judgement:
ivil Appeal Nos.
204205 of 1975.
From the Judgment and Decree dated 9.8.
1974 of the Karnataka High Court in M.F. Appeal Nos.
582 and 584 of 197 1.
V.C. Mahajan (N.P.), Tarachand Sharma and C.V. Subba Rao for the Appellant.
K.R. Chaudhary (N.P.) for the Respondents.
The Judgment of the Court was delivered by M.M. PUNCHHI, J.
It is to establish a right of appeal in the appellate forum of the High Court that the Special Military Estates Officer, Bangalore, the common appellant in these two Civil Appeals by Special Leave, is here in this Court, challenging the common judgment and order of the High Court of Karnataka.
The facts leading to the present appeal are these.
Some lands, the extent and description of which is not material here, belonging to the first respondent in either of these two appeals, were requisitioned by the Union of India under Section 29 of the Defence of India Act, 1962 (hereafter referred to as the Defence Act) by issuing a notification to that effect on April 8, 1963.
The possession of such lands was taken by the military authorities on May 28, 1963.
The competent authority, being the Deputy Commissioner of the district, fixed Rs.280 per acre per annum as crop compensa tion.
Respondent No. 1 was not satisfied with the measure of compensation.
He sought a reference from the competent authority to an arbitrator.
The Arbitrator so appointed went into the matter and finally made an award on June 30, 8 1971, whereby he worked out rental compensation at the rate of Rs.6969.60 per acre per annum on the premises that the value of the land worked out to be Rs.1,16,160 per acre and if 6 per cent interest were to be awarded thereon the figure arrived at would be Rs.6969.60 per acre, which could well be the rental income per annum.
Obviously, the increase was sharply contrasted being Rs.280 per acre per annum as award ed by the competent authority and almost Rs.7,000 per acre per annum as awarded by,the Arbitrator.
The aggrieved Spe cial Military Estates Officer filed two appeals against the orders of the Arbitrator in the High Court of Karnataka at Bangalore, taking shelter under Section 11 of the Requisi tioning and Acquisition of Immovable Property Act, 1952 (hereafter referred to as the Requisitioning Act).
At the time of their final disposal, a preliminary objection was raised on behalf of the respondents that the appeals were not maintainable, which found favour with the High Court.
The appeals were consequently held not maintainable and accordingly dismissed.
This has led the appellant Special Military Estates Officer, to this Court.
It is not far history that the Defence Act was passed by the Parliament in the wake of the Chinese aggression, in order to provide, inter alia, special measures to ensure public safety and interest in the Defence of India and Civil Defence and other connected matters.
It had been passed when the Requisitioning Act was already in force.
Under the provisions of both the Acts, immovable property could be requisitioned.
Reference for the purpose may be had to section 3 of the Requisitioning Act and Section 29 of the Defence Act.
Under both Acts compensation on such requisi tion is determinable and payable and any person interested, being aggrieved by the amount of compensation so determined, can have an Arbitrator appointed to determine compensation.
The award of the Arbitrator on such determination under Section 8 is appealable under Section 11 of the Requisition ing Act before the High Court within whose jurisdiction the requisitioned property is situate.
The award of the Arbitra tor made under Section 30 in pursuance of the requisition made under Section 29 of the Defence Act is apparently final, though specifically not provided so, since no right of appeal against the award of the Arbitrator has been conferred thereunder on any authority.
The Defence Act ceased being applicable as it perished on January 10, 1968.
Simultaneously Section 25 in the Requisitioning Act was substituted.
The substituted Section 25 reads as follows: "25(1) Notwithstanding anything contained in this Act, any immovable property requisitioned by the Central 9 Government or by any officer or authority to whom powers in this behalf have been delegated by that Government, under the Defence of India Act, 1962, and the rules made thereun der (including any immovable property deemed to have been requisitioned under the said Act) which has not been re leased from such requisition before the th January, 1968, shall, as from that date, be deemed to have been requisi tioned by the competent authority under the provisions of this Act for the purpose for which such property was held immediately before the said date and all the provisions of this Act shall apply accordingly.
Provided that: (a) all determinations, agreements and awards for the pay ment of compensation in respect of any such property for any period of requisition before the said date and in force immediately before the said date, shall continue to be in force and shall apply to the payment of compensation in respect of that property for any period of requisition as from the said date; (b) anything done or any action taken (including any orders, notifications or rules made or issued) by the Central Government or by any officer or authority to whom powers in this behalf have been delegated by that Government, in exercise of the powers conferred by or under Chapter VI of the Defence of India Act, 1962, shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this section was in force on the date on which such thing was done or action was taken.
(2) Save as otherwise provided in sub section (1), the provisions of the Defence of India Act, 1962, and the rules made thereunder, in so far as those provisions relate to the requisitioning of any such immovable property as is referred to in sub Section (1), shall as from the th January, 1968, cease to operate except as respect things done or omitted to be done before such cesser and Section 6 of the , shall apply upon such cesser of operation as if such cesser were ,a repeal of an enactment by a Cen tral Act.
10 The requisitioned property admittedly was not released before January 10, 1968, in terms of Section 25(1) of the Requisitioning Act, afore quoted, Since the requisition had not been released before January 10, 1968, from that day onwards it had to be treated deemingly to have been requisi tioned by the competent authority under the provisions of the Requisitioning Act for the purpose for which such property was held immediately before the said date and all the provisions of the said Act were to apply accordingly.
The objection to the maintainability of the appeals rested on proviso (a), afore quoted, on the ground that the word 'determination ' in the context meant determination only by the competent authority under the Defence Act and since such determination held the field and was in force immediately before January 10, 1968, no challenge thereto could be made by appealing against the same, on the premises that a provi sion amongst all the provisions of the Requisitioning Act provided an appellate forum challenging the same.
The objec tion was met on the argument that the word 'determination ' when considered in the context of the proviso, meant 'final determination ' and not merely determination of compensation at the level of the competent authority.
The High Court, as said before, upheld the objection, dismissing the appeals.
It is settled law that the right of appeal is a substan tive right conferred on a party by the statute.
The confer ring of right of appeal is not circumscribed by the right being available at the time of the institution of the cause in the court of the first instance.
The right of appeal in a given situation may already be available at the institution of the cause in the court of the first instance or may even be subsequently conferred.
In either situation, without any distinction, such right is conferred by statute.
Here, as would be seen, Section 25(1) substantively provides that the requisition of property under the Defence Act continuing upto January 10, 1968, is deemingly a requisition by the competent authority under the provisions of the Requisition ing Act and all the provisions of the said Act shall apply thereto accordingly.
Proviso (a) however, says that all determinations, agreements and awards for the payment of compensation in respect of any such property for any period of requisition before the said date and in force immediately before the said date, shall continue to be in force and shall apply to the payment of compensation in respect of that property for any period of requisition as from the said date.
It is discernible from the scheme of things and from the reading of Section 25 of the Requisitioning Act as a whole that for the period of requisition before January 10, 1968, the determination for payment of compensation 11 under the Defence Act would remain untouched and unaltered for appeal had never been provided under that Act.
The reason is not far to seek, because the order of the compe tent authority under the Defence Act was for the purpose of Defence of India.
That purpose having gone with effect from January 10, 1968, the same determination for payment of compensation being applicable to the post date period was deemingly a requisition by the competent authority under the Requisitioning Act and since all the provisions of the said Act applied to such a requisition, the payment of compensa tion as from January 10, 1968, became appealable as an appeal is provided under this Act.
In that sense, the word 'determination ', so far as it related to the period of requisition prior to January 10, 1968, was a determination, final in character whether it was right or wrong as having been made under the Defence Act.
But for the period thereaf ter, the word 'determination ' in the context would mean 'final determination ' i.e. the determination of the compe tent authority if unchallenged and becoming final, and if appealed against, final determination by the appellate forum.
In this sense, the latter portion of proviso (a) cannot be allowed to eat away the applicability of all the provisions of the Requisitioning Act, inclusive that of appeal under Section 11 of the Act.
