises" for purposes of section 6 is the date of letting and not the date on which the application for fixation of standard rent is made by the tenant or the landlord.
We agree with the High Court that the plot in dispute could not be regarded as "premises" inviting the application of Part II of the Act.
The application filed by the appellant under section 11 for fixation of standard rent was therefore not maintainable, The appeal fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The owner of a certain plot of land granted a perpetual lease of it on an annual rent to some persons who sublet it to the respondent on a higher rent.
The respondent sublet the plot to the appellant on a still higher rent.
In all the three deeds of lease it was recited that the lessee might construct buildings on the land after obtaining sanction of the appropriate authority but on the dates of all the three leases the plot was assessed for agricultural purposes under the Bombay Land Revenue Code, 1879.
The appellant obtained sanction of the Collector for conversion of user of the land to non agricultural purposes.
The appellant thereafter applied to the court for fixation of standard rent of the plot under 's.11 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947.
The 'respondent contended that the land when granted in lease being agriculture I, the provisions of the Act did not apply thereto.
The question which arose for decision was whether the plot of land was 'Premises ' within the meaning of s.5(8)of the Act.
Held, that the material date for ascertaining whether the plot is 'premises ' is the date of letting and not the date of the application for fixing the standard rent.
In the present case the plot in dispute could not be regarded as 'premises ' under section 5(8) of the Bombay Act on the date of letting and the application for fixation of standard rent was not maintainable.


judgement:
Appeal No. 24 of 1961.
APPeal from the judgment and order dated November 20, 1958, of the Bombay High Court in Special Civil Application No. 2789 of 1958.
A.S. R. Chari and K. R. Choudhuri, for the appellants.
S.T. Desai, and V. J. Merchant, for respondents Nos. 2 and 4 and the Intervener (The Bombay Incorporated Law Society).
February 13, The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal arises out of a dispute between the appellants, the National Union of Commercial Employees & Anr, and the respondents Pereira, Fazalbhoy and Desai who constitute an Attorneys ' firm by name M/s. Pereira Fazalbhoy & Co. It appears that in August, 1957 159 the appellant wrote to the respondent firm setting forth certain demands on behalf of its employees.
These demands related to bonus for the years 195556 and 1956 57 and to certain other matters.
As the parties could not agree, the dispute was taken before the Conciliation Officer.
The Conciliation Officer also failed to bring about a settlement and so he submitted his failure report to the Government of Bombay.
Thereafter, the State Government referred the dispute in regard to the bonus for the two years 1956 and 1957 for adjudication before an Industrial tribunal under section 12(5) of the Industrial Disputes Act (No. 14 of 1947) (hereinafter called the Act).
Before the Tribunal, the respondents raised a preliminary objection.
They urged that the profession followed by them was not an industry within the meaning of the Act, and so the dispute raised against them by the appellants was not an industrial dispute within the meaning of the Act; the contention was that the dispute not being an industrial dispute under the Act, the reference made by the Government was incompetent and so, the Tribunal had no jurisdiction to adjudicate upon this dispute.
The Tribunal upheld the preliminary objection and recorded its conclusion that it had no jurisdiction to adjudicate upon the dispute as it was not an industrial dispute.
The order thus passed by the Tribunal was challenged by the appellants before the High Court at Bombay by special Civil Application No. 2789 of 1958 filed under Articles 226 and 227 of the Constitution.
The High Court considered the rival contentions raised before it by the appellants and the respondents and came to the conclusion that the respondent 's firm did not constitute an industry and so the dispute between the said firm and its employees was nut ail industrial dispute which could validly form the subject matter of a reference under the Act.
In that view of the matters the High Court hold that the Industrial Tribunal was 160 right in refusing to make an order on the reference and so the appellants ' writ petition was dismissed.
The appellants then applied for and obtained a certificate from the High Court and it is with the said certificate that the present appeal has come to this Court; and the short question which it raises for our decision is whether the respondents ' firm which carries on the work of Solicitors in Bombay can be aid to constitute an industry under section 2(j) of the Act.
In dealing with this question, it would be necessary to refer to the decision of this Court in the State of Bombay vs The Hospital Mazdoor Sabha (1).
