judgement:
: Criminal Appeal Nos. 810 811 of 1989.
From the Judgement and Order dated 22.9.1989 of the Delhi High Court in Crl.
W.P. No. 622 of 1988 and Crl.
Main Petition No. 1132 of 1988.
J.S. Arora, Sudhansu section Das, Satish Agrawal and N.P. Kaushik for the Appellant.
V.C. Mahajan, A.K. Ganguli Ashok Bhan, A. Subhashini, P.P. Tripathi and S.K. Sabharwal for the Respondents.
The Judgement of the Court was delivered by K. JAYACHANDRA REDDY, J. The High Court of Delhi by a common order in two petitions filed under The Narcotic Drugs & Psychtropic Substances Act, 1985 (`NDPS Act ' for short) held that the restrictions placed on the powers of the Court to grant bail in certain offences under the amended Section 37 of the NDPS Act are not applicable to the High Court.
Aggrieved by the said order, the Narcotic Control Bureau has filed these two appeals.
The peritioners before the High Court in two different cases were arrested for offences under various Sections of the NDPS Act.
They were refused bail and remanded to judicial custody.
On the basis of the report the Magistrate concerned took cognizance and remanded them to judicial custody.
The petitioners filed a writ petition as well as a criminal miscellaneous petition seeking bail firstly on the ground that they are entitled to be released on bail as required under Section 167(2) of the Code of Criminal Procedure as the charge sheet was filed at a belated stage and secondly on the ground of illness.
A learned Single Judge referred this matter to a Division Bench and the Division Bench by the impugned order held that the limitations placed on the Special Court under Section 37(2) of the NDPS Act cannot be read as 142 fetters on the High Court in exercise of powers under Section 439 Cr.
P.C. for granting bail.
The only limited question to be decided in these appeals is whether the view taken by the High Court is right or wrong and we may also mention that leave was granted only to this limited extent.
The learned counsel appearing for,the appellants submitted that the High Court has misconstrued the provisions of Section 36 A and 37 of the NDPS Act and that latter Section as amended starts with the non obstante clause limiting the scope of provisions of the Cr.
P.C. in the matter of granting bail and as such the High Court has no untremelled powers to grant bail inasmuch as the provisions of the amended Section 37 of the NDPS Act override the provisions of Section 439 Cr.
We may at this stage note the relevant provisions of NDPS Act.
The preamble to the NDPS Act shows that the object of the Act is to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotrophic substances etc.
Sections 15 to 35 deal with various offences and penalties.
Section 36 provides for constitution of Special Courts and empower the Government to constitute Special Courts and a person shall not be qualified for appointment as a Judge of the Special Court unless he is immediately before such appointment, a Sessions Judge or an Additional Sessions Judge.
Section 36 A enumerates the offences triable by Special Courts and also deals with the procedure regarding the detention of the accused when produced before a Magistrate.
Sub section (b) of Section 36 A lays down that if the Magistrate to whom an accused is forwarded under Section 167 Cr. P.C., considers that the detention of such person for fifteen days is unnecessary he shall forward him to the Special Court having jurisdiction who shall take cognizance and proceed with the trial.
Sub section (3) of Section 36 A reads thus: "Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub section (1) of that section as if the reference to "magistrate" in that section included also a reference to a "Special Court" constituted under Section 36.
" 143 Now let us note Section 37 as amended in the year 1989 and the same is in the following terms: "37.
Offences to be cognizable and non bailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless (i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The ,limitations on granting of bail specified in clause (b) of sub section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the law being in force on granting of bail.
" Now it becomes necessary to extract Section 439 Cr.
P. C. which reads as under: "439.
Special powers of the High Court or Court of Section regarding bail (1) A High Court or Court of Session may direct (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub section (3) of Section 437 , may impose any condition which it considers necessary for the purposes mentioned in that sub section; (b) that any condition imposed by a magistrate when releasing any person on bail be set aside or modified; Provided that the High Court or the Court of Session shall, 144 before granting bail to a person who is accused on anoffence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public prosecutor unless it is, for reason to be recorded in writing , of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
" The High Court having taken into consideration sub section (3) of Section 36 A took the view that the limitations placed on the Special Courts cannot be read as fetters in its exercise of the powers under Section 439 Cr.
In this context, the Division Bench referred to to sub sections(8) and (9) of Section 20 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ( 'TADA Act ' for short) which are similar to Section 37 of NDPS Act and also relied on a judgment of this Court in Usmanbhai Dawoodbhai Memon and Others vs State of Gujarat, ; a case which arose under the TADA Act.
We shall refer to this judgment at a later stage after analysing the scope and effect of Section 37 of NDPS Act.
Section 37 as amended starts with a non obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied.
The nDPS Act is a special enactment as already noted it was enacted with a view to make stringent provision for the control and regulation of operations relating to narcotic drugs and psychotropic substances.
The being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr.
P.C. regarding bail, in our view, it cannot be held that the High Court 's powers to grant bail under Section 439 Cr.
P.C. are not subject to the limitation mentioned under Section 37 of NDPS Act.
The non obstante clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail.
In case of inconistency between Section 439 Cr.
P.C. and Section 37 of the NDPS Act, Section 37 prevails.
In this context Section 4 Cr.
P.C. may be noted which read thus: 145 "(4) Trial of offences under the Indian Penal Code and other laws (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provision hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provision, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
" It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Cr.
P.C. should be subject to such special enactment.
In interpretating the scope of such a statute the dominant purpose underlying the statute has to be borne in mind.
In Lt. Col. Prithi Pal Singh Bedi etc.
vs Union of India & Others, regarding the mode of interpretation the Supreme Court observed as follows: "The dominant purpose in construing a statute is to ascertain the intention of Parliament.
One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision, the Court should adopt literal construction if it does not lead to an absurdity.
" As already noted, Section 37 of the nDPS Act starts with a non obstante clause stating that notwithstanding anything contained in the Conde of Criminal Procedure, 1973 no personaccused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied.
Consequently the power to grant bail under any of the provisions of Cr.
P.C. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act.
We shall now refer to some of the decisions of the Court dealing with the analogous provision in other special enactments.
Rule 184 of the Defence and Internal Security of India Rules, 1971 which is analogous to Sec.
37 of the NDPS Act runs as follows: 146 "Rule 184.
Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898) no person accused or convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless (a) the prosecution has been given an opportunity to opposed the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Government may be notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.
" The Rule commences with a non obstante clause and in its operative part imposes a ban on release on bail of a person accused or convicted of a contravention of the Rules.
it imposes fetters on the exercise of the power of granting bail in certain kinds of cases.
In Balchand Jain vs State of Madhya Pradesh, ; a question arose whether the power to grant anticipatory bail under Section 438 can stand side by side with Rule 184 of whether former provision is overridden by the latter.
This Court held that Rule 184 does not stand in the way of Court of Session or High Court granting anticipatory bail on the ground that the two provision operate at two different stages.
Of course, in the instant case, we are not concerned with Section 438 but the observation regarding the scope of Rule 184 are relevant which read thus: "But even if Rule 184 does not apply in such a case, the policy behind this Rule would have to be borne in mind by the Court while exercising its power to grant 'anticipatory bail ' under Section 438.
The Rule making authority obviously though offences arising out of contravention of Rules and orders made there under were serious offences as they might imperil the defence of India or civil defence or internal security or public safety or maintenance of public order or hamper maintenance of supplies and services to the life of the community and hence it provided in Rule 184 that no person accused or convicted or contravention of any Rule or order made under the Rules, shall be 147 released on bail unless the prosecution is given an opportunity to oppose the application for such release and in case the contravention is of a Rule or order specified in this behalf in a notified order, there are reasonable grounds for believing that the person concerned is not guilty of such contravention.
If these are the conditions provided by the Rule making authority for releasing on bail a person arrested on an accusation of having committed contravention of any Rule or order made under the Rules, it must follow a fortiori that the same conditions must provide the guidelines while exercising the power to grant 'anticipatory bail 'to a person apprehending arrest on such accusation, though they would not be strictly applicable." (emphasis supplied) Fazal Ali, J. in his concurring judgment also held thus: "(4)_that in cases covered by r. 184 of the Rules the Court exercising power under section 436 or section 438 of the Code has go to comply with the conditions mentioned in clauses (a) & (b) of r. 184 and only after the Court has complied with those conditions that an order under any of these section of the Code in respect of such offences could be passed.
" In Usmanbhai 's case a question whether the provisions of sub sections (8) and (9) of Section 20 of the TADA Act limit the scope of Sections 437 and 439, came up for consideration.
The language of sub sections (8) and (9) of section 20 is analogous to Section 37 of NDPS Act and they read thus: "(8) Notwithstanding anything contained in the Code, no person accused on an offence punishable under this Act or any rule made thereunder shall, if in custody, if in custody, be released on bail or on his own bond unless (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(9) The limitation on granting of bail specified in sub section (8) are in addition to the limitations under the Code or any other law for the time being in force or granting of bail.