Thus a harmonious con struction of the said proviso with the whole of parent section persuades us to hold that the rate of compensation as determined by the competent authority under the Defence Act was valid uptil the period before January 10, 1968, but from that day onward the same rate of compensation per annum would keep applying till upset or altered in appeal, because deemingly from that date it is a requisition under the other Act and of a different worth and correctable in appeal.
The Arbitrator as it appears had passed both the awards on June 30, 197 1, pertaining to the period commencing from May 28, 1963, (the date on which the possession of the land requisi tioned was taken) and valid for the period following and ensuing.
Plainly the award was made covering a period not only prior to January 10, 1968 but to a period thereafter also.
As we have interpreted Section 25, the objection as raised before the High Court was valid for the period before January 10, 1968, but not beyond the period commencing thereafter.
The High Court 's view , in sustaining the objec tion for the later period as well, does not commend to us.
The Legislature by enacting Section 25 of the Requisitioning Act and on the perishing of the Defence Act, has more than impliedly made available a right of appeal regarding the rate of compensation for a property remaining under requisi tion for the post th January, 1968 period: recurring as the rate of compensation would be.
We hold it accordingly.
12 For the view above taken, we partially allow these appeals and remit these cases back to the High Court of Karnataka for disposal on merits in accordance with law.
We, however, make no order as to costs in the appeals before us.
N.V.K. Appeals allowed partly.

summary/full:
The Defence of India Act, 1962 was passed by Parliament in the wake of the Chinese aggression to ensure public safety and interest in the Defence of India and Civil De fence and other connected matters.
It had been passed when the was already in force.
Under the provisions of both these Acts, immovable property could be requisitioned.
Under both Acts compensation on such requisition was determinable and payable and any person interested, being aggrieved by the amount of compensation so determined, could have an Arbitrator appointed to determine the same.
The award of the Arbitrator on such determination under Section 8 was appeal able under Section 11 of the Requisitioning Act before the High Court within whose jurisdiction the requisitioned property was situated.
The award of the Arbitrator made under Section 30 in pursuance of the requisition made under Section 29 of the Defence Act was apparently final, though specifically not provided, since no right of appeal against the award of the Arbitrator had been conferred thereunder on any authority.
The Defence Act ceased being applicable as it perished on January 10, 1968.
Simultaneously Section 25 in the Requi sitioning Act was substituted.
Some lands belonging to the first respondent in either of the two appeals were requisitioned by the Union of India under Section 29 of the Defence of India Act, 1962 by issu ing a notification to that effect on 5 April 8, 1963 and possession was taken by the military authorities on May 28, 1963.
The requisitioned property was not released before January 10, 1968 in terms of Section 25(1) of the Requisitioning Act.
The Deputy Commissioner, the competent authority fixed Rs.280 per acre per annum as crop compensation.
Respondent No. 1 not being satisfied sought a reference from the compe tent authority to an arbitrator.
The arbitrator went into the matter and made an award on June 30, 1971.
The Special Military Estates Officer being aggrieved with the award filed two appeals against the orders of the Arbitrator in the High Court, taking shelter under Section 11 of the .
Since the properties that had been requisitioned had not been released before January 10, 1968, it had to be treated seemingly to have been requisitioned by the competent au thority under the provisions of the Requisitioning Act for the purpose for which such property was held immediately before the said date and all the provisions of the said Act were to apply.
Objections to the maintainability of the appeals were taken relying on proviso (a) to Section 25(1) on the ground, that the word determination ' in the context meant determina tion only by the competent authority under the Defence Act and since such determination held the field and was in force immediately before January 10, 1968, no challenge thereto could be made by appealing against the same, on the premises that a provision amongst all the provisions of the Requisi tioning Act provided an appellate forum challenging the same.
The High Court upheld the objection and dismissed the ap peals.
The Special Military Estates Officer appealed to this Court by special leave.
Partially allowing the appeals, the Court, HELD: 1.
The right of appeal is a substantive right conferred on a party by the statute.
The conferring of such right is not circumscribed by the right being available at the time of the institution of the cause in the court of the first instance.
In a given situation it may already be available at the institution of the cause in the court of first instance or 6 may even be subsequently conferred.
In either situation, without any distinction, such right is conferred by statute. [10E F] 2.
The Legislature by enacting Section 25 of the Requi sitioning Act and on the perishing of the Defence Act has more than impliedly made available a right of appeal regard ing the rate of compensation for a property remaining under requisition for the post 10th January, 1968 period, recur ring as the rate of compensation would be.
[11G H] 3.
From the scheme of things and from the reading of Section 25 of the Requisitioning Act as a whole, it is discernible that for the period of requisition before Janu ary 10, 1968, the determination for payment of compensation under the Defence Act would remain untouched and unaltered for appeal had never been provided under the Act.
The reason is not far to seek because the order of the competent au thority under the Defence Act was for the purpose of Defence of India Act.
That purpose having gone with effect from January 10, 1968, the same determination for payment of compensation being applicable to the cost date period was seemingly a requisition by the competent authority under the Requisitioning Act and since all the provisions of the said Act applied to such a requisition, the payment of compensa tion as from January 10, 1968, became appealable as an appeal is provided under this Act.
[10H; 11A B] 4.
The word 'determination ' so far as it related to the period of requisition prior to January 10, 1968, was a determination, final in character whether it was right or wrong as having been made under the Defence Act.
But for the period thereafter, the word 'determination ' in the context would mean 'final determination ' i.e. the determination of the competent authority if unchallenged and becoming final, and if appealed against, final determination by the appel late forum.
[11C D] 5.
A harmonious construction of the proviso to Section 25(1) with the whole of parent section indicates that the rate of compensation as determined by the competent authori ty under the Defence Act was valid uptil the period January 10, 1968, but from that day onward the same rate of compen sation per annum would keep applying till upset or altered in appeal, because deemingly from that date it is a requisi tion under the other Act and of a different worth and cor rectable in appeal.
[11D E] 6.
The latter portion of proviso (a) cannot therefore be allowed to eat away the applicability of all the provisions of the Requisition Act, 7 inclusive that of appeal under Section 11 of the Act.
[11 D] 7.
In the instant case, the arbitrator passed both the awards on June 30, 1971, pertaining to the period commencing from May 28, 1963, the date on which the possession of the land requisitioned was taken.
Plainly the award was made covering a period not any prior to January 10, 1968 but to a period thereafter.
Having regard to section 25 the objection as raised before the High Court was valid for the period before January 10, 1968, but not beyond the period commenc ing thereafter.
The case has therefore to be remitted back to the High Court for disposal on merits.
[11F, 12A]


judgement:
ivil Appeal No. 5055 of 1989.
From the Judgment and Order dated 27.2.1989 of the Allahabad High Court in C.M.W.P. No. 12322 of 1984.
Satish Chandra, E.C. Agarwala, Atul Sharma, Ms. Purnima Bhatt and V.K. Pandita for the Appellants.
G.L. Sanghi, B.D. Agarwal, G. Ganesh, K.L. John and Ms. Shobha Dikshit for the Respondents.
531 The Judgment of the Court was delivered by SHARMA, J.
This case arises out of a proceeding under the Indian Stamp Act, 1899.
Special leave is granted.
A dispute between the appellants and the respondent No. 1, who are members of a family, was referred to an arbitrator, who made an award on 9.10.1973, and filed the same within a few days before the civil court for making it a rule of the court.
On objection by the present appellants, the prayer was rejected on 18.3.1976 and the order was confirmed by the High Court on 3.7.1981 in a regular first appeal.
An application for special leave was dismissed by this Court on 18.4.1983 and a prayer for review was also rejected.
It is stated on behalf of the appellants that in the meantime the respondent No.1 applied before the Collec tor for summoning the award and realising the duty and penalty.
A copy of the award was annexed to the application.
The respondent 's prayer was opposed by the appellants but was allowed by the Collector on 15.7.1983; and, on a request made to the civil court for sending the award, the civil court asked the office to do so.