Both parties agreed that the present dispute would have to be determined in the light of the decision of this Court in that case.
Let us, therefore, indicate the effect of the said decision.
In the Hospital case (1), this Court had occasion to consider whether the services of workmen engaged as ward servants in the J.J. Group of Hospitals, Bombay, under State control were workmen and whether the Hospital Group itself constituted.
an industry under the Act or not.
Both the questions were answered in the affirmative and in rendering those answers, the scope and effect of the definition of the word industry ' used in section 2(j) of the Act was considered.
This Court held that the words used by section 2 (j) in defining industry ' in an inclusive manner were of ' wide import and had to be read in their wide denotation.
Even so, this Court stated "that though section 2(j) uses words of very wide denotation, a line would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings from its purview.
If all the words used are given their widest meaning all services and all callings would come within the purview of the definition; even service rendered by a servant purely in a personal or domestic matter (1)[1960] 2 section C.; R.866.
161 or even in a casual way would fall within the definition.
It is not and cannot be suggested that in its wide sweep the word "service ' is intended to include service howsoever rendered in whatsoever capacity and for whatsoever reason." (p. 876).
That is why this Court proceeded to consider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the wide words used in section 2(j).
In dealing with the somewhat difficult question of drawing a line, this Court observed. ,"as a working principle, it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking.
Such an activity generally involves the co operation of the employer and the employees; and its object is the satisfaction of material human needs It must be organised or arranged in a manner in which trade or business is generally organised or arranged.
It must not be casual nor must it be for oneself ' nor for pleasure.
Thus, the manner in which the activity in question is organised or arranged, the condition of the (co operation between employer and the, employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are distinctive of activities to which section 2 (1) applies." (P. 879).
It was in the light of this working principle that this Court came to the conclusion that the State was carrying on an undertaking in running the Group of Hospitals in question In dealing with the question of hospitals, this Court also referred to a material circumstance which supported the conclusion that running of hospitals is an industry under the Act.
Section 2 (n) of third Act defines "public utility service and under it five separate categories 162 of public utility service are enumerated.
Clause (VI) of section 2 (n) provides that any industry specified in the Schedule as therein indicated would also be a public utility service.
In 1956, Entry No. 9 among others, was added in the First Schedule specifying another public utility service.
This Entry refers to service in hospitals and dispensaries.
Therefore, it was clear that since the validity of this entry was not disputed, after service in hospitals and dispensaries was included in the First Schedule.
it was inarguable that the hospital would not be an industry under the Act ; unless a hospital was an industry under the Act, service in the hospitals could not be regarded as public utility service.
That is how this Court held that in running the J.J. Hospital Group in Bombay, the State , Government was carrying on an undertaking which was an industry under section 2(j).
The question which calls for our decision in the present appeal is : what would be the result of the application of the working test laid down by this Court in the Hospital case 1 in relation to the controversy between the parties in the present appeal ? Mr. Chari for the appellants contends that in dealing with the question as to whether the respondents carried on an industry under a. 2 (j), it is necessary to distinguish between professional service rendered by an individual acting by himself and similar service rendered by a firm consisting of several partners, because he suggests that professional service individually rendered stands on a different footing from professional service which is rendered in an organised and institutionalised manner.
The Organisation of professional service which leads to its institutionalisation attracts 'the provisions of section 2(j) inasmuch as in such organised service there is bound to be co operation between the employers and the employees engaged by the firm for doing different categories of work According to Mr Chari, the employment of (1) [1960] 2S.C.R. 86, 163 differentcategories of staff facilitates the work of the solicitors and it enables them to dispose of more work more quickly and more efficiently and he suggests that the presence of such co operation between the employees and their employers in the Organisation of the solicitors ' firm satisfies the working test laid down by this Court in the Hospital case(1).
Tn our opinion, the distinction sought to be drawn by Mr. Chari between professional service rendered by an individual acting by himself and that rendered by a firm is not logical for the purPose of the application of the test in question.
