judgement:
vil Appeal No. 1387 of 1973.
From the Judgment and Order dated 31.5.1973 of the Calcutta High Court in Appeal from Original Order No. 612 of 1971.
WITH CIVIL APPEAL NO. 4301 of 1984.
From the Judgment and Order dated 9.9.
1981 of the Calcutta High Court in Appeal from Original Order (F.M.A.) No. 459 of 1980.
Govind Das and Mr. G.S. Chatterjee for the Appellants.
D.N. Mukherjee for the Respondents in C.A. No. 1387 of 1973.
A.K. Ganguli and Miss Mridula Ray for the Respondent in C.A. No. 4301 of 1984.
The Judgment of the Court was delivered by B.C. RAY, J.
Civil appeal No, 1387/73.
This appeal by special leave is against the judgment and order passed in appeal from Original Order No.612 of 1971 dated May 31, 1973 by the Division Bench of the High Court of Calcutta affirming the judgment and order of the learned Single Judge made in Civil Revision Case No. 5805 of 1970.
The respond ents who are licensed dealers under the West Bengal Edible Oil Seed Dealers Licensing Order, 1963 have challenged the imposition of entry tax on groundnuts imported into Calcutta Metropolitan Area for the purpose of manufac ture of groundnut oil under the provisions of the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1970 on the ground that such importation of groundnuts as oil seeds is not subject to any levy under the provisions of the said Entry Tax Act in as much as there is no specific provision for levy on ground nuts as oil seeds for manufacturing edible 624 oil.
They have therefore prayed for a mandate directing the appellants not to impose any entry tax on the ground that they are edible nuts failing under specific entry of edibles provides in the Schedule to the said Act.
There was also a prayer or refund of the taxes already imposed and collected by the respond ents.
The learned single Judge who issued the rule after hearing both the parties held that though under SI.
No. 4, item No. (t) of the Schedule to the said Act, 'nuts ' was a speci fied item for purposes of imposition of entry tax as shown in corresponding column No. 3 in the said Schedule yet the learned Judge held that since groundnut is oil seed for manufac turing edible oil which is not subject to entry tax, the groundnut imported for the purpose of extracting oil as oil seed by the dealers was not subject to the imposition of entry tax.
It was further held that the term groundnut might answer the description of being nuts used as edibles as also oil seeds for edible oils.
The legislature intended to impose levy on 'nuts ' imported as edibles and not to cover such nuts imported as oil seeds for edible oils.
The rule was made absolute with costs and a writ of mandamus was issued directing the appellants herein not to impose any levy under the provisions of the said Act.
There was also a further mandate upon the appellants herein directing them to refund all taxes realised under the said Act on groundnut imported by the petitioners, respondents herein into Calcutta Metropolitan Area.
Against this judgment and order the appel lant State of West Bengal preferred an appeal.
This appeal was dismissed and the judgment and order of the learned single Judge was af firmed.
It was held that the intention of the legislature was that edible oil or oil seeds would not be liable to tax.
The Court refer ring to the decision in Avadh Sugar Mills Ltd. vs Sales Tax Officer & Anr., [1973] (Vol. 31) STC 469 (S.C.) held that in commercial circle 'groundnut ' was treated as 'oil seed ' for manufacture of oil.
It did not refer to 'nuts ' as such, and as such groundnut did not fail with the ambit of entry tax as provided in the said Entry Tax Act.
Against this judgment and order the instant appeal on special leave was filed.
The sole question that poses itself for consideration in this appeal is whether groundnuts falling within the description of 'nuts ' in Schedule in Class l, item No. 4(t) is liable to be taxed under the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1970 in case the purpose of importer is to extract oil therefrom.
It has been urged on behalf of the respondents that oil seeds or edible oils are not 625 specified items for the purpose of imposition of entry tax under section 6(1) of the said Act.
The importation into Calcutta Metropoli tan Area of groundnuts by the respondents for the purpose of manufacturing groundnut oil is exempt from the levy of entry tax according to them.
It is necessary to quote here the rele vant provisions of the Schedule for the pur pose of determining this question. . . . . . . . . . .
Serial No. Specified goods Rates of tax 1 2 3 . . . . . . . . . .
X X X X Class I Articles of food and drink 4.
Edibles X X X X t. nuts, excluding betal nuts 6 per cent ad valorem u. oilman stores (except ( 1/2 per cent ad valorem edible oils) for dry fruits) do x x x x x Class III.
Articles for industrial use and articles used for fuel, lighting, washing and polishing.
Articles for industrial use and articles used for fuel.
X X X X 16.
Mineral oils of all sorts X X X X (xii) Turkey red oil, bye products 2 paise per litre of mineral oils x x x (b) Crude oil 1 paise per litre (c) grease, petroleum jelly 2 percent ad valorem B .
Arti cles used for 0lighting.
Oilseeds for inedible oils 50 paise per 50 kilograms Section 6 of the said Act provides for imposition of levy and collection of taxes on the entry of every specified goods into Cal cutta Metropolitan Area (for consumption, use or sale therein) from any place outside that area at such rate not exceeding the rates specified in the corresponding entry in column No. 3 of this Schedule as the State 626 Government may by notification specify.
The State Government specified the goods entry of which into Calcutta Metropolitan Area will be liable to tax under this Act at the rate specified in corresponding column No. 3 of the Schedule.
On a reading of the aforesaid Sched ule it is clear and evident that Class I specifies articles liable to tax grouped under the caption of food and drink.
Item No. 4(t) specifies nuts excluding betel nuts as one of the items on which the rate of entry tax has been specifically mentioned therein.
Under the said Class I in item No. 4(u) oilman stores (except edible oils) has been mentioned and in Class 3 under heading (B) item No. 22 refers to oil seeds of inedible oil as one of the specified items for imposition of tax.
It has been urged on behalf of the respondents that a edible oils are exempted from imposition of tax under the said Act groundnut which is imported by the respondent dealers from out side the State into Calcutta Metropolitan Area for the purpose of manufacture of groundnut oil is exempted from the imposition of entry tax.
It has been further urged in this connec tion that a very negligible quantity of groundnuts is used for edible purposes.
The ground nuts are generally used as oil seeds for the purpose of manufacturing edible oil i.e. groundnut oil.
It has been submitted that though groundnut is included within nuts in item No. 4(t) yet it was rightly held by the Courts below that ground nuts used as oil seeds for the purpose of manufacture of groundnut oil is free from imposition of entry tax and as such the appeal should be dis missed.
This contention of the learned counsel on behalf of the respondents cannot be sus tained in as much as 'nuts ' has been specified as one of the items liable to be taxed under 4(t) for imposition of tax at the rate men tioned in corresponding column No. 3.
So on a plain reading of the said provisions it is clear and evident that groundnuts which answer the description of nuts is excisable to entry tax under the said Act.
It is unnecessary to go into the question as to whether groundnut is also used for the purpose of extracting edible oil.
The observations of this Court in the case of Avadh Sugar Mills Ltd. vs Sales Tax Officer & Another (supra) wherein ground nut has been taken as oil seed for the purpose of U.P. Sales Tax Act.
This has no beating for the purpose of imposition of entry tax under the said Entry Tax Act, 1970 as it has been mentioned already hereinbefore that under item No. 4(t) 'nuts ' has been specifically men tioned as one of the specified goods for the imposition of entry tax.
Once the goods answer the description of the item exigible to tax, the importer of such goods cannot escape liability depending on the use to which he puts.
No question of speculating about inten tion of the legislature arises when 'nuts ' are in term specified as goods which are exigible to tax and 'groundnuts ' fall under the de scription of 'nuts '.
That groundnuts are 627 nuts is not disputed nor disputable that it is not so.
An extract from Encyclopedia Britanni ca also leaves no room for doubt on this score and even the contention of the respondents is not that groundnuts are not 'nuts ' but that when same are imported for extracting oil the same are not exigible to tax.
Groundnuts are 'nuts ' whether the same are consumed as they are or whether they are crushed for extracting oil they do not cease to be nuts.
The relevant extract is appended below as appendix "A".
The legislative intent to tax nuts being very clear there is no room for considering whether groundnut is also oil seed used for manufacturing edible oil 'why ' it is imported and whether it is exempt from entry tax on that account.
Undoubtedly, nuts include groundnut also.
The contention of the respondents in our considered opinion is totally devoid of any merit and as such it is overruled.
It is very relevant to mention here that the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1970 was replaced by the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 (West Bengal Act V of 1972).
In the said Act identical provision has been made for the imposition of entry tax on specified goods entering into Calcutta Metro politan Area ', at the rates specified in corresponding column No. 3 of the items mentioned in the Schedule.
Class I, item 4(u) specifies edible nuts excluding betel nuts as was in the previous Act of 1970.
In Entry No. 22 under Class IV oil seeds of vegetable oils other than mustard, rape, groundnut etc. was mentioned.
In item No. 24 of the said Class IV vegetable oils, other than mustard oil, groundnut oil etc. has been specifically mentioned.
So this Act of 1972 also specifically mentions 'nuts ' as one of the goods entry of which into Calcutta Metropolitan Area is subject to the levy of entry tax.
This Act of 1972 was further amended in 1974 by West Bengal Act XIX of 1974.
By the said Act it has been specifically mentioned in the Schedule to the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 in S1.
No. 4, item No. (u) for the words 'nuts excluding betel nuts ' the words 'nuts including groundnuts, cashewnuts and walnuts but excluding betel nuts ' shah be, and shah be deemed always to have been, substituted.
In other words, the words 'nuts including groundnuts, cashewnuts and walnuts but excluding betel nuts ' has been substituted retrospectively for the words 'nuts excluding betel nuts ' in item No. 4(u).
This amendment is clarificatory in nature and makes explicit what was implicit out of abundant caution, and clearly puts an end to all controversies as to whether groundnuts import ed into Calcutta Metropolitan Area from outside is liable to imposition of entry tax.
It makes patently clear that groundnut as one of the 'nuts ' was always 628 subject to the imposition of entry tax under the said Entry Tax Act.