" It may be noted at this stage that the power of the High Court or the Sessions Court to grant anticipatory bail has been completely taken away under Section 20(7) of the TADA Act.
The contention was that the sources of power of a designated court to grant bail is under Section 437 subject to some limitations under Section 20(8) and that it does not in any manner affect the power of the High Court independently under Section 439 to grant bail.
It is also contended that to take away the power of the High Court would tantamount to strike at the very foundation of an independent judiciary free from executive control.
After considering these submissions this Court held that: "Though there is no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow.
it is true that the source of powerof a Designated Court to grant bail is no Section 20(8) of the Act as it only places limitations on such power.
This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are 'in addition to the limitations under the Code or any other law law for the time being in force '.
But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code.
it cannot be doubted that a Designated Court is 'a court other than the High Court or the Court of Session ' within the meaning of of section 437 of the Code.
The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act." (emphasis supplied) Having held so, the learned Judge proceeded to consider the controversy as to the power of the High Court to grant bail under Section 439 Cr.
P.C. Act excluding the jurisdiction of the High Court entertain an 149 appeal or revision against the judgment of the designated court, it is held that the High Court had no jurisdiction to entertain an application for bail under Section 439 or Section 482 of the Code of Criminal procedure.
however, regarding the construction of non obstante clause in Sec.
20(8) of the Act, this Court held as under: "The controversy as to the power of the High Court to grant bail under Section 439 of the Code must also turn on the construction of Section 20(8) of the Act.
It commences with a non obstante clause and in its operative part by the use of negative language prohibits the enlargement on bail of any person accused of commission of an offence under the Act, if in custody, unless two conditions are satisfied.
The first condition is that the prosecution must be given an opportunity to oppose the application for such release and the second condition is that where there is such opposition, the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
If either of these two conditions is not satisfied, the ban operates and the person under detention cannot be released on bail.
it is quite obvious that the source of power of a Designated Court to grant bail is not section 20(8) of the Act but it only places limitations on such powers.
This is implicit by Section 20(9) which in terms provides that the limitations or granting of bail specified in sub section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail.
it therefore follows that the power derived by a Designated Court to grant bail to a person accused of an offence under the Act, if in custody, is derived from the Code and not from section 20(8) of the Act.
It can thus be seen that even in Usmanbhai 's case also there is no observation supporting the view taken by the High Court in the impugned judgment.
As a matter of fact in Usmanbhai 's case Sen, J. who spoke for the Bench, after referring to the ratio laid down in Balchand Jain 's case observed thus: "The view expressed in Balchand Jain case is not applicable at all for more than one reason.
There was nothing in the defence and Internal Security of India Act or the Rules framed there under which would exclude the jurisdiction 150 and power of the High Court altogether.
On the contrary, Section 12(2) of that Act expressly vested in the High Court the appellate jurisdiction in certain specified cases.
In view of the explicit bar in Section 19(2), there is exclusion of the jurisdiction of the High Court.
It interdicts that no appeal or revision shall lie to any court, including the High Court, against any judgment, sentence or order, not being an interlocutory order, of a Designated Court.
The Act by Section 16(1) confers the right of appeal both on facts as well as on law to the Supreme Court.
Further while it is true that Chapter XXXIII of the Code is still preserved as otherwise the Designated Court would have no power to grant bail, still the source of power is not Section 439 of the Code but Section 437 being a court other than the High Court or the Court of Session.
Any other view would lead to an anomalous situation.
If it were to be held that the power of a Designated Court to grant bail was relatable to Section 439 it would imply that not only the High Court but also the High Court of Session would be entitled to grant bail on such terms as they deem fit.
The power to grant bail under Section 439 is unfettered by any conditions and limitations like Section 437.
It would run counter to the express prohibition contained in Section 20(8) of the Act which enjoins that notwithstanding anything in the code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail unless the conditions set forth in clauses (a) and (b) are satisfied." (emphasis supplied) The High Court in the impugned judgment, however, referred to Usmanbhai 's case and held that the limitations placed under Section 37 of the NDPS Act are exactly similar to the ones in sub section (8) and (9) of Section 20 of the TADA Act and they are applicable only to special courts.
But we may point out that in paragraph 16 in Usmanbhai 's case it is observed: "As a murder of construction, we must accept the contention advanced by learned counsel appearing for the State Government that the Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under section 439 of the Code or by recourse to its inherent powers under section 482.
" 151 However, as already mentioned, the learned Judges held that the view expressed in Balchand Jain 's case is not applicable to the facts in Usmanbhai 's case and the same is clear from the observations made in Usmanbhai 's case which read as under: "Lastly both the decision in Balchand Jain and that in Ishwar Chand turn on the scheme of the Defence and Internal Security of India Act, 1971.
They proceed on the well recognised principle that an outer of jurisdiction of the ordinary courts is not to be readily inferred, except by express provision or by necessary implication.
It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to grant bail under Sections 438 and 439 exists.
We must accordingly uphold the view expressed by the High Court that it had no jurisdiction to entertain an application for bail under Section 439 or under Section 482 of the Code" From the above discussion it emerges that in Usmanbhai 's case the Supreme Court did not express anything contrary to what has been observed in Balchand Jain 's case and on the other hand at more than one place observed that such enactments should prevail over the general enactment and the non obstante clause must be powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail.
The point of law is ordered accordingly.
The two accused respondents in these two appeals have been on bail pursuant to the order of the High Court, for a long time.
The learned counsel appearing for the Narcotics Control Bureau, the appellant herein, is also not pressing cancellation of the bail.
Therefore, we are not remitting the matters of the High Court for fresh consideration.
Pending the proceedings, they would continue to be on bail.
Subject to the above clarification of law, the appeals are disposed of.
R.P. Appeals disposed of.

summary/full:
The respondents in the appeals who were arrested for offences under various sections of the narcotic Drugs and Psychotropic Substances Act, 1985, were refused bail, and were remanded to judicial custody.
On the basis of the report the Magistrate took cognizance, and remanded them to judicial custody.
The respondents filed writ petition and criminal miscellaneous petition before the High Court seeking bail under section 167(2), Criminal Procedure Code on the grounds of belated submission of the chargesheet, and on account of illness.
The matter was referred to a Division Bench held that the limitations placed on the Special Court under section 37 (2) of the Narcotic Drugs and Psychotropic Substances Act could not be read as fetters on the High Court in exercise of its power under section 439, Cr.
P.C. to grant bail.
Aggreieved, the Narcotics Control Bureau appealed to this Court, and contended that the High Court had no untremelled powers in the matter of granting bail, as the provisions of section 37 of the NDPS Act override those of section 439, Cr.
On the question: whether the limitation placed on the Special Court under section 37(2) of the NDPS Act is to be treated as fetters on the powers of the High Court also in granting bail under section 439, Cr.
P.C. Disposing of the appeals, this Court, 140 HELD: 1.
The powers of the High Court to grant bail under section 439, Cr. p.
C. are subject to the limitations contained in the amended s.37 of the , and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail.
[151E] 2.
When there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with offences, the other powers under the Code of Criminal Procedure should be subject to such special enactment.
In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind.
[145C] 3.1 The is a special enactment, enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.
That being the underlying object and particularly when the provisions of s.37 of the NDPS Act are in negative terms limiting the scope of the applicability of the provisions of the Criminal Procedure Code regarding bail, it cannot be said that the High Court 's power to grant bail under section 439, cr.
P.C. are not subject to the limitation mentioned under section 37 of the NDPS Act.
[144E G] 3.2 Section 37 of the NDPS Act starts with a non obstinate clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied/[144E; 145F] 3.3 The non obstante clause with which section 37 of the NDPS Act starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail [144G] 3.4 In case of inconsistency between section 439, Cr.
P.C. and S.37 of the NDPS Act, section 37 prevails.
3.5 Consequently the power to grant bail under any of the provisions of the Code of Criminal Procedure should necessarily be subject to the conditions mentioned in section 37 of the NDPS Act.
[145F,G] Lt. Col. Prithi Pal Singh Bedi etc.
vs Union of India & Others, and Balchand Jain vs State of Madhya Pradesh, [1977] 2 SCR page 52, relied on.
141 Usmanbhai Dawoodbhai Memon and Others vs State of Gujarat, ; , referred to.
The two accused respondents being on bail for a long time under the orders of the High Court and the Narcotics Control Bureau not passing the cancellation of bail, the matter need not be remitted to the High Court, and the respondents would continue to be on bail.
[151F]


judgement:
Civil Appeal No. 3634 (NEC) of 1989.
From the Judgment and Order dated 11.8.1989 of the Karnataka High Court in Election Petition No. 6 of 1988.
M.C. Bandare, Ranjit Thomas and Mrs. C.K. Sucharita for the Appellant.