The appellants moved the Chief Controlling Revenue Authority under section 56 of the Indian Stamp Act (hereinafter referred to as the Act) against the Collector 's order dated 15.7.1983.
The Authority in exercise of its revisional power set aside the impugned order of the Collector, inter alia, on the ground of lack of jurisdiction.
The respondent challenged this judgment before the High Court in a writ case which was allowed by the impugned judgment dated 27.2.1989.
The matter was remanded to the Collector to decide the case afresh in the light of the observations.
The High Court also doubted the power of the Chief Controlling Revenue Authority to entertain the appellants ' application under section 56 of the Act.
This judg ment is the subject matter of the present appeal.
Mr. Satish Chander, the learned counsel for the appellants, contended that there cannot be any doubt about the power of the Chief Controlling Authority to correct an erroneous order of the Collector.
Emphasis was laid on the language of section 56 suggesting its wide application.
The learned counsel was also right in arguing that the Authority is not only vested with jurisdiction but has the duty to quash an order passed by the Collector purporting to be under Chapters IV and V of the Act by exercising power beyond his jurisdiction.
To hold otherwise will lead to an absurd situation where a subordinate authority makes an order beyond its jurisdiction, which will have to be suf fered on account of its unassailability before a higher 532 authority.
This Court in Janardan Reddy and Others vs The State of Hyderabad and Others, ; , after refer ring to a number of decisions, observed that it is well settled that if a court acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e., an appeal would lie to the court to which it would lie if its order was with jurisdiction.
We, therefore, agree with the appellants that the Chief Controlling Revenue Authority had full power to interfere with the Collector 's order, provided it was found to be erroneous.
Their difficulty, however, is that we do not find any defect in the Collector directing to take steps for the realisation of the stamp duty.
It was contended on behalf of the appellants that the respondent No. 1 had no locus standi to move the Collector for impounding the award and sub section (1) of section 33 of the Act had no application.
The learned counsel proceeded to say that in the circumstances it has to be assumed that the Collector acted suo motu under sub section (4) of the said section and since the proviso to sub section (5) directs that no action under sub section (4) shall be taken after a period of four years from the date of execution of the instrument, the Collector had no authority to pass the impugned order after about a decade.
In reply, Mr. G.L. Sanghi urged that the order for impounding the award was passed by the civil court itself on 18.3.1976, and the further orders of the Collector dated 22.7.1983 and of the civil court dated 27.8.1983 were passed merely by way of implementing the same.
The learned counsel is right in relying upon the concluding portion of the order of the civil court dated 18.3.1976 directing the impounding of the award and sending it to the Collector for necessary action.
It is true that further steps in pursuance of this judgment were not taken promptly and it was the respondent No. 1 who drew the attention to this aspect, but it cannot be legiti mately suggested that as the reminder for implementing the order came from the respondent, who was motivated by a desire to salvage the situation to his advantage, further steps could not be taken.
There is no question of limitation arising in this situation and it cannot be said that what had to be done promptly in 1976 would not be done later.
The orders of the Collector dated 15.7.1983 and 22.7.1983 must, therefore, in the circumstances, be held to have been passed as the follow up steps in pursuance of the civil court 's direction dated 18.3.1976, and no valid objection can be taken against them.
The Collector, therefore, shall have to proceed further for realisation of the escaped duty.
It was next contended that in any event the Collector did not 533 have the power to enquire into the correct valuation of the property which was the subject matter of the award.
Reliance was placed on the observations in Himalaya House Co. Ltd. Bombay vs Chief Controlling Revenue Authority, There is no merit in this point either.
The case comes from Uttar Pradesh where express provisions have been made by the insertion of section 47 A, authorising the Collector to examine the correctness of the valuation.
Lastly Mr. Satish Chandra argued that the respondent No. 1 is taking keen interest in the present proceeding in an attempt to illegally re open the question of making the award a rule of the court, which stood concluded by the impugned judgment of the High Court and the order of this Court dismissing the special leave petition therefrom and he can not be allowed to do so.
The reply of Mr. Sanghi has been that this aspect is not relevant in the present pro ceeding for realisation of the duty and need not be decided at this stage.
His stand is that an award which is not made rule of the court is not a useless piece of paper and can be of some use, say by way of defence in a suit.
He said that this question will have to be considered if and when the occasion arises.
Having regard to the limited scope of the present proceeding, we agree with Mr. Sanghi that we may not go into this aspect in the present case, but we would clari fy the position that on the strength of the present judgment it will not be open to the respondent to urge that the effect of the High Court decision dated 8.7.1981 and the orders of this Court dismissing the special leave petition therefrom and later the review application has disappeared or has got modified.
The appeal is disposed of in the above terms, but the parties are directed to bear their own costs of this Court.
G.N. Appeal disposed of.

dataset_name: IN-Abs

summary/full:
A dispute between the appellants and respondent No. 1 was referred to an arbitrator who made an award and filed it before the civil court.
On objection by the appellants, the prayer for making the award a rule of the court was reject ed.
On appeal, the High Court confirmed the same.
This Court refused special leave and a petition for review was also dismissed.
Meanwhile, respondent No. 1 applied to the Collector for summoning the award and for realising the escaped duty and penalty.
The application was allowed.
The appellants moved the Chief Controlling Revenue Authority under Section 56 of the Indian Stamp Act, 1899 and the authority set aside the Collector 's order.
The respondents challenged the said order in a writ petition before the High Court which allowed the same and remanded the case to the Collector for deciding it afresh.
Aggrieved, the appellants filed this appeal by special leave, contending inter alia, that; (a) Respondent No. 1 had no locus standi to move the Collector for impounding the award: (b) the Collector had no authority to pass the im pugned order after a decade; and (c) the Collector did not have the power to enquire into the correct valuation of the property which was subject matter of the award.
Disposing of the appeal, this Court, HELD: 1.1 It is well settled that if a court acts with out jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e. an appeal would lie to the court to which it would lie if its order was with jurisdiction.
[532A] 530 1.2 There is no question of limitation arising and it cannot be said that what had to be done promptly in 1976 could not be done later.
The orders of the Collector dated 15.7.1983 and 22.7.1983 were passed as the follow up steps in pursuance of the civil court 's direction dated 18.3.76 and no valid objection can be taken against them.
The Col lector, therefore, shall have to proceed further for reali sation of the escaped duty.
[532G] 1.3 The Chief Controlling Revenue Authority had full power to interfere with the Collector 's order, provided it was found to be erroneous.
But this Court does not find any defect in the Collector directing taking of steps for reali sation of the stamp duty.
[532B] Janardan Reddy and Ors.
vs State of Hyderabad and Ors.
, ; , relied on.
The instant case comes from Uttar Pradesh where express provisions have been made by the insertion of Sec tion 47 A, authorising the Collector to examine the correct ness of the valuation.
Hence the Collector had the power to enquire into the valuation of the property which was the subject matter of the award.
[533A B] Himalaya House Co. Ltd., Bombay vs Chief Controlling Revenue Authority, , referred to.
It is clarified that on the strength of the present judgment it will not be open to the respondent to urge that the effect of the High Court decision dated 8.7.1981 and the order of this Court dismissing the special leave petition therefrom and later the review application have disappeared or have got modified.
[533D E]


judgement:
vil Appeals Nos.
596 597 (NL) of 1986.
From the Judgment and Order dated 19.12.1985 of the Madras High Court in W.A. No. 1235/83 & W.A. No. 72 of 1984.
15 M.K. Ramamurthi, K.S. Jankiraman and Jitender Sharma for the Appellant.
T.S. Gopalan, P.N. Ramalingam and A.T.M. Sampath (NP) for the Respondents.
The Judgment of Court was delivered by RANGANATH MISRA, J. These are two ap.
peals by special leave at the instance of the Union representing the workmen and challenge is to the reversing decision of the Division Bench of the High Court in two writ appeals one filed by the employer Company and the other by the workmen through their union.
The State Government of Tamil Nadu by order dated 11.5.1981 made a reference under section 10(1)(d) of the Indus trial Disputes Act, 1947, (hereafter 'Act ' for short) to the Industrial Tribunal of the following disputes: "Whether the non employment of the following workers is justified; if not, to what relief are they entitled? To compute the relief, if any awarded in terms of money, if it could be so computed.