The contention that groundnut imported into Calcut ta Metropolitan Area for the purpose of manufacture of groundnut oil which is one of the edible oils and which is exempted from the imposition of levy of entry tax cannot be sustained any longer in view of the express provisions of the Act.
Considering all these facts and circumstances as well as considering that nuts excluding betel nuts being one of the specified goods mentioned in the Schedule to the said Act clearly bring within its field groundnut; so groundnut imported into Calcutta Metropolitan Area is liable to the imposition of entry tax under the said Entry Tax Act.
We therefore allow this appeal and set aside the judgment and order passed in Appeal from Original Order No. 612 of 1971 without any order as to costs.
The writ petition giving rise to the appeal will stand dismissed.
In Civil Appeal No. 4301 of 1984 the respondent made a similar challenge that groundnut which the petitioner im ported from outside the State into Calcutta Metropolitan Area could not be subjected to the levy of entry tax as the same is used as oil seed for manufacturing edible oil i.e. groundnut oil which is exempted from the incidence of entry tax under the said Act.
This challenge was made in 1974 when the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 as amended by the Amendment Act (West Bengal Act XIX of 1974) came into operation.
We have already men tioned hereinbefore that in the Schedule to the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 in S1.
No. 4, item (u) for the words 'nuts excluding betel nuts ' the words 'nuts including groundnuts, cashewnuts and walnuts but excluding betels ' shall be deemed always to have been substituted.
In other words, this amendment has been given retrospective effect and groundnut being specifically mentioned in SI.
No. 4(u) of the Schedule to the said Act, there is no scope for any controversy that 'groundnuts ' imported into Calcutta Metropolitan , Area are liable to entry tax under the provisions of the said Act.
In this view of the matter this judgment will also govern Civil Appeal No. 4301 of 1984 wherein identical questions have been raised.
This appeal is also allowed without any order as to costs.
The writ petition giving rise to the appeal will stand dismissed with no order as to costs.
S.R. Appeals al lowed.
629 Book Name: ENCYCLOPAEDIA BRITANNICA Volume 16 Napoleon I to Ozonolysis (Page 797 Nusaybin NUI) Edition 1768 NUT, generally any seed or fruit consisting of a kernel, usually oily, surrounded by a hard or brittle shell.
Most edible nuts, e.g., walnut, brazil nut, peanut, etc., are well known as dessert nuts.
Not all nuts, however, are edible; some are used as sources of oil or fat and may be regarded as oil seeds (see Oil Plants); others are used for ornaments.
The botanical definition of a nut, based on morphological features, is more restrictive: a hard, dry, one called one seeded fruit that does not split open at maturity.
Among the nuts that fit both the botanical and popular conception are the acorn, chestnut and filbert; other so called nuts may be botanically seeds (Brazil nuts), legumes (peanuts) or drupes (almond, coconut, pecan and walnut), In this article the term nut will be used in its broadest sense unless otherwise indicated.

summary/full:
Section 6 of the Taxes on Entry of Goods into Calcutta Metropulitan Area Act, 1970 provides for imposition of levy and collection of taxes on the entry of every specified goods into Calcutta Metropolitan Area (for consump tion, use or sale therein) from any place outside that area at such rate not exceeding the rates specified in the corresponding entry in Column 3 of the Schedule as the State Government may by notification specify.
CIasa specifies articles liable to tax grouped under the caption of food and drink.
Item 4(t) specifies "nuts excluding beetal nuts" as one of the items on which the rate of entry tax has been specifically mentioned therein.
Under the said Class l in item No.4(u) "oilman stores (except edible oils)" has been men tioned and in Class 3 under heading (b), item No. 22 refers to oil seeds of inedible oils as one of the specified items for imposition of tax.
The respondents who are licensed dealers under the West Bengal Edible Oil Seed Dealers Licensing Order, 1963 challenged the imposi tion of entry tax on groundnuts imported into Calcutta Metropolitan Area for the purpose of manufacture of groundnut oil under the provi sions of the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1970 on the ground that such importation of groundnuts as oil seeds is not subject to any levy under the provisions of the said Entry Tax Act in as much as there is no specific provision for levy on groundnuts as oil seeds for manufac turing edible oil.
The respondents prayed for a mandate directing the appellants not to impose any entry tax on the ground that they are edible nuts failing under specific entry 01 edibles provided in the Schedule to the said Act, and with a further prayer for refund of the taxes already imposed and collected by the 622 respondents.
A learned Single Judge of the Calcutta High Court issued a writ of mandamus as prayed for.
The State appeal against the judgment and order was dismissed and the judgment and order of the learned Single Judge was affirmed.
Hence the appeal by special leave.
Allowing the appeals, the Court, HELD: 1.
On a plain reading of the provi sions of the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1970, it is clear and evident that groundnuts which answer the description of nuts is excisable to entry tax under the said Act.
Once the goods answer the description of the item exigible to tax, under Item 4(t) the importer of such goods cannot escape liability depending on the use to which he puts.
No question of speculating about intention of the legislature arises when "nuts" are in term specified as goods which are exigible to tax and "groundnuts" fall under the description of "nuts".
That ground nuts are nuts is not disputed nor disputable that it is not so.
Groundnuts are "nuts" whether the same are consumed as they are or whether they are crushed for extracting oil they do not cease to be nuts.
[626E H; 627A B] 2.
The legislative intent to tax nuts being very clear there is no room for consid ering whether groundnut is also oil seed used for manufacturing edible oil, "why" it is imported and whether it is exempt from entry tax on that account.
Undoubtedly, nuts include groundnut also.
Though the 1970 Act was re placed by the Taxes on Entry of Goods into Calcutta Metropolitan Area, 1972 making iden tical provisions for the imposition of entry tax on specified goods entering into Calcutta Metropolitan Area, West Bengal Act XIX of 1974 specifically mentioned in SI.No.4 item No. (u) for the words "nuts excluding betel nuts" the words "nuts including groundnuts, cashewnuts and walnuts but excluding betel nuts" shall be, and shall be deemed always to have been substituted.
[627B G] 3.
The words "nuts including groundnuts, cashewnuts and Walnuts but excluding betel nuts" has been substituted retrospectively for the words "nuts excluding betel nuts" in item No. 4(u).
This amendment is clarificatory in nature and makes explicit what was implicit out of abundant caution, and clearly puts an end to all controversies as to whether ground nuts imported into Calcutta Metropolitan Area from outside is liable to imposition of entry tax.
It makes patently clear that groundnuts as one of the "nuts" was always subject to the imposition of entry tax under the said Entry Tax Act.
Therefore, the contention that groundnut imported into Calcutta Metropolitan 623 Area for the purpose of manufacture of ground nut oil which is one of the edible oils and which is exempted from the imposition of levy of entry tax cannot be sustained any longer in view of the express provisions of the Act.
[627G H; 628A B] Avadh Sugar Mills Ltd. vs Sales Tax Offi cer & Anr., [1973] (Vol. 31) STC 469 (SC), distinguished.


judgement:
Civil Appeal No. 1403(N) of 1973.
From the Judgment and Order dated 12.4.1973 of the Allahabad High Court in Second Appeal No. 2866 of 1965.
S .N. Singh and T.N. Singh for the Appellant.
Rameshwar Nath and Ravinder Nath for the Respondents.
The Judgment of the Court was delivered by, THAKKAR, J.
The controversy in this appeal centers around the interpretation of Section 6(4) of the Tehri Garhwal Buhmi Sambandhi Adhikar Niyam, enacted by the erst while State of Tehri Garhwal which continued to remain in force even after its merger in the State of Uttar Pradesh.
The trial court came to the conclusion that the peti tioner was entitled to become the 'kahikari ' (subtenant) of the respondents who were 'maurusidars ' (head tenants) of the land in question by virtue by the said provision and decreed the plaintiff 's suit.
The lower appellate court and the High Court took a contrary view and dismissed the suit.
The original plaintiff has preferred the present appeal by special leave and has contended that the interpretation placed by the trial court was the correct interpretation of the relevant provision and that the Lower Appellate Court and the High Court were in error in taking the contrary view.
618 The facts in so far as material are not in dispute.
All the Courts have concurred in the finding that the petitioner was a 'sapinda ' of Jeet Ram, the original 'khaikari ' (sub tenant) who died issueless.
From the age of about 12 or 13 years the appellant had started living with deceased Jeet Ram.
He was sharing food and shelter with Jeet Ram and was engaged in cultivating the land in question along with Jeet Ram during his life time.
He had lived as a member of Jeet Ram 's family and at the time of the death of Jeet Ram the obsequies were performed by him.
Thereafter he was looking after the widow of Jeet Ram.
These facts having been firmly established the trial court upheld the appellant 's right to become 'khaikari ' (sub tenant) of the respondents in respect of the land in question in the context of the right conferred by Section 6(4) of the Act.
The said provision is in Hindi: "MRIT KHIAKAR KAR BHAI YA SAPINDA WARISH (BHAI, BHATEEJA AADI) KEWAL US DASHA MEN ADHIKARI HOGA JOB KI WAH US MIRT KHAIKAR KE SATH JEEVIT SAMAY MEN ABIBHAKT KUL KI REETI SE USKE SHAREEK RAHA HO.
" Translated in English, it reads as under: "Brother or Sapinda (brother, newhew etc.) of the deceased sub tenant will be entitled if he was jointly living with the deceased during his life time in the manner of a joint family.
" An analysis of the aforesaid provision reveals that in order to establish the claim to be recognized as a 'khaikari ' under the said provision, one must establish that: (1) He is a 'sapinda ' of the deceased sub tenant such as the brother or nephew.
(2) He must have been living as a member of the family with the deceased during his life time in the manner of a member of the joint family.
The Trial Court took the view that inasmuch as the petitioner was admittedly a sapinda of deceased Jeet Ram and inasmuch as he had been living jointly with the deceased during his life time, had been 619 sharing of food and shelter with him and had even performed the obsequies of Jeet Ram, he fulfilled the conditions prescribed by the said provision and was entitled to become a sub tenant of the head tenant.