What is true about a firm of solicitors would be equally true about an individual Solicitor working by himself.
the firm engages different categories of employees a single solicitor also engages different categories of employees to carry out different types of work and so the presence of co operation between the employees working in a solicitor 's office and their employers the solicitor, could be attributed to 'the work of a single solicitor as much as to the work of the firm ; and, therefore, if Mr. Chari is right and if the firm of solicitors is 'held to be an industry under the Act, the office of an individual solicitor cannot escape the application of the definition of section 2(j).
That is why we think it would not be reasonable to deal with the matter on the narrow ground suggested by Mr. Chari by confining our attention to the organisational or institutionalised aspect of a solicitors firm.
When in the Hospital case (1) this Court referred to the Organisation of the undertaking involving the co operation of capital and labour or the employer and his employees, it obviously meant the, cooperation essential and necessary for the purpose of rendering material service or for the Purpose of production.
It would realised that the concept of industry postulates partnership (1) ; 164 between capital and labour or between the employer and his employees.
It is under this partnership that the employer contributes his capital and the employees their labour and the joint contribution of capital and labour leads directly to the production which the industry has in view.
In other words, the co operation between capital and labour or between the employer and his employees which is treated as a working test in determining whether any activity amounts to an industry, is the co. operation which is directly involved in the production of goods or in the rendering of service.
It cannot be suggested that every form or aspect of human activity in which capital and labour cooperate or employer and employees assist each other is an industry.
The distinguishing feature of an industry is that for the production of goods or for the rendering of service, co operation between capital and labour or between the employer and his employees must be direct and must be essential.
Take, for instance, a textile mill.
The employer contributes capital and installs the machinery requisite for the mills and the employees contribute their labour and by their cooperation assist the employer in producing the textile goods.
When we refer to textile labour in relation to industrial disputes under the Act, we refer to workmen who are engaged in the work of producing textile goods.
It is obvious that in regard to textile mills, a large majority of workmen concerned in carrying out the activities of most of the departments of the textile mills contribute directly in one form or another to the production of textile goods.
It may be that even in a textile mill a very small minority of workmen may not be directly concerned with the production of textile goods ; but even so, their work is so integrally connected with the work carried on by the majority of workmen employed that they are treated as forming part of the same labour force.
Thus, there can be no doubt that 165 when a textile mill is regarded as an industry, it is, because capital and labour jointly contribute to the ' production of goods which is the object of the mill.
Let us consider the case of the hospitals.
In ' the hospitals, the service to the patients begins with proper diagnosis followed by treatment, either medical or surgical, according to the requirements of the case.
In the case of medical treatment, the patients receive medical treatment according to the prescription and are kept in the hospital for further treatment.
In surgical cases the patients receive surgical treatment by way of operation and then are kept in the hospital for further treatment until they are discharged.
During the period of such treatment, all their needs have to be attended to, food has to be supplied to them, nursing assistance has to be given to them, medical help from time to time has to be rendered and ail incidental services required.
for their recovery have also to be rendered.
Now, in the case of the activities of an organised Hospital, the co operation of the employees is thus directly involved in rendering one kind of service or another which it is the duty of the hospital to render.
It is true that the patients are drawn to the hospitals primarily because of the doctors or surgeons associated with them.
But there can be no doubt that the work of the hospital and its purpose are not achieved merely when a surgical operation is performed or medical prescription provided.
After medical treatment is determined or a surgical operation is performed, the patient coming to a hospital as an indoor patient needs all kinds of medical assistance until he is discharged and the services rendered to him both initially and thereafter until his discharge are all services which the hospital has been established to render and it is in the rendering of the said services that the employees of the hospital co operate and play their part.
That is how the test of cooperation between 166 the employer and his employees is satisfied in regard to hospitals which are properly organised and maintained.
It is, of course, true that the quality, the importance and the nature of the service rendered by different categories of employees in a hospital would not be the same, but nevertheless, all the categories of service rendered by respective classes of employees in a hospital are essential for the purpose of giving service to the patients which is the objective of the hospital.
That is how the hospitals satisfy the test of co operation between the employer and his employees.
Does a solicitors ' firm satisfy that test ? Superficially considered, the solicitors ' firm is no doubt organised at; an industrial concern would be organised.
There are different categories of servants employed by a firm, each category, being assigned separate duties and functions.
