judgement:
o. 1239 of 1970.
Appeal under Section 116 A of the Representation of the People Act, 1951 from the judgment and order dated February 13, 1970 of the Madras High Court in Election Petition No. 1 of 1969.
K. K. Venugopal, R. Gopalakrishnan and T. L. Garg, for the Appellant.
M. K. Ramamurthi, Vineet Kumar, section section Khanduja and N. Natrajan, for the Respondent.
The Judgment of the Court was delivered by Hegde, J.
This is an election appeal arising from a judgment of the Madras High Court.
It relates to the Election to the Ariyankuppam Assembly constituency of the Pondicherry Legis lative Assembly.
The said election was held on March 9, 1969.
In that election, the appellant as well as the respondent contested.
The appellant was the Congress nominee and the respondent was.
the nominee of the D.M.K. After the counting of votes, the res 648 pondent was declared elected as having obtained 3774 votes as against 3758 obtained by the appellant.
The appellant challenged the validity of the election of the respondent on various grounds.
In his election petition he alleged that the respondent war, guilty of canvassing votes on the basis of his caste, that he had, bribed the voters, that the election was not conducted property, that there was improper reception of void votes and lastly that he had incurred expenditure more than the prescribed limit.
The charge of bribery was not pressed at the time of the trial.
The other grounds pleaded on behalf of the appellant were rejected by the High Court and the election petition was dismissed.
After hearing the Counsel for the parties regarding the allegation relating to the contravention of section 123(6) of the Representation of the People Act, 1951 (,to be hereinafter referred to as the Act), we have come to the conclusion that the respondent was guilty of an offence falling within that section as he is proved to have incurred expenditure more than the prescribed limit.
We therefore thought that it was not necessary to go into the other charges levelled against the respondent.
The limit of expenditure prescribed for the constituency was Rs. 2,000/ .
In his election return, the respondent had stated that he had incurred an expenditure of Rs. 1865/59 P.
The trial court came to the conclusion, which conclusion was not challenged before us, that he had incurred a further expenditure of Rs. 20/50 P. Hence if the appellant is able to establish that the respondent had incurred at least a further expenditure of Rs. 113/92 P., then the election of the respondent will have to be set aside under section 100 ( 1 ) (b) of the Act on the ground that the respondent was guilty of the corrupt practice falling under section 123(6).
The appellant had alleged in his election petition that the respondent had suppressed in the return submitted by him expenditure incurred under various heads such as, expenditures incurred in connection with, the holding of election meetings, hire paid for the cars used in connection with the elections as well as the price of petrol used for the cars used in that connection.
We shall first take up the question of expenditure said to have been incurred in connection with the holding of meetings.
The allegation as regards the same is found in paragraph 8(v) of the ,election petition.
The material portion of that allegation reads "The total expenditure incurred or authorised by the respondent herein in connection with the election exceeded the limit prescribed under the Act and the Rules made thereunder.
The accounts submitted by the respondent to the Special Officer (Election), Pondicherry showing a sum of Rs. 1,865/59 are false 649 and unrelated to the actual expenditure incurred or authorised by the respondent for his purposes.
In his election account the respondent has failed to show the following items of expenditure (v) The respondent held a large number of election meetings and all these election meetings were conducted in a pandal where a dias was constructed for the speakers.
All these meetings were installed with loud speakers, tube lights and other electrical fittings were also provided.
The construction of the pandal and dais and the installation of loudspeakers and other electrical equipment such as lights etc.
would have at least cost Rs. 100/ for each meeting except for the meeting at Ariyankuppam on 5 3 69 at 7.30 p.m. when Shri V. R. Nedunchezian presided in which meeting several loudspeakers and extra light fittings were provided costing over Rs. 200.
The dates, the time and the place of the meetings are as follows : (i) On 5 3 1969 at about 8.30 p.m. at Poornamukuppam.
(ii) On 6 3 1969 at about 10.00 p.m. at Nonamkuppam.
(iii) On 28 2 69 at about 8.00 p.m. at Manaveli.
(iv) On 5 3 69 at about 9.00 p.m. at Manaveli.
(v) On 27 2 1969 at about 7.30 p.m. at Ariyankuppam.
Three other election meetings at Ariyankuppam and one meeting at Periaveerampatinam were also held at the instance of the respondent.
(vi) On 23 2 1969 at about 8.00 p.m. at Ariyankuppam.
(vii) On 24 2 1969 at about 8.00 p.m. it Ariyankuppam. (viii) On 26 2 1969 at about 8.00 p.m. at Veerampattinam.
" The respondent 's plea relating to those allegations are found paragraph 17 of his written statement.
Therein he averred "The allegations made in paragraph 8 of the petition are totally false and they are hereby denied.
Every one of the allegations made therein are factually incorrect and false.
None of the expenditure alleged therein was incurred, by the Respondent or under his authority.
" 650 This is a general denial.
The respondent did not deal with .the various facts stated in the election petition.
From those averments, it is clear that the respondent denied having arranged .any of the meeting mentioned in the election petition.
After the respondent filed his written statement, the appellant applied for and obtained permission of the court to amend certain clerical mistakes that had crept into the election petition.
After those amendments were carried out, the respondent filed an additional written statement.
In paragraph 3 of that statement the .averred thus : "I state that no public meeting took place either on 27 2 1969 or on 28 2 1969 in the manner as alleged by the petitioner in paragraph 4(iii) and 4(iv) of the Election Petition.
Consequently, the allegations as amended in paragraph 8 (v) (iii) and 8 (v) (v) are also ,not correct.
I further state that no meeting took place on 5 3 69 at Ariyankuppam in the manner as alleged by the petitioner in the amendment application No. 2204 of 1969".
On October 13, 1969, the appellant applied for amendment of the election petition by giving some more particulars of the meetings held by the respondent.
By that application he sough, to give particulars of about six other meeting; in addition to what he had already stated in his election petition, said to have beer arranged by the respondent.
The court rejected that application on the ground that by that application, additional grounds on, corrupt practice were sought to be included in the election petition and the same cannot be permitted to be done after the period, prescribed for filing the election petition was over.
It may be noted that the trial of the case started on January 9, 1970.
In the order rejecting the amendment application though the court, referred to the delay in filing the application, it did not reject is on the ground of laches, nor did it reject the application on the ground that it was not a bona fide one.
The sole ground or which it was rejected was that it was not 'maintainable as is sought to include additional grounds of corrupt practice.
In our opinion, the High Court was wholly wrong in coming to the conclusion that the amendment application moved on behalf of the appellant sought to add any new corrupt practice The incurring or authorising of an expenditure in contravention of section 77 of the Act is one single corrupt practice.
The incurring or authorising of an expenditure in connection with the election is not by itself a corrupt practice.
The corrupt practice is the incurring or authorising the expenditure of more than the prescribed limit.
Hence the trial court erred in thinking that each 651 item of expenditure is a corrupt practice by itself.
This position is obvious from the language of the section itself.
This Court had occasion to go into that question in D. P. Mishra and anr.
v Kamal Narayan Sharma and anr.(1).
In that case this Court came to the conclusion that the particulars of a corrupt practice falling under section 123 (6) may in an appropriate case be introduced by amendment.
By doing so, no additional ground of corrupt practice can be said to have been introduced.
If it had been necessary for the case, we would have allowed that amendment application and sent back the case for further trial.
But for the reasons to be presently stated, we have thought it unnecessary to do so.
In dealing with the expenditure incurred in connection with the election meetings, the first and the important question that has to be decided is as to when the election campaign of the respondent commenced.
According to the appellant, it commenced on February 23, 1969.
But according to the respondent it commenced on February 27, 1969.