The Lower Appellate Court and the High Court have taken the view that it is not suffi cient for the appellant to have shared the food and shelter and carried on the agricultural operations with the de ceased.
It must be shown that he was in fact a member of the joint family.
The High Court has made sought support from the reasoning that section 6(4) is applicable not only to Hindus but also to Muslims and Christians.
With respect to the High Court this assumption is altogether unwarranted.
The expression 'sapinda ' employed in section 6(4) is a clear pointer to the conclusion that the said section is designed to apply only to Hindus.
The expression 'sapinda ' is pecul iar to traditional Hindu Law and it would be altogether inapposite in the context of citizens of Muslim or Christian faith.
Failure to realize this aspect impelled the High Court to take a view contrary to the view taken by the trial court as is evident from the following passage: "As the provisions of section 6 (4) of the Tehri Garhwal Bhumi Sambandhi Adhikar Niyam are applicable not only to Hindus but also to Muslims and Christians etc.
who may be living in Tehri Garhwal, the words "Joint Hindu Family" were not used and instead the words "ABHI BHAKT KUL KEE REETI SE USKE SAATH SHAREEK RAHA HO" were used.
These words when applicable to a Hindu must mean a person who was a member of a Joint Hindu Family of the deceased Khaikar in this case Jeet Ram.
" It appears that the Lower Appellate Court and the High Court altogether missed to grasp the intendment and purpose of the provision.
In the absence of such a provision an issueless tiller would experience great hardship for there would be nobody to assist him in his work in his lifetime, look after him in his old age, and to take care of his widow after his death.
That is why even if a separated brother or nephew were to live with him during his life time, share the food and shelter with him, and assist him in cultivation, just as a member of the Undivided Hindu Family would be expected to do, the benefit of becoming a sub tenant is made available to him.
Otherwise there was no point in providing that unless a 'sapinda ' lived with him 'as if he was a member of the joint family ' he would not be entitled to such a right.
In fact the provi sion has evidently been enacted with a view to relieve the distress of an issueless agricul turist, who is separate from his joint 620 family, so that any one of his sapindas living with him as a member of the family, assisting him in agriculture, and looking after him, would be entitled to become a 'khaikar ' on his demise.
The expression 'JEEVIT SAMAY, MEN ABIBHAKT KUL KI REETI SE USKE SHAREEK RAHA HO ' clearly provides a clue to the intention of the legislature to benefit such a person who has lived with the issueless khaikar and shared with him food, shelter, labour, as also joys and sorrows along with him 'as if ' he was a member of the joint family without in fact being one.
The prospect of acquiring such a right would provide motivation to look after and render services to the issueless land holder for it would be unreasonable to expect him to do so selflessly, the world being what it is.
We are therefore of the opinion that the lower appellate court and the High Court have entirely misunderstood the provision in hold ing that only a member of an Undivided Family could claim the benefit of section 6(4).
If such were the case there was no need to make such an elaborate provision.
It would have been sufficient to say that a member of his joint family alone could claim such a right.
We are satisfied that the trial court was right in upholding the claim of the appellant whereas the lower appellate court and the High Court were in error in taking a contrary view.
The appeal is, therefore, allowed.
The judg ment and order of the lower appellate court and the High Court are set aside.
The judgment and decree passed by the trial court are restored.
There will be no order regarding costs.
P.S.S. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Section 6(4) of the Tehri Garhwal Bhumi Sambandhi Adhi kar Niyam provides that brother or 'sapida ' (brother, nephew etc.) of the deceased sub tenant will be entitled to be recognised as a 'khaikari ' if he was jointly living with the deceased during his life time in the manner of a member of a joint family.
The appellant, a 'sapinda ' of the original 'Khaikari ' (sub tenant) had started living with the deceased from the age of 12 or 13 years as a member of the latter 's family.
He has been sharing food and shelter with the deceased and was engaged in cultivating the land along with the deceased during his lifetime.
At the time of the death of the later the obsequies were also performed by him.
The trial court came to the conclusion that the appel lant fulfilled the conditions prescribed by s.6(4) of the Act and was thus entitled to become 'khaikari ' (sub tenant) of the respondent head tenant.
The lower appellant court and the High Court took the view that s.6(4) was applicable not only to Hindus but also to Muslims and Christians, and, therefore, it was not sufficient for the appellant to have shared the food and shelter and carried on the agricultural operations with the deceased and that it must be shown that he was in fact a member of the joint family.
Allowing the appeal, the Court, HELD: The High Court was in error in holding that only a member of an undivided family could claim the benefit of s.6(4) of the Tehri Garhwal Bhumi Sambandhi Adhikar Nayam.
[620C D] Section 6(4) of the Act is designed to apply only to Hindus.
The expression 'sapinda ' employed in that provision is peculiar to traditional 617 Hindu Law and it would be altogether inapposite in the context of citizens of Muslim or Christian faith.
[619C] The expression "Jeevit Samay Men Abibhakt Kul Ki Reeti Se Uske Shareek Raha Ho" used in s.6(4) clearly provides a clue to the intention of the legislature to benefit such a 'sapinda ' who had, lived with the issueless 'khaikar ' and shared with him food, shelter, laying as also joys and sorrows along with him 'as if ' he was a member of the joint family without in fact being one.
Even if a separate brother or newhew were to live with an issueless tiller during his lifetime just as a member of the Undivided Hindu Family would be expected to 40, the benefit of becoming a sub tenant of the head tenant is made available to him.
[620A C; 619G]


judgement:
ivil Appeal No. 341 of 1973.
From the Judgment and Order dated 26.2.1971 of the Punjab and Haryana High Court in L.P.A. No. 566/1968.
Harbans Singh for the Appellants.
R.S. Sodhi and S.K. Sinha for the Respondents.
The Judgment of the Court was delivered by KHALID, J.
This is an appeal by certificate against the Judgment of a full bench of the Punjab and Haryana High Court dated 20th November, 1970.
The question involved in this appeal is ingenious but untenable.
The question re ferred to the full bench reads as follows: "Whether after the re organisation of the State of Punjab the land owners owning land in both the States of Punjab and Haryana can claim to retain the permissible area in each State separately after 1st of November, 1966.
If so, whether an order declaring the area to be surplus passed prior to the date above said, but which order has not been implemented and the surplus land so declared has not in fact been utilised would continue to have effect after said date?" Now the facts.
Balwant Singh was a displaced person from West Pakistan.
He owned in all 67 standard acres of land distributed in various villages.
According to him he had sold some properties to strangers and the remaining in favour of his wife and minor son in 1957.
On 8th November, 1960, when proceedings under the Punjab Security of Land Tenures Act, 1930 (for short the Act) were initiated ' the Special Collector, Punjab, declared 29 standard acres be longing to him as surplus area.
While doing so, the trans fers made by him mentioned above, were ignored.
He had an option to choose the property which fell to his share.
He opted for the entire land belonging to him and situated in village Samani as his permissible area and did not opt for any area in Mohamad Pera, District Ferozepore.
The Special Collector reserved for him about 18 standard acres out of his holding in village Dhab Kharial in order to make up his permissible area of 50 standard acres.
This part of the order of the Special Collector, though 695 challenged in appeal, was confirmed by the Commissioner, Jullundar Division on 5th January, 1965, since the appeal before him was held to be barred by limitation.
The appel lant pursued the matter before the Financial Commissioner, Planning, Punjab,_by filing a revision.
This was dismissed on 19 2 1965.
On 1st November, 1966, the , (for short, Re organisation Act) came into force.
The State of Punjab was distributed under the Act to the present State of Punjab, State of Haryana, Union Territory of Chand igarh and Union Territory of Himachal Pradesh.
In December, 1966, Balwant Singh, his wife and his minor son filed a writ petition for the issuance of necessary directions to the States of Punjab and Haryana restraining them from utilising the surplus area declared by the Special Collector by his order dated 8 11 1960.
It is relevant to note here that the original properties that belonged to him fell within the new State of Punjab and the new State of Haryana.
The matter came before a learned Single Judge.
The following questions were raised before him: (1) That after the States Reorganisation, persons owning lands both in the State of Punjab and Haryana could claim that they should be allowed permissible area in both the States separately, (2) that orders passed regarding surplus area prior to 1st November, 1966, and which area had not been utilised till then, should be deemed to have no effect and (3) that the proceedings declaring surplus land were bad for want of notice to the transferees.
These contentions were repelled by the learned Single Judge.
He took the matter in appeal.
The Division Bench before whom the appeal was posted felt that an important question was involved and therefore referred the appeal to a larger bench.
The full Bench considered the matter in detail and held that the order declaring the area to be surplus passed before 1st November, 1966, would continue to have effect after that date, even if that order had not been implemented and persons owning land in the newly created States is not, in law, entitled for a separate allotment under the Act.
It is this conclusion of the Full Bench that is assailed before us on the strength of a certificate issued by the Court Balwant Singh had more than the permissible area, viz., 50 standard acres with him.
The excess area was liable to be declared as surplus.
Surplus area was declared by the Spe cial Collector, by his 696 order dated November 8, 1960.
It was confirmed in appeal and in revision.
The revisional order is dated 19th February, 1965, that is before 1st November 1966, when the Re organi sation Act came into force.
As indicated above, by virtue of the Re organisation of the two States, a part of his hold ings fell in the territory of the State of Haryana and another part in the State of Punjab.
He evolved a contention that he could have 50 standard acres of land in each of the two States.
On this basis, he questioned the order dated 8th November., 1960.
He supported this argument with the addi tional plea that the said order had not been implemented and the land declared surplus not utilised.
The question that fell to be decided by the full Bench was whether the order which had become final would continue to have effect after the date of enforcement of the Re organisation Act when that order had not been given effect to and the surplus area had not been utilized by the Govern ment.
Under the Scheme of the Act, it is the entire holding of a person on 15th April, 1953, that is to be taken into consideration for.
determining his surplus area.