" A list of 186 workmen was appended to the reference.
The Union itself had come into existence on 1st of October, 1980.
It had written to the Company on 14.10.1980 that despite several years of service rendered by casual employ ees they were not being confirmed and were deprived of benefit and facilities applicable to permanent workmen.
Before the Tribunal the employer and the workmen filed their respective statements.
On 25.11.1981, on behalf of the workmen an amendment was sought which the Tribunal allowed.
The Company challenged the amendment by filing a writ peti tion before the High Court but the High Court was of the view that the propriety of the amendment could be assailed, if necessary, while challenging the award itself passed in due course.
The Tribunal held that 181 casual employees should be re employed with full back wages and 50 other casual employees should also be re employed but without back wages.
This direction was given on the ground that the requirement of section 25F of the Act had not been satisfied before termination which amounted to retrenchment.
16 The Company assailed the award by filing a writ petition before the High Court.
A learned Single Judge held that the relief of reinstatement with back wages should have been confined to 131 casual employees as they alone had worked for 240 days and set aside the award in respect of 50 others on the ground that they had not completed 240 days of serv ice.
Two writ appeals were filed before the Division Bench of the High Court Writ Appeal No. 1235 of 1983 by the Company challenging the affirming part of the award and Writ Appeal No. 72 of 1984 by the Union of the workmen negativing relief to fifty workmen.
The Division Bench went into the matter at great length.
It found that until the amendment had been made the workmen had a different claim from what was ultimately pressed before the Tribunal.
The Division Bench further found that there was great variation in the number of workmen for whom relief was claimed.
It took note of the fact that the Compa ny 's counter statement was filed on 1st of August, 1981, and till that date, the respective stands of the Union and the Company were clearly different.
The case of the Union until then was that there was non employment of employees on and from 13.10.1980 inasmuch as work to the casual employees was refused on that date; the Company 's case was that on 13.10.1980, 130 casual employees out of the list attached to the reference had actually worked and most of them had also worked on 14th and 15th of October, 1980.
On the 25th of November, 198 1, and amendment of the original claim state ment was sought by saying: "There were certain omissions and clerical cum typographical mistakes with regard to the narration of events and circum stances leading to the raising of dispute relating to the non employment of 186 workmen mentioned in the Annexure of the terms of reference and covered by this dispute.
" The amended statement proceeded to state: "On 15th October, 1980, the management told the workers who had worked on that day that their services were terminated and would not be permitted to work from 16th October, 1980.
A number of these workers were prevented entry at the gate on 16.10.1980.
The Union had decided to raise a dispute in respect of all these cases along with the earlier cases of non employment also.
" 17 The Division Bench found that an entirely new case was thus sought to be introduced changing the case of non em ployment on and from 13.10.1980, to non employment in the months of July, August, September and October, 1980, and a specific case of non employment on and from 16.10.1980.
After discussing at great length the oral and documentary evidence and the submissions advanced in the appeals the Division Bench summarised the position thus: "This whole litigation gives us an impression that though there may be a legitimate grievance of non confirmation of casual workers who have put in long terms of employment, the union seems to be wholly responsible for the situation in which the casual workers in dispute have found themselves in, a blatantly false case of non employment and termination of 141 persons was put up.
It was only at later stages that the union found that such a case cannot be successfully proved and indeed was false to the knowledge of the union and a case of termination on 16.10.
1980 was sought to be introduced by amending only a part of the claim statement.
As a result of this amendment, an inconsistency crept in the claim statement itself.
It is rather unfortunate that the Tribunal, by a very superficial approach, merely accepted the evidence that 131 persons were terminated when the evidence, as indicated above, not only runs counter to the initial statement, but is wholly insufficient and inadequate to prove that there was termination on the part of the company.
Merely telling a casual worker that there is no work is consistent with the status of casual workers and the compelling circumstances of the removal of the cards or a positive statement that no work would be given at all to the casual workers, is lacking in the instant case.
In our view, the award of the Tribunal is clearly vitiated because the Tribunal has not even considered the inconsistency in the stand taken by the union and the evidence has not been considered at all by the Tribunal.
We are, therefore, con strained in this case to take the view that it is not proved that the company terminated the employment of any of the employees who were casual workers, and the finding to the contra recorded by the Tribunal and confirmed by the learned Single Judge must be set aside." Thereafter the Division Bench examined the tenability of the 18 stand of the Union in its appeal and came to hold that the plea of retrenchment had not been established.
Thus, the appeal by the Company was allowed and the appeal of the workmen was dismissed.
That is how two appeals have been brought before this Court out of one and the same award.
We have heard counsel for the parties.
Written submis sions have also been filed in support of their respective stands.
We are inclined to take the view that the Division Bench has adopted too strict an approach in dealing with the matter.
It is true that the stand taken by the Union that work had not been provided on 13.10.1980 was wrong in view of the fact that a substantial number of casual workmen out of the 186 had really worked on the 13th and the two follow ing days.
The Union had mixed up its claim of confirmation with stoppage of work leading to retrenchment.
The Union obviously realised its mistake when the Company filed its counter statement making a definite assertion that bulk of the workmen had worked on 13th, 14th and 15th of October, 1980.
The Tribunal did examine the question of confirmation on the basis of days of work put in by the workmen.
It came to find that 131 persons out of the list of 186 appended to the reference had as a fact worked for 240 days.
The number of 186 was reduced to 181 on account of duplication or death.
The remaining 50, according to the Tribunal, had not completed 240 days of work and were, therefore, not entitled to confirmation.
We are of the view that in the facts and circumstances appearing on the record it was not appropriate for the Division Bench to dismiss the claim of the workmen altogether.
While it is a fact that the workmen had made tall claims which they had failed to substantiate, it was for the Tribunal and the High Court to appreciate the mate rial on the record and decide as to which part of the claim was tenable.
The finding of the Tribunal that 131 workmen had put in more than 240 days of work was arrived at on the basis of some evidence; it may be that better particulars and clear evidence should have been placed before the Tribu nal.
Quantum of evidence or appreciation thereof for record ing findings of fact would not come within the purview of High Court 's extraordinary jurisdiction under article 226 of the Constitution.
The finding of fact that workmen out of the list appended to the reference had completed 240 days or work should, therefore, not have been disturbed by the Division Bench of the High Court.
The Tribunal had given the relief on the basis that the statutory requirement of section 25F of the Act had not been complied with.
As the 19 Division Bench found, and we find no justification to take a different view, the case of termination of employment had indeed not been made out.
On that footing a direction for reinstatement with full back wages ought not to have been given.
We are, therefore, inclined to mould the relief available to the workmen.
The claim of the confirmation of 131 workmen as found by the Tribunal and upheld by the learned Single Judge of the High Court shall be restored.
Relief of back wages in the facts and circumstances would, however, not be granted except to the extent it has been covered by two interim orders of this Court dated 14.12.1986 and 5.5. 1988.
Such payments as have been made shall not be recovered.
Parties are directed to bear their respective costs through out.
Appeals allowed.

summary/full:
Under the , the State Government referred to the Industrial Tribunal the question whether the nonemployment of certain workmen in the appel lant Company was justified, and if not what was the relief to which they were entitled.
The employer and the workmen filed their respective statements before the Tribunal and the workmen sought an amendment which the Tribunal allowed.
The employer challenged the amendment by way of a writ petition before the High Court.
The High Court took the view that the amendment could be assailed while challenging the award itself.
The award was made and the employer assailed the same in a writ petition filed before the High Court.
The High Court confined the relief to 131 casual employees who have worked for more than 240 days and set aside the award in respect of 50 others since they did not complete 240 days of service.
Aggrieved, both the employer and the workmen filed appeals before the Division Bench.
The Division Bench found that until the amendment was made, the workmen had a different claim from what was ultimately pressed before the Tribunal, that there was great variation in the number of workmen for whom relief was claimed, and came to the conclusion that it was not proved that the employer terminated the services of any of the casual workers.