Shanti Bhushan, B.R.L. Iyenger, R.B. Mehrotra and E.C. Vidyasagar, for the Respondents.
For the (State of Karnataka) M. Veerappa.
Raju to the State Legislative Coun cil, and directing the recount of the votes after excluding those of 242 nominated members.
The election was held by adopting the 'single transferable vote method '.
The polling took place on 3.7.
1988 and the counting was taken up on the next date, that is, 4.7. 1988.
After several rounds of counting the appellant was declared as the successful candi date.
The election in question relates to the Chitradurga Local Authorities Constituency, comprising 121 Mandal Pan chayats.
The last date and time fixed for receiving nomina tion papers was 3.00 p.m. on 3.6.
According to the appellant 's case, a decision was taken by the Chitradurga Zilla Parishad in its special meeting held on 28.5.
1988 to nominate two members from each Mandal Panchayat, that is, a total number of 242 members.
Accordingly, steps were taken under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the Parishads Act) read with the rules framed thereunder, and 242 members were duly nominated in time to be included in the electoral roll.
This has been denied by the election 340 petitioner respondent No. 1, as also some of the respondents who contested the election.
According to their case, the inclusion of the names of the nominated members in the electoral roll took place after the period for nomination was over and they were, therefore, not included in the electoral roll in the eye of law.
The main question in the case which thus arises is as to whether the names of the 242 nominated members were included in the electoral roll within the time permitted by the law.
The Deputy Commissioner, who was impleaded in the elec tion petition as the 5th respondent (in this appeal also he is respondent No. 5), had triple role to play in connection with the disputed election.
He was authorised under the Parishads Act and the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Conduct of Election) Rules, 1985 (hereinafter referred to as the Parishads Rules) to take steps for completing the nomination of the members; under section 13B of the Representa tion of the People Act, 1950, he was the Electoral Registra tion Officer for preparation and revision of the electoral roll; and he was also the Returning Officer under the Repre sentation of the People Act, 1951.
According to the case of the appellant, a resolution was passed by the Zilla Parishad on 28.5.
1988 nominating the aforementioned 242 members, and the Chief Secretary of the Zilla Parishad sent the list of the names to the Deputy Commissioner on 30.5.
The Deputy Commissioner was, under section 5(9) of the Parishads Act, required to publish the said names so as to complete the process of nomination.
He was also vested with the jurisdic tion to include the names in the electoral roll under the provisions of the Representation of the People Act, 1950.
It is relevant to note at this stage that the question of inclusion of the names in the electoral roll could arise only after the nomination was complete in the eye of law.
A nominated person was entitled to be included as a voter for the election to the Council Constituency after he became a member of the Mandal Panchayat and not before.
Having learnt about the nominations on the eve of the election, some persons challenged the same and objected before the Deputy Commissioner to the proposed publication.
However, the Deputy Commissioner on 1.6.1988 passed an order directing the necessary steps to be taken under the Parishads Act, and accordingly a list of the nominated members was pasted on the notice board of the office of the Deputy Commissioner.
Before the nominated persons could be treated to have become members of the Panchayats it was necessary that certain other steps also were taken in accordance with the Parishads Act and the Parishads Rules.
Subsection (1) of section 40 of the Parishads Act, which is mentioned below, 341 makes it clear that a nominated person becomes the member of a Mandal Panchayat only on the publication of his name under section 5(9): "40.
Commencement of term of Office (1) The term of office of the members elected at a general election or at a second election held under sub section (7) of section 5, or nominated shall commence on the date imme diately after the expiry of the term of office of the out going members of the Mandal Panchayat or the period of appointment of an Administrative Committee or Administrator under section 8, or on the date of publication of their names under sub section (9) of section 5, whichever is later.
" The manner of publication of the names has been prescribed by r. 73 of the Parishads Rules in the following terms: "73.
Publication of names of members elected or nominated to Mandal Panchayat.
The Deputy Commissioner shall, as soon as conveniently may be, publish the list containing the names of the members elected or deemed to have been elected or nominated to the Mandal Panchayat by causing such list to be affixed on the notice board of his office, office of the Tahsildar, concerned Mandal Panchayat and in the Chavadi.
" With a view to complete the nomination, the Deputy Commis sioner sent out the names for affixing the same on the notice boards of the office of the concerned Tahsildars and Mandal Panchayats and in the Chavadis.
The Deputy Commis sioner could have taken steps for inclusion of the names in the electoral roll of the State Council Constituency after receipt of the information of their due publication in the offices situated at different places.
There is a serious dispute as to when the necessary information became avail able at Chitradurga and the formal steps of including those names in the electoral roll were actually taken.
After examining the evidence led by the parties, the High Court has held that the names were not included in the electoral roll by 3.00 p.m. on 3.6.1988.
Mr. M.C. Bhandare, the learned counsel appearing in support of the appeal, has contended that the High Court fell in grave error in deciding the disputed issue against the appellant as it failed to 342 take note of the provisions of the Explanation to section 40(1) of the Parishads Act, which reads as follows: "Explanation.
When the names of members elected at a general election or at a second election held under sub section (7) of section 5 or nominated are published on more than one date, the date by which the names of not less than 2/3rd of the total number of members has been published shall be deemed to be the date of publication for ' purposes of this section.
" The learned counsel argued that the evidence on the record establishes that information of the publication of the names of more than 2/3rd of the total number of nominated persons had reached the Deputy Commissioner in time for the amend ment of the Council Constituency roll and the Deputy Commis sioner had actually made an order for the inclusion of the names in the roll on 2.6.1988.
Accordingly, the final elec toral roll including the nominated members was ready in the office of the Returning Officer, and the appellant, as a matter of fact, had inspected the same.
Reliance has been placed on his deposition as well as on the documentary evidence in the case.
The most important evidence in the case is to be found in the statement of the Deputy Commissioner examined as P.W. 4.
Besides, the election petitioner examined several other witnesses.
An examination of evidence on record leads to the conclusion that the Chief Secretary of the Zilla Parishad had sent the list of the nominated members to the Deputy Commissioner on 30.5.
1988 and a copy thereof was placed on the notice board of the Deputy Commissioner 's office on 1.6.1988.
However, that did not complete the process of nomination.
The provisions of section 40(1) of the Parishads Act make it abundantly clear that a nominated person would become a member of the Panchayat only after due publication of his name in accordance with r. 73.
It was therefore necessary to have the names of the nominated persons affixed on the notice board of the office of the Tahsildars, the notice boards of the Mandal Panchayats and in the Chavadis.
Mr. Bhandare is right that in view of the Explanation to section 40(1) it was not necessary for the Deputy Commissioner to have waited for the information in this regard from all the places.
On his satisfaction that the publication of 2/3rd of the total number of the names were complete, he was free to proceed further and to revise the electoral roll under the Representation of the People Act, 1950 by including all the nominated members.
But the ques tion is as to when the Deputy Commissioner 343 did receive the information about the 2/3rd of the total number, and further whether he, as a matter of fact, revised the electoral roll before 3.00 p.m. on the 3rd of June, 1988.
It is significant to note that the electoral roll did not get automatically amended on the completion of the process of nomination of the additional members.
Ordinarily the question of inclusion of a new name in the electoral roll arises only when an application is made before the Electoral Registration Officer in this regard, but the power can be exercised by the Officer even without such an appli cation.
In the present case it appears that a tactical battle was going on in the political arena between the two rival groups; one attempting to get the electoral roll amended by the inclusion of the nominated members and the other trying to foil it.
The Deputy Commissioner was under pressure from both sides, and as the evidence discloses, he had to consider the different stands taken before him, which slowed down the entire process.
Let us examine the evidence in this background.
The Deputy Commissioner has, in his evidence, stated that his office received the information about the nomina tion from the Zilla Parishad on 30.5.
1988 when he was at Bangalore.
He returned back to Chitradurga on 31.5.
1988 and examined a copy of the resolution of the Parishad as also the list of the nominated persons.
Soon thereafter he was approached by the two groups, one supporting the resolution and the other opposing it.
Ultimately he decided to publish the list as required by section 5(9) of the Parishads Act read with r. 73 of the Parishads Rules.
Accordingly, a copy of the list was placed on the notice board of his office and lists for the publication in the Taluk offices were handed over to the Tahsildars who were already present in Chitra durga The lists for the publication in the offices of the Mandal Panchayats and Chavadis, which were scattered at considerable distances, were sent to the Chief Secretary of the Zilla Parishad.
The Deputy Commissioner postponed the further step for modification of the electoral roll awaiting the report on publication from the different offices.
Some reports from the Taluk offices were received on 1.6.1988 itself, but the Deputy Commissioner in his evidence was not in a position to give the details.
His examination in chief was, therefore, discontinued and he was asked to bring the documents on the next date with reference to which he could answer the further questions.