Decision on this question has great bearing on the other points arising for decision.
Hence we shall first address ourselves to that question.
The learned trial judge did not give any positive finding on this question.
In the course of his judgment he doubted the evidence of the respondent on this point but by taking a facile view of the evidence on record, he just rejected the evidence of the appellant as un acceptable and wholly accepted the evidence of the respondent as regards the number of meetings held though he felt that the respondent has not come forward with a truthful version.
It is true that in election cases oral evidence has to be examined with great deal of care because, of the partisan atmosphere continuing even after the election.
But it will be wrong on the part of courts to just brush aside the oral evidence even when the evidence is highly probable and the same is corroborated by unimpeachable documentary evidence.
As mentioned earlier, according to the appellant, the respondent started his election campaign with a well attended meeting on February 23, 1969 at Ariyankuppam.
In support of that version he examined P.Ws. 3, 4, 7, 13, 16 and 19.
Their evidence was corroborated by Exhts.
P. 15 and P. 3.
But the learned trial judge rejected this evidence without examining them.
He came to the conclusion that the witnesses examined are partisan witnesses.
Therefore much reliance cannot be placed on their testimony.
But he failed to attach sufficient importance to the tell tale evidence (1) [1971] I S.C.R. 8. 652 afforded by Exhts.
P. 17 and P. is an application made by the respondent to the Inspector of Police, 'C ' Circle, Pondicherry.
Therein the respondent stated : "Please grant me permission to hold a public meeting at Ariyankuppam Cuddalore Road in front of market, on the occasion of inauguration of my electoral office on 23 2 1969 from 9 to 12 a.m. and to make use of loud speakers.
" The permission sought for was granted by the Inspector.
The Inspector, P.W. 24 deposed that he deputed a Head constable to cover that meeting and report about the same.
It is gathered from the evidence of P.W. 24, that in Pondicherry, before holding a meeting, permission of the police will have to be obtained and it is the usual practice there to depute a police officer to cover the meetings and report about the speeches made by the speakers, P.W. 24, further says that he deputed a Head constable to cover the meeting to be held in connection with the inauguration of the election campaign of the respondent and in that connection the Head constable in question submitted to him the report Exh.
The report in question was proved through the Inspector without any objection.
The report says that the election campaign of the respondent was inaugurated by holdings a public meeting on February 23, 1969 and that meeting was addressed by as many as eight persons in addition to the respondent.
This report was received by the Inspector on the 25th of February.
Despite this clinching evidence afforded by Exhts.
P. 15 and P. 35, the respondent made bold to deny the factum of having held a meeting on the 23rd.
In view of this documentary evidence, the learned trial judge was unable accept the evidence of the respondent.
All the same he opined that it was immaterial whether the election campaign was inaugurated on the 23rd or on the 27th, since he was inclined to accept the evidence of the respondent that he had held only seven meetings and not more.
This in our opinion, is an erroneous approach.
As seen earlier, the respondent has denied having held any meeting on February 23.
But this denial cannot be accepted as true.
For the reasons already mentioned we feel satisfied that the respondent 's election campaign commenced on the 23rd February 1969 and in that connection a meeting was held in Ariyankuppam on that date.
Before proceeding further, we may at this stage mention that though in his written statement, respondent denied having held any meeting at all a statement which on the face of it cannot be true in his evidence he admitted having arranged seven meetings.
This he had to admit in view of the receipts that be had produced along with his return.
In his evidence he admitted 653 that he held meetings on February 27, 1969, March 5, 1969 and March 6, 1969 at Ariyankuppam.
He also admitted that he held a meeting on March 5, 1969 at Poornamukuppam and on March 6. 1969 at Manaveli and again on the same day at Veerampatnam.
Hence admittedly he held seven meetings.
Let us now proceed to see whether the appellant has satisfactorily proved that the respondent had held any more meetings.
We have earlier come to the conclusion that he had held a meeting at Ariyankuppam on February 23, 1969.
The appellant alleged that the respondent had held one more meeting at Ariyankuppam on February 24, 1969.
To prove this fact he had examined P.Ws. 3 and 4.
Their evidence is corro borated by Exh.
P 16,an application admittedly given by the respondent to the police for permission for holding a meeting on that day and exhibit P.36, the police report sent in that connection, The learned trial judge did not accept the contention of the respondent that he had not hold a meeting on Ariyankuppam on February 24, 1969.
Then we come to the meeting alleged to have been held on February 26, 1969 at Veerampatinam.
On this question the trial court has come to the conclusion that the respondent bad held a meeting at Veerampattinam on February 26, 1969.
On this point the oral evidence adduced by the appellant is corroborated by exhibit P. 17, the application made by the respondent to the police for permission to hold that meeting and P. 38, the report made by the police.
Then we come to the meeting said to have been held at Manaveli on February 28, 1969.
The respondent himself admitted in his evidence that he did arrange a meeting at Manaveli on that date.
In his evidence the respondent admitted as having arranged a meeting at Ariyankuppam on March 6, 1969.
According to him he arranged that meeting but curiously the learned trial judge came to the conclusion, despite that admission of the respondent that P.W. 6 arranged that meeting as that witness in his evidence claimed that he arranged that meeting and spent for the same.
The learned trial judge over looked the fact that no such plea was taken by the respondent in his written statement nor was it his case in his evidence that meeting was arranged for P.W. 6.
For the reasons mentioned above,we are satisfied that in addition to the seven election meetings which the respondent admitted having arranged, the appellant has been able to satisfactorily prove that the respondent had arranged at least four more meetings.
Now coming to the question as to the expenditure incurred in collection with those meetings, it is no doubt for the appellant L643SupCI/72 654 to prove the same.
According to the respondent he had not maintained any accounts in connection with his election.
The expenditure incurred for his election is specially within the knowledge of the respondent.
He has not adduced any evidence in that connection.
He has totally denied having held those meetings.
That denial for the reasons already mentioned cannot be accepted.
Therefore we have now to find out what would have been the reasonable expenditure incurred in connection with those meetings.
Even according to the respondent for the seven meetings held by him, he incurred an expenditure of more than Rs. 225/ .
That means on an average he had incurred an expense of about Rs. 32/ per meeting.
This is clearly an underestimate.
But even if we accept that to be correct, for the four meetings referred to earlier, he would have incurred an expenditure of Rs. 128/ .
If this expense is added to the sum of Rs. 1886/9 p., referred to.
earlier, the total expenditure incurred exceeds the prescribed limit of Rs. 2,000/, ' .
Hence the respondent is clearly guilty of the corrupt practice mentioned in section 123(6).
Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent.
He contended that the police reports referred to earlier are inadmissible in evidence as the Head constables who covered those meetings have not been examined in the case.
Those reports were marked without any objection.
Hence it is not open to the respondent now to object to their admissibility see Bhagat Ram vs Khetu Ram and anr.
It was next urged that even if the reports in question are admissible, we cannot look into the contents of those documents.
This contention is again unacceptable.
Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.
It was lastly contended that the, evidence afforded by the police reports is not relevant.
This again is untenable contention.
Reports in question were made by government officials in the discharge of their official duties.
Those officers had been deputed by their superiors to cover the meetings in question.
Obviously they were deputed in connection with the maintenance of law and order which is the special responsibility of the police.
Hence, the question whether those reports were made in compliance with any particular provision of law is irrelevant.
The first part of section 35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact and (1) A.I.R.1929P.C.110.
655 made by a public servant in the discharge of his official duty is relevant evidence.
Quite clearly the reports in question were made by public servants in discharge of their official duty.
The issue before the court is whether the respondent had arranged certain election meetings on certain dates.