Thus, the appeal of the employer was allowed and that of the workmen dismissed.
Aggrieved, the workmen have filed these appeals by Special Leave.
14 Allowing the appeals in part, this Court, HELD: 1.
The stand taken by the Union that work had not been provided on 13.10.1980 was wrong in view of the fact that a substantial number of casual workmen out of the 186 had really worked on the 13th and the two following days.
The Union had mixed up its claim of confirmation with stop page of work leading to retrenchment.
The Union obviously realised its mistake when the Company filed its Counter statement making a difinite assertion that bulk of the workmen had worked on 13th, 14th and 15th of October, 1980.
The Tribunal did examine the question of confirmation on the basis of days of work put in by the workmen, It found that 131 persons out of the 186 worked for 240 days.
The number of 186 was reduced to 181 on account of duplication or death.
The remaining 50, according to the Tribunal, had not completed 240 days of work and were, therefore, not entitled to confirmation.
[18C D] 2.
While it is a fact that the workmen had made tall claims which they had failed to substantiate, it was for the Tribunal and the High Court to appreciate the material on record and decide as to which part of the claim was tenable.
The finding of the Tribunal that 13 1 workmen had put in more than 240 days of work was arrived at on the basis of some evidence; it may be that better particulars and clear evidence should have been placed before the Tribunal.
The Tribunal rightly gave the relief on the basis that Section 25F of the industrial Disputes Act had not been complied with.
[18E H] 3.
The claim of confirmation of 131 workmen as found by the Tribunal and upheld by the Single Judge of the High Court shall be restored.
Relief of back wages in the facts and circumstances would, however, not be granted except to the extent it has been covered by two interim orders of this Court dated 14.2.1986 and 5.5.1988.
Such payments as have been made shall not be recovered.
[19B C] 4.
Quantum of evidence of appreciation thereof for recording findings of fact would not come within the purview of High Court 's extraordinary jurisdiction under article 226 of the Constitution.


judgement:
ION: Civil Appeal No. 4359 (NCE) of 1986.
From the Judgment and Order dated 30th Sept. 1986 of the Madhya Pradesh High Court in Election Petition No. 43 of 1985.
R.B. Mehrotra for the Appellant.
S.S. Khanduja for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
The appellant was one of the 11 contestants from Niwadi Legislative Assembly Constituency No. 34 of Madhya Pradesh Vidhan Sabha.
The election was held in the months of February/March 1985, the polling date of which was on 2.3.1985.
The appellant was a nominee of the Janta Party.
The first respondent was sponsored by the Congress Party.
As the first respondent had secured majority of votes i.e. by a margin of 5,000 votes over and above his next rival candidate, namely the appellant herein the first respondent was duly declared on 6.3.1985 as successfully elected.
The appellant presented an election petition in the High Court Madhya Pradesh at Jabalpur, calling in question ' the election of the first respondent alleging that the first respondent was guilty of adopting corrupt practices within the meaning of sub sections (2), (3) and (3A) of Section 123 of the Representation of People 's Act, 1951 (hereinafter referred to as the 'Act ').
It is hardly necessary to stress 583 that the pleadings were traversed and denied by the first respondent in his statement.
The High Court dismissed the election petition and hence by this appeal under Section 116A of the Act, the appellant challenges the correctness of the decision of the High Court.
Of the several issues framed upon the pleadings of the parties only issues 3, 4 and 5 are pressed before us as the main grounds in support of the appeal and the rest are given up.
Hence for the purpose of the present appeal, we have to examine and deal with these three relevant issues alone as set out by the High Court.
These issues are: "(3) Whether the nomination paper of Shri Pratap Singh, son of Mitilal, the respondent No. 11 had been improperly re jected? If so, whether the election is liable to be set aside under Section 100(1)(c) of the R.P. Act, 1951? (4) Whether the respondent No. 1 held a meeting at Niwadi on 28.2.1985 and told the electors that he would present silver shield to the electors of the polling booth recording maxi mum number of votes in his favour? If so, whether respondent No. 1 is guilty of corrupt practices under Section 123(1) of the Act? (5) Whether Shri Shital Prasad Sharma, S.D.O. (Revenue) and Shri Dubey, S.D.O. police accompanied with respondent No. 1 at various places between 9.2.1985 and 2 3 1985 and asked the electors to vote for him? Whether Shri Sharma distribut ed money in village Teharka and asked voters to vote for respondent No. 17 If so, effect.
The High court which has dealt with on the various aspects of the matter has held that the appellant has not substantiated all the charges levelled by him against the first respondent challenging the declaration of the first respondent as having been duly elected.
Normally, this Court in an appeal as the one on hand does not interfere on a finding of facts of this type unless there are prima facie good grounds to show that the High Court has gravely erred resulting in serious prejudice to the appellant.
We, therefore shall now examine whether there are any compelling reasons justifying our interference with the findings of the High Court.
This Court in a catena of decisions has laid down the principles as to the nature of pleadings in election cases, the sum and substance of which being: 584 (1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all neces sary details and particulars as required by law vide Dharti pakar Madan Lal Agarwal vs Rajiv Gandhi, [1987] (Supp.) SCC 93 and Kona Prabhakara Rao vs M. Seshagiri Rao & Anr., (2) The allegations in the election petition should not be vague, general in nature or lack of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue vide Manphul Singh vs Surinder Singh, [1974] 1 SCR 52; Kona Prabhakara Rao vs M. Seshagiri Rao & Anr., and Dhartipakar Madan Lal Agarwal vs Rajiv Gandhi, [1987] (Supp.) SCC 93.
(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100 vide Jumuna Prasad Mukhariya & Others vs Lachhi Ram & Others, ; and Rahim Khan vs Khurshid Ahmed and Oth ers; , (5) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scru pulous scrutiny vide Ram Sharan Yadav vs Thakur Muneshwar Nath Singh and Others, ; (5) It is unsafe in an election case to accept oral evidence at its face value without looking for assurances for some surer circumstances or unimpeachable documents vide Rahim Khan vs Khurshid Ahmed & Ors., ; ; M. Narayana Rao vs G. Venkata Reddy & Others, ; ; Lakshmi Raman Acharya vs Chandan Singh & Ors., [1977] 2 SCR 412 and Ramji Prasad Singh vs Ram BilasJha and Others, ; 6.
The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an elec tion which has been concluded vide Rahim Khan vs Khurshid Ahmed and Others, ; ; Mohan Singh vs Bhanwar lal & Others; , and Ramji Prasad Singh vs Ram Bilas Jha and Others, ; 585 In the light of the above principles, we shall now examine the pleadings and the evidence adduced to establish the allegations in the election petition.
Reverting to the case, the first question that arises for consideration in relation to issue No. (3) is whether the nomination papers of the 11th respondent, Pratap Singh has been improperly rejected rendering the election of the returned candidate (first respondent) as void.
The 11th respondent (Pratap Singh) filed his nomination paper for contesting the election from this Niwadi constitu ency and delivered the same to the Returning Officer by his proposer as contemplated under Section 33(1) of the Act.
He also made a request to the Returning Officer to send some authorised person thereby enabling him to make and subscribe the oath as he was seriously iII and could not present himself either before the Returning Officer or any other authorised officer for making or subscribing the oath of affirmation as required under Article 173(a) of the Constitution of India.
The Returning Officer did not comply with the request of Pratap Singh and rejected his nomination on 7.2.85.
According to the petitioner, this rejection is improper and as such the election is liable to be set aside as per Section 100(1)(c) of the Act.
The plea of the appellant that the nomination paper has been improperly rejected, is countered by the respondent No. 1 in his written statement denying the plea of the appellant that he was seriously ill and stating that under Article 173 of the Constitution, it is only for the Election Commission to authorise some person enabling the candidate to make and subscribe the oath according to the form set out for the purpose in the Third Schedule; that the Returning Officer has no authority to send any Officer to any ailing candidate enabling him to subscribe the oath and that the respondent No. 11 neither approached the Election Commission nor made any such request to the Returning Officer.