Accordingly, he later appeared with the papers and stated that the last reports regarding the publication from the Taluk Office of certain places were received on 4.6.1988.
In his cross examination the Deputy Commissioner stated that on the basis of his records he could say that he had received reports from 5 Taluk Offices only on 1.6.1988, and 344 none from the Mandal Pancnayats; and on 2.6.1988 he had received reports about the publication in the Mandal Pan chayats from 2 Taluks.
As there were only 9 Taluks in his district, it can be presumed that information about the publication of 2/3rd number at Taluk offices had reached the Deputy Commissioner by the evening of the 2nd June, 1988.
However, there does not appear to be any relevant evidence available on the records, and none has been shown to us by the learned counsel, with regard to the publication of the requisite number of names in the Mandal Panchayat offices and in the Chavadis.
It has been contended on behalf of the appellant that since the burden is on the election petition er to prove such facts which may vitiate the election, he must fail in the present state of evidence.
Before adverting to this aspect we propose to consider the other evidence relating to the revision of the electoral roll.
The electoral roll was produced before the High Court and was marked as Ext.
Although it ought to have borne the dates of its preparation and revision, none is to be found there.
The inclusion of the names of the nominated members was, according to the evidence, done by attaching slips to Ext.
The Deputy Commissioner was unable to state as to the date on which Ext.
P 6 was prepared and typed.
So far the "updated Voters ' List" was concerned, it was placed on the notice board of the office of the Deputy Commissioner at 8.55.
p.m. on 3.8.1988, after a lot of wrangling between the rival groups.
In answer to a question in cross examination the Deputy Commissioner stated, "I cannot say if the preparation of this list was complete by 3.00 p.m. on 3.6.1988 as it is a ministerial part of it." As has been mentioned earlier, the dispute about the validi ty of the belated nominations had been raised on 31.5.
1988 before the Deputy Commissioner when he returned to Chitra durga from Bangalore and he took a decision on 1.6.1988 to proceed with the publication so as to complete the process of nomination.
According to his statement, which he made after verifying from the documents, the necessary informa tion from the Mandal Panchayats and Chavadis started reach ing him on 2.6.1988.
But they were inadequate as they were only from two Taluks.
At the earliest the information about the publication of the necessary number of names reached Chitradurga on 3.6.1988 when the two groups were arrayed against each other in his office, one urging the revision of the electoral roll and the other opposing it.
The deadline was 3.00 p.m. on 3.6.1988 which was approaching fast.
But it 345 is important to note that the Deputy Commissioner was not aware that the period available for the revision of the electoral roll was expiring in the afternoon.
He was under a wrong impression that the entire calender date of 3.6.1988 was available for the purpose.
Towards the end of paragraph 3 in his written statement the Deputy Commissioner categori cally stated that he "was under a bona fide impression that direction for the inclusion of the name in the electoral roll of the constituency shall be given under Section 23 at any time on the last date for making nominations".
In the earlier writ petition between the parties (in which the issue raised was not decided) the respondent No. 5 had made a similar statement in paragraph 2 of his reply.
Being under that wrong impression he was not in a hurry to take the decision in regard to the revision of the electoral roll quickly.
The election petitioner, P.W. 1, was himself not a candidate but was an active supporter of one of the candi dates and was seriously involved in the question of the revision of the roll, and, as stated in his evidence, the publication of the names under r. 73 of the Parishads Rules was complete by 3.6.1988 only in some of the Mandal Panchay ats.
After the deadline at 3.00 p.m. on 3.6.1988 was crossed an application, which has been marked as 'Annexure R III ', signed by the Secretary, District Janata Party, was given to the Deputy Commissioner asserting that no further additions or deletions in the electoral roll were permissible and an endorsement to that effect should be made by the Returning Officer.
The Deputy Commissioner did not immediately give his reply thereto.
The parties were also insisting for the publication of the electoral roll in its final shape.
Ac cording to the further evidence of P.W. 1, the Deputy Com missioner promised them that he would contact the Chief Electoral Officer at Bangalore by telephone and only there after he would decide on his further action.
The party workers including the witness awaited the further develop ment and at 8.55 p.m. the Deputy Commissioner declared that the names of the newly nominated members were included in the voters list.
Soon thereafter he also replied to the letter of the Janata Party Secretary by a letter headed as "ENDORSEMENT", stating, "With reference to the above, you are hereby informed that action has been taken to include the nominated members by the Zilla Parishad to the Mandal Panchayat in the District and as per Section 27(c) read with Section 23(3) of the R.P. Act, 1950, the Electoral Roll for Local Authority Constituency has been up dated and a copy pasted in the office on 3rd June 1988 at 8.55 P.M." 346 Two other Janata Party members have been examined as P.Ws, 2 and 3 in the case supporting the above version.
Mr. Bhandare has relied upon the oral evidence of the appellant wherein he claimed to have gone to the office of the Deputy Commissioner on 2.6. 1988 to secure a prescribed form for filing his nomination as a candidate in the elec tion and was allowed to examine the electoral roll which was kept on a table in the office.
He asserts that after verify ing his name and serial number in the list he discovered that the names of nominated members were also included therein.
He stuck to this story in the cross examination and insisted that it was at 11.00 in the morning on 2.6.1988 that he had seen the revised roll.
It is difficult to accept his case on this evidence.
According to the Deputy Commis sioner himself the report about the publication in the office of the Mandal Panchayats from only two Taluks were received by the evening of 2.6.
1988 and it is, therefore, not believable that the Deputy Commissioner had amended the roll before 3.6.1988.
The Deputy Commissioner has not claimed to have revised the roll on 2.6.1988.
On the other hand, he made a very significant assertion in his written statement in the present election petition which is quoted below: "The Deputy Commissioner issued direction for the inclusion of the names of nominated members on 3.6.1988 and the elec toral roll for local Authorities Constituency has been up dated and a copy pasted in the office on 3.6.1988 at 8.55 P.M." In the earlier writ petition also he had made a similar statement, as mentioned below, towards the end of paragraph 2 of his reply: "The Deputy Commissioner issued direction for the inclusion of the name of Respondents 3 to 246 on 3 6 1988 and the electoral roll for Local Authorities Constituency has been up dated and a copy pasted in the office on 3 6 1988 at 8 55 P.M." A plain reading of the above statement suggests that both the updating of the electoral roll and pasting a copy there of took place on 3.6.
1988 at 8.55 p.m.
The statement cannot be interpreted to mean that the revision of the electoral roll had been done about 6 hours earlier.
The circumstances that (i) the Deputy Commissioner was not able to assert in his evidence before the Court that the revision of the roll had taken place before 3.00 p.m.; (ii) he was under an impression 347 that the revision was permissible till the midnight; and (iii) in spite of the available documents to him he was not in a position to assert that the report of publication of the names of 2/3rd or more of the nominated persons in the offices of the Mandal Panchayats had been received in his office before the deadline, strongly support the case of the election petitioner.
It has been contended on behalf of the appellant that the burden to prove that the names of the nominated members were not included in the electoral roll in time is on the election petitioner and unless he is able to lead acceptable evidence to discharge the same, the election petition is bound to fail.
The argument is that the oral evidence led by the petitioner cannot be accepted for recording a finding that the controversial names had not actually been included in the electoral roll before 3.00 p.m. which was in the custody of the Deputy Commissioner.
The fact that political opponents of the appellant who were opposing the inclusion of the names were repeatedly asking the Deputy Commissioner orally as well as in writing to inform them whether the names were actually included in the electoral roll or not itself shows that they could not be sure of the actual position till 8.55 p.m.
The bald assertion of the witnesses for the petitioner in this regard cannot be given much weight.
Thus the position, according to the learned counsel, available from the records of the case is that there is no reliable evidence on the crucial issue and, therefore, the election petition must be dismissed.
Apart from supporting the finding of fact recorded by the High Court in favour of the election petitioner, Mr. Shanti Bhushan, learned counsel for the respondents, argued that the electoral roll must be held to have been modified in the eye of law only at 8.55 p.m. when the alleged inclu sion of the names was made public and not earlier.
He rea lied upon the decision in Bachhittar Singh vs State of Punjab, [1962] Supp.
3 SCR 713.
The appellant in that case was appointed as a Kanungo and later promoted as Assistant Consolidation Officer in the former State of Pepsu.
A de partmental inquiry was held against him as a result of which he was dismissed by the Revenue Secretary.
He preferred an appeal to the State Government.
The Revenue Minister ex pressed his opinion in writing that instead of his dismissal he should be reverted to his original post of Kanungo.
The said remarks were, however, not communicated to the appel lant officially and the State of Pepsu was merged with the State of Punjab.
The matter was thereafter re examined and the Chief Minister passed an order confirming the dismissal of the appellant.
This order was com 348 municated to the appellant which led to the filing of the writ petition in the High Court.
The High Court dismissed the writ application and the appellant appealed before this Court by special leave.
