judgement:
Appeal No. 834 of 1966.
Appeal by special leave from the judgment and order dated March 2, 1965 of the Allahabad High Court in Second Appeal No. 1271 of 1962.
C. P. Agarwala and O. P. Rana, for the appellants.
E. C. Agrawala, section R. Agrawala and P. C. Agrawala, for the, respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad dismissing the appeal filed by the State of Uttar Pradesh and Others, appellants before us, against the judgment and decree passed by the Additional District Judge, Varanasi, setting aside the judgment and decree passed by the Trial Court and decreeing the plaintiffs suit.
The plaintiff, ' Harish Chandra Singh, had brought a suit against the State of Uttar Pradesh and some Police Officers for a declaration that the order of removal of the plaintiff from the Police Service was void, illegal, ineffective and inoperative, and that the plaintiff still continued to be in Uttar Pradesh Police Service as Station Officer in Charge of a Police Station and that he was entitled to his full pay and emoluments with increments as they fell due.
He had also prayed for recovery of Rs. 7,453 as full emoluments and s alary from June 27, 1956 up to the date of the suit.
In order to appreciate the points raised before us it is necessary to set out the relevant facts.
On December 13, 1942, the plaintiff was appointed as Platoon Commander in the Civil Guards.
In 1945 there was a notification regarding the absorption of civil guards in the Police and on November 6, 1945, the plaintiff was selected by the Deputy Inspector General, Police Headquarters, Allahabad, for admission to the 1946 Session of the Police Training College, Moradabad.
On January 8, 1947, the result of the Civil Police Cadets for 1946 Session was announced, and in the extract of the Police Gazette it is stated in the last column 394 under the heading 'where posted ', against the name of the plaintiff, 'Azamgarh '.
This result sheet was issued by order of the Inspector General of Police, United Provinces.
We have mentioned these facts because the learned counsel for the plaintiff contends that the plaintiff was in fact appointed by the Inspector General of Police and not by the Deputy Inspector General of Police.
Following three charges were framed against the plaintiff under section 7 of the on February, 6, 1956: "1.
A case Cr.
No. 92 u/s 324 IPC was registered at P. section Mariahun which on receipt of the injury report on 6 11 55 at the P. section was found to fall within the purview of section 326 IPC and yet this S.I. did not in vestigate the case in accordance with law and failed even ,,to comply with the orders of the Dy.
S.P. (then acting as S.P.) given by him on 19 11 55. 2.
On 21 11 55 a written report of burglary was made over to him by one Lalji Singh r/o Jamua who came to the P.S. alongwith Ramdeo and Ganesh but he failed to record that report and register a case in contravention of the provision of paragraph 97 of the Police Re gulations.
A case Cr.
No. 101 u/s 457/380 PC was, 'however, registered by him on 5 12 55 'although he had been to the scene of occurrence on 27 11 55 and had conducted some investigation on that date.
He did not prepare any case diary for the investigation carried out ,on 27 11 55 and even after the registration of the case on 5 12 55 he deferred proper investigation until 22 12 55.
A report of burglary on the night of 17/18 10 55 ' was handed over to this S.I. personally by complainant Raj Bahadur Singh but no action was taken on that report nor any entry was made in the General Diary to this effect.
On receipt of a complaint the C.I. was asked to enquire into the matter who directed him to register a case and accordingly a case was registered on Cr. No. 100 section 457/380 I.P.C. on 2 12 55.
Even after the registration of this case this S.I. deferred proper investigation until 17 12 55.
" The Superintendent of Police gave a report on February 27, 1956, but the Inspector General ordered a fresh enquiry on March 6, 1956; On April 30, 1956, the Superintendent of Police gave his report.
He held the plaintiff guilty of the charges framed against him.
Towards the end of the report, the Superintendent of Police observed: 395 "S.I. Harish Chandra Singh is an enlistment of 29 1 47 when he seems to have started his service satisfactorily.
In 1950 he was placed under suspension and was dismissed from service from 2.1 6 1951 while he was in district Azamgarh.
On subsequent consideration he was reinstated and he reported for service in January 1952.
He was, however, reduced to the lowest scale of a S.I. for a period of three years.
His character roll indicates that he was again placed under suspension from 20 8 54 but reinstated on 30 9 54.
Soon after he was again placed under suspension with effect from 4 11 54 and was proceeded against u/s 7 of the as a result of which he was reduced from Rs. 162 p.m. to Rs. 144 p.m. for a period of one year from 8 2 55 and reinstated in service.
Subsequently he was awarded a misconduct entry for a non registration of dacoity case while posted in district Basti.
On the other hand he has also earned some rewards and is at present posted as II Officer P.S. Mirganj.
This record of service does not appear encouraging at all.
In respect of the various items of charge u/s 7 of the framed against him he has been.
held guilty and considering the seriousness of these charges I do not think any leniency is called for in his favour.
He has clearly disobeyed the lawful orders of his superior officers and has failed to comply with the mandatory provisions of law and Police Regulations.
A S.I. acting in this manner is not in my opinion fit to discharge his responsibilities as a police officer.
Since, however, no dishonesty has been attributed to him in the various items of the charge framed against him, I think it will meet the ends of justice if he is only removed from police service.
Accordingly finding him guilty u/s 7 of the I propose that he may be removed from the Police Service and submit this finding to the D.I.G. Eastern Range in accordance with paragraph 490 sub paragraph 8(a) of the Police Regulations.
" On May 16, 1956, a show cause notice was served on the plaintiff and a copy of the findings of the Superintendent of Police was enclosed .
In the show cause notice it was stated that the plaintiff could send his written representation within 10 days of the receipt of the show cause notice, and after checking his explanation he would be called to appear before the Deputy Inspector General of Police, E. Range.
He appeared before the Deputy Inspector General of Police and answered various questions put by the D.T.G.
Towards the end he stated that he had no complaint with regard to the departmental proceedings against him.
396 The Deputy Inspector General agreed with the findings of the Superintendent of Police, and at the end of his order he observed: " S.I. Sri Harish Chandra Singh was enlisted on 29 1 1947.
In 1950 he was placed under suspension and he was dismissed from service from 21 6 51.
He was, however, later reinstated and joined his duty in January 1952.
He, was also reduced to lowest Scale of S.I.s,for a period of 3 years vide orders (torn) 'El dated 25 4 51.
In 1955 he was dealt with u/s 7 of the for having contracted illicit connection with Shrimati Mina Devi who was ultimately recovered from (torn) the C.I. and he was reduced for 2 years.
He (torn) entry in 1955 for having failed to (torn) of dacoity.
Against this black record, the (torn) 15 rewards and commendations.
The party is undisciplined and unreliable and he does not deserve (torn) in the police service.
The charges proved against him (torn) very serious and there is no room for me to show him any (torn) in the award of punishment.
Agreeing with the proposal of the S.I., I order that S.I. Harish Chandra Singh be removed from service with effect from the date that this order is communicated to him.
" The plaintiff then filed an appeal to the Inspector General Of Police, who rejected the appeal, and after.
taking into consideration his previous record confirmed the order of removal.
He observed : "In fact the D.I.G. has taken a lenient view in (torn) removing him from service especially in view of his past (torn)." The High Court held that no opportunity was given to the plaintiff to offer any explanation on the question of his past record which was taken into consideration by the Deputy Inspector general of Police in arriving at his decision to remove the plaintiff from service.
The High Court relied on the following passage from the judgment of this Court in State of Mysore vs K. Manche Gowda (1) : "We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause I against the proposed punishment and if the proposed punishment is also based on his previous punishment or his previous bad record, this should be included in the second notice so that he may be able to give an explanation." (1) ; , 548. 397 The learned counsel for the State,.
contends that on the facts of this case it is clear that, the Plaintiff 'had notice that his record Would be taken into considerations because the Superintendent of Police had mentioned it towards the end of his order, a copy of which was supplied to the plaintiff.
In the alternative he contends that if the record is taken into consideration for the purpose of imposing a lesser punishment and not for the purpose of in creasing the quantum or nature of punishment, then it is not necessary that it should be stated in the show cause notice that his past record would be taken into consideration, It seems to us that the learned counsel is right on both the points.
The concluding para of the report of the Superintendent of Police, which we have set out above, clearly gave an indication to the plaintiff that his record would be considered by the Deputy Inspector General of Police and we are unable to appreciate what more, notice, was required.
There is also force in the second point urged by the learned counsel.
