judgement:
Civil Appeal Nos.
1775 1975 (E), 2736 (E) of 1981.
From the Judgment and Order dated the 10th July, 1981 of the Allahabad High Court (Lucknow Bench) in Election Petition No. 7 of 1980.
M. C. Bhandare, T. Sridharan, Ms. section Bhandare and Ms. Sucharita for the Appellant in CA.
1775/81.
Dr. Y. section Chitale and Ms. A. Subhashini for the Appellant in CA.
No. 1975 of 1981.
Mrs. section Dixit for the Appellant in CA.
2736 of 1981.
Hari Shankar Jain and Mr. K.K. Gupta, for the Respondent.
At the conclusion of the hearing of the above appeals on November 16, 1983, we pronounced the following order: "Heard counsel for the parties.
The appeals are allowed and the order of the High Court is set aside without any order as to costs.
" We now give our reasons.
944 Two questions arise for consideration in these three appeals which are filed against the judgment and order dated July 10, 1981 of the High Court of Allahabad in Election Petition No. 7 of 1980.
They are: 1.
Whether the Secretary of a State Legislative Assembly is not qualified to be appointed as the Returning Officer at an election held to fill a seat in the Rajya Sabha ? 2.
Whether a person elected as a member of a Legislative Assembly but who has not made and subscribed the prescribed oath or affirmation as required by Article 188 of the Constitution can validly propose a person as a candidate at an election held for filling a seat in the Rajya Sabha ? In February, 1980 the Legislative Assembly or the State of Uttar Pradesh was dissolved by the President by issuing a notification under Article 356 of the Constitution.
A notification was issued by the Governor of Uttar Pradesh under section 15 (2) of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act ') in April, 1980 calling upon all the Assembly constituencies in Uttar Pradesh to elect members to the Legislative Assembly.
After the results of the elections in all the constituencies held pursuant to the said notification were declared, the Election Commission of India issued a notification containing the names of the members elected for the said constituencies as required by section 73 of the Act on June 9, 1980.
The elected members were notified that they could take the oath as required by Article 188 of the Constitution at the session of the Legislative Assembly which had been summoned to meet on June 27, 1980 and on subsequent days.
In the meanwhile on June 17, 1980, the Election Commission issued a notification calling upon the elected members of the Uttar Pradesh Legislative Assembly to elect a person for the purpose of filling a vacancy in the Rajya Sabha.
By that notification, the Election Commission fixed the following programme for the purpose of the said election: (a) 24.6.1980 as the last date for making nomination.
(b) 25.6.1980 as the date for scrutiny of the nomination papers (c) 27.6.1980 as the last date for withdrawal of candidature.
945 (d) 4.7.1980 as the date on which a poll, if necessary, would be taken.
(e) 7.7.1980 as the date before which the election had to be completed.
Shri section P. Singh, Secretary of the Uttar Pradesh Legislative Assembly was appointed as the Returning Officer and Shri Uma Shankar, Joint Secretary as the Assistant Returning Officer for conducting the aforesaid election.
Pashupati Nath Sukul, the appellant in Civil Appeal No. 1775 of 1981 (hereinafter referred to as 'the appellant ') and Nem Chandra Jain, respondent No. 1 were nominated as the candidates at that election.
At the time of scrutiny, respondent No. 1 filed objections to the nomination of the appellant raising two grounds (1) that the appellant was disqualified as he was a Government servant and (2) that the proposer of the candidature of the appellant was not qualified to propose his candidature as he had not yet taken the oath as required by Article 188 of the Constitution.
The appellant pleaded that as he had retired voluntarily from the Government service he was not disqualified for being chosen as a member of the Rajya Sabha and that the proposer of his candidature was an elected member of the Legislative Assembly who was competent to make the proposal even though he had not taken the oath as provided in Article 188 of the Constitution.
The Objections of respondent No. 1 were overruled and the nomination papers of both the appellant and respondent No. 1 were accepted by the Returning Officer.
At the poll which took place on July 4, 1980 the appellant secured 325 votes and respondent No. 1 got 41 votes.