The police reports in question are extremely relevant to establish that fact.
Hence they come within the ambit of the 1st part of section 35, of the Evidence Act.
In this connection we would like to refer to the decision of the Madras High Court in Navaneetha Krishna Thevar vs Ramaswami Pandia Thalavar(1).
Therein the learned judges observed thus: "As however the case may not stop here, we think it right to allow the petitioners in Civil Miscellaneous Petitions Nos. 845 and 1655 of 1915 for the admission of certain documents rejected by the Subordinate Judge, namely (1) the decree of the Zilah Court of Tinnevelly, dated 31st May 1859 in Original Suit No. 4 of 1859, (2) the Takid of the Collector to the Muzumdar on the death of the raja in 1850, (3) the reply of the Muzumdar and (4) the Collector 's Takid in 1853 on the complaint of the zamindar 's widow as to the conduct of Maruthappa Thevar who according to the plaintiff 's case was the father of Gnanapurani 's mother.
They will accordingly be marked as Exhibits XXXIV, XXXV, XXXVI and XXXVII respectively and incorporated in the record.
The learned Advocate General did not support the exclusion of the last three on the ground that the copies of correspondence kept in the Collector 's and taluk offices were not signed but contended that they were not admissible under section 35 of the Indian Evidence Act.
We think however that copies of actual letters I made, in registers of official correspondence kept for reference and record are admissible under section 35 as reports and records of acts done by public officers in the course of their official duty and of statements made to them, and that in the words of their Lordships in Rajah Muttu Ramalinga Setupati vs Periyanayagam Pillai (2 ) they are entitled to great consideration in so far as they supply information of material facts and also in so far as they are relevant to the conduct and acts of the parties in relation to the proceedings of Government founded upon them.
" We are in agreement with the view taken by the Madras High Court in that case.
(1) I.L. R. at 678 & 870.
(2) [1974] L. R. I.A. 209.p.
656 Now coming to the value to be attached to the evidence afforded by those reports, we may usefully refer to the decision of the Judicial Committee in Arjuno Naiko and ors.
vs Modonomohano Naiko and ors.(1) In fact case a person brought a suit for establishing that lie was the adopted son of a dismissed Sirdar and as such entitled to succeed to the Sirdarship.
In evidence documents coming from official sources recording statements as to adoption made to the officials in the locality not merely by the plaintiff himself in the presence of others but also by other member and by the dismissed Sirdar himself were produced.
These statements were made at a time when no disputes had arisen and were made in connexion with a matter of local interest viz. the appointment of a new Sirdar.
The Judicial Committee held that the documents carried greatest possible weight and could not be dismissed as mere self assertions.
Similarly in this case, the police reports in question were made by the government officials who are not shown to be inimically disposed towards the respondent or his party.
They were made when there was no dispute and the dispute in question could not have been anticipated.
In view of the above conclusion, it is not necessary to go to the other contentions advanced on behalf of the appellant.
In the result we allow this appeal, set aside the order of the High Court, accept the election petition of the appellant and set aside the election of the respondent.
The respondent shall pay the costs of the appellant both in this Court as well as in the High Court.
S.C. Appeal allowed.

summary/full:
The appellant challenged the validity of the election of the respondent to the Pondicherry Legislature Assembly on various grounds including corrupt practices.
The High Court dismissed the election petition.
In the appeal to this Court, the appellant contended (i) that the appellant 's amendment application of the election petition giving more particulars of meetings held by the respondent was wrongfully rejected by the Trial Court on the sole ground that it sought to include additional grounds of corrupt practice and (ii) that the respondent had actually incurred expenses in connection with 4 more meetings thereby exceeding the prescribed limit.
The respondent, on the other band, contended that the various police reports about the meetings relied on by the appellant were not admissible in evidence as the head constable who covered the meetings had not been examined in the case that even if the reports were admissible, the Court could not look into the contents of those documents and that the evidence afforded by the Police reports was not relevant.
Allowing the appeal, HELD : (i) The incurring or authorising of an expenditure in contravention of section, 77 of the Act is one single corrupt practice.
The incurring or authorising of an expenditure in connection with the election is Dot by itself a corrupt practice.
The corrupt practice is the incurring or authorising the expenditure of more than the prescribed limit.
Hence, the Trial Court erred in thinking that each item of expenditure is a corrupt practice by itself.
The particulars of corrupt practice failing under sections 123(6) of the Act may, in an appropriate case, be introduced by amendment.
By doing so, no additional ground of corrupt practice can he said to have been introduced.
[650 H] D. P. Misra and Anr .
vs Kamal Narain Sharma and Anr.
[1971] I .S.C.R. 8, referred to.
(ii) As regards the number of meetings held by the respondent, although he denied having held any meeting at all however admitted in his evidence that he bad arranged seven meetings between, February 27, 1969 to March 6, 1969.
The appellant, however, had been able to prove that the respondent had held four more meetings between February 23, 1968 to March 6, 1969.
In support of his claim, the appellant examined a number of witnesses and their evidence was corroborated by a number of applications (which the respondent made to the Inspector of Police asking permission to hold the meetings) and by the police reports (which the Head constables made to their superior after attending the meetings).
Therefore, on an average, if the respondent spent Rs. 32/ per meeting (which he admitted), the total for the 4 extra meetings must have cost the Respondent Rs. 128/ .
If this expense was added to the sum of Rs. 18,86.09 which the respondent had spent for his entire election, the 647 total expenditure, would exceed the prescribed limit of Rs. 2,000/ .
Hence, the respondent was clearly guilty of corrupt practices mentioned in 123(6).
[652 H] (iii) The police reports were marked without any objection.
Hence, it was not open to the respondent to object to their admissibility at a later stage.
Bhagat Ram vs Kheta Ram and Anr., A.I.R. 1929 P.C. 110, referred (iv) Further as regards the contents of the document, once a document is properly admitted the contents of that document are also admitted in evidence although the contents may not be conclusive evidence.
[654 F] (v) The first part of section 35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact made by a public servant in discharge of his official duties is relevant evidence.
Quite clearly the reports in question were made by public servants in discharge of their official duty.
The issue before the Court was whether the respondent had arranged certain election meetings on certain dates.
The police reports in question were extremely relevant to establish that fact.
Hence, it came within the ambit of the first part of section 35 of the Evidence Act.
[655 B] Naveneetha Krishna Thelavar vs Ramesway Pandia Thelavar, I.L.R. 40, Madras 871, approved.
In the present case, the police reports in question were by government officials who were not shown to be inimically disposed towards the respondent or his party.
They were made when there was no dispute and the dispute in question would not have been anticipated.
Therefore, such reports carry greatest possible weight and could not be dismissed lightly.
[656 D] Arjuno Naiko and Ors.
vs Madonomohano Naiko & Ors., A. I. R. , referred to.


judgement:
Appeals Nos.
1384 and 1584 of 1970.
Appeals under Section 116 A of the Representation of the People Act, 1951 from the Judgment and Order dated May.22, 1970 of the Patna High Court in Election Petition No. 2 of 1969.
J. P. Govat, Subhagmal Jain, section P. Mukherjee, Pranab Chatterjee and G. P. Roy, for the appellant (in C.A. No. 1384 of 1970) and respondent No. 1 (in C.A. No. 1584 of 1970).
V. M. Tarkunde, P. N. Tiwari, 0.
C. Mathur, Ravinder Narain and J. B. Dadachanji, for respondent No. 1 (in C.A. No. 1384 of 1970) and the appellant (in C.A. No. 1584 of 1970).
The Judgment of the Court was delivered by Hegde, J.