The Govern ment acquires the right to utilize the surplus area of a person against whom an order of declaration has been made for the resettlement of tenants ejected or to be ejected.
Sections 9(1)(i) and 10A(a), which read as follows, make the position clear: "9(1).
Notwithstanding anything contained in any other law for the time being in force, no land owner shall be competent to eject a tenant except when such tenant (i) is a tenant on the area reserved under this Act or is a tenant of a small land owner; or. . . ." "10A(a) The State Government or any officer empowered by it in this behalf, shall be competent to utilise any surplus area for the re settlement of tenants ejected, or to be ejected, under clause (i) of sub section ( 1 ) of Section 9.
" It was contended before the High Court and repeated before us that the order did not get finality unless the surplus area had in fact been utilised, and tenants re settled there.
This contention did not find 697 favour with the High Court.
We will presently examine wheth er the contention has any merit.
It is true that along with the order declaring the land of an owner as surplus, a corresponding right & duty accrues to the Government to utilise the surplus area for the re settlement of tenants.
In other words, the rights on the land declared as surplus get vested in the Government, to be distributed amongst the tenants for re settlement.
This is an indefeasible right that the Government secures.
The appellant is not well rounded in his contention that he could get back the land if the surplus had not been utilised.
There is nothing in the Act which imposes any time limit for the Government to utilise the land for the purpose mentioned in the Act.
Nor is there any provision enabling the owner of the land to claim back the land and to get it restored to him if utili zation is not made by the Government within a specified period.
All that the Act contains by way of exception is what is seen in Section 10A(b).
If at the time of the com mencement of the Act, the land is acquired by the Government under the relevant acquisition laws or when it is a case of inheritance, the owner could claim exclusion of such land from his land for fixation of his ceiling under the Act.
The second exception itself is further lettered by the provision in Section 10 B that where succession had opened after the surplus area or any part thereof had been utilised under Section 10A(a), the saving specified in favour of an heir by inheritance would not apply in respect of the area so uti lised.
To put it short, the Government had under the Act an unfettered right without time limit to utilise the land for re settlement of tenants subject to the two exceptions mentioned above.
It is, of course, desirable that re settle ment should be done as expeditiously as possible.
Inaction on the part of the Government to re settle the tenants will not clothe the owner with a power for restoration of the land.
The contention of the appellant based on non utilisa tion of the land has, therefore, to fail.
The second question is whether the appellant is entitled to have the best of the two worlds; in other words, to have his quota of full 50 acres in Punjab and another 50 acres in Haryana.
Section 88 of the Re organisation Act makes the position clear.
It reads as follows: "The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Punjab shall, until otherwise provid ed by a competent Legislature or other compe tent authority, be construed as meaning the territories within that State 698 immediately before the appointed day.
" As per this Section the provisions of the Act which was applicable to the old State of Punjab would continue to apply to the new State.
In other words the order passed before 1st November, 1966, which became final, declaring the surplus area, would be given effect to and the order would be implemented uninfluenced by the division of the State.
After the Re organisation Act, the Governer of Haryana in exercise of the powers conferred by Section 89 of the Re organisation Act passed an order by name Haryana Adaptation of Laws (States and Concurrent Subjects) Order, 1968, on 23 10 1968 making it to take effect retrospectively from 1st November, 1966.
Clauses 10 and 11 of the order read as follows: "10.
The provisions of this order which adapt or modify any law so as to alter the manner in which, the authority by which, or the law under or in accordance with which any powers are exercisable shall not render invalid any notification, order, licence, permission, award, commitment, attachment, by law.
Rule or regulation duly made or issued, or anything duly done, before the appointed day; and any such notification, order licence, permission, award, commitment, attachment, bye law, rule, regulation or thing may be revoked, varied or undone in likemanner, to the like extent and in the like circumstances as if it has been made, issued, or done after the commencement of this order by the competent authority and under and in accordance with the provisions then applicable to such a case.
Nothing in this Order shall affect the previous operation of, or anything duly done or suffered under any existing State law or any right, privilege, obligation or liability already acquired, accrued or incurred under any such law, or any penalty, forfeiture or punishment incurred in respect of any offence already committed against any such law.
" A combined reading of these two clauses makes it clear that any order made or anything done or any liability in curred or a right accrued before the 1st November, 1966 would not be affected by the coming into force of the order.
These two clauses show unambiguously that the respective State Governments would be entitled to give effect 699 to orders passed before 1st November, 1966, declaring the surplus area by utilising them for the re settlement of the tenants, despite the reorganisation of the State of Punjab.
The orders passed will be respected by both the States.
The fact that the land belonging to a particular owner, under fortuitous circumstances, fall in the two newly formed States, will not in any way affect the operation of the orders which had become final prior to 1st November, 1966.
To accept the appellant 's contention would create anomalies.
Persons against whom proceedings under the Act were taken and became final prior to 1st November, 1966, would be entitled to claim lands in both the States while those whose petitions are pending on the date the States Reorganisation Act came into force would be in a disadvantageous position.
This is not the object of the Act.
Nor the scheme behind it.
The States re organisation was a historical accident.
The land owners cannot take advantage of this accident, to the detriment of ejected tenants or tenants in need of re set tlement.
For the above reasons, we hold that the High Court was justified in answering the question referred to it against the appellant.
The appeal is accordingly dismissed.
There will be no order as to costs.
S.R. Appeal dis missed.

summary/full:
Balwant Singh was a displaced person from West Pakistan.
He owned in all 67 standard acres of land distributed in various villages.
On 8.11.1960 when proceedings under the Punjab Security of Land Tenures Act, 1930 were initiated, the Special Collector, Punjab, declared 29 standard acres belonging to him as surplus area.
While doing so, the trans fers made by him were ignored.
He had an option to choose the property which fell to his share.
He opted for the entire land belonging to him and situated in village Semani as his permissible area and did not opt for any area in Mohamad Pera, District Ferozepure.
The Special Collector reserved for him about 18 standard acres out of his holding in village Dhav Kharial in order to make up his permissible area of 50 standard acres.
This part of the order of the Special Collector became final.
On 1.11.1966, the came into force and as a result thereof, the original properties that belonged to Balwant Singh fell within the new State of Punjab and the new State of Haryana.
In December 1966, Balwant Sigh, his wife and his minor son filed a writ peti tion for the issuance of necessary directions to the States of Punjab and Haryana restraining them from utillsing the surplus area declared by the Special Collector by his order dated 8.11.1960.
A learned Single Judge repelled all the following three contentions; (1) that after the States Reorganisation, persons owning lands both in the State of Punjab and Haryana could claim that they should be allowed 692 permissible area in both the States separately; (2) that orders passed regarding surplus area prior to 1st November, 1966, and which area had not been utilised till then, should be deemed to have no effect; and (3) that the proceedings declaring surplus land were bad for want of notice to the transferees.
When the matter was taken up in appeal, the Division Bench felt that an important question was involved and therefore referred the appeal to a Full Bench.
The Full Bench considered the matter in detail and held that the order declaring the area to be surplus passed before Ist November, 1966, would continue to have effect after that date, even if that order had not been implemented and per sons owning land in the newly created States is not, in law, entitled for a separate allotment under the Act.
Hence the appeal by certificate.
Dismissing the appeal, the Court, HELD: 1.1 Under the scheme of the Punjab Security of Land Tenure Act, 1930, It is the entire holding of a person on 15th April, 1953, that is to be taken into consideration for determining his surplus area.
The Government acquires the right to utilize the surplus area of a person against whom an order of declaration has been made for the resettle ment of tenants ejected or to be ejected.
[696D E] 1.2 It is true that alongwith the order declaring the land of an owner as surplus, a corresponding right and duty accrues to the Government to utilise the surplus area for the re settlement of tenants.
In other words, the rights on the land declared as surplus get vested in the Government to be distributed amongst the tenants for re settlement.
This is an indefeasible right that the Government secures.
There fore, the appellant cannot get back the land, if the surplus land had not been utilised.
[697A C] 1.3 There is nothing in the Act which imposes any time limit for the government to utilise the land for the purpose mentioned in the Act.
Nor is there any provision enabling the owner of the land to claim back the land and to get it restored to him if utilization is not made by the government within a specified period.
All that the Act contains by way of exception is what is seen in section 10A(b).
If at the time of the commencement of the Act, the land is acquired by the government under the relevant acquisition laws or when it is a case of inheritance, the owner could claim exclusion of such land from his land for fixation of his ceiling under the Act.
The second exception itself is further lettered 693 by the provision in section lOB that where succession had opened after the surplus area or any part thereof had been utilised under section 10A(a), the saving specified in favour of an heir by inheritance would not apply in respect of the area so utilised.
To put it short, the government had under the Act an unfettered right without time limit to utilise the land for re settlement of tenants subject to the two exceptions.
Though it is desirable that re settlement should be done as expeditiously as possible, inaction on the part of the government to resettle the tenants will not clothe the owner with a power for restoration of the land.
[697B F] 2.1 The appellant is not entitled to have the best of the two worlds; in other words to have his quota of full 50 acres in Punjab and another 50 acres in Haryana, this is so because Section 88 of the makes the provisions of the Act which was applicable to the old State of Punjab would continue to apply to the new State.
In other words, the order passed before 1.11.1966, which became final, declaring the surplus area would be given effect to and the order would be implemented uninflu enced by the division of the State.
[697F G; 698B] 2.2 A combined reading of clauses 10 and 11 of the Haryana Adaptation of Laws (States and Concurrent Subjects) Order, 1968 also makes it clear that any order made or anything done or any liability incurred or a right accrued before the 1st November, 1966 would not be affected by the coming into force of the order.
[698G H] 2.3 Clauses 10 and 11 show unambiguously that the re spective State Governments would be entitled to give effect to orders passed before 1st November, 1966, declaring the surplus area by utilising them for the re settlement of the tenants, despite the re organisation of the State of Punjab.
The orders passed will be respected by both the States.