It is seen from the additional document No. 9 that the 11th respondent sent the letter of request to the Returning Officer to appoint some authorised officer at Newadi so that he could subscribe his oath and along with that letter he had enclosed a medical certificate given by PW 2.
The cer tificate is issued by PW 2 (Block Medical Officer PHC, Newadi) certifying that respondent No. 11 was under his treatment as an OPD patient from 6.2.83 for bronchitis for which the 586 patient was advised rest atleast for three days.
In his evidence, PW 2 has stated that he could not say about the condition of the patient without reference to the certifi cate or the OPD register and he might have 'advised the 11th respondent to take rest as he usually advised the patients.
In the cross examination, he has deposed that the 11th respondent had no other ailment and that he was moving in the town.
On consideration of the oral and documentary evidence, the High Court rejected the plea of the appellant holding bronchitis is not a disease which would incapacitate a person from moving about and under those circumstances, there was no justification, whatsoever, for Pratap Singh not taking oath as required under Article 173 of the Constitu tion.
On carefully going through the material on record, we also agree with the view taken by the High Court that the 11th respondent was not suffering from any serious ailment which disabled him to take the oath before the Returning Officer.
It is not the case of the appellant that the Re turning Officer had any enmity against the 11th respondent or was favourably disposed towards the first respondent.
It is apposite to refer to the decision in Harjit Singh Mann vs section Umraon Singh and Others, ; in which this Court while dealing with the mandatory require ment of taking oath as contemplated under Article 173(a) has observed thus: "It is not in controversy that it was obliga tory under clause (a) of Article 173 of the Constitution for the appellant to make and subscribe, before a person authorised in that behalf by the Election Commission, an oath or affirmation according to the form set out for the purpose in the Third Schedule, and that he cannot be qualified to be chosen to fill a seat in the legislature of a State without doing so.
The importance of that requirement of the Constitution has been reiterated in sub:section (2) of Section 36 of the Act for ground (a) thereof provides that the Returning Officer shall reject a nomination paper on the ground that on the date fixed for the scrutiny of nominations the candidate, was inter alia, not qualified to be chosen to fill the seat in the Legislative Assembly under Article 173 of the Constitution.
The requirement for the making and subscribing the oath or affirmation was, therefore, clearly mandatory." As the 11th respondent has not taken the oath, before the person 587 authorised in that behalf by the Election Commission for no valid reason, we are in full agreement with the conclusion arrived at by the High Court that the plea of the appellant that the nomination paper of Pratap Singh has been improper ly rejected, is devoid of any merit.
The next contention is that the election of the returned candidate (first respondent) is to be declared void as the said election was tainted with corrupt practices within the mischief of Section 100(1)(b) of the Act.
What are corrupt practices are enumerated and defined in.
Section 123 of the Act.
The pleading on this aspect in the election petition reads thus: "The respondent No. 1 had organised a rally and a procession on 28.2.1985 at Niwadi.
That procession evitimately culminated into a public meeting.
Shri Ramratan Chaturvedi, Respondent No. 1 made a speech in that public meeting and told the electors that he will present a silver shield to the electors of that polling booth which would record the maximum number of votes in his favour.
Several electors from Niwadi Legislative Constituency were present in that meeting.
The respondent No. 1 thus promised a gratification to the electors to vote for him.
As the promise was given by the respondent No. 1 himself, he is guilty of corrupt practice under Section 123(1) of the R.P. Act, 1951 and his election is liable to be set aside under Section 100(1)(b) of the R.P. Act, 1951.
" The first respondent though admitted in his written statement that there was a procession, has denied of having addressed any public meeting on 28.2.85 promising any grati fication in the form of a silver shield to the electors of the polling booth where a maximum number of votes would be cast in his favour.
The appellant in support of his plead ings besides examining himself as PW 1 examined three more witnesses.
PW 14, PW 17 and PW 18.
The first respondent examined himself with another as RWs 1 and 3 respectively.
The evidence of PW 1 is chat he was informed by PW 16 that the first respondent in a public meeting at Niwadi, organised in connection with the election, promised that he would present a silver shield to the electors of the polling booth which would record a highest number of votes in his favour.
It is to be noted that the appellant who examined himself on 29.10.85 on which date itself the cross examina tion was 588 over, further examined himself on 8.4.86 i.e. after six months of the first examination and then deposed about this alleged promise.
Indisputably, this evidence is in the nature of hear say.
PW 16 claims to have attended the meet ing and 'heard the first respondent making the speech prom ising the voters that the particular booth where he would secure a highest number of votes would be awarded with a silver shield by him.
His further evidence is that those who attended the meeting, generally talked amongst themselves that those who would vote for Congress party would get that shield.
This witness in his crossexamination states that he did not ask anyone as to who would get the shield and where it would be kept and that he did not inform anyone else except the appellant.
He has further deposed the first respondent did not say that the shield would be awarded to the workers.
He admits that his brother Nathuram Ahirwar was a Janta Party leader and Member of the Legislative Assembly.
Needless to say that the appellant herein was a nominee of the Janta Party.
PW 16 nowhere in his evidence has mentioned the date of the alleged meeting.
PW 17 falls in line with PW 16 and states that he too attended the meeting in which the first respondent made the promise of gratification of awarding silver shield.
The evidence of PW 17 that the first respondent promised that the shield would be given only to the person who would procure a large number of votes in his favour is diametrically opposite to the evidence of PW 16 that the promise of presentation of shield was not for the workers who would procure more votes but only to the partic ular booth where he would secure highest number of votes.
PW17 belongs to the same caste to which PW 16 belongs.
PW 18 who was a sarpanch of Murara village has stated that the first respondent announced in the public meeting that he would award a shield to the polling stating where he would secure highest number of votes.
Admittedly, he was in the Socialist Party and that he could not say as to what was meant by silver shield nor he was told by anyone about it.
Not even a suggestion was made to the first respondent (RW 1) during the cross examination that he made such a promise in the public meeting.
PW 3, who was the Superintendent of Pre matric Harijan Hostel, Niwadi has testified to the fact that there was no rally started from harijan ashram.
He has also stoutly denied the suggestion that on 28.2.1985 there was a meeting within the precincts of Harijan Ashram in which the first respondent promised the award of silver shield.
According to him, no such meeting was ever held.
The High Court on analysis of the above oral evidence, after observing that the evidence adduced by the appellant is 'sketchy and insufficient to prove the corrupt practice ' concluded.
"that the charge of corrupt practice under Sec tion 123(1)(A) of the Act is not proved.
" 589 The learned counsel appearing on behalf of the appellant herein assails the conclusion of the High Court contending that the High Court has not approached and evaluated the evidence on PWs 1, 16 to 18 in the proper perspective and this observations that the evidence is 'sketchy and insuffi cient to prove the corrupt practices ' is unjustifiable and bereft of sound reasoning, which submissions are opposed by the counsel for the first respondent.
Before adverting to the contesting contentions of the parties, we shall examine the legal position with regard to the nature of the proceedings and the quality of evidence required in proof of allegations of corrupt practices. 'Bribery ' which is one of the corrupt practices enumer ated under Section 123 of the Act is defined in sub section (1) of that Section.
For the purpose of this case, we re produce the relevant part of that Section as the allegations contained in the election petition that the promise of gratification was a silver shield to the voters in general of a particular booth where the appellant would secure the highest number of votes in his favour: (1) 'Bribery ', that is to say (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoev er, with the object directly or indirectly of inducing (b) an elector to vote or refrain from voting at an election, or as a reward to (ii) an elector for having voted or refrained from voting.
The word 'gratification ' is not defined in the Act, but the Explanation to sub section (1) of Section 123 furnishes an indication as to what amounts to gratification in the view of the Parliament.
In Mohan Singh vs Bhanwarlal & Others, ; the Constitution Bench of this Court after making a reference to this Explanation observed as follows: 590 "The Explanation extends the expression 'gratification ' to include all forms of enter tainment and all forms of employment for reward but not payment of bona fide expendi ture incurred at or for the purpose of elec tion if duly entered in the account of elec tion expenses.