These are cross appeals under section 116 A of the Representation of the People Act, 1951 (to be hereinafter referred to as the Act) arising from an election petition filed by the first respondent (who for the sake of convenience will hereinafter be referred to as the respondent), before the High Court of Patna.
During the last mid term election for the Bihar Legislative Assembly held in the beginning of 1969, the appellant, the respondent and 1 1.
other contested from the Arrah Assembly Constituency.
The last date for filing the nomination was January 8, 1969 and the date of scrutiny was January 9, 1969.
The poll took place on February 9, 1969 and the votes were counted on the next day.
The appellant was declared elected as having obtained the highest number of votes i.e 13,556.
His nearest rival was the respondent 676 who secured 12,278 votes.
The appellant was the nominee of the Socialist party and the respondent was the nominee of the Congress party.
After the publication of the results in the official gazette, the respondent filed the election petition challenging the validity of the appellant 's election on various grounds.
The principal ground taken by her was that the result of the election had been materials affected by the improper acceptance of the appellant 's nomination papers.
She also charged the appellant with the commission of various corrupt practices to which reference will be made at a later stage.
The learned trial judge accepted the contention of the respondent that the result of the election had been materially affected by the improper acceptance of the appellant 's nomination.
He accordingly set aside the election of the appellant; but lie ,rejected the contention of the respondent that the appellant was guilty of any corrupt practice.
Aggrieved by the decision of the High Court, the appellant has filed Civil Appeal No. 1384 of 1970 and the respondent has filed Civil Appeal No. 1. 5 84 of 1970.
The principal questions that arise for decision are : (1) whether the defects found in the nomination paper of the appellant are, of " substantial character" within the meaning of that expression in section 36(4) of the Act and (2) whether it in is established that the acceptance of the nomination of the appellant had materially affected the result of the election.
After dealing with those questions, we shall proceed to consider the appeal of the respondent challenging the conclusion of the trial court regarding the corrupt practices alleged to have been committed by the appellant.
Before proceeding to consider the relevant provisions in the Act, it is necessary to set out a few more facts.
The appellant has been contesting from the Arrah constituency from about the year 1962.
He represented that constituency before the dissolution of the Bihar Legislative Assembly.
He was registered as on elector in the Sandesh Assembly Constituency of the Bihar State.
His name continued to be on the electoral roll of that constituency even at the time he filed his nomination from the Arrah constituency on January 6, 1969 i.e. two days before the last date for filling the nomination.
It appears that in 1968, his name was also entered in the electoral roll of Arrah constituency.
But later on, evidently because.
his name stood entered in the Sandesh constituency, the same was deleted from the Arrah constituency.
But this deletion was done without notice to the appellant.
The deletion was shown in a separate supplemented list.
In the main electoral roll, his name continued to be shown in the Arrah constituency.
According to the appellant when he came, to file his nomination paper, he was not aware of the fact that his name was entered in the electoral 677 roll of the Arrah constituency.
Therefore he had brought with him a certified copy of the electoral roll of the Sandesh constituency.
But in the ' morning of January 6, 1969 he came to know that his name was also in the Arrah constituency.
At that time he did not notice the deletion of his name which was in a separate list.
Therefore in his nomination paper, he entered his electoral roll No., as shown in the electoral roll of Arrah constituency.
But at the, same time he showed to the Returning Officer the certified copy of the scrutiny, no one objected to the nomination of the appellant.
The Returning Officer supports this version of the appellant.
After checking the name of the appellant as well as his electoral number as found in the electoral roll of Arrah constituency, and also the names and electoral roll number of his proposers, the Returning Officer received the nomination paper filed by him.
At the time of the scrutiny, no one objected to the nomination of the appellant.
The Returning Officer accepted his nomination as a valid nomination.
The objection to the acceptance of the nomination of the appellant was put forward for the first time, in the election petition.
We have now to consider whether the appellant was validly nominated.
Section 5 of the Act prescribes the qualifications for membership of a Legislative Assembly.
It says that "A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless (a) (b) (c) in the case of any other seat he is an elector for any Assembly constituency in that State" It is not denied that the appellant possesses all the qualifications prescribed either under the Constitution or under the Act and further that he has none of the disqualifications mentioned either under the Constitution or under the Act.
All that is said against his nomination is that his nomination paper was not properly filled in.
The law requires that the nomination of a candidate should be in the prescribed form and among others it should contain the name of the person nominated, his proposer 's name as well as the electoral roll numbers of the candidate and his proposer.
Sub cl.
(4) of section 33 provides that : "On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls : Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the 678 name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any ,such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.
" Sub section
(5) of section 33 provides that where a candidate is an elector ,of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall unless it has been filed along with the nomination paper be produced before the Returning Officer at the time of the scrutiny.
Section 36 of the Act prescribes the mode of scrutiny of the nomination.
Sub section
(2) of that section says : "The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomi nation on any of the following grounds : (a) that on the date fixed for the scrutiny of nomination the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable namely .
Articles 84, 102, 173 and 191 (b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine." Sub section
(4) of that section commands the Returning Officer not to reject any nomination paper on the ground of any defect which 679 is not of a substantial character.
Sub section
(6) of that section prescribes that : "The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.
" The only other relevant provision which we need consider is sub section
(1) of section 100 which prescribes the grounds for declaring election to be void.
That section reads : "Subject to the provisions of sub section
(2) if the High Court is of opinion (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the ; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improper rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination.
or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
" The first question that we have got to decide is whether the defects found in the nomination paper of the appellant are of substantial character.
As mentioned earlier, the appellant was fully 680 qualified to be nominated for the election.
The only thing said against his nomination is that his nomination paper was not properly filed in.
We have earlier seen that a duty is imposed on the Returning Officer by sub section
(4) of section 33 to look into the nomination ' paper when it is presented and to satisfy himself that the names and the electoral roll numbers of the candidate and that of the proposer as entered in the nomination paper are the same as those entered in the electoral roll.
In this case it is proved that the Returning Officer did look into the nomination paper but unfortunately he also did not notice that the name of the appellant had been removed from the ' electoral roll of Arrah constituency.
If lie had noticed that fact, he, would have asked the appellant either to correct the mistake or to file a fresh nomination paper.
We have earlier noticed that the appellant filed his nomination paper on the 6th of January 1969 and the last date for filing the nomination paper was the 8th of that month.
That being so, there would have been no difficulty for him either to correct the nomination paper filed or to file a fresh nomination paper.
We have earlier noticed that the appellant had with him a certified copy of the electoral roll of the Sandesh constituency and he had shown the same to the Returning Officer.
Mistakes complained or occurred because both the appellant as well as the Returning Officer merely looked into the main voters ' list but overlooked the deletion noted in a separate list.
But the implication of section 33 (4) is that a wrong entry in a nomination paper as regards the name of the candidate or the proposer or their electoral roll numbers is not a matter of substantial importance.
That is why the legislature requires the Returning Officer to look into them and if there are any mistakes to get them corrected.
What is of importance in an election is that the candidate should possess all the prescribed qualifications and that he should not have incurred any of the disqualifications mentioned either in the Constitution or in the Act.
The other information required to be given in the nomination paper is only to satisfy the Returning Officer that the candidate possesses the prescribed qualification and that he is not otherwise disqualified.
In other words those information relate to the proof of the required qualifications.
It may also be noted that the legislature itself has made distinction between the acceptance of a nomination and the rejection of a nomination.
The Returning Officer is required to give reasons for rejecting a nomination whereas he is not required to give reasons for accepting a nomination.
Further sub section
(2) of section 36 says that "he may reject the nomination paper".
It is further seen that the proviso to sub c.