The fact that the land belonging to a particular owner, under fortuitous circumstances, fail in the two newly formed States, will not in any way affect the operation of the orders which had become final prior to 1st November, 1966.
To accept the appellant 's contention would create anomalies.
Persons against whom proceedings under the Act were taken and became final prior to 1st November, 1966, would be entitled to claim lands in both the States wile those whose petitions are pending on the date the States Re organisation Act came into force would be in a disadvantageous position.
This is not the object of the Act.
Nor the scheme behind it.
The States re organisation was a historical accident.
The land owners cannot take advantage of this accident, to the detriment of ejected tenants or tenants in need of re set tlement.
[698H; 699A C] 694


judgement:
ivil Appeal No. 1632 of 1985.
From the Judgment and Order dated 2.4.1985 of the Bombay High Court in Election Petition No. 1 of 1985.
Ram Jethmalani, Kapil Sibbal, Karanjawala, Mrs. R. Karanjawala, Ejaz Mazbool and Ms. Priya Jaitley for the Appellant.
T.S. Krishnamurthy lyer, S.D. Lal and H.K. Puri for the Respondents.
At the last General Election held to the Lok Sabha he was declared duly elected from the Dadra and Nagar Haveli Parliamentary Constituency by a substantial majority.
After the declaration of the result of the elec tion the 1st Respondent, who was one of the defeated candi dates, filed an election petition in Election Petition No. 1 of 1985 on the file of the High Court of Bombay calling in question the result of the election on the ground that the appellant was disqualified to be chosen as a member of the Lok Sabha on the date of the scrutiny of the nomination papers, because he held an office of profit under the Gov ernment other than an office declared by Parliament by law not to disqualify its holder.
The High Court accepted the contention of the 1st Respondent and set aside the election of the appellant by its judgment dated April 2, 1985.
This appeal is filed under section 116 A of the Representation of People Act, 1951 (hereinafter referred to as 'the Act ') against the judgment of the High Court.
The facts of the case may be summarised thus.
The 1st Respondent was a member of the last Lok Sabha.
On 13.11.
1984 elections to the present Lok Sabha were announced.
The appellant, who was holding the post of an Investigator as a temporary Government servant in the Union territory of Dadra and Nagar Haveli, decided to contest the election from the Dadra and Nagar Haveli Parliamentary Constituency, which was a constituency reserved for the members belonging to the Scheduled Tribes.
He had been appointed on 2.5.1979 as a 640 Junior Clerk on a temporary basis in the Administration of Dadra and Nagar Haveli.
His appointment was subject to the conditions mentioned in the order of appointment and amongst the said conditions there were the following three condi tions: "1.
He will be governed by the Central Civil Services Rules.
The appointment is purely on temporary basis and is liable to be terminated at ONE month 's notice.
. . . . . . . 4. . . . . . . 5. . . . . . . 6.
Before resigning the post, he shall have to give one month 's notice to the Administration failing which he shall have to remit one month 's notice pay before he could be relieved from service.
. . . . . . . . . .
The above order of appointment was issued by the Collec tor of the Union territory of Dadra and Nagar Haveli, Silva sa.
The relevant Central Civil Services Rules which governed the appellant were the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as ( 'the CCS Temporary Service Rules ').
Rule 5(1) of the said Rules, which dealt with the termination of temporary service, read as follows: "5(1)(a) Termination of Temporary Service The service of temporary Government servant who is not in quasipermanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to Government servant.
(b) The period of such notice shall be one month.
Provided that the service of any such Government servant may be terminated forthwith and on such termination the 641 Government servant shall be entitled to claim a sum equiva lent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be for the period by which such notice falls short of one month.
" The last date for filing the nomination was 27.11.
1984 and the date of scrutiny of the nomination papers was 28.11.
The appellant, who was then working as an Investigator attached to the office of the Development and Planning Officer, Dadra and Nagar Haveli, Silvasa, wrote a letter on November 21, 1984 to the Collector of Dadra and Nagar Have li, who was the appointing authority, tendering his resigna tion.
The said letter read as follows: "From: Shri Sitaram J. Gavali, Investigator, Office of the Development & Planning Officer, Dadra and Nagar Haveli, Silvasa.
Silvasa, November 21, 1984.
To The Hon.
Collector, Dadra and Nagar Haveli, Silvasa.
Respected Sir, As I intend to contest the forthcoming Parliament Election from Dadra and Nagar Haveli Parliamentary (Constit uency), I the undersigned hereby give up my post of Investi gator which I am holding as temporary Government servant forthwith.
As I am giving up my post forthwith I hereby tender my pay plus allowances of one month vide Demand Draft No. C 199981 from State Bank of India, Silvassa Branch dated 21.11.1984 of Rs.1024.05 (Rupees One Thousand Twenty four and paise five only) in 642 favour of Development and Planning Officer, Dadra and Nagar Haveli, Silvasa.
Hence I cease to be a temporary Government servant from today only.
This letter of giving up my post as temporary Government servant is covered by Rule 5(1)(a) of CCS Temporary Service Rules.
Yours faithfully, Sd/ (S.J. GAVALI) Investigator" The said letter was submitted through the Development & Planning Officer, Dadra and Nagar Haveli, Silvasa.
Along with the said letter of resignation, as mentioned therein, he sent a demand draft drawn on the State Bank of India for a sum of Rs. 1024.05 paise which he was drawing as monthly pay plus allowances of the post he held immediately before that date.
Since he did not get any reply from the Collector to his letter of resignation, on 23.11.1984 he met the Collector and also the Secretary to the Administrator of Dadra and Nagar HaveIi who was the returning officer of the said election.
Then on 24.11.1984 he wrote a letter to the Development & Planning Officer, Dadra and Nagar Haveli, Silvasa which reads thus: "From: Shri Sitaram J. Gavali, Silvasa.
24.11.1984 To The Development & Planning Officer, Dadra and Nagar Haveli, Silvasa.
Sir, I have already submitted my application dated 21.11.1984 to the Hon.
Collector through the Development and Planning Officer to relieve me from my post with 643 immediate effect and as per the law, t also tendered a sum of Rs. 1024.05 by Demand Draft in favour of the Development & Planning Officer in lieu of one month notice.
In view of the said provisions, I ceased to be a Government servant from that date.
I had also requested on the same day to take the files and other records of the post held by me.
It has been informed by you that the said files and records will be taken only after getting orders of the Collector.
On the 23.11.1984, I met the Hon.
Collector and Secretary to the Administrator twice who have informed me that you (myself) are now no more a Government servant.
As per application dated 21.11.1984, I ceased to be a Govern ment servant from that date i.e. 21.11.1984.
Under the circumstances, I submit herewith all files and other records along with all registers may kindly be taken in your posses sion so that in future I am eligible to file my nomination for Lok Sabha Election for Dadra and Nagar Haveli Parliamen tary Constituency before the Returning Officer.
I submit the above mentioned document today, i.e. 24.11.84 at 10.00 hrs.
Kindly acknowledge the receipt of the same.
Thanking you, Yours faithfully, Sd/ (S.J. Gavali)" Submitted a copy of the above letter to the Collector, Dadra and Nagar Haveli also.
The said letter referred to the fact that the appellant had met the Collector and also the Secre tary of the Administrator on 23.11.1984 and that he had informed the Collector that he was no longer a Government servant.
Along with the said letter he handed over all the files, records and registers etc.
which were with him along with a list thereof to the head of his office, that is, the Development & Planning Officer.
He thereafter filed his nomination paper on 24.11.1984.
He also filed an additional nomination paper on 26.11.1984.
Since the appellant did not get any written reply from the Collector to the above letter of 24.11.1984 till 26.11.1984 he wrote another letter on 26.11.1984 to the Returning Officer, Dadra and 644 Nagar Haveli Constituency, Silvasa, who was also the Secre tary to the Administrator, which read thus: "From: Shri Sitaram J. Gavali, Silvasa.
26.11.1984 To The Returning Officer, Dadra and Nagar Haveli, Silvasa.
Respected Sir, I had been working as temporary Government servant with the designation as 'Investigator ' under the Nagar Haveli Administration.
The terms of my service are regulated by the 'Central Civil Services (Temporary Service) Rules, 1965 '.
When Lok Sabha elections were declared on 13.11.
1984, I took decision to contest the same.
Dadra and Nagar Hayeli is reserved constituency for Scheduled Tribes.
I belong to the Kokna Tribe which is a declared Scheduled Tribe covered by the Schedule to the 'Constitution (Dadra and Nagar Haveli) Schedule Tribes Order, 1962. ' Since I intend to contest the election, I have given up my post of Investigator from 21.11.1984, under Rule 5(1)(a) of the C.C.S. Temporary Service Rules, 1965, my service can be terminated by me by giving a notice in writ ing to the appointing authority.
Accordingly I have ad dressed a letter dated 21.11.1984 to the Collector, Dadra and Nagar Haveli informing him that I have given up my post of Investigator, and I cease to be a Temporary Govt.
servant from the date of the letter.
I say that under Rule 5 of the C.C.S. Rules, I am only required to give one month 's notice and no further act is required to be done for termination of my services.
In particular the same notice is neither to be replied to or even considered by the appointing authority.
The said notice under Rule (1) has been given by me on 21.11.1984 a copy of the same is hereto annexed and marked Annexure A.
I say that the said letter was received by the Collector 's office on 21.11.1984 itself.
That thereafter on 23.11.1984 one express Telegram has 645 been sent by me to the Administrator, Dadra and Nagar Haveli informing him that I have given up my service as temporary servant on 21.11.1984.
A copy of that telegram is hereto annexed as Annexure B.
I say that I have ceased to be a Govt.
servant on 21.11.1984 when I have given one month 's notice pay.
In any case there can be no doubt my services will come to end by operation of statute after the period of one month, that is, say on 20.12.1984.
Thus I will not be holding any office of profit with the Govt.
of India on 24.12.1984 which is the declared date of election in Dadra and Nagar Haveli.
Under the circumstances, I will have no disqualification for being chosen as a Member of Parliament on 24.12.1984 as contemplated by Article 102 of the Consti tution of India.