In State of Mysore vs K. Manche Gowda(1) the facts were that the Government servant was misled by the show cause notice issued by the Government, and but for the previous record of the Government servant them Government might not have imposed the penalty of dismissal on him.
This is borne Out by the following observations of Subba Rao, J., as, he then was: "In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service.
On the contrary, the said notice put him, on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave.
, But, a comparison of Paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the,Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendations of, the Enquiry officer and, the public .
Service Commission.
This order, therefore indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service." (P. 549) We may mention that on the charges against the plaintiff and as observed by the Inspector General of Police, the plaintiff had been dealt with leniently.
The learned counsel for the plaintiff, in reply urges before us that there has been breach of article 31 1 (1) of the Constitution because although the plaintiff was appointed by the Inspector Gene. (1) [1964]4 section C.R. 540, 548.
C.I./69 7 398 ral of Police he had been removed by the Deputy Inspector General., Range E.
The learned Additional District Judge, after examine the evidence and para 406 of the Police Regulations, came to the conclusion that the plaintiff had been appointed by the Deputy Inspector General of Police.
This is a finding.
of fact and binding on us.
But apart from that the only document relied ,on by the learned counsel for the plaintiff is the result sheet dated January 8, 1947.
This has no relevance to the question of his appointment as Sub Inspector.
We must, therefore, overrule this contention.
The last point urged by the learned counsel for the plaintiff is that the plaintiff should have been tried under section 29 of the before he was charged under section 7.
Sections 7 and 29 of the read thus: "7.
Subject to the provisions of article 311 of the Constitution, and to such rules as the State Government may from time to time make under this Act, the Inspector General, Deputy Inspector General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspended or reduce any police Officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same, or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely: (a) fine to any amount not exceeding one month 's pay.
(b) confinement to quarters for a term not exceeding fifteen days with or without punishment drill, extra guard, fatigue or other duty; (c) deprivation of good conduct pay; (d) removal from any office of distinction or special emoluments.
section 29.
Every police officer,who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation or lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months or who, being absent on leave, shall fail, without reasonable cause,, to report himself for duty on the expiration of such leave, or who shall engage without authority in any employment ,other than his 'police duty, or who shall be guilty of 399 cowardice, or who shall offer any unwarrantable personal violence to any person in his custody, shall be liable on conviction before a Magistrate to a penalty not exceeding three months ' pay, or to imprisonment, with or without hard labour, for a period not exceeding three months, or to both.
" We are unable to appreciate why it is necessary that a police officer should be prosecuted under section 29 before departmental, proceedings can be taken under section 7 of the .
It may be that a police officer is also liable to be prosecuted under section 29, but it is not necessary that in every case which falls within section 7, the police officer should first be prosecuted under section 29 before he can be proceeded against under section 7.
Section 7 deals with dis ciplinary proceedings while section 29 makes certain breaches criminal offences.
Section 29 does not in any way limit the operation of section 7.
In the result the appeal is allowed, judgments and decrees of the High Court and the Additional District Judge set aside and the suit dismissed with costs throughout.
Y.P. Appeal allowed.

summary/full:
The respondent, was selected by the Deputy Inspector General of Police for admission to the Police Training College, and the result declaring him successful was issued by the order of the Inspector General of Police, and his appointment announced in the police Gazette.
While the respondent was serving as a Sub Inspector of Police, charges were framed against him, under section 7 of The .
The Superintendent of Police gave a report mentioning his past record, and recommended his removal from service.
Notice to show cause, enclosing the findings of the Superintendent of Police was served on the respondent.
The Deputy Inspector General, hold the enquiry, and agreed with the findings of the Superintendent of Police.
The respondent filed an appeal to the Inspector,General of Police, which was rejected.
In their order, both the Deputy Inspector General and Inspector General, took into consideration the past record of the respondent.
The respondent filed a suit for a declaration that his removal was illegal and ineffective.
The trial court dismissed the suit, but the High Court decreed the suit holding that no opportunity was given to the respondent to explain his past record which was taken into consideration.
in appeal to this Court, the State contended that the respondent had notice that his past record would be taken into consideration, and alternatively, if the past record was taken into consideration for imposing lesser penalty, it was not necessary to mention in the show cause notice that the past record would be considered.
The respondent contended that there has been breach of article 311(1) of the Constitution as he was appointed by the Inspector General of Police and removed by the Deputy Inspector General of Police and that he should have been tried under section 29 of the , before he was charged under section 7.
HELD : The suit must be dismissed.
(i) The respondent had notice that his past record would be taken into consideration because the Superintendent of Police had mentioned it 'in his, order, a copy of which was supplied to him.
Further, on the charges against the respondent, he had been dealt with leniently and if the record was taken into consideration for the purpose of imposing a lesser punishment and not for the purpose of increasing the quantum or nature of punishment, then it was not necessary that it should be stated in the show cause notice that his past 'record would be taken into consideration.
[397A; G H] State of Mysore vs K. Manche Gowda, ; , 548, referred to.
(ii) The first appellate court 's conclusion that the respondent had been appointed by the Deputy Inspector General of Police, was a finding of fact and was binding on this Court.
But apart from that the only document relied on by the respondent was the result sheet declaring him 393 successful after training and this had no relevance to his appointment as.
Sub Inspector of Police.
[398 A G] (iii) A Police Officer may also be liable to be prosecuted under section 29 of the but it is not necessary that in every case which falls within section 7 the Police Officer should first be prosecuted under section 29 before he can be proceeded under under section 7.
Section 7 deals with disciplinary Proceedings makes certain breaches criminal offences.
Section 29 does not in any way limit the operation of section 7.
[399 C]


judgement:
Appeal No. 979 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated December 5, 1967 of the Gujarat High Court in Election Petition No. 3 of 1967.
section T. Desai, A. K. Verma, A. L. Barot, and J. B. Dadachanji, for the appellant.
Purshottamdas Trikamdas and I. N. Shroff, for respondent No. 1.
403 The Judgment of Sum and BACHAwAT, JJ. was delivered by SIKRI, J. HEGDE, J. delivered a separate Opinion.
Sikri, J.
This appeal under section 116 A of the Representation of the People Act, 1951, is directed against the Judgment and order of the High Court of Gujarat in Election Petition No. 3 of 1967, setting aside the election of Kanti Prasad Jayshankar Yagnik, appellant before us, to the Gujarat State Assembly from Mehsana State Assembly Constituency under section 123(2), section 123(3) and section 100(1)(b) of the Representation of the People Act, 1951hereinafter referred to as the Act.
The High Court held that certain speeches made by Shambhu Maharaj, with the consent of the appellant, amounted to 'corrupt practices ' within the meaning of sections 123(2) and 123(3) of the Act.
Since we are in agreement with some of the conclusions arrived at by the High Court it is not necessary to deal I with all the speeches made by Shambhu Maharaj, but only with the speeches which the High Court held to amount to 'corrupt practices ' within the meaning of sections 123 (2) and 123 (3).
Before we set out the impugned passages from the speeches we may give a few preliminary facts.
The poll for the election was taken on February 21, 1967, and the result of the election declared on February 22, 1967.
Purshottamdass Ranchoddas Patel, the petitioner in the High Court and respondent before us, secured 16,159 votes whereas the appellant_secured 23,055 votes.
The other candidates, who were respondents to the petition secured 720 votes, 1,017 votes and 454 votes, respectively.
The petition out of the which this.
,appeal arises was filed on April 5, 1967, and the petitioner prayed for the relief that the election of the appellant be declared void and further prayed that he be declared duly elected to the Assembly ' Various grounds were urged in the petition but we need only deal with the ground that the appellant and his agents arranged public meetings of Shri Shambhu Maharaj on February 18, 1967, at various villages which were part of the Mehsana Assembly constituency, and Shambhu Maharaj made a systematic appeal in his speeches to a large section of the electors to vote for the appellant on ground of religion, caste, and community, and the electors were told that it would be an irreligious act to vote for the petitioner who was a Congress candidate as Congress allowed slaughtering of cows and bullocks.
It was also alleged that Shri Shambhu Maharaj had used undue influence and interfered with the free electoral rights of electors by inducing or attempting to induce them to believe that they would become object of divine displeasure or spiritual Censure by his speeches.
404 The petitioner sought to prove the speeches by producing members of the Police Force, as witnesses, who had under instructions of Government taken down notes of the, speeches and reported them to their officers.
The High Court relied on the reports of these members of the Police Force and held that their reports were correctly recorded and fairly represented the speeches made by Shambhu Maharaj.