One of the questions considered by this Court was as to the effect of the order in writing by the Revenue Minister, Pepsu, recommending reversion of the appellant in place of his dismissal.
For the reasons, men tioned below, the Court held that the order of the Revenue Minister was of no avail to the appellant.
"Thus it is of essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order.
For until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communi cation the order cannot be regarded as anything more than provisional in character.
As has been pointed out earlier, the evidence of the appellant that he had actually seen the final voters list in the office of the Deputy Commissioner must be rejected as unreliable.
There is no acceptable evidence at all to show as to when the alleged corrections were made in the voters list.
At 8.55 p.m. on 3.6.1988 the inclusion of the names was made public for the first time.
The question is as to whether the electoral roll will be deemed to have been modified when it was made public at 8.55 p.m. or earlier when the actual correction in the list was made in the Deputy Commissioner 's office which fact was kept confiden tial in spite of repeated demands for information.
Besides fixing the identity of the persons to be allowed to vote at the election, the purpose of the prepara tion of the roll is to enable the persons included therein to decide as to whether they would like to contest the election.
It is also helpful to such persons in assessing their chances of success by reference to the voters finally included in the roll.
For the purpose of canvassing also, the intending contestant requires a copy of the final vot ers ' list.
The intending contestants and their supporters thus heavily depend upon the final electoral roll for decid ing their future conduct, and it is, therefore, extremely essential that it is made available to them before the expiry of the period fixed for filing the nomination papers.
It the roll as it stood earlier, was confidentially correct ed by the Electoral Registration Officer concerned sitting in his office which did not see the light of the day, the same cannot be considered to have been prepared according to law.
349 The observations in Bachhittar Singh 's case will be fully applicable in as much as the Officer here also could recon sider the list again.
Mr. Bhandare in reply relied upon the judgment in B.K. Srinivasan and Others vs State of Karnataka and Others, , and argued that unlike the Karnataka Town and Country Planning Act, 1961 and the Rules which were under consideration in the said case, the Representation of the People Act does not require a display of the electoral roll.
The learned counsel is correct and he rightly said that putting the final voters list on the notice board is not a necessary requirement under the law.
But that does not lead to the further conclusion that the electoral roll can be prepared secretly and kept in the drawers of the Officer without any information or knowledge to persons who are interested in finding out its final shape.
The reported case was dealing with the principle of subordinate legislation and in paragraph 15 of the judgment made important observa tions which support the respondents ' point of view.
It was stated thus: "There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified direct ly and reliably of the law and all changes and additions made to it by various process.
Whether law is viewed from the standpoint of the 'conscientious good man ' seeking to abide by the law or from the standpoint of Justice Holmes 's 'Unconscientious bad man ' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known.
" It was further observed that unlike Parliamentary legisla tion which is publicly made, delegated or subordinate legis lation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary and it was, therefore, necessary that subordinate legislation in order to take effect must be published or promulgated in some suitable manner whether such publication or promulgation is prescribed by the parent statute or not.
It will then take effect from the date of such publication or promulgation The decision instead of helping the appel lant is clearly against him.
The vital difference between an Act of a legisla ture and a subordinate legislation was earlier noted in Harla vs State of Rajasthan, ; The Acts of the legislature are passed by the accredited representatives of the people who in theory can be trusted to 350 see that their constituents know what has been done, and this is done only after debates take place which are open to the public.
The matter receives wide publicity through the media.
But the case is different with the delegated legisla tion and, if we may add, also in the case of orders passed by the authorities like that in the present appeal before us.
The mode of publication can vary but there must be reasonable publication of some sort.
A reference may also be made to the decision in Fatma Haji Ali Mohammad Haji and Others vs The State of Bombay,, ; , where the question as to whether certain powers given to the Govern ment for issuing a direction to the Collector not to act in accordance with the prescribed rules had been actually exercised or not was under consideration.
It was stated that the power had to be exercised in clear and unambiguous terms and, "the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to the public." Before closing this discussion we should refer to the case of State of Maharashtra vs Mayer Hans George, [1965] 1 SCR page 123, where the English decision of Johnson vs Saragant & Sons, , relied upon by this Court in Harla 's case came to be considered.
The respondent Mayer Hans George was a German Smuggler who was carrying gold from Switzerland to Manila by an aeroplane which stopped at Bombay for sometime.
The respondent did not get down from the plane but he was searched by the Indian Officers and was found to be carrying gold illegally.
He was charged with criminal activity on the basis of a notification requiring him to declare the gold as transhipment cargo in the mani fest of the aircraft, which he had failed to do.
His defence was that he had no knowledge of this notification.
After his conviction by the trial court, the High Court on appeal acquitted him.
The Supreme Court by a majority judgment reversed the decision and found him guilty on the ground that the notification had been published in the official gazette of India.
The defence plea that since he was a foreigner and was, therefore, not expected to be aware of the notification was rejected.
While discussing the argu ments addressed in the case, the Court appreciated the criticism of Prof. C.K. Allen against the judgment in John son vs Sargant, but there was no comment or suggestion against the correctness of the judgment in Harla vs The State of Rajasthan.
On the other hand, the observations at page 163 G H are on the same lines.
It was stated that where there is no statutory requirement as to the mode or form of publication, "we conceive the rule to be that it is necessary that it should be published in the usual 351 form i.e., by publication within the country in such media as generally adopted to notify to all persons concerned the making of the rules." Having regard to the nature and pur pose of the power for rectification of the electoral roll by the Electoral Registration Officer, the principle enunciated in the abovementioned cases must be held to be applicable.
We accordingly hold that in the eye of law the electoral roll in question was not modified by the inclusion of the names of the nominated members before 8.55 p.m. on 3.6.1988.
We, therefore, affirm the decision of the High Court and dismiss the appeal with costs.
R.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant contested the election to the Karnataka State Legislative Council from the Chitradurga Local Author ities Constituency, comprising 121 Mandal Panchayats.
The last date and time fixed for receiving nomination papers was 3.00 p.m. on 3.6.1988.
and revision, if any, of the elector al roll had to be completed before that time.
The polling took place on 3.7.1988 and the appellant was declared as the successful candidate.
Earlier, a decision had been taken by the Chitradurga Zilla Parishad on 28.5.1988 to nominate two members from each Mandal Panchayat, that is, a total number of 242 mem bers.
With a view to complete the nomination, the Deputy Commissioner took the necessary steps in accordance with the Karnataka Zila Parishads, Taluk Panchayat Samithis, Mandal panchayats and Nyaya Panchayats Act, 1983, read with the rules framed thereunder, and sent out the names for affixing the same on the notice boards of the office of the concerned Tehsildar and Mandal Panchayat and in the Chavadis.
On his satisfaction that the publication of 2/3rd of the total number of the names was complete, the Deputy Commissioner was free to proceed further and to revise the electoral roll under the Representation of the People Act, 1950 by includ ing all the nominated members.
In this regard, in his writ ten statement before the High Court the Deputy Commissioner stated that the electoral roll had been up dated and a copy pasted in the office on 3.6.1988 at 8.55 p.m. Sub section (1) of section 40 of the Parishads Act made it abundantly clear that a nominated person became the member of a 337 Panchayat only on the publication of his name under section 5(9) of the Parishads Act read with rule 73 of the Parishads Rules.
A petition was filed in the High Court challenging the appellant 's election on the ground that the inclusion of the 242 nominated members in the electoral roll took place after the period for nomination was over and they were, therefore, not included in the electoral roll in the eye of law.
After examining the evidence led by the parties the High Court held that the names were not included in the electoral roll by 3.00 p.m. on 3.6.1988.
Accordingly, the High Court set aside the election of the appellant and directed recount of votes after excluding those of 242 members.
Before this Court in appeal it was inter alia contended on behalf of the appellant that (i) the evidence on the record established that information of the publication of the names of more than 2/3rd of the total number of nominat ed persons had reached the Deputy Commissioner in time for the amendment of the Council Constituency roll, and that the Deputy Commissioner had actually made an order for the inclusion of the names in the roll on 2.6.1988 (ii) putting the final voters list on the notice board was not a neces sary requirement under the law; and (iii) since the burden was on the election petitioner to prove such facts which may vitiate the election, he must fail in the present state of evidence.
On behalf of the respondents it was contended that the electoral roll must be held to have been modified in the eye of law only at 8.55 p.m. on 3.6.1988 when the alleged inclu sion of the names was made public and not earlier.
Dismissing the appeal, this Court, HELD: (1) A plain reading of the evidence suggests that both the up dating of the electoral roll and pasting a copy thereof took place on 3.8.1988 at 8.55 p.m. [346G] (2) The circumstances that (i) the Deputy Commissioner was not able to assert in his evidence before the Court that the revision of the roll had taken place before 3.00 p.m.; (ii) he was under an impression that the revision was per missible till the midnight; and (iii) in spite of the docu ments available to him he was not in a position to assert that the 338 report of publication of the names of 2/3rd or more of the nominated persons in the offices of the Mandal Panchayats had been received in his office before the deadline, strong ly support the case of the election petitioner.