(4) of section 33 says that no inaccurate description in regard to the name of the candidate or his proposer or in regard to any place mentioned in the nomination paper shall affect the full operation of the nomination.
681 From a, combined reading of sections 33 and 36, it is clear that a mis description as to electoral roll number of the candidate or of the proposer in the nomination paper is not to be considered as a material defect in the nomination paper.
In Karnail Singh vs Election Tribunal, Hissar and ors.(1), the tribunal held that the nomination paper of one of the candidates was wrongly rejected on the ground that column No. 8 in the nomination paper was not duly filled up.
The only defect pointed out was that the name of the sub division was not stated therein '.
But on the evidence it was quite clear that there was no difficulty in identifying the candidate and the candidate himself pointed out to the returning officer the entry of his name in the electoral roll.
Agreeing with the tribunal this Court held that the defect in those circumstances was a technical one and the tribunal was perfectly right in holding that the defect was not of a substantial character and that the nomination paper should not have been rejected.
In Rangilal Choudhury vs Dahu Sao and ors.
(2) this Court held that the fact that the name of the constituency was wrongly, mentioned as 'Bihar ' instead of 'Dhanbad ' in the nomination paper did not vitiate the nomination as it was clear from a reading of the entire nomination paper that the respondent was seeking election from the Dhanbad constituency.
In reaching that conclusion this Court referred to the requirements, of section 3 3 (4), section 3 6 (2) (b) and (4).
After referring to those provisions this Court observed "The result of these provisions is that the proposer and the candidate are expected to file the nomination papers complete in all respects in accordance with the prescribed form; bat even it there is some defect in the nomination paper in regard to either the names of the electoral roll numbers, it is the duty of the returning officer to satisfy himself at the time of the presentation of the nomination paper about them and if necessary to allow them to be corrected, in order to bring them into conformity with the corresponding entries in the electoral roll.
Thereafter on scrutiny the returning officer has the power to reject the nomination paper on the ground of failure to comply with any of the provisions of section 33 subject however to this that no nomination paper shall be rejected on the ground of any defect which is not of a substantial character." In Namdeo Chimanji Tapre and anr.
vs Govinddas Ratanlal Bhatia and ors.
(1), the High Court of Bombay held that as the (1).
(2) ; (3).
I.L,R. 682 identity of the candidate was not in dispute, the rejection of the nomination paper by the Returning Officer was not valid having regard to the provisions in section 33 and section 36 of the Act.
In Dev Kanta Barooah vs Kusharam Nath and ors.
(1), a nomination paper for the Nowgong constituency of the Assam Legislative Assembly contained a recital in the heading that the respondent was thereby nominated as a candidate for election "from the Assembly constituency", but against column No. 2 of nomination paper relating to the electoral roll number of the proposer and column No. 5 relating to the electoral roll number of the candidate, the entry was "Assam Legislative Assembly constituency, Part No. 10 of the Electoral Roll of village Phulaniati, Mouza Hatichung, Police Station Sadar, Nowgong, Roll No.
" The Returning Officer rejected the nomination paper on the ground that the name of the constituency to which the elec toral roll related was not mentioned in columns 2 and 5 as required section 33 (4) of the Act.
This Court agreeing with the tribunal and the High Court held that the rejection of the nomination was improper.
Our attention has not been invited to any decision either of this Court or of any High Court or even of a tribunal where the Returning Officer had accepted the nomination paper of a qualified candidate, the same was found to be improper because of some defect in the nomination paper.
The case of rejection of a nomination paper by the Returning Officer stands on a footing different from that of an acceptance of a nom ination paper.
In the latter case the main though not the only question to be considered is whether the candidate is qualified to be a candidate.
The very fact that the law requires the Returning Officer to look into the nomination paper, when filed and get any mistake regarding the name or electoral number of the candidate or his proposer corrected shows that the mistake regarding them is not a material defect.
Learned Counsel for the respondent has sought to place reliance on some decisions of this Court in support of his contention that the appellant 's nomination paper was improperly accepted.
We shall now refer to the decisions relied on by him.
, In Narbada Prasad vs Chhagan Lal and ors.
(2) a candidate 's nomination paper was rejected by the Returning Officer on the round that he did not produce the proof required under section 33(5) of the Act.
That rejection was upheld by this Court.
We fail to see how that decision lends any support to the respondent 's case.
Without the required proof, the Returning Officer could not satisfy himself that the candidate was qualified to seek election.
(1) XXI, E.L.R. 459.
(2) [1969] 1, S.C.R.499 683 Reliance was next placed on the decision of this Court in Rana Dayal vs Brijraj Singh and ors.
(1) Therein the proposer of the candidate was an illiterate person.
He had not got authenticated or attested the mark put by him in the nomination paper by one of the designated officers as required by the relevant provisions of the Act and the rules framed thereunder.
Hence the nomination paper was rejected by the Returning Officer.
That rejection was upheld both by the High Court as well as by this Court.
No nomination can be held to be valid unless the candidate is duly proposed.
If the mark put by the proposer is not authenticated in the manner required by law, it cannot be said that the candidate has been properly nominated.
In Brijendralal Gupta and ant .
vs Jwalaprasad and ors.(2), this Court observed that the word 'defect ' in section 36(4) included an omission to satisfy the details prescribed in the nomination.
It further observed that the distinction laid down in English cases between "omission and "inaccurate description" depended on the specific provisions of the English statute which did not obtain under the Indian law.
This decision, again has no bearing on the point in issue.
For the reasons mentioned above we are of the opinion that the defect in the appellant 's nomination paper was not a substantial defect.
Hence the High Court was not justified in allowing the election petition on the ground that his nomination was improperly accepted.
In view of the conclusion reached above, it is not necessary for us to go into the question as to the true interpretation of section 100(1) (d).
We shall merely notice the arguments advanced on either side on that question.
According to the appellant th@e legislature has made a clear distinction between improper rejection and improper acceptance of a nomination.
In the case of improper rejection, the High Court shall declare the election of the returned candidate to be void but in the case of improper acceptance before the election of the returned candidate can be declared void, the election petitioner will have to establish that the result of the election in so far as it concerns the returned candidate has been materially affected.
At this stage we, may notice that prior to the amendment of the Act in 1956, improper rejection and improper acceptance were placed in the same category.
Clause (c) of section 100(1) as it stood then read : "If the Tribunal is of opinion.
(c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination.
(1) [1970] I S.C.R. 530.
(2) ; 684 the Tribunal shall declare the election to be wholly void." This Court in Vashist Narain Sharma vs Dev Chandra and ors.
(1) observed in the course of its judgment that where the person whose nomination has been improperly accepted is the returned .candidate himself, it may be readily conceded that his nomination has materially affected the result of the election.
This observation was not the ratio of that decision.
That apart, after this observation was made, the Parliament has amended the relevant provision and has made a distinction between improper rejection and improper acceptance of a nomination.
It was urged on 'behalf of the ,appellant that in view of the amendment the observation made by this Court in Vashist Narain Sharma 's case (supra), can no more govern the point in issue.
According to the learned Counsel, clause (d) of section 100(1) as it now stands definitely requires that in the case of improper acceptance of any nomination, the election petitioner must establish that the result of the election in so far as it concerns the returned candidate has been materially affected.
He urged that the word "any" in section 100(1)(d) (1) means every .nomination.
On the other hand it was urged on behalf of the respondent that the amendment of section 100(1) did not affect the correctness of the observation made by this Court and that observation had been quoted by this Court in two cases arising under the amended provision.
In view of our earlier finding about the validity of the appellant 's nomination, it is not necessary to decide the controversy relating to the interpretation of section 100 (1) (d).