In this connection, the High Court discarded the testimony of the petitioner 's witnesses (P.W.s 25 to 33) on the ground that it would be safe not to accept the evidence of artisan witnesses unless it was corroborated by independent witnesses.
The learned counsel,for the appellant, Mr. section T. Desai, con tends, first, that the reports made by the members of the Police Force are not admissible in evidence, and secondly, that in the circumstances of the case no weight should be attached to these reports.
We may first deal with the question of the admissibility of, the evidence before we set out the speeches.
The learned counsel contends that under the Indian Evidence Act written reports of speeches can only be used in two ways; one, to refresh a witness 's memory under section 159, and secondly, under section 160 after satisfying two conditions : (1) that the witness has no specific recollection of the facts themselves and (2) the witness says that he is sure that the facts were correctly recorded in the document.
He urges that in this case the reports were not used to refresh any witness 's memory, and that the conditions requisite under section 160 had not been satisfied.
it is true that these reports have not been ' used for the purpose of refreshing the memory of any witness under section 159, but these have been used under section 160.
We may, here set out sections 159, 160 and 161 of the Indian Evidence Act.
"section 159.
A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
Whenever a witness may refresh his memory by reference to any document, he may, with the permission ,of the Court, refer to a copy of such decument 40 5 Provided the Court be satisfied that there is sufficient reason for the non production of the original.
An expert may refresh his memory by reference to professional treatises.
section 160.
A witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the, document.
section 161.
Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross examine the witness thereupon.
" In this case it is clear that the reports were written by the witnesses themselves at the time of the speeches or soon afterwards when the speeches were fresh in their memory.
It seems to us that it is not necessary that a witness should specifically state that he has no specific recollection of the facts and that he is sure that the facts were correctly recorded in the document, before the document can be used under section 160.
It is enough if it appears from his evidence that these conditions are established.
In this particular case the witnesses were giving their testimony in Court after a lapse of nearly nine months and one would have to have super human memory to specifically recollect the details of the speeches, especially when the witness may have attended and reported many similar meetings as a part of his duty during the election campaign.
It may be implied in this case that the witnesses had no specific recollection of the facts.
The second requirement would be satisfied if the Court comes to the conclusion that the witness was in a position to correctly record the facts in the document.
Are then the requirements of section 160 satisfied in this case ? As an example we may consider the evidence of P.W. 7, who testified regarding the speech, exhibit J., delivered at village Motidav.
He stated that Shambhu Maharaj addressed the meeting at Motidav at about 5.30 p.m. on February 18, 1967, and the appellant was present at that meeting; Maganlal A. Patel was also present at the time when Shambhu Maharaj was speaking; while the speeches were being delivered he was making notes of what was being spoken; in this manner he had written out a report regarding all that had happened at the meeting; after returning to Mehsana he submitted his report of the meeting to P.S.I. Choudhary.
He was shown two reports about the meetings at Motidav, and he stated 406 Both these reports, part of 'X ', are in my handwriting.
I wrote out the contents of these two reports at Motidav when the meetings were going on." (The two reports put in and marked exhibit "J" collectively).
In cross examination questions were directed to establishing that the reports were not exact reports.
He stated that he was taking down all the speeches of Shambhu Maharaj who was speaking at medium pace and he wrote whatever Shambhu Maharaj spoke.
He further stated that he was writing down from memory immediately after the words were spoken by Shambhu Maharaj.
He admitted that "it is true that every word spoken by Shambhu Maharaj was not taken down by me in my report but what I have taken down was in fact spoken by him." He, however, added that "it not true that what I have written out in exhibit 'J ' was not written down at Motidav village.
" On this evidence it seems to us that it is quite clear that both the conditions required by section 160 have been compiled with.
While the speech was delivered on February 18, 1967, he was giving his evidence on November 7, 1967.
It is implicit that he had no specific recollection of the speeches, and the second condition is also satisfied because he made notes and then made out the report from his notes.
It may be that the counsel would have been well advised to have read out exhibit 'J ' rather than produce it as an exhibit, but this is apparently done in some Indian Courts to save.
time and it is now too late in the day to condemn such practice, specially as it is a difference without any substance.
It is true that the report is, strictly speaking, not substantive evidence as such, and the document can only be used as a part of the oral evidence sanctified by the oath.
The position seems to be the same in some States in U.S.A., vide Wigmore on Evidence (Third Edition; Vol.
III pp.
97 98, extracted below : "1871, Per Curiam in Moots vs State, 21 Oh.
St. 653: The entry in the book and the oath of the witness supplement each other.
The book was really a part of the oath, and therefore admissible with it in evidence." "1879, Earl, J., in Howard vs McDonough : After the witness has testified, the memorandum which he has used may be put in evidence, not as proving anything of itself, but as a detailed statement of the items testified to by the witness.
The manner in which the memorandum in such a case may be used is very much in the discretion of the trial Judge." 407 "1882, Cooley, J., in Mason vs Phelps, , , 837 : After she had testified that she knew it to be correct, she might have read the entries or repeated them as her evidence.
Showing the book was no more than this". "1886, Smith, C.J., in Bryan vs Moring, 94 N.C. 687 : The memorandum thus supported and identified becomes part of the testimony of the witness, just as if without it the witness had orally repeated the words from memory.
" There is much to be said for the modern doctrine in some of the States in the United States, which "seems to be that such documents are admissible evidence and that the Court will not go through the useless ceremony of having the witness read a document relating to a fact of which he had no present recollection, except that he knew it was correct when made." (see McCormick on Evidence; p. 593; footnote 3).
The learned counsel relied on the dissenting judgment of Sankaran Nair, J., in Mylapore Krishnasami vs Emperor(1) where he observed : "If therefore the constable has not recorded correctly the words used by the speaker but only his impression, then the notes would be inadmissible under section 160 of the Indian Evidence Act to prove the words used.
They may be admissible to prove the impression created in the mind of the constable, which is very different.
" We are unable to appreciate how this passage assists the appellant.
If it is proved that the constable did not correctly record the words, a fortiori one of the conditions of section 160 has not been satisfied and the writing cannot be used to prove the words.
The learned counsel also referred to the decision of the Madhya Pradesh High Court in Mohansingh Laxmansingh vs Bhanwarlal Rajmal Nahata(2).
The High Court seems to have held that on the facts, the statements prepared by the witness in that case did not become primary evidence of the speech said to have been delivered by the speaker and cannot be used as such.
Later on the High Court seems to have held that the notes were taken down for a particular purpose, to wit, for an election petition, and raise a reasonable suspicion that what the witness recorded was not a correct record of the speech.
If the High Court meant to say that Ex P 12 (the notes in that case) could not be used (1) ; 395.
(2) A.I.R. 1964 M.P. 137,146.
408 under section 160 we must hold that the case was wrongly decided, but if the High Court meant to say that there was suspicion that the speech was 'not a correct record then nothing can be said against the decision on this point.
Blacker, J. in Sodhi Pindi Das vs Emperor(1) held, relying on Jagan Nath vs Emperor(2) that it is essential that the witness must state orally before the Court that although he had no specific recollection of the facts themselves, he was sure that the facts were correctly recorded in the document.
We are unable to agree with this interpretation.
As we have already stated, if the requisite conditions can be satisfied from the record, the lack of an express declaration by witness does not make the evidence inadmissible.
In Public Prosecutor vs Venkatarama Naidu(3) Mockett, J., rightly dissented from the judgment of the Lahore High Court in Sodhi Pindi Das vs Emperor(1).
In England the Law of Evidence has been changed and many of such documents made directly admissible (see Phipson on Evidence, Tenth Edition, Ch. 22).
It seems to us that on the facts the report, exhibit J., was properly used under section 160 of the Indian Evidence Act.
The question of the weight to be attached to the various reports of the speeches is another matter and we will deal with the question presently.
The High Court has found three speeches to constitute " corrupt practices".
The following three passages in exhibit 'J 'speech delivered by Shambhu Maharaj at village Motidav on February 18, 1967 were complained of by the learned Counsel in the High Court : "(1) I will say one fact and that is that at present the Congress is stating everywhere that nobody else will make the people happy except themselves.
But I say that apart from God no other Government either Congress or Swatantra Party can make people happy.
An agriculturist may have one bigha of land (about half an acre) and he might have sown wheat but if there is heavy frost or locusts or if one bullock worth Rs. 1000/ dies, Government may give him money, may give him bullock, but I do not think that that man can be happy; but nature can make him happy.