Gratification in its ordinary connotation means satisfaction.
In the context in which the expression is used and its delim itation by the Explanation, it must mean something valuable which is calculated to satisfy a person 's aim, object or desire, whether or not that thing is estimable in terms of money; but a mere offer to help in securing employment to a person with a named or unnamed employer would not amount to such gratification.
" In lqbal Singh vs section Gurdas Singh & Ors., ; Alagiriswa J. speaking for the Bench taking aid of Sections 161, 17 I(B) and 17 i(E) of the Indian Penal Code stated thus: "It would be noticed that the Explanation to Section 123(1) of the Representation of the People Act and the Explanation to Section 161 of the Indian Penal Code relating to gratifi cation are similar.
In addition, the Represen tation of the People Act refers to all forms of entertainment and all forms of employment for reward.
The employment for reward is covered by illustration (a) to section 161 of the Indian Penal Code.
The words "all forms of entertainment" in the Explanation to Section 123(1) of the Representation of the People Act apparently refer to offence of treating found in section 171 E of the Indian Penal Code.
When Parliament enacted the provision regarding bribery in the Representation of the People Act, it should have had before it the compara ble provision in the Penal Code.
It is to be noticed that the giving of any gratification with the object of inducing the receiver or any other person to vote is an offence while acceptance of gratification by a person either for himself or for any other person or for inducing any other person to vote is an of fence.
In other words giving is an offence if paid to the voter or such giving induces another person to vote.
It is not giving a gratification in order that he may induce another person to vote that is an offence whereas receipt of a gratification in order to induce another person to vote is an offence.
" 591 According to Section 123(1)(A)(b)(ii) of the Act, any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing an elector to vote or refrain from voting at an election is a corrupt practice.
See Harjit Singh Mann vs
section Umrao Singh and Others, ; It is an accepted principle that an election petition where corrupt practices are imputed must be regarded as proceedings of a quasi criminal nature wherein strict proof is necessary.
Since, a charge of corrupt practices, the consequence of which is not only to render the election of the returned candidate void, but in some cases to impose him a disqualification must be proved on appraisal of the evi dence adduced by both the parties particularly by the elec tion petitioner who assails the election of a returned candidate.
This principle has been reiterated and approved in a series of decisions.
See Manphul Singh vs Surinder Singh, [1974] 1 SCR 52; Rahim Khan vs Khurshid Ahmed, ; ; M. Narayana Rao vs G. Venkata Reddy & Others, ; ; Ram Sharan Yadav vs Thankur Muneshwar Nath Singh & Others, ; ; Ramji Prasad Singh vs Ram Bilas Jha & Others, ; and Lalroukung vs Haokholal Thangjom & Anr., ELR Vol As pointed out in M. Narayana Rao vs G. Venkata Reddy, ; ; this Court ordinarily and generally does not, as it ought not to, interfere with the findings of fact recorded by the High Court unless there are compelling reasons for the same, especially findings recorded on appre ciation of oral evidence.
Bearing in mind the above proposi tion of law, we shall scrutinise the evidence available on record and find out whether the conclusions arrived at by the High Court suffers from any infirmity warranting inter ference of the said conclusions.
As we have pointed out in the earlier paragraph of the judgment, PW 1 (appellant) only after a period of 6 months of his first examination in the Court came forward with this allegation that the first respondent made a promise of gratification.
Indisputably his evidence is in the nature of hear say.
PW 16 whose brother was a Janata Party leader and an M.L.A. does not mention even the date of the meeting in which the first respondent is said to have made the promise.
The evidence of PW 16 and PW 17 is inconsistent and contra dictory as we have pointed out supra.
There is no consistent evidence as to the 592 nature of the statement said to have been made by the first respondent.
Whilst PW 16 and PW 18 state that the first respondent promised the award of the silver shield to the particular polling booth where he would secure the highest number of votes, PW 17 states that the promise was only to the person who would procure a large number of votes.
There fore, in view of this inconsistent, unsatisfactory and vague evidence, no conclusion could be arrived at that the first respondent made the promise to any particular person or persons who would secure the highest number of votes in his favour.
There is absolutely no evidence that the first respondent made any promise of gratification to any elector or electors who would vote in his favour.
Similarly there is no evidence that voters were influenced by the alleged promise of gratification or the first respondent obtained any promise from the voters in return as a condition for the shield alleged to have been presented.
Thus the element of 'bargaining ' is completely absent in the present case.
Needless to say that it is necessary for the purpose of proving the corrupt practice of bribery to establish that there was an element of 'bargaining '.
See Harjit Singh Mann vs section Umrao Singh and Others, ; In this connection, reference can be made to a decision of this Court in lqbal Singh vs Gurdas Singh & Ors., ; In that case the election of the returned candidate was challenged by the appellant therein on various grounds, one of which being that the returned candidate or his agent held out an inducement to get gun licences issued for people who would vote for the returned candidate.
The Court rejected the plea on the ground that there was no evidence regarding bargaining of votes by promise of gun licences and there was no evidence of obtaining promise of votes from the voters in return.
For the reasons above mentioned, we come to the conclu sion that the appellant has not discharged the onus of proof cast upon him by adducing cogent, reliable and satisfactory evidence, but on the other hand he has miserably failed to establish the charge of corruption.
Now, we shall pass on to the last contention.
The charge under issue No. (5) is that Shri Shital Prasad Sharma, Sub Divisional Officer (Revenue) and Shri Dubey, Sub Divisional Officer, (Police), accompanied the first respondent to various places between 9.2.1985 and 2.3.
1985 and requested the electors to vote in favour of the first respondent and that Shri Sharma distributed money in the village Teharka and asked the voters to vote in favour of the first respondent.
593 It is found from the judgment of the High Court that this issue was earlier declared vague and it was thereafter the first part of the issue which was re cast as per the particulars substituted in the amended pleadings in para graph 6(a) of the election petition.
These allegations relate to the charge of obtaining or procuring the assist ance of the Government servants in service for the further ance of the prospects of the election of the first respond ent failing within the mischief of Section 123(7) of the Act.
These allegations are stoutly opposed by the first respondent inter alia contending that "these pleadings are in violation of the provisions contained in Section 83(b) of the Act as no details of the date and place of commission of each such practice have been mentioned and in absence there of, it is not possible for this respondent to effectively rebute such vague allegations", and the allegations that Shri Sharma distributed money to the voters are also too vague to be rebutted properly as the names of the voters to whom money is said to have been paid and also lack of par ticulars with regard to the date, time and the amount of money allegedly distributed.
In support of the above allegations, the appellant examined himself and six other witnesses of PWs 1, 11, 12, 14, 15, 16 and 18.
Barring this oral evidence, there is absolutely no contemporaneous documentary evidence.
Though the appellant filed the application in August 1985 under Section 86(5) of the Act praying for amendment of his elec tion petition, he has not testified to the amended pleadings in his examination held on 9.10.1985, but tendered evidence only on 8.4.1986 that is after six months of his earlier examination.
He has deposed that on 24.2.85 he saw the first respondent and Dubey, SDO (Police) going together in a jeep towards Orchha and that PW 11, Nathu Ram Naik told him that Dubey had asked him to vote in favour of the first respond ent.
He continued his evidence stating that he saw Dubey walking along with the first respondent in a rally organised by the Congress party and headed by the first respondent, that PWs 12 and 13 informed him on 28.2.1985 at Niwadi that when these two witnesses refused to vote for the first respondent at his request, the first respondent asked Dubey to persuade them to vote for him, that thereupon Dubey asked PWs 12 and 13 to vote for the first respondent lest they would not be permitted to sit in a temple presumably in the village.
He further deposed that on 24.2.1985 when he visit ed Prithvipur, he saw rally headed by the first respondent accompanied by Dubey and Sharma.
Later on, Shri Chaturbhuj Naik informed that both Dubey and Sharma took the resigna tions of Naik and others from Janata Party.