[346H; 347A] (3) Besides fixing the identity of the persons to be allowed to vote at the election, the purpose of the prepara tion of the roll is to enable the persons included therein to decide as to whether they would like to contest the election and to help such persons in assessing their chances of success.
[348F] (4) The intending contestants and their supporters thus heavily depend upon the final electoral roll for deciding their future conduct, and it is, therefore, extremely essen tial that it is made available to them before the expiry of the period fixed for filing the nomination papers.
[348G] (5) If the roll as it stood earlier, was confidentially corrected by the Electoral Registration Officer concerned sitting in his office which did not see the light of the day, the same cannot be considered to have been prepared accordingly to law.
[348H] Bachhittar Singh vs The State of Punjab, [1962] Supp. 3 SCR 713, referred to.
(6) It is correct that putting the final voters list on the notice board is not a necessary requirement under the law.
But that does not lead to the further conclusion that the electoral roll can be prepared secretly and kept in the drawers of the Officer without any information knowledge to persons who are interested in finding out its final shape.
[349B] S.K. Srinivasan and others vs State of Karnataka and Others, , referred to.
(7) The Acts of the legislature are passed by the ac credited representatives of the people who in theory can be trusted to see that their constituents know what has been done, and this is done only after debates take place which are open to the public.
The matter thus receives wide pub licity through the media.
But the case is different with the delegated legislation and, if one may add, also in the case of orders passed by the authorities like that in the present appeal.
The mode of publication can vary but there must be reasonable publication of some sort.
[349H; 350A B] 339 Harla vs State of Rajasthan, ; ; Fatma Haji Ali Mohammad Haji vs State of Bombay, ; ; State of Maharashtra vs Mayer Hans George, ; and Johnson vs Sargant & Sons, , referred to.


judgement:
Civil Appeal No. 633 of 1991.
From the Judgment and Order dated 1.8.1989 of the Himachal Pradesh High Court in F.A.0.
(H.M.A.) No. 28 of 1989.
Dhruv Mehta, Aman Vachher and S.K. Mehta for the Appellant.
Subhagmal Jain and H.K. Puri for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special Leave granted.
This appeal from a decision of the Himachal Pradesh High Court concerns the validity of a decree of dissolution of marriage by mutual consent, and is said, probably rightly, to raise an important issue.
The issue is whether a party to a petition for divorce by mutual consent under Section 13B of the ( 'Act ') can unilaterally withdraw the consent or whether the consent once given is irrevocable.
The appellant is the wife of the respondent.
They were married on 21 November 1968.
They lived together for about six to seven 277 months.
Thereafter, it is said that the wife did not stay with the husband except from 9 December 1984 to 7 January 1985.
That was pursuant to an order of the Court, but it seems that they did not live like husband and wife during that period also.
On 8 January 1985, both of them came to Hamirpur.
The wife was accompanied by her counsel, Shri Madan Rattan.
After about an hour discussion, they moved a petition under Section 13 B for divorce by mutual consent in the District Court at Hamirpur.
On 9 January 1985, the Court recorded statements of the parties and left the matter there.
On 15th January 1985, the wife filed an application in the Court, inter alia, stating that her statement dated 9 January 1985 was obtained under pressure and threat of the husband and she was not even allowed to see or meet her relations to consult them before filing the petition for divorce.
Nor they were permitted to accompany her to the Court.
She said that she would not be party to the petition and prayed for its dismissal.
The District Judge made certain orders which were taken up in appeal before the High Court and the High Court remanded the matter to the District Judge for fresh disposal.
Ultimately, the District Judge dismissed the petition for divorce.
But upon appeal the High Court has reversed the order of the District Judge and granted a decree for dissolution of the marriage by mutual consent.
The High Court has observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free.
The High Court also recorded a finding that the wife gave her consent to the petition without any force, fraud or undue influence and therefore she was bound by that consent.
Section 13 B was not there in the original .
It was introduced by the Amending 68 of 1976.
Section 13 B provides: 13 B(l) Subject to the provisions of the a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
278 (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
" It is also necessary to read Section 23(l)(bb): 23(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that (bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and . ." Section 13 B is in pari materia with Section 28 of the .
Sub section (1) of Section 13 B requires that the petition for divorce by mutual consent must be presented to the Court jointly by both the parties.
Similarly, sub section (2) providing for the motion before the Court for hearing of the petition should also be by both the parties.
There are three other requirements in sub section (1).
There are: (i) They have been living separately for a period of one year.
(ii) They have not been able to live together, and (iii) They have mutually agreed that marriage should be dissolved.
The 'living separately ' for a period of one year should be immediately preceding the presentation of the petition.
It is necessary that immediately preceding the presentation of petition, the parties must have been living separately.
The expression 'living separately ', connotes to our mind not living like husband and wife.
It has no reference to the place of living.
The parties may live under the same roof by force of circumstances, and yet they may not be living as 279 husband and wife.
The parties may be living in different houses and yet they could live as husband and wife.
What seems to be necessary is that they have no desire to perform marital obligations and with that attitude they have been living separately for a period of one year immediately preceding the presentation of the petition.
The second requirement that they 'have not been able to live together ' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves.
The third requirement is that they have mutually agreed that the marriage should be dissolved.
Under sub section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date.
This motion enables the Court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence.
The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true.
If the Court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce.
The question with which we are concerned is whether it is open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to the petition.
The need for a detailed study on the question has arisen because of the fact that the High Courts do not speak with one voice on this aspect.
The Bombay High Court in Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe, AIR 1984 Bom.
302, has expressed the view that the crucial time for the consent for divorce under Section 13 B was the time when the petition was filed.
If the consent was voluntarily given it would not be possible for any party to nullify the petition by withdrawing the consent.
The court has drawn support to this conclusion from the principle underlying Order XXIII Rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more plaintiffs, such a suit or a part of a claim cannot be abandoned or withdrawn by one of the plaintiffs or one of the parties to the suit.
The High Court of Delhi adopted similar line of reasoning in Smt.
Chander Kanta vs Hans Kumar and Anr., AIR 1989 Delhi 73 and the Madhya Pradesh High Court in Meena Dutta vs Anirudh Dutta, [1984] 11 DMC 388 also took a similar view 280 But the Kerala High Court in K.L Mohanan vs Jeejabai, AIR 1988 Kerala 28 and the Punjab and Haryana High Court in Harcharan Kaur vs Nachhattar Singh, AIR 1988 Punjab & Haryana 27 and Rajasthan High Court in Santosh Kumari vs Virendra Kumar, AIR have taken a contrary view.
It has been inter alia, held that it is open to one of the spouses to withdraw the consent given to the petition at any time before the Court passes a decree for divorce.
The satisfaction of the Court after holding an inquiry about the genuineness of the consent, necessarily contemplates an opportunity for either of the spouses to withdraw the consent.
The Kerala High Court in particular has ruled out the application of analogy under Order XXIII Rule I of the Code of Civil Procedure since it is dissimilar to the situation arising under Section 13 B of the Act.
From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce.
There is a period of waiting from 6 to 18 months.
This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends.
In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition.
The spouse may not be party to the joint motion under sub section (2).
There is nothing in the Section which prevents such course.
The Section does not provide that if there is a change of mind it should not be by one party alone, but by both.
The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree.
This approach appears to be untenable.
At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties.
They know that they have to take a further step to snap marital ties.
Sub section (2) of Section 13 B is clear on this point.
It provides that "on the motion of both the parties . if the petition is not withdrawn in the meantime, the Court shall pass a decree of divorce What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce.
Secondly, the Court shall be satisfied about the bonafides and the consent of the parties.
If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce.
If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other.
Such a decree cannot be regarded as decree by mutual consent.
281 Sub section (2) requires the Court to hear the parties which means both the parties.
If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent.
If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutualitly and consent for divorce.
Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13 B. Mutual consent should continue till the divorce decree is passed.
It is a positive requirement for the court to pass a decree of divorce.
"The consent must continue to decree nisi and must be valid subsisting consent when the case is heard".
[See (i) Halsbury Laws of England, Fourth Edition Vol.
13 para 645; (ii) Rayden on Divorce, 12th Ed.
1 p. 291 and (iii) Beales vs Beales, [ at 674].
In our view, the interpretation given to the section by the High Courts of Kerala, Punjab & Haryana and Rajasthan in the aforesaid decisions appears to be correct and we affirm that view.
The decisions of the High Courts of Bombay, Delhi and Madhya Pradesh (supra) cannot be said to have laid down the law correctly and they stand overruled.
In the result, we allow the appeal and set aside the decree for dissolution of the marriage.
In the circumstances of the case, however, we make on order as to costs.
T.N.A. Appeal allowed.