Today in our India, everyday 33,000 cows are being slaughtered throughout the country.
Ten to eleven lacs of bullocks are being slaughtered during the year and in Ahmedabad Town alone 10,000 bullocks are slaughtered.
(1) A.I.R. 1938 Lah.
(3) I.L.R. 3.
(2) A.T.R. 409 (2) This unworthy Congress Government has cut, the nose of Hindu Society.
Sant Fateh Singh, the religious preceptor of the Sikhs, fasted for 10 days; where as Jagadguru fasted for 73 days, still this Government is not even thinking of opening negotiations.
This un worthy Government accepted the contention of the Sikhs after the fast of IO days; whereas in spite of the penance undertaken by Jagadguru by his fast of 73 days, the Government has not considered any topic in this connection.
Your Jagadguru had full confidence that, except for ten crores who are the followers of the Congress, twenty to thirty crores from the Hindu Society would help him.
(3) For example, if any Maulvi from Mucca had fasted for 73 days and had given such a mandate to our Muslim brothers, then would they have voted for the Congress.
That you have to consider.
In the same manner, if Fateh Singh, the religious leader of Sikhs, had fasted for 73 days, would they (Sikhs) have voted for the Congress ? In the same manner if there were Parsis or Christians, then they also would vote for their religious preceptor.
This is what you have to consider.
The mandate of your religious preceptor is that do not cast your vote for anyone, the mandate of the Jagadguru is that let cows be slaughtered, let bullocks be slaughtered.
In Gujarat State though there is ban, still bullocks are allowed to 'be slaughtered, the bullocks which give every individual happiness throughout the life.
This Government asks for votes in the name of the 'bullocks (the Congress Party election symbol being a pair of bullocks with yoke on) and I am, therefore, having an experience.
Do not vote for the Congress and by putting the mark of vote on the symbol of bullocks amounts to cutting the throat of a bullock by a knife symbolized by your vote.
It is my mandate that you should not do this dastardly act.
" The High Court did not find the first two passages to constitute "corrupt practices".
The third passage was held by the High Court to constitute "corrupt practice" on the ground that "though there is no proof that Shankaracharya had any religious following as such in this particular constituency, there is ,no mandate in writing from the Jagadguru and there is no direct address to his followers by the Jagadguru, Shambhu Maharaj has clearly appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader, particularly when he had fasted for 73 days ' in a cause which had some basis in the religious beliefs of the Hindus.
" 410 We are unable to agree with the High Court in this respect.
The decision of this Court in Ram Dial vs Sant Lal(1) is clearly distinguishable because there it was held by this Court that Shri Sat Guru wielded great local influence among the large number of Namdharis who were voters in the Sirsa constituency.
In the present case there is no proof that Jagadguru Shankaracharya of Puri was the religious head of the majority of the electors in this constituency or exercised great influence on them.
It cannot be held on the facts of this case that an ordinary Hindu voter in this constituency would feel that he would be committing a sin if he disregarded the alleged directive on the Jagadguru.
One other ground given by the High Court is that "there can be no doubt that in this passage (passage No. 3) Shambhu Maharaj had put forward an appeal to the electors not to vote for the Congress Party in the name of the religion.
" In our ,opinion, there is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion.
What section 123(3) bars is that an appeal by a candidate ,or his agent or any other person with the consent of the candidate or Ms election agent to vote or refrain from voting for any person ,on the ground of his religion, i.e., the religion of the candidate.
The following four passages in exhibit K, a speech delivered by Shambhu Maharaj at Kherwa after midnight of February 18, 1967, were objected to : "(1) The Congress says that it has brought happiness and will give happiness in future; but even a father cannot give happiness to his son, nor can a son give happiness to his father.
Giving happiness rests in the hands of God.
But God gives happiness where there is religion. 'He does not give happiness to the irreligious.
(2) Formerly there were no famines.
Possibly once in 100 years there might be one famine.
As against that nowadays every year there is some natural calamity like a famine.
Either there is no rain or there is frost or there is visitation of locust or there is some disease in the crops and some calamity or the other is constantly visiting us.
The reason for this is that Congress permits slaughter of 33,000 bullocks everyday.
When slaughter of cows is banned, bullocks are allowed to be slaughtered.
In Gujarat 12,000 bullocks are being slaughtered.
(3) Nobody would sit till 12 30 at night to listen to any talks by the Congress walas.
But I have come (1) [1959] Supp. 2 section C. R. 748. 411 to tell the public, which is fond of its religion, to elect the Swatantra Party, so that the slaughter of bullocks might be stopped and all people who are fond of their religion are also keeping away till 12 30 at night.
(4) Vijaykumarbhai has gone.
A Brahmin minister must be there and hence Kantilalbhai is going to be a minister, hence vote for him.
We must have at least one minister who is a Brahmin.
Hence vote for Kantilalbhai.
At the same time vote for Bhaikaka and H.M. Patel by putting your voting mark on the star.
" The High Court held the first two passages read together to constitute "corrupt practice" on the ground that "they amounted to interference with the free exercise of the electoral right of voters by holding out threats of divine displeasure and spiritual censure.
" The High Court held that in these passages there was a direct causal relationship between the cow slaughter and the natural calamities and this clearly showed that the: voters were told that if they did not want such natural calamities to visit them they should not vote for the Congress Party and thug avoid the divine displeasure which was responsible for these natural calamities.
It seems to us that this is not a fair reading of these two passages.
Cow slaughter is not mentioned in these passages except to say that sow slaughter is banned in Gujarat.
The causal relationship, if any, exists between slaughter of 33,000 bullocks every day and natural calamities.
This, in our view, cannot amount to constitute "corrupt practice" within section 123 (2) proviso (a) (ii) 'Me law does not place any bar on describing a party as irreligious or saying that because that political party is irreligious natural calamities have resulted because of its disregard of religion.
We do not find anything objectionable in the third passage because here again it is only an appeal to elect the Swatantra Party because the people in that party are fond of their religion.
The last passage in exhibit 'K ' clearly fell within the mischief of section 123(3).
The High Court in this connection observed: .lm15 " The reference to Vijaykumarbhai is to Vijaykumar Trivedi, who was a Brahmin and was a minister in the Gujarat Government till March 1967, and when this speech was delivered.
The reference to Kantilalbhai is to the first respondent, who is also a Brahmin and the reference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party and H.M. Patel is another leader of the Swatantra Party and what Shambhu Maharaj was asking in this connection was that it was necessary that there should be one Brahmin in the Gujarat State Ministry and if one Brahmin, 412 Vijaykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz., the first respondent should be first elected so that he might get a seat in the Legislature and thereafter become a minister, and thus it is clear that in the passage, Shambhu Maharaj was asking the people to vote for the first respondent because he was a Brahmin by caste.
It has been stated as a categorical statement that there must be at least one Minister, who was a Brahmin.
Under section 123 (3) of the Act, an appeal by any person to vote for any person on the ground of his caste or community is a corrupt practice, provided, of course, that such person has made such appeal with the consent of the candidate concerned.
I will come to the question of consent a bit later on, but it is clear that in this particular passage an appeal was being made to the electors to cast their votes for the first respondent because the first respondent is a Brahmin and also because of the promise, which had been put forward in this passage, that there should be at least one Brahmin Minister in the Ministry.
I may point out that so far as the petitioner is concerned, the petitioner is a Patidar and it is in the context of this background that an appeal is made in the name of caste of the first respondent and the people are asked to vote for the first respondent, because he was a Brahmin.
" It seems to us that the High Court is correct in drawing the inference that Shambhu Maharaj was asking his voters to, vote for the first respondent, because he was a Brahmin.
Shambhu Maharaj is reported to have adopted the same theme in exhibit 'P ' when he said that "Vijaykumarbhai had gone out and Kantilalbhai is going to be the Minister.
" Following three passages were objected in exhibit 'P ', a speech made at Dangerwa: "(1) The time of election has arrived.
The Congress Party is carrying on its propaganda desparately but what I want to say is that if Swatantra Party comes into power then it will (not turn your roof tiles into gold.
Only God gives happiness.
There is frost, there is rust in the crops, there is excess of rains, there is a famine all these are due to the workings of God.
Every day twenty four crores of cows are being slaughtered, then how God will tolerate that and how will you get happi ness ? 413 (2) Look at the Congressmen who are destroyers of Hindu Religion.
(3) Every year we get cow or the other natural calamity like excessive rain, or failure of rain or earthquake.
This happens because they ask for votes in the name of live bullocks, whereas they get the bullocks slaughtered.