1 am addressing this letter to you out of abundant caution as I fear that the sitting member of Par liament Mr. Ramji Pitia Mahala, who is a close friend of the Collector, Dadra and Nagar Haveli has improperly prevailed over the Collector, Dadra and Nagar Haveli to sleep over my letter dated 21.11.1984 and may take up the wrong contention that I will be holding an office of profit with the Central Govt.
I once again state that without prejudice to my con tention that I have ceased to be a Govt.
servant on 21.11.1984 itself, in any case I shall cease to be one on 20.12.1984.
This position cannot be in dispute in view of the absolutely clear position of Rule 5 of the C.C.S. Rules, 1965.
For the sake of convenience the relevant portion of the said Rules and Article 102 of the constitution of India is reproduced in an annexure marked Annexure C.
I pray that the aforesaid contention may be borne in mind when my nomination papers are scrutinised on 28.11.
Yours faithfully, (SITARAM J. GAVALI)" Copies of the above letter were sent by the appellant to the Administrator, Dadra and Nagar Haveli, Caho Niwas, Panjim, Goa, Election Commission of India, Chief Electoral Officer, Dadra and Nagar Haveli and to SC/ST Commissioner for infor mation and necessary action.
On the same date he received a reply from the office of the 646 Administrator, Dadra and Nagar Haveli which read as follows: "No. ADM/SECT/MISC/SJG/84 Administration of Dadra and Nagar Haveli, Silvasa, date 26.11.1984.
To Shri Sitaram J. Gavali, Investigator, (Through the D.P.O.) Dadra and Nagar Haveli, Silvasa.
I am directed to refer to your letter dated 21.11.
1984, addressed to Collector, under which you had issued notice under Rule 5(1)(a) of CCS Temporary Service Rules and stated that you are giving up your post forthwith and had tendered pay and allowance of one month.
In this connection I am directed to inform you that the said notice was exam ined in the Administration.
Necessary legal opinion was also obtained.
The case was also referred to the Government of India, in the Ministry of Home Affairs, through Crash Wire less Message dated 23.11.1984.
As per Government of India 's decision, your notice of termination of service takes effect on the expiry of the prescribed period of one month.
There is no provision under Rule 5(1) of the CCS Temporary Service Rules under which a Government servant can deposit one month 's pay in lieu of the purchase of period of notice.
Hence as per Rule 5(1) of the CCS Temporary Service Rules quoted by you, the notice of termination of your service will take effect only after the expiry of one month from the date of submission of notice.
Sd/ (S.S Kolvekar) Governor to the Administrator Dadra and Nagar Haveli, Silvasa" The above letter stated that the Ministry of Home Affairs, Government of India had been contacted by the Collector in connection with the letter of resignation submitted by the appellant on 21.11.1984 and 647 necessary legal opinion had been obtained thereon.
The said letter, however, informed him that there was no provision under Rule 5(1) of the CCS Temporary Service Rules under which a temporary Government servant could deposit one month 's pay in lieu of the period of notice issued under Rule 5(1) of the said Rules and that the notice of termina tion of service issued by the appellant would, therefore, take effect only upon the expiry of one month from the date of the receipt of the notice.
In other words, the said letter stated that the appellant would continue to be a temporary Government servant till 21.12.1984.
In reply of the said letter, the appellant wrote a letter dated 27.11.
1984 to the Secretary to the Administrator, Dadra and Nagar Haveli which read thus: "From: Sitaram Jivyabhai Gavali, Silvasa.
27.11.1984 To Secretary to the Administrator, Dadra and Nagar Haveli, Silvasa Subject: Lok Sabha Election matter Sir, I the undersigned Shri S.J. Gavali beg to state under: 1.
I have received your letter No. ADM/Secy/Misc/SJG/84 dated 26.11.1984.
I have been informed by you that the notice of termination of my services will take effect only after the expiry of one month from the date of submission of notice.
In this connection, I am to state that I had been appointed as Jr. Clerk vide Administration Order No. ADM/EST/C/RCC/1466/1979 dated 2.8.79.
The said appointment is subject to the conditions fixed by the administration.
648 As per the condition No. 2 the appointment is purely on temporary basis and is liable to be terminated at one month 's notice and as per the condition No. 6 before resigning the post, I have to give one month 's notice to the Administration, failing which I have to remit one month 's pay before I can be relieved from service.
I have been promoted as Investigator by the Administration and my service conditions were contin ued.
I intended to contest the forthcoming Parliament election from this area and therefore, I gave up my post and paid my one month notice pay on 21.11.1984 and tendered my notice by the said letter giving up my post as temporary Govt.
serv ant.
I have also submitted detailed representation to the Returning Officer, Dadra and Nagar Haveli, Silvasa on 25.11.
I have already given my charge to the Development and Planning Officer, Dadra and Nagar HaveIi, Silvasa vide my letter dated 24.11.1984.
I am not holding any office of profit with the Govt.
of India from 21.11.1984.
I have tendered notice with immediate effect and also deposited one month 's pay in lieu of notice as per the terms and conditions of my appointment.
I have already given my charge.
My notice became effective from that very day and does not require any formal acceptance as per rules.
Under the above circumstances for being chosen as a Member of Parliament.
Incidentally I would like to draw your kind attention that Administration has considered many cases, and accepted the resignation with immediate effect, when the Govt.
serv ants have tendered their resignation with one month 's pay as per the terms and conditions of their appointment orders.
The resignations of the following persons were accepted with immediate effect by the Collector, Dadra and Nagar Haveli, Silvasa.
The said persons had paid one month notice pay.
649 Name Date of acceptance of resignation.
Shri J.V. Desai 12.4.78 Stockman, Khanvel Shri C.V. Patel, 31.1.1983 Stockman Shri A.H. Patel, 30.8.84 Primary School Teacher Shri D.G. Shah, . .
High School Teacher Shri R.G. Chauhan, 7.1984 Primary School Teacher Shri J.D. Patel.
10.1984 Lineman, P.W.D., Silvasa.
(He was relieved on same day) The Administration should take equal decision for all employees.
But different decision taken for me is against law, equity and justice.
I am addressing this letter to you out of abundant cau tion as I fear that the sitting member of Parliament Mr. R.P. Mahala who is close friend of the present Collector has improperly prevailed over the Collector to sleep over my letter dated 21.1 l.1984 and taken wrong contention.
The reply given by your office vide letter No. ADM/ Secy/Misc/SJC/84 dated 26.11.1984 is not as per law and against the relevant rules and regulations and terms of my appointment order.
My right to contest the election should not be deprived.
I, therefore, request you to kindly look into the matter personally and give me justice properly.
I am quite eligible to contest the election.
1 have explained clear position to you.
I therefore request you to do 650 the needful in the interest of natural justice and protect the right of citizen.
If you take any adverse action for my election activities, I shall take all legal actions as per the circumstances of my case would warrant against you with your costs and consequences, which please note.
Yours faithfully, sd/ (S.J. Gavali)" In the above letter, the appellant, specifically drew the attention of the Administration to Condition No. 6 in his letter of appointment which authorised him to resign his service on remitting 'one month 's notice pay '.
He pleaded in the said letter that since he had remitted 'one month 's notice pay ' and also handed over the charge by delivering all the files, registers records etc.
which were with him on 24.11.1984 he had ceased to be a Government servant.
He also mentioned in the said letter that earlier the Collector had accepted the resignations of six temporary Government serv ants on payment of 'one month 's notice pay '.
In reply to the above letter he got a reply from the Development and Plan ning Officer, Dadra and Nagar Haveli, Silvasa on December 21,1984 along with the demand draft for Rs.1024.05 paise which had been deposited by the appellant on 21.11.1984.
The said letter read thus: "Administration of Dadra and Nagar Haveli, U.T. (Department of Rural Development) No. DPO/EST/EF SJG/84 85/2 153 Silvasa, 21.12.1984.
To Shri Sitaram J. Gavali, Investigator, Dadra and Nagar Haveli, At and Post: Khanval.
Sir, I am directed to refer to this Administration 's letter No. ADH/SECY/MISC/SJC/84 dated 26.11.84 and as mentioned therein, your notice of termination of services 651 takes effect on the expiry of the prescribed period of one month.
There is no provision under Rule 5(1) of the CCS (Temporary Services) Rules, 1965, under which the Government servant can deposit one month 's pay in lieu of the pre scribed period of notice.
Under the circumstances, the demand draft of the State Bank of India, Silvasa Branch bearing No. C 199981 dated 21.11.1984 of Rs.1024.05 received alongwith your application dated 21.11.1984 is returned herewith.
Kindly acknowledge the receipt for the same.
Yours faithfully Sd/ Development and Planning Officer Dadra and Nagar Haveli, Silvasa.
" In the meanwhile on 28.11.1984, i.e., the date of scru tiny of the nomination papers, the Returning Officer passed the following order overruling the objection which had been raised by the 1st Respondent to the nomination of the appel lant: "I have examined this nomination paper in accordance with section 36 of the Representation of the People Act, 1955, and decide as follows: An objection was raised during scrutiny of this nomination paper, by the authorised person of the candidate Shri Mahala Ramjibhai Potiabhai, that Shri Gavali Sitaram Jivyabhai is holding as on today, an office of profit under the Administration of Dadra and Nagar Haveli and hence he is disqualified to be a Member of House of People in accordance with Article 102 of the Constitution of India.
A summary enquiry was held on this objection and both the sides were heard.
On the basis of arguments advanced and evidence adduced before me l have a doubt as to whether Shri Gavali Sitaram Jivyabhai holds an office of profit as on today, under the Administration of Dadra and Nagar 652 Haveli.
Hence I decide to give the benefit of this doubt to the candidate and accept this nomination.
Sd/ 28.11.1984 Returning Officer Dadra and Nagar Haveli, Silvasa Accordingly, the nomination papers of the appellant were accepted and since there was a contest, the poll took place on the appointed day.
At the said election, the appellant secured the highest number of votes and he was declared as elected.