summary/full:
The appellant wife and the respondent husband filed a petition under section 13 B of the for divorce by mutual consent in the District Court and their statements were recorded.
Subsequently, the appellant filed an application in the Court for dismissal of the petition stating that she was not willing to be a party to the petition and that her statement was obtained under threat and pressure of husband.
The District Judge dismissed the petition but on appeal the High Court reversed the order of the District Judge and granted a decree of divorce by holding that the consent to a petition for divorce by mutual consent cannot be unilaterally withdrawn and such a withdrawal would not take away the jurisdiction of the Court, if the consent was otherwise free; and since the wife 's consent was without any force, fraud or undue influence she was bound by the consent.
Hence this appeal by the wife.
Allowing the appeal and setting aside the decree of divorce, this Court, HELD: 1.
An analysis of Section 13 B makes it apparent that the filing of the petition under section 13 B(l) with mutual consent does not authorise the Court to make a decree for divorce.
The parties are required to make a joint motion under sub section (2) which should not be earlier than six months after the date of presentation of the petition 275 and not later than 18 months after the said date.
This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence.
The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true.
If the Court is satisfied that the consent of the parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce.
[280D, 279C D] 2.
The period of waiting from 6 to 18 months referred to in section 13 B(2) is intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends.
In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition i.e. it may not be a party to the joint motion under sub section (2).
This sub section requires the court to hear the Parties which means both the parties, But the section does not provide that if there is a change of mind it should not be by one Party alone, but by both.
Therefore, if one of the parties at that stage withdraws its consent the Court cannot pass a decree of divorce by mutual consent.
If the Court is held to have the power to make a decree solely based on the initial petition it negates the whole idea of mutuality and consent for divorce.
Mutua consent to the divorce is a sine qua non for passing a decree for divorce under section 13 B. Mutual consent should continue till the divorce decree is Passed.
it is a positive requirement for the Court to Pass a decree of divorce.
[280D, 281A.B] K.I. Mohanan vs Jeejabai, A.I.R. 1988 Ker. 28; Harcharan Kaur vs Nachhattar Singh, A.I.R. 1988 P & H. 27 and Santosh Kumari vs Virendra Kumar, A.I.R. ; approved.
Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe, A.I.R. 1984 Bom.
302; Smt.
Chander Kanta vs Hans Kumar and Anr., A.I.R. 1989 De. 4 73; and Meena Dutta vs Anirudh Dutta, 1984 11 DMC 388 (MP); overruled.
Halsbury Laws of England, 4th Edn.
13 para 645; Rayden on Divorce, 12 Edn Vol 1 p. 291 and Beales vs Beales, ; referred to.
Section 13 B of the is in para materia with 276 Section 28 of the .
Sub Section (1) of section 13 B requires that the petition for divorce by mutual consent must be presented to the Court jointly by both the parties.
There are three other requirements in sub section (1).
Firstly, it is necessary that immediately preceding the presentation of the petition the parties must have been living separately for a period of one year or more.
The expression 'living separately ' connotes not living like husband and wife.
It has no reference to the place of living.
The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife.
The parties may be living in different houses and yet they could live as husband and wife.
What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition.
The second requirement is that they 'have not been able to live together ' which indicates the concept of broken down marriage and it would not be possible to reconcile themselves.
The third requirement is that they have mutually agreed that the marriage should be dissolved.
[278E H, 279A B]


judgement:
ivil Appeal No. 1484 of 1974.
From the Judgment and Decree dated 26.4.1974 of the Jammu & Kashmir High Court in Civil Second Appeal No. 4 of 1973.
A.K. Sen, E.C. Agrawala, Ms. Purnima Bhat, Atul Sharma and A. V. Palli for the Appellant.
S.K. Bhattacharya (NP) for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Hazrat Baba Ibrahim, a Saint, lived in the area called Rakhbahu in the city of Jammu.
After his demise in the year 1872 his grave became a place of worship for those who had faith in him.
The place was called Ziarat Hazrat Baba Ibrahim (hereinafter called "the Ziarat").
The Ziarat was managed by Sain Ladha, a nephew of Baba Hazrat Ibrahim After Sain Ladha 's death his son Mian Lal Din succeeded him.
At present the Ziarat is being managed by the sons of Mian Lal Din who died in the year 1963.
The Jammu & Kashmir Muslim Wakf Act came into force in the year 1959 (hereinafter called "the Act") whereunder a committee of muslim Wakf (hereinafter called "the Committee") has been incorporated.
The Committee filed a suit against Anayatullah and eight others (sons of Mian Lal Din) restraining them from alienating, raising construction or recovering the rent from the Wakf land in dispute vested in the Ziarat.
According to the plaintiff, the Government of Jammu & Kashmir vide two orders dated September, 22, 1955 and November, 29, 1958 granted land measuring 3 acres and 6 acres 2 kanals 6 Marlas respectively to the Ziarat.
It was alleged that the defendants were treating the property to be their personal property.
They were mismanaging and also alienating the same.
The defendants in their written statement resisted the suit on a number of grounds and 256 stated that the land in dispute was transferred by the Government in favour of their father in lieu of his possessory right over about 400/500 Kanals of land which was taken over by the Government.
It was further claimed that the land was the absolute property of their father and the same has devolved upon the defendants by succession.
It was further claimed that notwithstanding the word "Ziarat" in the Government Orders the grants were in favour of the defendants father in his personal capacity.
The transfer of the land was not in the form of any dedication and as such was not a property of the Ziarat.
The defendants claimed the right to deal with the property in any manner they liked on the ground that the same belonged to them.
The Trial Court by its Judgment dated August 6, 1970 came to the conclusion that the two grants by the State Government were in fact made in favour of Mian Lal Din and not in favour of the Ziarat.
The suit of the committee was dismissed with costs.
The District Judge, Jammu by his Judgment dated February 28, 1973 upheld the findings of the Trial Court and dismissed the appeal of the committee.
The committee went up in second appeal before the Jammu & Kashmir High Court.
Murtaza Fazal Ali, C.J. (as the learned Judge then was) by his judgment dated April 26, 1974 set aside the judgments of the courts below and allowed the appeal of the committee.
The Learned Chief Justice decreed the plaintiff 's suit for injunction as prayed for.
This appeal via Special Leave Petition is against the judgment of the High Court.
Mr. Ashok Sen, learned counsel appearing for the appellant has taken us through the judgment of the Trial Court and that of the Lower Appellate Court.
According to him, the High Court has erred in upsetting the findings of the courts below based on appreciation of evidence.
Mr. Sen contended that the appellant 's ancestors were in possession of ' more than 140 Kanals of land for a very long period and had established possessory title over the said land.
According to him, the Government took over the said land from the father of defendants and in lieu of that two grants in the years 1955 and 1958 were given to Mian Lal Din in his personal capacity.
It was contended that on appreciation of the evidence produced before the Trial Court the courts below found as a fact that the defendants were the owners of the property subject matter of the Government grants and as such the High Court acted illegally in upsetting the same.
The learned counsel relied upon the following findings of the Lower Appellate Court in support of his contention: 257 "As discussed above, the possession of the defendants and their father and grand father and Hazrat Baba Ibrahim over 40 kanals of land as Arak and about 100 kanals of land under cultivation is proved, and it is further proved from the Government order Ext.
D.A./4 refusing the recommendation of the Financial Commissioner that the basis for the grant of proprietary rights in respect of 74 kanals of land was the personal possession of the father of the defendants and his predecessors and it was in lieu of the possession of that chunk of land that the Government parted with 74 kanals of land.
The counsel for the plaintiff has further argued that because the Government orders of 1955 and 1958 mentions the word "Ziarat" as the grantee it is not permissible for the Civil Court to hold that the grant was in favour of the father of the defendants.
Keeping in view the back ground as discussed above, I am unable to agree with the contention of the learned counsel for the plaintiff.
The mere fact that Mian Lal Din was associated with the Ziarat as a descendant of Hazrat Baba Ibrahim Sahib and the mere fact that the word "Ziarat" was used in the Government orders of 1955 and 1958 would not preclude this Court from holding that the grant was not in favour of the Ziarat but was in fact in favour of the father of the defendants.
The contents of the Government orders of 1955 and 1958 referred to above are to be considered with the facts that Mian Lal Din and his ancestor possessed the land in their individual capacity; that the Government repelled the claim of Mian Lal Din for additional grant of land on the simple ground that the land already granted to him was costlier than the land which he held in possession; that there was no intention on the part of the Government to dedicate the land to the Ziarat out of any pious intention; that it was a sort of bargain between Mian Lal Din, the father of the Defendants and the Government where under the land measuring 74 kanals was parted within the proprietary rights by the Government in consideration of Lal Din 's having abandoned possession of over 400 kanals Of land; the fact that the Committee plaintiff also treated the grant in favour of Lal Din as is evident from Ext.
PD also supports my view.