The symbol should be of butcher and except ruthless and hard hearted Congress nobody else will get bullocks slaughtered.
" It seems to us that the first and the third passages, read together, constitute an attempt to induce the electors to believe that they would become objects of divine displeasure if they voted for the Congress and thereby allowed cow slaughter to be continued.
Hidayatullah, C.J., in Narbada Prasad vs Chhagan Lal(1), observed : "It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness.
It is also believed that one of the cardinal sins is that of gohatya.
Therefore, it is quite obvious that to remind the voters that they would be committing the sin of, gohatya would be to remind them that they would be objects of divine displeasure or, spiritual censure.
" In the first and third passages of exhibit 'P ', therefore there is clear implication that if you vote for the Congress who are responsible for 24 crores of cows being slaughtered then God will be displeased; in other words there will be divine displeasure and the voters will not get happiness.
The second passage does not seem to be objectionable and the High Court has not found it to be so.
The learned counsel for the appellant contends that very little weight should be attached to the speeches because the reports were not taken in shorthand but from notes and it is very difficult to be certain of what were the ' exact words used by Shambhu Maharaj.
The High Court examined the speeches, Exs. 'I ', 'J ' 'K ', 'L ', and 'P ', in connection with this question and came to the conclusion that common topics, common language and common approach existed in all the speeches, and this indicated that Shambhu Maharaj did deliver the speeches.
Further., according to the High Court, the reports were submitted by different constables at different times and to different Police Station and the learned Judge found that there could possibly be no consultation between the Various police constables who took down the state (1) ; 8 Sup.
C.I./69 8 414 ments, and that the totality of the effect emerging from different reports made the reports credible.
We agree with the conclusions arrived at by the High Court.
It is true that the exact words were not taken down by the various police constables, but the similarity of approach, appeal and the attack on the Congress is remarkable and in these circumstances it must be held that the police constables correctly reproduced the substance of the speeches.
It is pot necessary in these cases that exact words must be reproduced before a speech can be held to amount to "corrupt practice".
The learned counsel further contends that the appellant 's consent to these speeches had not been proved.
We agree with the High Court that there is no force in this contention.
The High Court observed : "As shown in the handbill setting out the pro gramme, the manuscript of which was written out by the first respondent himself in consultation with Maganlal Abram Patel, this tour programme had been arranged to bring success to the first respondent in his election contest.
Shambhu Maharaj was touring these villages specifically so that the first respondent might succeed in his contest.
Further it would be natural on the part of the first respondent to take advantage of being seen in the presence of a good speaker like Shambhu Maharaj.
Some of the meetings of Shambu Maharaj appear to have been well attended.
It is highly probable that the first respondent accompanied Shambhu Maharaj.
To my mind, therefore, it is clear that the first respondent had accompanied Shambhu Maharaj and was present in each of the meetings at MotiDav, Kherwa and Dangerwa when Shambhu Maharaj delivered speeches at these three villages. .
In the instant case also, the first respondent, according to the conclusion that I have reached, was present at the meetings which were addressed by Shambhu Maharaj at MotiDav, Dangerwa and Kherwa and in each of these three meetings at least, according to the conclusions reached by me, Shambhu, Maharaj in the course of his speeches had committed breaches of the provisions of section 123(2) and section '123(3) of the Act. .
Under these circumstances, it is clear to my mind, judging by the manner in which the first res pondent was touring with Shambhu Maharaj.
the manner in which tour programme was arranged and judging from the fact that this tour was specially arranged to bring success to the first respondent, that the first respon 415 dent did consent to the commission of the breaches of the proviso of section 123(2) and section 123(3) of the Act by Shambhu Maharaj.
" We may add that many police witnesses depose that the appel lant was present and it has not been shown to us that he dissociated himself with any of the remarks in the speeches.
In the result the appeal fails and is dismissed with costs.
Hegde, J. I agree that the statements contained in Exh.
P amount to a corrupt practice under section 123(2) of the Representation of the People Act and also agree that those statements were made with the consent of the returned candidate.
Hence this appeal has to be dismissed but I am unable to agree that before a statement can be considered as an attempt to induce an elector to believe that he will be rendered an object of spiritual censure if he acts in a particular manner that statement must have been made by a person who is a religious head of the majority of the electors in the constituency concerned.
What section 123(2) requires is to induce or attempt to induce "an elector" which means even a single elector that he will be rendered an object of spiritual censure if he exercises or refuses to exercise his electoral right in a particular manner.
But undoubtedly the inducement or an attempt to induce complained of should be such as to amount to a direct or indirect interference or attempt to interfere with the free exercise of electoral right.
Whether a particular statement comes within section 123 (2) or not depends on various factors such as the nature of the statement, the person who made it and the persons to whom it is addressed.
No doubt the nature of the statements in question is of utmost importance.
They may exploit well accepted religious beliefs but that is not the only thing that comes within the mischief of section 123(2).
A respected religious preacher may induce or attempt to induce the illiterate and superstitious voters who form the bulk of our voters that they will become the object of divine displeasure if they do not exercise their franchise in a particular manner.
His statements may not have any support from the religious books but yet they may amount to a corrupt practice in law.
I see no justification to cut down the scope of section 123 (2).
It will not be in public interest to do so.
I am unable to agree that the appeal to vote (in Exh.
K) for the appellant on the ground that he is likely to be a Minister as according to Shambhu Maharaj there should be at least one Brahmin Minister in the cabinet is an appeal to vote on the ground of the appellant 's caste.
There is no use hiding the fact that communal and regional representations in all our political institutions have become a must.
Shambhu Maharaj merely gave expression to that fact from public platforms.
One may not appreciate his 416 campaigning for that point of view but I am unable to agree that his statements in that regard amount to corrupt practice under section 123 (3).
Those statements cannot be considered as an appeal to vote on the basis of the appellant 's caste.
The caste of the appellant has come into the picture incidentally.
V.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The poll for election to the Gujarat State Assembly from Mehsana State Assembly constituency was taken on February 21, 1967.
On February 18, 1967 one S.M. addressed public meetings at various villages which were part of the constituency.
The appellant who was the successful candidate was present at those meetings and did not dissociate himself from any of the remarks in the speeches.
Police con tables, under instructions of the Government, took down notes of the speeches and reported to their superior officers.
These police constables did not take down every word spoken by S.M. but whatever was taken down was spoken by S.M.; and in the reports, though the exact words were not reproduced the substance of the speeches was correctly reproduced.
These reports showed that S.M. made the following statements in his speeches (i) He appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader (Jagadguru Sankaracharya of Puri), particularly when he had fasted for 73 days in the cause of preventing cow slaughter; (ii) He put forward an appeal to the electors not to vote for the Congress Party but to vote for the Swatantra Party in the name of religion; (iii) He said that a relationship of cause and effect existed between the slaughter of 33,000 bullocks every day and natural calamities like famine and flood; (iv) He asked his voters to vote for the appellant because he was a Brahmin; and (v) He said that if the voters voted for the Congress who are responsible for 24 crore of cows being slaughtered then God will be displeased.
On the questions : (1) whether the reports made by the police constables were admissible in evidence; (2) Whether any weight should be attached to them; and (3) Whether they showed that the appellant was guilty of corrupt practice within the meaning of section 123(2) and (3) of the Representation of the People Act, 1951 HELD (Per Sikri and Bachawat, JJ.) (1) The reports were properly used under section 160 of the Evidence Act, 1872, and were admissible in evidence.
[406 C D] 401 Before a witness testifies to facts stated in a document, under section 160 of the Evidence Act two conditions must be satisfied namely : (a) that the witness bad no specific recollection of the facts themselves; and (b) the witness says that he is sure that the facts were correctly recorded in the document.
For satisfying the conditions it is however not necessary that the witness should specifically state that he has no specific recollection of the facts and that he is sure that the facts were correctly recorded in the document.
It is enough if it appears from the evidence of the witness that those conditions are established.
[405 C E] In the present case, it could be implied from the Circumstances that the conditions of section 160 were satisfied.
The witnesses were giving their testimony in Court after a lapse 'of 9 months after the speeches were made and it is implicit that they could have no specific recollection of the speeches, especially when they attended and 'reported many similar meeting as part of their duty during.
the election campaign.
The second condition is also satisfied because, the witnesses made notes on the spot and made out reports from those notes when the speeches were fresh in their memory.
The reports are, strictly not substantive evidence as such and could only be used as part of the oral evidence on oath.