But it must be remembered that the service rendered by it solicitor functioning either individually or working together with partners is service which is essentially individual ; it depends upon the professional equipment, knowledge and efficiency of the, solicitor concerned.
Subsidiary work which is purely of an incidental type and which in intended to assist, the solicitor in doing his job has no direct relation to the professional service ultimately rendered by the solicitor.
For his own convenience, a solicitor may employ a clerk because a. clerk would type his opinion ; for his convenience.
, a solicitor may employ menial servant to keep his chamber clean and in order ; and it is likely that the number of clerks may be large if the concern is prosperous and so would be the number of menial servants.
But the work done either by the typist or the stenographer or by the menial servant or other employees in a solicitor 's firm is not directly concerned with the service which the solicitor renders to his client and cannot, therefore, be said to 167 satisfy the test of co operation between the employer and the employees which is relevant to the purpose.
There can be no doubt that for carrying on the work of a solicitor efficiently, accounts have to be kept and correspondence carried on and this work would need the employment of clerks and accountants.
But has the work of the clerk who types correspondence or that of the accountant who keeps accounts any direct or essential nexus or connection with the advice which it is the duty of the solicitor to give to his client? The answer to this question must, in our opinion, be in the negative.
There is, no doubt, a kind of co operation between the solicitor and his employees, but that co operation has no direct or immediate relation to the professional service which the solicitor renders to his client.
Therefore, in our opinion it is difficult to accept the plea that a solicitor 's firm carrying on the work of an Attorney is an industry within the meaning of section 2(j).
There is no doubt that the words used in section 2(1) are very wide, but as has been held by this Court in the can of Hospital is necessary to draw a line in a fair and just manner putting some limitation upon the width of the said words and a working test has been enunciated in that behalf.
The application of the said teat to the facts in the present appeal leads to the conclusion that the work of solicitors Which the respondents are carrying on as a firm is not an industry under section 2(j) of the Act.
That is the view taken by the Bombay High Court and we think, that view is right.
It may be added that the same view has been taken by the Calcutta High Court in the case of Brij Mohan Bagaria vs N. C. Chaterjee (2) and D.P. Dunderdele vs G. P. Mukherjee(3 ').
Looking at this question in a broad and general way, it is not easy to conceive that a liberal profession like that, of an.
attorney could have been (1) (2) 1958 A.I.R. 1938 Cal. 460.
(3) A.I.R.Cal.
168 intended by the Legislature to fall within the definition of "industry" under section 2(j).
The very concept of the liberal professions has its own special and distinctive features which do not readily permit the inclusion of the liberal professions into the four corners of industrial law.
The essential basis of an industrial dispute is that it is a dispute arising between capital and labour in enterprises where capital and labour combine to produce commodities or to render service.
This essential basis would be absent in the case of liberal professions.
A person following a liberal profession does not carry on his profession in any intelligible sense with the active co operation of his employees and the principal, if not the sole, capital which he brings into his profession is his special or peculiar intellectual and educational equipment.
That is why on broad and general considerations which cannot be ignored, a liberal profession like that of an attorney must, we think, be deemed to be outside the definition of "industry" under section 2(j) In this connection, it would be useful to refer to the observation made by Isaccs and Rich JJ., in the Federated Municipal and Shire Council Employees ' Union of Australia vs Melbourne Corporation (1).
"The concept of an industrial dispute", said the learned Judges.
may thus be formulated: Industrial disputes occur when, in relation to operations in which capital and labour are contributed in cooperation for the satisfaction of human wants or desires, those engaged in co operation dispute as to the basis to be observed, by the parties engaged, respecting either a share of the product or any other terms and conditions of their co operation.
This formula excludes the two extreme contentions of the claimant and the respondents respectively.
It excludes, for instance, the legal and the medical professions, because they are not carried on in any intelligible sense by the Cooperation of (1) (1919)26C.L.R.508,554. 169 capital and labour and do not come within the sphere of industrialism.
It includes, where the necessary co operation exists, disputes between employers and employees, employees and employees, and employers and employers.
It implies that "industry" to lead to an industrial dispute, is not, as the claimant contends, merely industry in the abstract sense, as if it alone effected the result, but it must be acting and be considered.in association with its co operator "capital" in some form so that the result is, in a sense, the outcome of their combined efforts".