The fact that the defendants and their father leased out a part of the property on a long lease to third parties, the fact that the defendants got compensation for a portion of the land acquired by the Government; the fact that there was no claim laid to the land by the Wakf 258 Committee upto the year 1966 even when the Government orders were passed in 1955 and 1958, the fact that no demand was ever made from Lal Din to render accounts in respect of the income specially derived by him from the suitland, the fact that a large number of shops, khokhas and buildings have been constructed by the defendants (assuming that one room was constructed by the Wakf Committee) also is determinative of the fact that the transfer was infact made in favour of Lal Din and not in favour of the Ziarat as such.
" It is not disputed that the property which is subject matter of the dispute was granted by the State Government under the two orders dated September 22, 1955 and November, 29, 1958.
The respondent plaintiff claims that the grant was in favour of the Ziarat whereas the appellant defendants claim that the property was given to the father of the defendants absolutely and in his personal capacity.
The two documents of title by which the grant was made may now be referred to.
The Government order dated September 22, 1955 is as under: "It is ordered that 3 acres of land of Rakhbahu of the Rakhs and Farms Deptt.
surrounding the Ziarat Shareef of Baba ibrahim Shah be granted to the said Ziarat e Shareef permanently.
By order of the Cabinet.
Sd/ (G.M. Bakshi) Prime Minister".
The Government order dated November, 1958 runs thus; "(1) The confirmation of the action taken by the Prime Minister in granting land measuring 6 acres 2 kanals and 6 marlas to Ziarat Shareef Baba Ibrahim Shah Sahib at Ghandi Nagar Jammu and (2) The grant of compensation amounting to Rs. 12,500 by debit to Housing grant in favour of the said Ziarat for 12.5 kanals of land @ Rs. 1000 per kanal, taken over by the Public Works Department for development of Gandhi Nagar out of the area of 3 acres sanctioned vide Cabinet Order No. 1418 C dated 20.9.55.
By order of the Jammu and Kashmir Government Sd/ Noor Mohd Secretary to Government" 259 The above quoted orders of the Government are absolutely clear and unambiguous and can admit one and only one interpretation that the Government intended to grant the land to Ziarat alone and not to the appellant defendants in their personal capacity.
In fact the names of the appellants defendants or their ancestors are not even mentioned in the two orders.
The High Court interpreted the above quoted two orders as under: " The order of 1955 specifically stated that the lands in Rakhbahu surrounding the Ziarat Shared of Baba Ibrahim Shah be granted to the said Ziarat permanently.
The later order of 1958 also says the same thing.
It is nowhere mentioned in any of these orders that the land was given not to the Ziarat but to the defendant who was Mujawar of the Ziarat either in his personal capacity or in lieu of compensation for his personal lands acquired by the Government.
Since the recitals in the documents are absolutely clear and are expressed in unmistakable terms, there is no room for adducing evidence adduced to contradict the recitals of these two documents.
Thus the evidence adduced by the defendants to show that the grant was made not to the Ziarat but to them is clearly hit by sections 91 and 92 of the Evidence Act and is, therefore, inadmissible.
Further more the grant was made in 1955 and 1958, that is to say several years before and the Government has not come forward after such a long lapse of time to support the stand of the defendants that the grant was intended for them in their personal capacity and not for the Ziarat.
I fail to understand how in face of such clear recitals in the documents the courts below have by a process of evisceration and interpolation construed the documents to means as if it was a grant in favour of the defendants.
The courts below appear to have been influenced by the fact that when the defendants represented to the Government that the lands in their cultivating possession had been taken over by the Government without paying compensation, some Government Officers replied that a substantial grant of land had been made to the Ziarat.
This obviously was a wrong stand taken by the Government Officers and could not clothe the defendants with the right of wiping out the legal validity of the grant made year before the officers gave this reply.
Indeed the remedy of the defendants was to sue for damages or for compensation for, the land unlawfully acquired by the Government.
There was no justification for the 260 defendants to cast their covetous eyes on the property of the Ziarat, taking advantage of their possession over the same which was an managers or trustees and asset a hostile title to it.
The law on the subject is absolutely clear that a manager or a trustee in possession of a religious shrine cannot be allowed to asset a hostile title unless he formally surrenders possession to the lawful authority.
Before going into this point of law at some length it may be necessary to refer to certain proved facts in the case: (1) It is not disputed that the present Ziarat existed since a long time and became a Wakf by long public user.
(2) That the first defendant was the Sajadanashin or caretaker of the Ziarat.
(3) That the land belonged to the Government originally.
(4) That the Government granted the land in dispute to the Ziarat and not to the defendants.
(5) That the defendants were admittedly in possession of the Ziarat as also the properties appurtenant thereto.
In these circumstances it is clear that even if the defendants were in possession of the lands, their possession would have to be referable to a lawful title and cannot be treated to be adverse to the Ziarat.
In other words the possession of the defendants would be for the benefit of the Ziarat.
We agree with the above quoted findings of ' the High Court and approve the same.
We do not agree with the argument of Mr. Ashok Sen that the High Court was in error in upsetting the findings of the courts below.
The question before the High Court was the interpretation of two government orders which was essentially a question of law.
The High Court was justified in observing that in the face of clear and unambiguous terms of the Government orders it was not permissible for the appellant defendants to adduce evidence to show that the grant was made to them and not to the Ziarat.
No other point was raised before us.
We, therefore, dismiss the appeal.
The respondent plaintiff shall be entitled to costs throughout which we quantify as Rs. 15,000.
N. P. V. Appeal dismissed.

summary/full:
The Ziarat Shareef of Hazrat Baba Ibrahim, a holy place of worship, in the Rakhbahu area of Jammu City was granted certain land to the Ziarat by the State Government vide two orders dated September 22, 1955 and November 29, 1958.
The Ziarat was being managed by the 1st appellant and his brothers, since the death of their father in 1963.
The Committee of Muslim Wakf, incorporated under the Jammu and Kashmir Muslim Wakf Act, which came into force in 1959, file a suit for restraining them from alienating, raising construction or recovering the rent from the Wakf land in dispute vested in the Ziarat, on the allegation that the appellants defendants were treating the lands granted to the Ziarat, as their personal property and mismanaging and also alienating the same.
Resisting the suit, the appellants, defendants contended, inter alia, that notwithstanding the use of the word "Ziarat" in the two Government orders the transfer of the land in dispute was in their father 's favour in his personal capacity, in lieu of his possessory right over about 400/500 kanals of land which was taken over by the Government, and not in the form of any dedication, and as such the land was not the property of the Ziarat but their father 's absolute property, and had devolved upon them by succession and, therefore, they had the right to deal with the property in any manner they liked.
The trial court dismissed the suit, holding that the two grants were in fact made in favour of defendants ' father and not the Ziarat.
254 The first appellate court upheld the trial court 's findings.
However, in second appeal, the High Court held that from the recitals of the two orders of the Government of 1955 and 1958 it was clear that the two grants were in favour of the Ziarat.
Hence, the appellants defendants filed the appeal, by special leave before this Court contending that the High Court had erred in upsetting the findings of the courts below, based on appreciation of the evidence that, as a fact, the appellants defendants were the owners of the property, the subject matter of the Government grants.
Dismissing the appeal, the Court, HELD: 1.1 The two orders of the Government dated September 22, 1955 and November 29, 1958 are absolutely clear and unambiguous and can admit one and only one interpretation that the Government intended to grant the land to the Ziarat alone and not to the appellants defendants in their personal capacity.
In fact the names of the appellants defendants or their ancestors are not even mentioned in the two orders.
The order of 1955 specifically stated that the lands in Rakhbahu surrounding the Ziarat Shareef of Baba Ibrahim Shah be granted to the said Ziarat permanently.
The later order of 1958 also says the same thing.
It is nowhere mentioned in any of those orders that the land was given not to the Ziarat but to the father of the appellants defendants, who was Majawar of the Ziarat, either in his personal capacity or in lieu of compensation for his personal lands acquired by the Government.
[259A, B C] 1.2 A manager or a trustee in possession of a religious shrine cannot be allowed to assert a hostile title unless he formally surrenders possession to the lawful authority.
[260B] In the instant case, there was no justification for the appellants defendants to cast their covetous eyes on the property of the Ziarat, taking advantage of their possession over the same, which was as managers or trustees and assert a hostile title to it.
Even if they were in possession of the lands, it would have to be referable to a lawful title and cannot be treated to be adverse to the Ziarat.
In other words, the possession would be for.
the benefit of the Ziarat.
[259H, 260A, E] 1.3 In the face of clear and unambiguous terms of the Government orders, it was not permissible for the appellants defendants to adduce evidence to show that the grant was made to them and not to the 255 Ziarat.
The question was of interpretation of two Government orders, which was essentially a question of law.
[260G] In the circumstances, the High Court was not in error in upsetting the findings of the courts below.
[260F]