The reports should therefore have been read out in Court and not marked as exhibits.
But the practice of marking such a report as in exhibit is well established and avoids the useless formal ceremony of reading it out as part of the oral evidence.
[405 E G; 406 D E] Wigmore on Evidence (Third Edn.
III pp.
97 98), Mylapore Krishnaswami vs Emperor, , 395 and Mohan Singh Laxmansingh vs Bhanwarlal Rajmal Nahata, A.I.R. 1964, M.P. 137, 146, referred to.
Public Prosecutor vs Venkatarama Naidu, I.L.R. [1944], Mad. 113, approved.
Jagannath vs Emperor, A.I.R. 1932 Lah.
7 and Sodhi Pindi Das V. Emperor, A.I.R. 1938 Lah.
629, disapproved.
(2) Though the reports were not taken down in short hand nor were the exact words spoken by S.M. taken down by the various police constables.
the reports show a remarkable similarity of approach, appeal and attack on the Congress Party; and in those circumstances it must he held the police constables correctly reproduced the substance of the speeches.
It is not necessary that the exact words must be reproduced before a speech can be held to amount to corrupt practice.
[414 A C] (3) (i) This statement does not amount to corrupt practice, because, there was no proof that the Jagadguru was the religious head of the majority of the electors in this constituency or that he exercised great influence on them, and so, it could not be held that an ordinary Hindu voter of the constituency would feel that he would be committing a sin if he disregarded the alleged directive of the Jagadguru.
[410 A C] Ram Dial vs Sant Lal, [1959] Supp. 2 S.C.R. 748, distinguished.
(Per Hegde, J. dissenting) : The statement amounted to corrupt practice.
What section 123(2) requires is to induce or attempt to induce 'an elector ' which means even a single elector that he will be rendered an object of spiritual censure if he exercises or refuses to exercise his electoral right in a particular manner.
While undoubtedly the inducement or attempt 40 2 to induce complained of should be such as to amount to a direct or indirect interference with the free exercise of the electoral right it is not in the public interest to cut down the scope of the sub section.
Whether a particular statement comes within it or not depends on various factors such as the nature of the statement, the person who makes it and the persons to whom it is addressed.
Therefore, when a respected religious preacher induces or attempts to induce the illiterate and 'superstitious voters who form the bulk of the voters that they will become objects of divine displeasure if they do not exercise their franchise in a particular manner, though his statements are not supported by religious books and he himself may not be a religious head of the majority of electors, the statements may yet amount to a corrupt practice in law.
[415 C G] (Per Sikri, and Bachawat, JJ.) : (ii) There is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion, or appealing to vote for the Swatantra Party because the people in that party are fond of their religion.
What section 123(2) of the Representation of the People Act bars is that a candidate or his agent or any other person with the consent of the candidate or his agent should appeal to the voters to vote or refrain from voting for any person on the ground of his religion, that is the religion of the candidate.
[410 C D; 411F] (iii) This statement does not amount to corrupt practice within s.123(2) proviso (a)(ii), because, the law does not place any bar on describing a party as irreligious or saying that because that political party is irreligious natural calamities had resulted on account if its disregard of religion.
[411 E F] (iv) Asking the voters to vote for the appellant because he was a Brahmin, fell within the mischief of section 123(3).
[411 F G] (Per Hegde, J. dissenting).
: When he stated that there should be at least one Brahmin Minister in the Cabinet, S.M. was merely giving expression to the fact that communal and regional representations in our political institutions have come to stay and was not appealing to the voters to vote on the basis of the appellant 's caste.
[415H] (By Full Court) : (v) As this statement constitutes an attempt to induce the electors to believe that they would become objects of divine displeasure if they voted for the Congress and thereby allowed cow slaughter to be continued, and as in the circumstances of the case, it must be deemed to have been made with the appellant 's consent, the appellant was guilty of corrupt practice within the meaning of section 123(2) proviso (a) (ii) [413C; 415B C] Narbada Prasad vs Chhagan Lal, ; followed.


judgement:
Appeal No. 130 of 1966.
Appeal from the judgment and decree dated December 13, 1961 of the Allahabad High Court in Special Appeal No. 217 of 1958.
C. K. Daphtary, B. Sen, J, P, Goyal and A. Banerjee, for the appellants.
C. B. Agarwala and O. P. Rana, for respondents Nos. 1, 2, 3 and 8.
T. A. Ramachandran and R. N. Sachthey, for respondent No. 4.
M. C. Chagla, G. D. Srivastava, B. Datta and J. B. Pada chanji, for respondents Nos. 5 and 6.
The Judgment of the Court was delivered by Shah, J.
The Padrauna Rajkrishna Sugar Works Ltd.hereinafter called 'the Company carried on the business of manufacture and sale of sugar and supply of electricity.
The Company was in financial difficulties in 1954 and was unable to meet its obligations.
The principal liabilities of the Company in July 1955 were Rs. 81,821 2 0 due as income tax provisionally assessed for the assessment year 1952 53 in respect of which an order for recovery was made under section 46(2) of the Income tax Act, 1922; Rs. 5,64,301 14 9 due as sugarcane cess under section 29 of the Sugar Factories Control Act, 1938, for the years 1952 53 to, 1954 55: and Rs. 1,92,053 12 3 due by the Company to the Co operative Development Union Ltd. as arrears of cane price for the year 1954 55. 470 By order dated July 14, 1954, issued under the Essential Supplies (Temporary Powers) Act, the Government of U.P. appointed the Collector, Deoria as the Authorised Controller of the Company.
On August 8, 1955 the Land Reforms Commis sioner sanctioned the proposal submitted by the Collector, Deoria, to sell the holdings and the property of the Company for realizing Rs. 8,38,176 13 0.
Sardar Jagjit Singh, Chief Engineer, Indian Institute of Sugar Technology, Kanpur, valued the movables belonging to the Company i.e. tools and workshop plant, mill stores, spare parts and furniture at Rs. 7 , 64,817/ ,and the lands and the factory at Rs. 23,75,000/ .
Thereafter a sale proclamation was issued on October 4, 1955, for recovery of the total amount of Rs. 8,38,176 13 0.
The sale was fixed for November 8, 1955.
In the first instance only the movables were put up for sale by the Collector, Deoria, but the highest bid offered was Rs. 2,75,000/ .
The Collector then put up for sale the immov able property for which a bid of Rs. 13,50,000/ was made and accepted.
The movables were then put up for sale, and the highest bid for Rs. 2,75,000/ was accepted.
The purchasers of both the lots were the Cawnpore Sugar Works Ltd., through their managing agent Tulsidas Mundra respondent No. 7 in this appeal.
On December 6, 1955, the Company moved an application before the Commissioner, Gorakhpur Division, under r. 285 1 of the U.P. Zamindari Abolition and Land Reforms Rules praying that the sale be set aside.
The Commissioner rejected the peti tion, observing that an application under r. 285 1 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, to set aside a sale on the ground of material irregularity or mistake in publishing or conducting a sale may be granted only if the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake, and that no material irregularity or mistake was proved to be committed in publishing or conducting the sale, far less, a mistake or irregularity which could have caused substantial injury to the applicant.
The sale was confirmed by order dated July 2, 1956, by the Land Reforms Commissioner.
On, July 30, a petition was moved by the Company in the High Court of Allahabad for a writ in the nature of certiorari quashing the order dated June 25, 1956, of the Commissioner, Gorakhpur Division.
The petition was dismissed by Oak, J.
In appeal under the Letters Patent the order was confirmed by the High Court.
Mukherji, J., was of the view that section 286 of the U.P. Zamindari Abolition and Land Reforms Act did not oblige the Collector to exhaust the processes prescribed by, cls.
(a) to (e) in section 279 of that Act before resorting to the sale of immovable property of the Company and that it was not proved that 471 there was any material irregularity or mistake_ in publishing or conducting the sale or that any substantial injury had resulted to the Company., Jagadish Sahai, J., was of the view that section 2861(2) of the U.P. Zamindari Abolition and Land Reforms Act provides that where an amount is recoverable as arrears of land revenue, the Collector has first to attempt under cls.
(a) to (e) of s.279 to recover the amount due, and if he is unable to recover the amount,, he may proceed to sell the immovable property of the defaulter.
But the learned Judge was of the opinion that the provision was merely directory and not.
mandatory.
He observed: ". . the provision relating to the exhaustion of the processes contemplated by clauses (a) to (e) of section 279 of the Act is merely directory.