For the reasons mentioned above, differing from the view taken by the I earned trial judge, we have come to the conclusion that the nomination of the appellant was properly accepted.
This takes us to the appeal filed by the respondent.
As mentioned earlier, the High Court has rejected the charges of corrupt practices levelled by the respondent against the appellant.
Those charges were sought to be established only by oral evidence.
The learned trial judge was unable to accept the evidence adduced in support of the alleged corrupt practices.
Ordinarily this Court does not reappropriation Oral evidence.
Our attention has not been ,invited to any exceptional circumstances in this case requiring us .to go into the evidence afresh.
It is well known that the factious feelings generated during elections continue even after the election and hence the contesting parties are able to produce before court large (number of witnesses, some of whom may be seemingly disinterested ' But that by itself is no guarantee of the truth of the .evidence adduced.
Mr. Tarkunde, learned Counsel for the respondent put forward three broad contentions in support of the (1)[1955] S.C.R. 509.
685 appeal preferred by the respondent.
They are : (1) that the High Court failed to take an overall view of the evidence adduced; it merely contented itself by examining evidence relating to each one of the instances, (2) the High Court erred in not relying on the evidence relating to an instance when the same is spoken to by a single witness and (3) the High Court erred in rejecting the testimony of some of the witnesses on the ground that they were chance witnesses.
None of these contentions appear to have any merit.
Each instance of a corrupt practice pleaded had to be established separately.
If every one of those instances are not proved, all of them put together cannot be accepted as true because of the volume of evidence.
Now coming to the instances sought to be proved by the evid ence of a single witness, the learned trial judge observed in the course of his judgment that those instances were not seriously pressed by the Counsel for the respondent.
Evidently these charges were given up.
In appreciating evidence of the witnesses, the courts have to take into consideration the probability of their being present at the time of the alleged incident.
Courts have always viewed with suspicion.
the evidence of chance witnesses.
There was nothing wrong in the learned judge not being able to place much reliance on the evidence of chance witnesses.
Hence we see no merit in the appeal filed by the respondent.
For the reasons mentioned above we allow Civil Appeal 1384 of 1970 and dismiss Civil Appeal No. 1584 of 1970.
In the result the election petition stands dismissed with costs both in the High Court as well as in this Court in this Court the appellant is entitled to only one hearing fee.
G.C. C.A. No. 1384/70 allowed.

dataset_name: IN-Abs

summary/full:
During the mid term election held in 1969 in Bihar the respondent and 11 others contested from the Arrah Assembly Constituency.
The appellant was declared elected as having obtained the highest number of votes.
His nearest rival was the respondent. ' The respondent filed an election petition challenging the election of the appellant on various.
The principal ground taken was that the result of the election had been material affected by the improper acceptance of the appellant 's nomination papers.
It was alleged that nomination Paper showed that r the appellant 's name was registered as an elector in the Arrah Constituency whereas at the relevant time it had been removed therefrom.
The returning Officer was therefore wrong in accepting the nomination paper.
The other allegations against the appellant related to corrupt practice.
The High Court rejected the allegations as regards corrupt practice but it set aside the election of the appellant on the ground that the nomination paper had been improperly accepted and the election had been materially affected thereby.
In appeal to this Court, HELD : (i) The appellant was fully qualified to be nominated at the election.
The only thing said against his nomination was that his nomination paper was not properly filled in.
It was proved from the evidence that the Returning officer did look into the nomination paper but unfortunately he also did not notice that the name of the appellant had been re moved from the electoral roll of Arrah constituency.
If he had noticed F that fact he would have asked the appellant either to correct the mistake or to file a fresh nomination paper.
The appellant filed his nomination paper on the 6th of January 1969 and the last date for filing the nomination paper was the 8th of that month.
That being so there would have been no difficulty for him neither to correct the nomination paper filed or to file a fresh nomination paper.
The appellant had with him a certified copy of the electoral roll of Sandesh Constituency where his name was enrolled and he had shown the same to the Returning Officer.
Mistakes complained of occurred because both the appellant as well as the Returning Officer merely looked into the main voters ' list in Arrah constituency but overlooked the deletion noted in a separate list [670 A D] From a combined reading of sections 33 and 36 of the Representation of the People Act, 1961 it is clear that a mis description as to the electoral roll number of the candidate or of the proposer in the nomination paper is not to be considered as a material defect in the nomination paper.
The High Court was accordingly not justified in allowing the election petition on the ground that the nomination paper of the appellant was improperly accepted.
[681 A; 683 E] 675 In view of the above finding the further question whether the result of the election was materially affected did not survive for consideration.
[683 E F] (ii) The appeal of the respondent on the question of corrupt practice had no merit.
The three instances mentioned were in the opinion of the High Court not established by the evidence.
Each instance of a corrupt practice pleaded has to be established separately.
If every one of the instances was not proved all of them put together cannot be accepted as true because of the volume of evidence.
[685 B C] The election petition must therefore be dismissed.
Karnail Singh vs Election Tribuna, Hissar & Ors., 10 E.L.R. 189, Rangilal Choudhury vs Dahu Sao & Ors., [1962] 2 S.C.R. 401, Namdeo Chimnaiji Tapre & Anr.
vs Govindas Ratanlal Bhatia & Ors.
I.L.R. and Wey Kanta Barooah vs Kusharam Nath & Ors,, XXI E.L.R. 459, applied.
Narbada Prasad vs Chhagal Lal & Ors., [1967] I S.C.R. 499, Ram Dayal vs Brijrai Singh & Ors., [1970] I S.C. R. 530 and Brijendralal Gupta find Anr.
vs Jawalaprasad & Ors.
, ; , distinguished.
Vashist Narainin Sharma vs Dev Chandra and Ors., , referred to.


judgement:
ivil Appeal No. 1546 of 1969.
V.M. Tarkunde, section K. Dholakia and section K. Bagga, for appelIants Nos. 1 and 3.
section K. Bagga, for appellant No. 2.
D. V. Patel, A. G. Parikh and B. R. Agarwala, for the respondents.
The Judgment of the Court was delivered by Mathew, J.
This is an appeal by special leave, from the judgment of the High Court of Bombay dismissing a petition filed under Article 227 of the Constitution praying for issue of an approprivate writ or order quashing the order dated 28 2 1968 passed by the Full Bench, Small Causes Court, Bombay, in appeal No. 95 of 1963 from the order dated 21 2 1963 passed by the Judge, Small Causes Court, Bombay, in R.A.E. Suit No. 9293 of 1959.
In this appeal we are concerned with a plot of land admeasuring 2108 square yards in Survey No. 171, Hissa No. 7, at 892 Ghatkopar.
This plot belonged to one Jamnadas Chhotalal Dani.
On 15 11 1948, Jamnadas executed two leases in favour of one Bhawani Laksamsi and Maojibhai Jethabhai, defendants 1 and 2.
The subject matter of the first lease was two plots, the one referred to above and another in the same area measuring 805 square yards.
The subject matter of the second lease was a third plot in the same area.
The leases were for a period of ten years and in respect of the first plot, the rent payable was Rs. 75/ a month.
In both the leases there was an option clause which entitled the lessees to surrender the leased property by 30 9 1953.
The lessees surrendered the two plots, other than the plot with which we are ,concerned, in pursuance of the option clause, on 15 1 1951, with the result that the lease in respect of the first plot continued.
Jamnadas died on 14 8 195 1, but before his death he had made a gift of the leased property in favour of the three respondents.
The lease in respect of the plot in question here determined by efflux of time on 30 9 1958.
But the lessees continued to remain in possession paying rent at the rate of Rs. 75/ per month.
On 7 8 1959, the lessors gave notice purporting to Terminate the tenancy by the end of September, 1959.