As mentioned earlier, the 1st Respondent filed the election petition before the High Court.
At the conclusion of the trial, the learned Judge, who heard the election petition, having noticed the presence of Condition No. 6 in the letter of appointment issued to the appellant which enabled the appellant to resign from his post by tendering one month 's pay plus allowances, held that the letter of resignation was one which had been served on the Government under Rule 5(1)(a) of the CCS Temporary Rules and was not one under Condition No. 6 of the letter of appointment.
He further held that even assuming that the letter of resigna tion had been submitted pursuant to Condition No. 6 of the letter of appointment, the resignation did not take effect, since the appellant had not been 'relieved from the service ' as required by Condition No. 6 of the letter of appointment before the date of scrutiny.
He further held that the sub mission of flies, records, papers etc.
by the appellant did not mean that he had been 'relieved from service ' as it was his unilateral act.
Accordingly, the learned Judge came to the conclusion that the resignation did not take effect till the expiry of one month from the date of the letter of termination, i.e, till the expiry of December 21, 1984 and consequently the appellant was holding an office of profit on the date of scrutiny of the nomination paper.
The learned Judge held that the holding of the said office of profit amounted to a disqualification under clause (a) of Article 102(1) of the Constitution of India.
In the result the election petition filed against the appellant was allowed and the election of the appellant was declared as void under section 98 of the Act.
The above appeal came up for hearing before this Court in March 1986.
On that occasion, after hearing the learned counsel for both the parties, this Court passed an order dated March 11.
1986 remitting the case to the High Court under Order 41 Rule 25 of the Code of Civil Procedure.
The said order reads thus: 653 "On hearing counsel and on going through the judg ment of the High Court and the application for amendment of the Written Statement now filed by the appellant (the re turned candidate who has been unseated) before us we feel that the amendment prayed for should be allowed.
The matter will have to go back to the High Court for this limited purpose with a direction to record and forward to this Court its findings on the issues that may arise in the light of the amended Written Statement and the additional pleadings if any that may be filed by the election petitioner in the election petition.
We, therefore, in the interests of jus tice allow the amendment of the Written Statement as prayed and direct the High Court to try issues arising out of the amended part of the Written Statement and additional plead ings, if any, to be filed by the petitioner as per Order 41 Rule 25 CPC.
We further direct the High Court to forward its findings to this Court on or before 31st August, 1986.
The parties will be at liberty to adduce additional evidence if they so desire.
Upon the findings being recorded by the High Court the parties are directed to file their objections to the findings submitted by the High Court on or before 15th of September, 1986.
This case may be posted in the 3rd week of September for further hearing.
The original record may be sent back to the High Court alongwith a copy of this order within one week from today.
" After the above order was passed the written statement of the appellant before the High Court was amended and additional issues were framed.
After recording the evidence adduced by the parties and hearing the parties, the High Court recorded its findings on the additional issues framed in the election petition and submitted them to this Court.
The additional issues that were framed pursuant to the order passed by this Court were these: "1.
Whether the acceptance of the files and records in the possession of the 1st respondent by the Development and Planning Officer, Dadra and Nagar Haveli, amounted to ac ceptance by conduct of the 1st respondent 's resignation, as alleged in paragraph 5A of the statement of Defence? 2.
Whether the absence of any negative response by 28th November, 1984 to the 1st respondent 's letter dated 25th 654 November, 1984 submitted to the office of the Collector of Dadra and Nagar Haveli amounted to acceptance by conduct by the Collector of the 1st respondent 's resignation, as al leged in the aforesaid paragraph? 3.
Whether acceptance of the 1st respondent 's application made after 21st November, 1984 relates back to the date of the application as alleged in the aforesaid paragraph? 4.
Whether the Collector, by not passing any orders on the application, is deemed to have accepted the resignation, as alleged in the aforesaid paragraph?" The learned Judge answered all the above issues in the negative and against the appellant.
The appeal was taken up for hearing again after the receipt of the records from the High Court.
The first question which arises for consideration in this case is whether the letter of resignation dated Novem ber 21, 1984 should be treated as one submitted under Rule 5(1) of the CCS Temporary Service Rules.
It is true that in the letter of resignation the appellant states that 'this letter of giving up my post as temporary Government servant is covered by Rule 5(1)(a) of the CCS Temporary Service Rules ' and that there is no specific reference to Condition No. 6 of the letter of appointment which authorised the appellant to resign from his post by remitting one month 's pay plus allowance to the Government.
Still in the circum stances of the case we feel that the finding of the learned judge of the High Court that it could be treated only as letter of resignation under Rule 5(1)(a) of the CCS Tempo rary Service Rules is 'unsustainable.
Clause (a) of Rule 5(1) of the CCS Temporary Service Rules authorises the termination of temporary service of a Government servant (who is not a quasi permanent servant) at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant.
Clause (b) of Rule 5(1) of the CCS Temporary Service Rules prescribes the period of such notice as one month.
The proviso to Rule 5(1), however, authorises the appointing authority and not the Government servant to terminate the temporary service of the Government servant forthwith and that on such termination the Government serv ant becomes entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his service, or as the case may be for the period by 655 which such notice fails short of one month.
There is no provision in the CCS Temporary Service Rules which autho rises a Government servant to bring about the termination of his temporary service as provided in Rule 5(1) by paying a sum equivalent to the amount of his pay and allowances of the period of notice at the same rates at which he was drawing them immediately before termination of his service or as the case may be for the period by which notice falls short of one month.
But it needs to be emphasized that in his letter of resignation the appellant had clearly conveyed that he was giving up the post held by him forthwith and he was tendering along with the said letter a demand draft drawn on the State Bank of India, Silvasa Branch for a sum of Rs. 1024.05 paisa.
He also stated in the said letter that he would cease to be a temporary Government servant from that date.
If the letter of resignation was truly one which had been submitted under Rule 5(1) of the CCS Temporary Service Rules which did not envision tendering of one month 's salary by the employee, there was no necessity to tender a demand draft for Rs. 1024.05 paise.
Such payment was contemplated only when the resignation was under Condi tion No. 6 of the letter of appointment issued in favour of the appellant about which the appointing authority could not have been unaware.
If the concerned authority had not real ized that it was a resignation pursuant to such condition the said authority would have returned (instead of retain ing) the demand draft at once or at the earliest.
That he did not do so tells its own tale.
The existence of Condition No. 6 in the letter of appointment is not in dispute.
The appellant had drawn the attention of the Administration of the Dadra and Nagar Haveli to the acceptance of resignations of six officials who were similarly placed forthwith by the Administration on payment of one month 's pay plus allow ances.
It may also be noted that in his letter dated 27.11.
1984 the appellant had clearly stated in terms that the letter of resignation had been submitted in pursuance of Condition No. 6 of his letter of appointment.
The correct ness of the statement in the deposition of the Planning and Development Officer, who was examined after remand that a letter dated 24.11.1984 as per the original or Additional exhibit D 2 had been sent to the appellant informing the appel lant that his letter of resignation was under consideration, is in dispute.
The appellant has denied the receipt of the same.
There is no evidence supporting the service of that letter on the appellant.
This circumstance cannot, there fore, be treated as having been established.
We, therefore, do not agree with the finding of the learned Judge of the High Court that the letter of resignation submitted by the appellant on 21.11.1984 was one submitted under Rule 5(1) of the CCS Temporary Service Rules.
It is further seen that the Administration has withdrawn by a specific order subse 656 quently the condition which authorised a temporary Govern ment servant to resign from his post forthwith by tendering a month 's pay plus allowances.
The letter of resignation of the appellant was one which was submitted pursuant to Condi tion No. 6 of his letter of appointment which was one more method adopted and accepted by the Administration to bring about the termination of service of a temporary Government servant.
It is significant that the Ministry of Home Affairs had not noticed the existence of Condition No. 6 when it was consulted by the Collector as this aspect was not brought to the notice of the Ministry.
The said condition was only supplementary to the modes of termination of temporary service, referred to in Rule 5(1) of the CCS Temporary Service Rules and it was not in any way inconsistent with the said Rules.
As a matter of fact it was not even suggest ed or faintly hinted in the High Court that there was any such inconsistency.
It is well recognised that a new service condition may be brought into effect by an executive order and such condition would remain in force as long as it is not repealed either expressly or by necessary implication by another executive order or a rule made under the proviso of Article 309 of the Constitution of India or by a statute.
It is not shown in the facts and circumstances of the case and the material produced in the Court that there is any inconsistency be tween Condition No. 6 and any other order, rule or law.
In the circumstances we hold that the letter of resignation is one submitted pursuant to Condition No. 6 in the letter of appointment issued in the case of the appellant.
The next point for consideration is whether there has been full compliance with Condition No. 6 of the letter of appointment of the appellant.
Admittedly, the demand draft for Rs. 1024.05 paise which was equivalent to the pay plus allowances, which the appellant was drawing every month immediately prior to the date of his letter of resignation had been tendered along with the letter of resignation as enjoined by Condition No. 6.
The only question that remains to be considered is whether the appellant had been relieved from his service by the Administration.
Condition No. 6 provided that 'before resigning the post, he shall have to give one month 's notice to the Administration failing which he shall have to remit one month 's period pay before he could be relieved from service '.
No rule or executive order prescribing the method or manner in which a temporary Gov ernment servant of the rank of an Investigator could be relieved from service under Condition No. 6 of the letter of appointment is brought to our notice.
Nor it is shown by adducing any evidence as to what practice had come to vogue as regards relieving such a person.
The resignation 657 contemplated under Condition No. 6 is not the same as the letter of resignation which may be submitted by a Government servant on the acceptance of which he ceases to be a Govern ment servant.
In the case of an ordinary resignation which is governed by the Memorandum No. 35/6/57 Ests.
(A) Ministry of Home Affairs dated 6th May, 1958 no question of paying a month 's salary or allowance to the Government would arise.
It is implicit in such a condition that the nature of his employment is such that he can be relieved forthwith with outthe need for waiting for a month and that he would be so relieved as was indeed done in the case of others governed by such a condition.