In view of the provisions of the various Acts which make the realization of sums becoming due under those Acts as arrears of land revenue and in view of the provisions of the Act the, Collector has got a duty and a statutory obligation to realise those sums.
He has no discretion in the matter.
Consequently I read the words "may realise the same from the interest of the defaulter in any immovable property" in sub section (1) or "may be recovered from any immovable property of the defaulter" in sub section (2) as meaning that if the Collector does not succeed in recovering the amount by having recourse to the processes mentioned in clauses (a) to (e) of section 279 of the Act he shall sell immovable property of the defaulter.
" The learned Judge also observed that the Collector acted inviolation of the statutory provision contained in section 286(2) of the Act in selling the immovable property before selling the movable property, but the sale could not be set aside, because substantial injury was not shown to have been caused.
The Company has appealed to this Court against the order passed by the 'High Court confirming the order passed by Oak, J.
In this appeal, it is urged in the first instance, that the Company possessed stocks of sugar of value exceeding the liability for payment of Rs. 8,38,000/ odd.
But the stocks of sugar were not mentioned in the Collector 's report to the Land Reforms Commissioner : they were not included in the sale proclamation as property put up for sale, nor were they valued in the report of Sardar Jagjit Singh.
The Company asserted in the petition ,before the High Court that it possessed stocks of sugar worth Rs. 9 lakhs.
which had not been, attached earlier, but no such.
contention was advanced in support of the application for setting.
472 aside the sale before the Commissioner, nor was any argument advanced before the High Court.
It appears that the stocks of sugar were mortgaged separately and the amount for which they were mortgaged was not included in the claim, made for which the property of the Company was to be put up for sale.
It was then urged that under section 286(2) of Act 1 of 1951, the Collector, was bound in the first instance to exhaust, the processes for recovery of arrears prescribed by cls.
(a) to (e) of section 279 of the Act and he could not attach and sell immovable property of the Company until those processes were exhausted.
It was urged that section 286(2) of the Act was mandatory and the Collector not having sold the movables in the first instance, the sale must be declared void.
The amount for the recovery of which the sale of the assets of the Company was held, included income tax dues, sugarcane cess and the amount due for cane supplied to the Company.
This amount was recoverable as arrears of land revenue because of the provisions of the Indian Income tax Act, 1922, the U.P. Sugar Factories Control Act, 1938, and the .
Section 286(2) of the U.P. Zamindari Abolition and Land Reforms Act provides: "Sums of money recoverable as arrears of land revenue, but not due in respect of any specific land, may be recovered by process under this section from any immovable property of the defaulter." Though the amount for which the property was put up for sale was recoverable as arrears of land revenue, no part of it was due in respect of any specific land.
The amount could prima facie be recovered from the immovable property of the defaulter.
But relying upon the expression "under this section" in section 286(2) of Act 1 of 1951 it was contended that the immovable property of the Company could be attached and sold only after the processes prescribed in section 279 cls.
(a) to (e) were resorted to and the Collector was unable to recover the dues.
It was urged that this is the true effect of section 286(1) and section 279 of Act 1 of 1951.
Section 286(1) provides : "It any arrears of land revenue cannot be recovered by any of the processes mentioned in clauses (a) to (e) of Section 279, the Collector may realize the same by attachment and sale of the interest of the defaulter in any other immovable property of the defaulter." Section 279 of the Act set , out the procedure for recovery of land revenue.
The section as it stood at the.
date of We provided 473 An arrear of land revenue may be recovered by any one or more of the following processes : (a) by serving a writ of demand or a citation to appear on any defaulter, (b) by arrest and detention of his person,.
(c) by attachment and sale of his movable property including produce, (d) by attachment of the holding in respect of which the arrear is due, (e) by sale of the holding in respect of which the arrear is due.
(f) by attachment and sale of other immovable property of the defaulter.
" Section 280 deals with the mode of recovery prescribed by cl.
(a) of section 279; section 281 with the mode prescribed by cl.
(b) i.e. by arrest and detention; and section 282 with the mode prescribed by cl.
(c) i.e. by attachment and sale of the movable property including produce.
Section 284 sets out the procedure for sale of the holding in respect of which the arrear was due and section 286(1) deals with the power to proceed.
against the interest of the defaulter in other immovable property.
For recovery of arrears of land revenue, the Collector is bound to resort to one or more of the processes mentioned in section 279 read with sections 280, 282, 284 & 285 of the Act, before he attaches and sells the immovable property of the defaulter, other than the holding in respect of which the land revenue is due.
That clearly follows from the terms of sub section
(1) of section 286.
Subsection (2) of section 286 makes the same process applicable for recovery of sums of money which are recoverable as arrears of land revenue.
But the liability to pay the amount so recoverable arises by virtue of the provisions of other Acts and is not due in respect of any holding of the defaulter.
It is only recoverable as arrears of, land revenue by virtue of the provisions of the Act under which the liability has arisen.
Since U.P. Act 1 of 1951 provides by section 286(2) that sums of money recoverable as arrears of land revenue may be recovered from any immovable property of the defaulter, the procedure prescribed by the Act applies to such recovery.
Because of the use ' of the expression "under this section" in sub section
(2) of section 286 it is not intended that the Collector must resort in the first instance to the processes prescribed by cls.
(a) to (e) before he resorts to cl.
(f), of section 279.
(d) & (e) of section 279 have no application, where income tax dues and sugarcane cess or cane price are recoverable from the defaulter : and cl.
(b) is inapplicable where the defaulter is an artificial person like a Company.
Power to recover arrears of land reve 414 nue from a defaulter is governed by the processes mentioned in section 279 cls.
(a) to (e), and section 286(1) places certain restrictions upon the power of the Collector to recover land revenue by attachment and sale of lands other than the holding in respect of which the land revenue is due.
But the restrictions on the power of the Collector operate only when land revenue is in arrears.
Restrictions if any upon the power of the Collector to recover dues under other statutes, as arrears of land revenue arise from the statute which is the source of the liability and not from Act 1 of 1951 which merely sets out the processes for recovery of the dues.
To hold that sub section
(2) of section 286 requires the Collector in the first instance to recover out of the movable property or by arrest and detention of the defaulter before immovable property of the defaulter is attached and sold is to amend the substantive provisions of the Acts under which the liability for money due is recoverable as land revenue.
For instance , under section 46 (2) of the Indian Income tax Act, 1922, it is provided "The Income tax Officer may forward /to the Collector a certificate ' under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue.
: Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1908 (V of 1908), a Civil Court has for the purpose of the recovery of aim amount due under a decree.
The power exercisable, by the Collector in recovering arrears of income tax which are recoverable as arrears of land revenue are, it is clear, not restricted to the Land Revenue Code: the Collector is entitled to exercise all the powers of a Civil Court for the purpose of recovery of an amount due under a decree under the Code of Civil Procedure, and the Code of Civil Procedure imposes no obligation to recover the dues by sale of movables or by arrest and detention of the defaulter before, immovable property may be attached.
Section 51 of the Code of Civil Procedure provides: "Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree holder, order execution of the decree (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; 475 (c) by arrest and detention in prison; (d) in such other manner as the nature of 'the relief granted may require Provided. . . .
By virtue of 0. 2 1 r. 30(e) of the Code of Civil Procedure simultaneous execution both against the property and person of the judgment debtor is allowed.
To hold, therefore, that in seeking to recover income tax dues the Collector is in the first instance, by virtue of sub section
(2) of section 286, restricted to the recovery of arrears by attachment and sale of movables or by arrest and detention in prison of the defaulter and it he cannot recover the amount then and then only to have recourse to the immovable property of the judgment debtor is to seek to amend both the, Income tax Act, 1922, as well as the Code of Civil Procedure.
The U .
P. Legislature is competent to alter the provisions of the Income tax Act.
We are, therefore, unable to agree with the opinion expressed by jagadish Sahai, section, that the use of the words "under this ,section" points to the applicability of the whole section i.e. subsection (1) in the recovery dues recoverable under sub section (2) of section 286, and "that the two sub sections have got to be read together and the effect of sub section (2) is that even in connection with the recovery of miscellaneous dues as arrears of land revenue it is permissible to sell immovable property of the defaulter but subject to what is provided for in sub section (1)".
We are also unable to agree with the observations made by the learned Judge that ". . if sub section (2) of section 286 of the Act were to be read in isolation and detached from subsection (1) it would become impossible to administer the same.