They stated in the notice that the lessees had sub let the premises and that the lessors required the plot for the purpose of putting up constructions on it.
Since the lessees did not vacate the premises, the lessors filed suit on 22 10 1959 in the Small Causes Court of Bombay.
The lessees contended that they did not sub let the premises and that the lessors did not bona fide require the premises for the purpose of construction.
They also contended that by the acceptance of rent by the lessors after the termination of the tenancy by efflux of time, a fresh tenancy was created, that the original lease was granted for erecting a saw mill a manufacturing purpose and so the lease created by holding over was, by implication, also for a manufacturing purpose, and therefore, lessees were entitled to six months ' notice expiring with the end of the year of the tenancy, and that the tenancy created by holding over was not validly determined by the one month 's notice.
The trial court held that there was no clear evidence of the subletting of the premises, but that the plaintiffs required the plot bona fide for constructing a new building within the meaning of ,clause (1) of sub section (1) of Section 13 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, hereinafter called the Act.
The court also held that the tenancy terminated by efflux of time, but that the lessees continued in possession by virtue of the immunity from eviction conferred by the Act and so, they were not holding over within the meaning of section 116 893 of the Transfer of Property Act, notwithstanding the fact that rent was accepted by the lessors from month to month after 30 9 1958, and that it was not necessary to give the lessees six months ' notice expiring with the end of the year of the tenancy, for terminating that tenancy.
In appeal, the Full Bench of the Small Causes Court confirmed the decree of the trial court.
It was to quash this decree that the petition under Article 227 was filed before the High Court.
Before the High Court, the main contention of the appellants was that, since a fresh tenancy by holding over was created by the acceptance of rent by the lessors after the determination of the lease by efflux of time, the appellants were entitled to six months ' notice expiring with the end of the year of the tenancy, as the lease originally granted was for a manufacturing purpose, and therefore, the lease created by the holding over was also for same purpose.
The High Court was of (the opinion that in view of the decision of this Court in Ganga Dutt Murarka vs Kartik Chandra Das(l) no case was made out for new tenancy by holding over under section 116 of the Transfer of Property Act as the appel lants had obtained the status of irremovability under the Act, and as there was no contractual tenancy, the tenants were not entitled to any notice.
The Court also held that the lease which was granted for erecting a saw mill was not a lease for manufacturing purpose.
Counsel for the appellants argued that the appellants were holding over as the lessors were receiving the rent from the appellants after the termination of the tenancy by efflux of time on 30 9 1958 and the fact that appellants gained immunity from eviction by virtue of the Act was quite immaterial in deciding the question whether the appellants were holding over under section 116 of the Transfer of Property Act.
He submitted that as there was a new contractual tenancy created by the holding over, the appellants were entitled to six months ' notice as the purpose of the original lease was for a manufacturing purpose and that purpose became incorporated in the new lease by implication of law.
Counsel said that certain vital points were omitted to be considered in the decision of this Court in Ganga Dutt Murarka vs Kartik Chandra Das,(1) and therefore, the decision requires re consideration.
In Ganga Dutt Mararka vs Karlik Chandra Das, this Court held that where a contractual tenancy, to which rent control legislation applied, had expired by efflux of time or by determination by notice to quit and the tenant continued in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord had assented to a new contractual tenancy.
It was further.
held (1) ; 894 that acceptance by the landlord from the tenant, after the contractual tenancy had expired, of amounts equivalent to rent, or amounts which were fixed as standard rent, did not amount to acceptance of rent from a lessee within the meaning of section 1 1 6 of the Transfer of Property Act.
The act of holding over after the expiration of the term does not create a tenancy of any kind.
If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance.
A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent.
The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will.
In view of the concluding words of section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will.
The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy.
What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.
In Kai Khushroo Bezonjee Capadia vs Bai Jerbai Hirjibhoy Warden and another(), the Federal Court had occasion to consider the question of the nature of the tenancy created under section 116 of the Transfer of Property Act and Mukberiea J. speaking for the majority said, that the tenancy which is created by the "holding over" of a lessee or under lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and that to brine a new tenancy into existence, there must be a bilateral act.
It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it.
Patanjali Sastri J., in his dissenting judgment, has substantially agreed with the majority as regards the nature of the tenancy created by section 116 of the Transfer of Property Act, and that is evident from the following observations : "Turning now to the main point, it will be seen that the section Postulates the lessee remaining in possession after the determination of the lease which is conduct indicative, in ordinary circumstances of his desire to continue as a tenant under the lessor and implies a tacit offer to take a new tenancy from the expiration of the (1) 895 old on the same terms so far as they are applicable to the new situation, and when the lessor assents to the lessee so continuing in possession, he tacitly accepts the latter 's offer and a fresh tenancy results by the implied agreement of the parties.
When further the lessee in that situation tenders rent and the lessor accepts it, their conduct raises more readily and clearly the implication of an agreement between the parties to create a fresh tenancy.
" Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quilt, and who enjoys statutory immunity from eviction except on well defined grounds as in the Act, cannot be regarded as evidence of a new agreement of tenancy.
In Ganga Dutt Murarka vs Kartik Chandra Das,(1) this Court observed as follows : " By the Rent Restriction Statutes at the material time, Statutory immunity was granted to the appellant against eviction, and acceptance of the amounts from him which were equivalent to rent after the contractual tenancy had expired or which were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of section 116, Transfer of Property Act.
Failure to take action which was consequent upon a statutory prohibition imposed upon the courts and not the result of any voluntary conduct on the part of the appellant did not also amount to "otherwise assenting to the lessee continuing in possession".
Of course, there is no prohibition against a landlord entering into a fresh contract of tenancy will a tenant whose right of occupation is determined and who remains in occupationtion by virtue of the statutory immunity.
Apart from an express contract, conduct of the parties may un doubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case.
Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined.
The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist.
Once the prohibition against the exercise of jurisdiction by the, (1) ; 896 Court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor 's right to evict the tenant will not unless the statute provides otherwise, be conditioned.
" In Davies vs Bristow(1) the Court held that where a tenant of a house to which the Increase of Rent, & c. (War Restrictions) Acts apply, holds ever after the expiry of a notice to quit, and pays rent, the landlord is not to be taken by accepting it to assent to a renewal of the tenancy on the old terms, for he has no choice but to accept the rent; he could not sue in trespass for mesne profits, for those Acts provide that the tenant, notwithstanding the notice to quit, shall not be regarded as a trespasser so long as he pays the rent and performs the other conditions of the lease.
In Morrison vs Jacobs(2), Scott L.J. said : "The sole question before the court is whether after the expiration of the contractual tenancy the mere fact of the landlord receiving rent for the dwelling house from the tenant affords any evidence that the landlord had entered on a new contractual tenancy to take the place of the tenancy which had expired.
In my opinion, it does not.
The true view is that the landlord takes the rent, knowing that the tenant is granted a statutory tenancy by the Rent Restrictions Acts and that his right to gain possession of his dwelling house depends entirely on his establishing that he brings himself within the conditions laid down by the Acts.
" In the same case, MacKinnon J. said: "At common law, if at the expiration of a tenancy a landlord has acquired a right to claim possession against his tenant and instead of exercising that right he allows him to remain in the house and accepts rent from him as before, the parties by their conduct may, with reason, be held to have entered into a new contract of demise.
But the essential factor in those circumstances is that the landlord voluntarily abstains from turning the tenant out.
When the tenant remains in possession, not by reason of any such abstention by the landlord, but because the Rent and Mortgage Interest Restrictions Acts deprive the landlord of his former power of eviction, no such inference can property be drawn.