The only thing that has got to be decided in this case is whether the appellant had been actu ally relieved from service.
There is no dispute that at 10.00 A.M. on 24.11.1984, before the appellant submitted his nomination paper to the Returning Officer, he had handed over all the records, registers, files etc.
which were with him to the head of his office along with a letter, a copy of which was submitted to the Collector, who was the appointing authority.
This cannot be termed as an unilateral act of the appellant.
There was no refusal to accept the records.
There was no order to report for duty and discharge any functions.
The appellant had not, in fact, been paid any salary or allowance for the period subsequent to 20.11.1984, that is, the date previous to the date of the letter of resignation.
He had not attended and he was not required to attend his office from 21.11.1984 except for handing over the records, files, registers etc.
on 24.11.1984, The appellant was not asked by the Collector to attend the office till 21.12.1984 nor grievance was made against him for his absence in the wake of his resignation.
There was no disciplinary proceed ing or any other kind of enquiry pending against the appel lant which required the appointing authority not to relieve the appellant from his service in the public interest.
And there was no objection raised as a matter of fact on any ground to his being treated as having ceased to be in serv ice eventually till the expiry of one month from the date of his service.
It is not as if for administrative reasons his resignation was not acceptable for any reason.
It appears to us that the appellant 's resignation had become effective at least on the day on .which the records were handed over, that is before the date of scrutiny and he had ceased to hold an office before the date of scrutiny.
The Returning Officer had rightly overruled the objection and accepted his nomination paper.
It is not established by the election petitioner on whom the onus rested that the returned candi date held an office of profit on the date of scrutiny or that his nomination paper was wrongly accepted by the Re turning Officer.
He cannot therefore successfully assail the election of the returned candidate, the appellant herein.
In these circumstances we are of the view that the appellant 658 should be deemed to have been relieved from his service at 10.00 A.M. on 24.11.1984 and he had ceased to be a Govern ment servant before he submitted his nomination paper on 24.11.1984.
In the view we have taken it is not necessary to go into the question whether the Collector had deliberately delayed the acceptance of the resignation of the appellant with a view to assisting the 1st Respondent, who was a Member of the last Lok Sabha, as alleged by the appellant.
We, therefore, allow this appeal, set aside the judgment of the High Court and dismiss the election petition.
The appellant is entitled to the costs both before the High Court and in this Court which we quantify at Rs.5,000.
The 1st Respondent shall pay the costs of the appellant.
The appeal is accordingly allowed.
S.R. Appeal allowed.

summary/full:
The appellant who belonged to Scheduled Tribe covered by the Schedule to the Constitution (Dadra and Nagar Haveli) Schedule Tribes Order, 1962, decided to contest the 1984 election from the Dadra and Nagar Haveli Parliamentary Constituency which was a constituency reserved for the members belonging to the Scheduled Tribes.
As he was holding the post of an Investigator as a temporary Government serv ant governed by the Central Civil Services (Temporary Serv ices) Rules, 1965 and also by condition 6 of his appointment order, he wrote a letter on November 21, 1984 to the Collec tor of Dadra and Nagar Haveli, who was his appointing au thority, tendering his resignation and enclosing a demand draft drawn on the State Bank of India for a sum of Rs.1024.05 paise, being one month 's notice pay.
On 24.11.1984 at 10 A.M. he wrote another letter to his immedi ate officer and submitted all the records and files which were with him.
He, thereafter, filed his nomination paper on the same day i.e. two days before the last date for filing the nomination papers.
On 26.11.84, he wrote a letter to the Returning Officer, bringing to his notice each and every fact leading to his resignation and requesting the Returning Officer to note his contention that he ceased to be a gov ernment servant with effect from 21.11.84, while scrutinis ing the nomination paper.
On the same date he received a reply from the office of the Administrator Dadra and Haveli to the effect that his resignation would take effect from 21.12.84 on the expiry of one month 's notice and that 636 his remitting one month 's notice pay was not contemplated under Rule 5(1)(a) of the Central Civil Services (Temporary Services) Rules, 1965, as per the legal opinion obtained.
On 27.11.84, the appellant sent a reply bringing to the Admin istrator 's notice condition No. 6 of his appointment order and also cases of six other officers whose resignations were accepted forthwith accepting one month 's notice pay from them.
The appellant also alleged mala fides and pressure by Respondent No. 1, the then sitting member of the Parliament on the Collector.
In reply to the said letter, the Develop ment and Planning Officer by his letter dated 21.12.84 reiterated the Administrator 's stand and returned the demand draft.
In the meanwhile on 28.11.84, i.e. the date of scrutiny of the nomination papers, the Returning Officer overruled the objection raised by Respondent No. 1 that since the appellant was holding an office of profit under the Govern ment he was disqualified to contest the election.
In the said election, the appellant secured the highest number of votes and he was declared elected.
The election petition filed by Respondent No. 1 was allowed and the appellant 's election was declared null and void.
The appeal preferred by the appellant under section 116 of the Repre sentation of People Act, 1951 was remitted to the High Court for amendment of written statement, framing of fresh issues and further findings of the High Court on them.
All the four additional issues framed were answered against the appellant and thereafter, the said appeal was set for further hearing.
Allowing the appeal, the Court, HELD: 1.
The letter of resignation dated November 21, 1984 cannot be treated as one submitted under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965.
The proviso to Rule 5(1) authorises only the appointing authority to terminate the temporary service of the Govern ment servant forthwith and that on such termination the Government servant becomes entitled to claim a sum equiva lent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his service, or as the case may be for the period by which such notice fails short of one month.
There is no provision in the CCS Temporary Service Rules which authorises a Government servant to bring about the termination of his temporary service as provided in Rule 5(1) by paying a sum equivalent to the amount of his pay and 637 allowances of the period of notice at the same rates at which he was drawing them immediately before termination of his service or as the case may be for the period by which notice falls short of one month.
If the letter of resigna tion was truly one which had been submitted under Rule 5(1) of the CCS Temporary Service Rules which did not envision tendering of one month 's salary by the employee, there was no necessity to tender a demand draft for Rs.1024.05.
Such payment was contemplated only when the resignation was under condition No. 6 of the letter of appointment issued in favour of the appellant about which the appointing authority could not have been unaware.
If the concerned authority had not realised that it was a resignation pursuant to such conditions the said authority would have returned (instead of retaining) the demand draft at once or at the earliest.
[654D; G H; 655A E] 1.2 The letter of resignation of the appellant was one which was submitted pursuant to Condition No. 6 of his letter of appointment which was one more method adopted and accepted by the Administration to bring about the termina tion of service of a temporary government servant.
The said condition was only supplementary to the modes of termination of temporary service, referred to in Rule 5(1) of the CCS Temporary Service Rules and it was not in any way inconsist ent with the said Rules.
As a matter of fact it was not even suggested or faintly hinted in the High Court that there was any such inconsistency.
[656B C] 1.3.
It is well recognised that a new service condition may be brought into effect by an executive order and such condition would remain in force as long as it is not re pealed either expressly or by necessary implication by another executive order or a rule made under the proviso of Article 309 of the Constitution of India or by a statute.
In the facts and circumstances of the case, the material pro duced in the Court and in the absence of any inconsistency between condition No. 6 and any other order, rule, or law the letter of resignation is one submitted pursuant to condition No. 6 in the letter of appointment issued in the case of the appellant.
[656C E] 2.1 There has been full compliance with condition No. 6 of the letter of appointment as a demand draft was enclosed being a month 's notice pay and allowances.
[656E F] 2.2 The resignation contemplated under Condition No. 6 is not the same as the letter of resignation which may be submitted by a government servant on the acceptance of which he ceases to be a government servant.
In the case of an ordinary resignation which is 638 governed by the Memorandum No. 39/6/57 Ests.
(A) Ministry of Home Affairs dated 6th May, 1958 no question of paying a month 's salary or allowance to the Government would arise.
In the absence of any rule or executive order prescribing the method or manner in which a temporary government servant of the rank of an investigator could be relieved from serv ice under Condition No. 6 of the letter of appointment or any evidence adduced as to what practice had been in vogue as regards relieving such a person, it must be held that it is implicit in such a condition that the nature of his employment is such that he can be relieved forthwith without the need for waiting for a month and that he would be so relieved as was indeed done in the case of others governed by such a condition.
[657A C] 2.3 The appellant should be deemed to have been relieved from his service at 10.00 A.M. on 24.11.1984 and he had ceased to be a Government servant before he submitted his nomination paper on 24.11.1984.
At 10.00 A.M. on 24.11.1984, before the appellant submitted his nomination paper to the Returning Officer, he had handed over all the records, registers, files etc.
which were with him to the head of his office along with a letter, a copy of which was submitted to the Collector, who was the appointing authority.
This cannot be termed as an unilateral act of the appellant.
There was no refusal to accept the records.
There was no order to report for duty and discharge any functions.
The appellant had not, in fact, been paid any salary or allowance for the period subsequent to 20.11.84, that is, the date previous to the date of the letter of resignation.
He had not attended and he was not required to attend his office from 21.11.84 except for handing over the records, files, registers etc.
on 24.11.84.
The appellant was not asked by the Collector to attend the office till 21.12.84 nor grievance was made against him for his absence in the wake of his resignation.
There was no disciplinary proceeding or any other kind of enquiry pending against the appellant which required the appointing authority not to relieve the appellant from his service in the public interest.
And there was no objection raised as a matter of fact on any ground to his being treated as having ceased to be in service eventually till the expiry of one month from the date of his service.
It is not as if for administrative reasons his resignation was not acceptable for any reason.
[657C F] 3.
The Returning Officer had rightly overruled the objection and accepted his nomination paper.
It is not established by the election petitioner on whom the onus rested that the returned candidate held an office of profit on the date of scrutiny or that his nomination paper was Wrongly accepted by the Returning Officer.
He cannot there fore suc 639 cessfully assail the election of the returned candidate, the appellant herein.
[657G H]