Sub section (2) only provides that the arrears of miscellaneous dues may be recovered from any immovable property of the defaulter without specifying the manner in which they are to be recovered, that is to say, without indicating whether it would be recovered from the usufruct of the property or by its sale or by mortgage or lease.
" The provisions of the Act which authorise recovery of sums of money as arrears of land revenue do not require the Collector to follow any sequence of the processes for recovery: it is competent to the Collector to 'resort to any process prescribed by section 279 in aid of recovery of the dues which are recoverable as arrears of land revenue.
It is unnecessary in the circumstances to 476 consider whether the provisions of section 286(1) are mandatory or directory.
It was urged in the alternative that after selling the immovable property which realized more than Rs. 23,50,000/ the Collector should not have sold the movable property, for the claim for which the properties of the Company were put up for sale, was only Rs. 8,38,176 13 0.
At first blush there is force in this argument.
Why the Collector thought it necessary to sell the movables after the immovable property was knocked down to the Cawnpore Sugar Works Ltd. for Rs. 23,50,000/ was never explained.
After the immovable property belonging to the Company was knocked down to the purchasers for an amount of Rs. 23,50,000/ it was apparently not necessary to hold the auction for sale of movables valued at Rs. 7,64,817/ and to accept a bid of only Rs. 2,75,000/ .
The argument that the movables were of no use to any person other than the purchaser of immovable property is without substance.
The movables sold we 're the tools and workshop plant, mill stores, spare parts and furniture, and it is difficult to accept the contention that these movables were of no value except to the purchaser.
But the Company raised no contention in this behalf before the Commissioner, nor in the petition before the High Court.
The question was also not argued before the High Court in that form.
We cannot at this stage investigate the reasons why movables valued at Rs. 7,64,817/ were put up for sale and sold when it was not necessary to sell them to realise the dues.
It was then urged that the Income tax Officer had, by intimation dated December 11, 1954, asked the Collector to stay the sale proceeding for recovery of income tax dues amounting to Rs. 81,821 2 0.
For some reason, which is not clear from the record, the Collector ignored the intimation given by the Income tax Officer and proceeded to put the property to sale.
He included the amount in the sale proclamation, overruling the protests of the Company, and sold the properties for recovery of a consolidated amount which included Rs. 81,821 2 0 due as income tax.
But on that account the sale is not illegal or irregular.
An amount exceeding Rs. 7 lakhs was recoverable for the sugarcane cess and the cane price and the immovable property of the Company could have been put up for sale for recovery of those dues.
The sale is not proved to be vitiated on the ground of any material irregularity or mistake in publishing or conducting it, and it is therefore not liable to be set aside.
It was finally con that the Company was prevented from exercising its right under r. 285 H of the rules framed under U.P. Act 1 of 1951, because the purchaser at the sale was appointed, by order of the Central Government, Authoriged Con 477 troller of the factory of the Company, and all the properties of the 'Company were put in +.he possession of the purchaser, and that the Company was unable to raise the requisite amount to be deposited under r. 285 H. Under r. 285 H any person whose holding or other immovable property has been sold under the Act may, at any time within thirty days from the date of sale, apply to have the sale set aside on his depositing in the Collector 's office (a) for payment to the purchaser, a sum equal to 5 per cent.
of the purchase money; and (b) for payment on account of the arrear, the amount specified in the proclamation in Z.A. Form 74 as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been paid on that account; and (c) the cost of the sale.
If the deposit is made, the Collector shall pass an order setting aside the sale.
It was open to the Company under r. 285 H even after the bids were accepted to deposit 5 per cent.
of the sum realised by sale of the immovable property and to pay the amount due for the recovery of which the sale was ordered and the cost of the sale.
But no attempt was made to deposit the amounts mentioned in cls.
(a), (b) & (c) of r. 285 H.
The contention that the Company was unable to make the deposit under Rule 285 H because the purchaser was appointed Authorised Controller was also not raised before the Commissioner and the High Court.
The argument that if the movable property had not been sold, the Company may have raised the amount liable to be deposited under cls.
(a), (b) & (c), but by sale of those properties and purchase of the same by a person who was shortly after the purchase appointed the Authorised Controller prevented the Company from exercising the right under r. 285 H is hypothetical.
Again even that argument was not raised before the Commis sioner, nor in the petition, nor in the arguments before the High Court.
Evidently, the Company was required to comply with the provisions of r. 285 H for having the sale set aside to deposit an amount of Rs. 9,50,000/ besides the cost of the sale.
Even if the movables had not been sold, and assuming that they were of the value of Rs. 7,64,817/ the movables were not sufficient to enable the Company to raise the amount required for deposit under r. 285 H. The contentions raised by the Company fail and the appeal is dismissed.
We are, however, of the view, especially because of the action of the Collector in putting the movables to sale even Sup CI/69 12 478 after the immovable property realised an amount very much in excess of the dues, and ignoring the intimation sent by the Income tax Officer to stay the sale proceeding, which has involved the Company in loss of property of substantial value, that the parties should bear their own costs throughout.
Y.P. Appeal dismissed.

summary/full:
The amount of dues under the Indian Income tax Act, 1922 the U.P. Sugar Factories Control Act.
1938 and the were recoverable as arrears of land revenue.
Section 286(1) of the U.P. Zamindari Abolition & Land Reforms Act provides that if any arrears of land revenue could not be recovered by any of the processes mentioned in cls.
(a) to (e) of section 279, the Collector may realise the same by attachment and sale of the interests of the defaulter in any other immovable property of the defaulter, and section 286(2) provided that money recoverable as arrears of I" revenue, may be recovered by process "under this section" from any immovable property of the defaulter.
As the appellant company was unable to meet its liabilities in respect of income tax dues, sugar cess and the amount due for cane supplied to it, the immovable property of the company were sold to meet the dues.
The appelant challenged the sale contending that (i) the immovable prop" of the company would be attached and sold only after the processes prescribed in cls.
(a) to (a) of a. 279 ie.
by the age of movable properties were resorted to; (ii) the sale was illegal or irregular as the Collector ignored the intimation of the Income tax Officer staying the sale for recovery of income tax; and (iii) the appellant was prevented from raising funds for making the deposit as provided by r. 285H (of the rules framed under the Act) for setting aside the sale as the purchaser was appointed as the Authorised Controller and put in possession of all the properties of the appellant.
Dismissing the appeal this Court, HELD : (i) Power to recover arrears of land revenue from a defaulter is governed by the processes mentioned in cls.
(a) to (e) of section 279 of the Act and section 286(1) places certain restrictions upon the power of the Collector to recover land revenue by attachment and sale of lands other than the holding in respect of which the land revenue is due.
But the restrictions on the power of the Collector operated only when land revenue is in arrears.
Restrictions, if any, upon the p ower of the Collector to recover dues under statutes, as arrears of land revenue arise, from the statute which is the source of the liability and not from the U.P. Zamindari Abolition & Land Reforms Act, which merely sets out the processes for recovery of the dues.
To hold that sub section
(2) of section 286 requires the Collector in the first instance to recover out of the movable property or by arrest and detention of the defaulter before immovable property of the defaulter is attached and sold is to amend the substantive provisions of the Acts under which the liability for money due is recoverable as land revenue.
For instance, under a. 46 of the Income tax Act, 1922, the powers exercisable by the Collector in recovering arrears of income tax, which are recoverable as arrears of land revenue are not restricted to the Land Revenue Code; the Collector is entitled to exercise all the powers of ' a Civil Court for the purpose of recovery of an amount due under a decree under the Code of Civil Procedure, an the Code, of Civil procedure im 469 poses no obligations to recover the dues by sale of movables or by arrest and detention of the defaulter before immovable property may be attached.
The provisions of the Act, which authorise recovery of sums of money as arrears of land revenue, do not require the Collector to follow any sequence of the processes for recovery; it is competent to the Collector to resort to any process prescribed by section 279 in aid of recovery of the dues which are recoverable as arrears of land revenue, [473 H 474 D; 475 H] (ii) The sale was not illegal or irregular for the reason that the Collector ignored the intimation of the Income tax Officer staying the sale for recovery of income tax dues.
The immovable property could have been put up for sale for recovery of sugar cane cess and the cane price which were many times more than the income tax dues.
[476 G] (iii) There was no force in the contention that the appellant was unable to raise funds and make the deposit under r. 285H because the purchaser was appointed the Authorised Controller, who took possession of all the properties of the Company.
The appellant could not comply with the provision of r. 285H for having the sale set aside as the movables were not sufficient to enable the appellant to raise the amount required for deposit under r. 285H. [476 H]