According to PW 11, the SDO (police) by name Dvivedi 594 asked him as well PWs 14 and 15 to work for the first re spondent and also threatened them that they would be falsely implicated in criminal cases if they failed to do so and that in consequence of it he and PW 15 resigned from the Janata Party and joined Congress party though they subse quently worked for the Janata Party candidate.
When this witness was confronted whether he had any documentary evi dence in support of his version, he stated that his joining the Congress Party appeared in the local newspaper but he was not having a copy of the same.
The evidence of PW 14 is that the SDO (police), Chaturvedi and SDO (Civil) whose name he does not know, were leading the rally and those two were sitting on the dias of a public meeting organised by the Congress Party and that both them threatened him and PW 11 to work for the first respondent.
PW 15 also speaks to the fact that SDO (Police), Chaturvedi called him as well PW 11 and some others and threatened all of them to resign from the Janata Party and work for the Congress and that when they refused to do so, they were all threatened by these two government officials, stating that they would be falsely implicated in criminal cases and that they out of fear resigned from the Janata Party and worked for the Congress Party.
Be it noted, whilst the name of the SDO (police) is mentioned by PW 1 as 'Dubey ' as mentioned in the amended pleading as well in issue No. (5), PWs 14 and 15 mention the name of the said Police Officer as 'Chaturvedi '.
PW 11 gives the name of the Officer as 'Dvivedi '.
The police officer, RW 6 swears his name as 'Dvivedi '.
Therefore, it follows that the insertion of the name as 'Dubey ' in the amended pleading is incorrect.
Thus, we find material and irreconcilable contradictions not only amongst the evidence of PWs but also between the pleading and the evidence even in respect of the name of the SDO (police) which create a legitimate suspicion as to whether Dubey was in any way concerned with the elec tion.
PW 12 does not mention the name of the police officer who threatened him to vote for the Congress as well the date of the meeting.
It is evidence of PW 16 that Sharma, SDO (Civil) asked all those persons attending the meeting in favour of the first respondent so that they could get the silver shield.
PW 18 who admits to have been a member of the Socialist Party has given the evidence falling in line with that of PW 16.
On consideration of the evidence of the above witnesses, the High Court has held "In view of this statement of the election petitioner, it must be held that there is no one like Shri Dubey, SDO (police) and, therefore, there would be no question of respondent No. 1 procuring assistance of Shri Dubey.
The distinction between Shri 595 Dubey and Shri Dvivedi is rather well known and even the election petitioner is aware of it.
Under the circumstances, there is no justification why proper plea in that behalf was not taken".
If we have to accept the evidence of PW 1 that the SDO (police) Dubey assisted the first respondent, then the evidence of the other witnesses giving a different name either as 'Chaturvedi ' or 'Dvivedi ' has to be rejected.
On the contrary, if the evidence of the other witnesses is to be accepted then their evidence does not support the issue No. (5) that one Dubey assisted the first respondent in his election.
The learned counsel appearing for the appellant pleaded that no importance should be attached to the varia tion regarding the name of the SDO (police) as the fact remains that SDO (police) had assisted the first respondent and procured votes in his favour.
We are unable to see any force in this submission.
Next coming to the allegations made against Sharma, SDO (Civil), PW 1 does not allege anything against him and as such on the basis of the evi dence of PW 1, it cannot be said by any stretch of imagina tion that Sharma had assisted and procured votes in favour of the first respondent within the mischief of Section 123(7) of the Act.
The evidence of the other witnesses relating to the alleged participation of Sharma in the election does not inspire confidence.
No acceptable evidence is available that Sharma distributed money.
In opposition to the evidence, let in on the side of the appellant, RW 6 (SDO police by name Dvivedi) has deposed that he was assigned duty at Dabra on 24.2.1985 in connec tion with the visit of the Prime Minister and that he was not in the Headquarters on that date and the distance be tween Niwadi and Dabra is about 80 kms.
RW 4(SDO (Civil) Sharma) has denied all the allegations made against him by the appellant.
Much argument was advanced on the basis of Exh.
P 6, a photograph showing that in a meeting addressed by Chaturvedi this witness was also present, but RW 4 ex plains that it was not a meeting of the Congress Party but was a public meeting held to facilitate first respondent on his return from foreign trip.
RW 1 in his evidence totally denied all the allegations covered by issue No. (5).
On a scrupulous examination of the evidence of the witnesses examined on the side of the appellant, we arrive at an irresistible conclusion that the appellant has misera bly failed to establish the allegations of corrupt practices within the mischief of Section 123(7) of the Act relating to issue No. (5).
Even assuming that RWs 4 and 6 had accompa nied the rally, as pointed out by the High Court, no ines capable inference can be drawn that these two officials were assisting the first respondent in procuring votes and proba bly they might have ac 596 companied the rally for maintaining the law and order.
Further, when the learned Judge of the High Court, who has very carefully marshalled the evidence, has not found it possible to candidly accept the evidence of these witnesses for the reasons assigned in the judgment, we find no reason to take a contrary view.
Moreover, we too after a close scrutiny of the evidence and the pleadings especially relat ing to issue No. (5), are in agreement with the views of the High Court and are fully satisfied that the appellant has miserably failed in substantiating his charges covered by issue No. 3 to 5 which are alone pressed before us as indi cated in the earlier part of this judgment and the judgment under appeal does not suffer from any legal infirmity re sulting in serious prejudice to the appellant.
In the result, the judgment of the High Court is upheld and the appeal is dismissed with costs.
Y. Lal Appeal dis missed.

summary/full:
Elections to the Madhya Pradesh Vidhan Sabha were held in the months of February/March 1985.
The appellant and Respondent No. 1 were the contesting candidates from Niwadi Legislative Assembly constituency No. 34.
Respondent No. 1 having secured majority of votes, was declared elected on 6.3.1985 to the Madhya Pradesh Vidhan Sabha.
The appellant challenged the election of the respondent No. 1 in the High Court of Madhya Pradesh Jabalpur alleging that the first respondent was guilty of adopting corrupt practices within the meaning of sub sections (2), (3) and (3A) of Section 123 of the Representation of Peoples Act, 1951.
Respondent No. 1 denied the allegations made in the election petition.
The High Court dismissed the Election Petition holding that the appellant had not substantiated all the charges levered by him against respondent No. 1.
Hence this appeal by the appellant.
Before this Court the appellant pressed only issues 3, 4 and 5 and gave up the rest.
Dismissing the appeal, this Court, HELD: An election petition where corrupt practices are imputed must be regarding as proceedings of a quasi criminal nature wherein strict proof is necessary.
Since, a charge of corrupt practice, the consequence of which is not only to render the election of the returned candidate void, but in some cases to impose on him a disqualification it must be proved on appraisal of the evidence adduced by both the parties particularly by the election petitioner who assails the election of a returned candidate.
[591B C] The element of bargaining is completely absent in the present case.
Needless to say that it is necessary for the purpose of proving the corrupt practice of bribery to estab lish that there was an element of bargaining.
[592C] 582 Dhartipakar Madan Lal Agarwal vs Rajiv Gandhi, [1987] Supp.
SCC 93; Kona Prabhakara Rao vs M. Seshagiri Rao & Anr., ; Manphul Singh vs Surinder Singh, [1974] 1 SCR 52; Jamuna Prasad Mukheriya & Ors.
vs Lachi Ram & Ors., ; ; Rahim Khan vs Khurshid Ahmed & Ors., ; ; Ram Sharan Yadav vs Thakur Muneshwar Nath Singh & Ors., ; ; Rahim Khan vs Khurshid Ahmed & Ors.; , ; Lakshmi Raman Acharya vs Chandan Singh & Ors., [1977] 2 SCR 412 and Ramji Prasad Singh vs Ram Bilas Jha & Ors., ; ; Mohan Singh vs Bhanwar Lal & Ors., ; ; Harjit Singh Mann vs section Umraon Singh & Ors., ; ; lqbal Singh vs section Gurdas Singh & Ors., ; ; Lalroukung vs Haokholal Thangam & Anr., ELR Vol , referred to.