That is the very obvious and cogent basis of the decision in Davies vs Bristow".
It was argued on behalf of the appellants, on the basis of the ,decision of this Court in Manujendra Dutt vs Purendu Prosad Roy (1) [1920]3 K.B. p. 428.
(2) [1945] 1 K.B. p. 577.
897 Chowdhury & others(l) that if in the case of a tenancy to which Rent Restriction Acts applied, the Provision of section 106 of the Transfer of Property Act was applicable, there is nothing incongruous in making section 116 also applicable in the case of a statutory tenancy.
In the said decision, the appellant before this Court was a tenant of a piece of land.
The lease was for a period of ten years but the lessee was given the option of renewal on his fulfilling certain conditions.
The lease deed also provided that if the lessor required the lessee to vacate the premises, whether at the time of the expiry of the lease or thereafter (in case the lessee exercised his option to renew the lease) six month notice to the lessee was necessary.
The lessee exercised his option to renew the lease and offered to fulfill the condition therefore.
In the meanwhile the Calcutta Thika Tenancy Act, 1949, was passed.
One of the questions which arose for consideration was whether the Thika tenant was entitled to the notice provided under the lease.
This Court held that the Act did not give a right to the landlord to evict a contractual tenant without first determining the contractual tenancy.
After referring to the decision of this Court in Mangilal vs Sigam Chand(2), it was held that section 3 of the Act in question was similar to section 4 of the Madhya Pradesh Accommodation Control Act (XXIII of 1965).
It was further held that on the construction placed upon the section, name IV, that the provisions of the section are in addition to those of the Transfer of Property Act, it follows that, before a tenant can be evicted, a landlord must comply with both the provisions of section 106 of the Transfer of Property Act and those of section 3.
In the case before us, admittedly, the tenancy has been determined by efflux of time and what is contended for is that by the acceptance of rent, a new tenancy has been created by virtue of the provisions of section 116 of the Transfer of Property article In other words, the question here is whether the conditions for the application of section 116 of the Transfer of Property Act are fulfilled.
Learned counsel for the appellants argued that whenever rent is accepted by a landlord from a tenant whose tenancy has been determined, but who continues in possession, a tenancy by holding over is created.
The argument was that the assent of the lessor alone and not that of the lessee was material for the purposes of section 116.
We are not inclined to accept this contention.
We have already shown that the basis of the, section is a bilateral contract between the erstwhile landlord and the erstwhile tenant If the tenant has the statutory right to remain in possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof by the landlord.
We do not say (1) ; (2) A.I.R. 1965 S.C. 101.
898 that the operation of section 116 is always excluded whatever might be the circumstances under which the tenant pays the rent and the landlord accepts it.
We have earlier referred to the observations of this Court in Ganga Dutt Murarka vs Kartik Chandra Das(1) regarding some of the circumstances in which a fresh contract of tenancy may be inferred.
We have already held the whole basis of section 116 of the Transfer of Property Act is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession.
That is not so where Rent Act exists; and if the tenant says that landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenant 's continuing in possession, it is for the tenant to establish it.
No attempt has been made to establish it in this case and there is no evidence, apart from the acceptance of the rent by the landlord, to indicate even remotely that he desired the appellants to continue in possession after the termination of the tenancy.
Besides, as we have already indicated, the animus of the tenant in tendering the rent is also material.
If he tenders the rent as the rent payable under the statutory tenancy, the landlord cannot, by accepting it as rent, create a tenancy by holding over.
In such a case the parties would not be id idem and there will be no consensus.
The decision in Ganga Dutt Murarka vs Kartik Chandra Das(l), Which followed the principles laid down by the Federal Court in Kai Khushrao Bezonjee Capadia vs Bai Jerbai Hirjibhoy Warden and another(1) is correct and does not require reconsideration.
We, therefore, come to the conclusion that there was no holding over by the appellants and if that be so, the question whether the tenancy created by holding over was for manufacturing purpose and therefore the landlord was bound to give six months ' notice for the determination of the tenancy by holding over does not arise for consideration.
Appellants ' counsel prayed that the appellants may be given some time for vacating the premises.
This Court, when passing the order on July 31, 1969, on the application for stay by the appellants had observed : "Petitioner undertakes to vacate the premises within such time as may be fixed by this Court." (1) ; (2) 899 We accordingly grant three months, time from today to the appellants to vacate the premises, and they have to comply with the undertaking given to this Court and referred to above.
We dismiss the appeal with costs, G.C. Appeal dismissed.

summary/full:
The appellants were lessees of a plot of land in Bombay.
The lease Was granted in 1948 and was determined by efflux of time on September 30, 1958.
However the appellants continued to occupy the land and to pay rent to the lessors.
On August 7, 1959 the lessors gave notice purporting to terminate the tenancy in the land by the end of September 1959 on the ground inter alia that the lessors required the plot for the purpose of putting up construction on it.
Since the appellants did not vacate the premises the lessors filed a suit on October 22, 1959 in the Small Causes Court, Bombay.
The appellants contended in defence that the land was not required by the lessors bona fide for purposes of construction.
They further contended that they were tenants holding over within the meaning of section 116 of the Transfer of Property Act, and that since the landlord had accepted rent after the tenancy had determined by afflux of time a new lease had come into being and as the original lease was for a manufacturing purpose the new lease was by implication for the same purpose and consequently six months ' notice was required for its termination by the lessors.
The Trial Court held that the, plaintiff required the plot bona fide for constructing a new building within the meaning of clause (1) of sub section (1) of 'section 13 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947.
The Court also held.
that the tenancy terminated by efflux of time, but that the lessees continued in possession by virtue of the immunity from eviction conferred by the aforesaid Bombay Act and so they were not holding over within the meaning of section 116 of the Transfer of Property Act.
The Trial Court accordingly decreed the suit.
In appeal the appellate Court confirmed the decree.
The High Court rejected the appellants ' petition under article 227 of the Constitution.
In appeal to this Court by Special leave, HELD : The act ofholding over after the expiration of the term does not create tenancy ofany kind.
if a tenant remains in possession after the determination of the lease the common law rule is that he is a tenant on sufferance.
A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent.
The former is a tenant on sufferance in English law and the latter a tenant holding over a tenant at will.
In view of the concluding words of section 116 of the Transfer of Property Act a lease holding over is in a better position than a tenant at will.
The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy.
What the section contemplates is that on one side their should be an offer of taking a new lease evidenced by the lessee or sub lessee remaining 891 in Possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.
The bases of the section is thus a bilateral contract between the erstwhile landlord and the erstwhile tenant.
If the tenant has the statutory right to remain in possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof by the landlord.
[894 B D; 897 G H] In the case of normal tenancy a landlord is entitled where he does not accept the rent after the notice to quit, to file a suit in ejectment and obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant con tinuing in possession.
That is not so where a Rent Act exists; and if the tenant says that landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenant 's continuing in pos session it is for the tenant to establish it.
[898 B C] In the present case neither the landlord 's desire that the appellants should continue in possession nor the necessary animus on the part of the tenant had been proved.
The parties had not been shown to be ad idem.
[898 D] Acccordingly it must be held that there was no holding over by the appellants and the appeal must be dismissed.
Ganga Dutt Murarka vs Kartik Chandra Das, [1961] 3 S.C.R. 813, reaffirmed.
Kai Khushroo Bezonjee Capadia vs Bai Jerbai Hirjibhoy Warden K.B. 428, Morriwon vs Jacobs, and Mangilal vs Sugan Chand, A.I.R. 1965 S.C. 101, applied.
Manujendra Dutt vs Purendu Prosad Roy Chowdhury & Ors.
, ; , distinguished.