Those observations support the view which we hive taken about the character of co operation between the employer and employees which affords a relevant test in determining whether the enterprise in question is an industry or not.
Co operation to which the test refers must be co operation between the employer and his employees which is essential for carrying out the purpose of the enterprise and the service to be rendered by the enterprise should be the direct outcome of the combined efforts of the employer and the employees.
There is one more minor point which still remains to be considered.
Mr. Chari argued that it would be idle for the respondents to contend.
that the work of their firm is not an industry under a. (2j) because they have themselves described their work as the work of carrying on business of solicitors.
It appears that the document of partnership executed between the different partners of the firm provided, inter alia, that all expenses of the business of the partnership or losses incurred in carrying on the business of the partnership shall be.
borne out of the profits or capital of the partnership.
It is on the use of the word "business" in this clause that Mr. Chari relies.
In support of his argument,he referred us to a decision of Farwell, J., in Dickson vs Jones (1).
In that case, the Court was concerned to examine the validity of an agreement between the, plaintiff, solicitor, and his junior clerk, who (1) 170 was subsequently articled to him.
This agreement provided that the latter would not ,,at, any time hereafter practice as a solicitor within a radious of 15 miles from the Town Hall, Hanley, aforesaid, or solicit any client of the solicitor".
Farwell J., held that "the combination of a restriction over an area so great as a radious 15 miles and one extending to the whole life of the defendant, articled clerk, was, in the circumstances, wider than was necessary for the protection of the plaintiff and was, therefore, unenforceable as being in Undue restraint of trade".
The argument is that the validity of an agreement between a solicitor and his articled clerk was tested on the ground that it was an agreement in restraint of trade, and so the solicitor 's work must be held to be a " 'trade," under section 2(j).
There is obviously no force in this argument.
If in their deed of partnership the respondents described the work of partnership as the business of solicitors, that can hardly assist the appellants in contending that the work carried on by the firm is industry under section 2(j).
The work of a solicitor is, in a loose sense, of course, of business, and so if the solicitors entered into an agreement in restraint of trade, its validity would have to be judged on the basis that their work in the nature of business.
That, however, is hardly relevant in determining the question as to whether the said work is an industry under section 2(j); as we have already made it clear, the definition of the word , 'industry" is couched in words of very wide denotation.
But that precisely is the reason ,why a line has to be drawn in a just and fair manner to demarcate the limitations of their scope and that necessarily leads to the adoption of some working test.
Therefore, in our opinion, the argument that the respondents themselves have called their work as "business" is of no assistance.
The result is, the appeal fails; there would be no order as to costs.
Appeal dismissed.

summary/full:
The respondents were a firm carrying on the work of solicitors in Bombay.
For the years 1956 and 1957 a claim for bonus was made against them by their employees.
Before.
the Industrial Tribunal to which the dispute was referred by the State Government for adjudication under the provisions of the , the respondents contended that the profession followed by them was not an industry within the meaning of section 2(j) of the Act, that the dispute raised against them was not an industrial dispute under the Act, and that, therefore, the reference made by the Government was incompetent.
Held, that the work of solicitors is not an industry within the meaning of section 2(j) of the , and that, therefore, any dispute raised by the employees of 158 the solicitors against them cannot be made the subject of reference to the Industrial Tribunal.
The distinguishing feature of an industry is that for the production of goods or for the rendering of service, co operation between capital and labour or between the employer and his employee must be direct.
A person following a liberal profession does not carry on his profession in any intelligible sense with the active co operation of his employees, and the principal, if not the sole, capital which he brings into his profession is his special or peculiar intellectual and educational equipment.
Consequently, a liberal profession like that of a solicitor is outside the definition of "industry" under section 2(j) of the Act.
State of Bombay vs The Hospital Mazdoor Sabha, ; , explained and distinguished.
Brij Mohan Bagaria vs N.(,.
Chatterjee, A.I.R. 1958 Cal.
460 and D. P. Dunderdele vs G. P. Mukherjee, A. 1.
R. , approved.
Observations in Federated Municipal and Shire Council Employees ' Union of Australia vs Melbourne Corporation, ; , relied on.