Accordingly the appellant was declared to be elected as a member of the Rajya Sabha.
Aggrieved by the result of the election.
respondent No. 1 filed an election petition before the High Court calling in question the result of the election on various grounds and of them we are now concerned with two grounds only and they are (1) that as the Secretary of the Legislative Assembly was neither an officer of the Government nor of a local authority, he could not be appointed as the Returning Officer under section 21 of the Act and (2) that as the proposer of the nomination paper of the appellant had not made or subscribed the oath or affirmation as required by Article 188 of the Constitution on the date of the nomination, there was improper acceptance of the nomination of the appellant.
The appellant, the Election Commission of India, the State of Uttar Pradesh and Shri section P. 946 Singh, the Returning Officer were impleaded as respondents to the election petition.
The name of the Governor of Uttar Pradesh who had also been impleaded as a respondent was deleted by the order of the High Court.
The petition was contested by the appellant and others who had been impleaded as respondents in the election petition.
At the conclusion of the trial, the High Court set aside the election of the appellant on the following grounds viz. that Shri section P. Singh, Secretary, Legislative Assembly was not qualified to be appointed as the Returning Officer; that the proposal of the candidature of the appellant by a member of the Legislative Assembly who had not made and subscribed the oath or affirmation as required by Article 188 of the Constitution on the date of nomination was illegal and hence there was improper acceptance of the nomination of the appellant and that there was no valid electoral roll in force on the date of nomination.
Aggrieved by the judgment of the High Court, the appellant has preferred Civil Appeal No. 1775 of 1981, the Election Commission of India has filed Civil Appeal No. 1975 (E) of 1981 and the State of Uttar Pradesh has preferred Civil Appeal No. 2736 (E) of 1981.
All these three appeals are disposed of by this common judgment.
We shall first deal with the question whether the Secretary of the Legislative Assembly was not qualified to be appointed as the Returning Officer for the election.
Section 21 of the Act which deals with the appointment of Returning Officers reads thus: "21.
Returning Officers For every constituency, for every election to fill a seat or seats in the Council of States and for every election by the members of the Legislative Assembly of a State to fill a seat or seats in the Legislative Council of the State, the Election Commission shall, in consultation with the Government of the State, designate or nominate a returning officer who shall be an officer of Government or of a local authority: Provided that nothing in this section shall prevent the Election Commission from designating or nominating the same person to be the returning officer for more than one constituency." (Emphasis added).
947 The contention of respondent No. 1 which has been accepted by the High Court is that the Secretary of the Legislative Assembly being not an officer of Government or of a local authority he was not qualified to be appointed as the Returning Officer.
The argument is that 'Government ' in the expression 'an officer of Government ' used in section 21 of the Act means the Executive only and an officer of the Legislature is not, therefore, an officer of Government.
This case is an illustration of some legal problems solutions for which appear to be quite obvious but when an attempt is made to give reasons for such solutions one would be confronted with many difficulties though not insurmountable.
The expressions 'Government ' and 'an officer of Government ' are not defined in the Constitution or in the Act.
Article 367 of the Constitution provides that unless the context otherwise requires, the , shall, subject to any adaptations and modifications that may be made therein under Article 372 of the Constitution, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.
Section 3(23) of the defines 'Government ' as follows: "3(23) 'Government ' or 'the Government ' shall include both the Central Government and any State Government.
" The above definition is an inclusive definition and it suggests that there may be other organs of State which may be included within the meaning of the expression 'Government '.
The expressions 'Central Government ' and 'State Government ' are defined in section 3(8) and section 3(60) of the respectively.
These definitions are to be adopted unless there is anything in the context to the contrary.
A general review of the constitutional provisions shows various expressions used in it to describe the several organs of the State.
In of the Constitution the expressions 'the Union '. 'the States ' and 'the Union Territories ' are used.
In Article 12 of the Constitution, we find the expressions 'Government and Parliament of India ' and 'Government and the Legislature of each of the States ' suggesting that Government is different from the Union Legislature or the Legislatures of the States.
This is for purposes of Part III of the Constitution.
In Article 102(1)(a) and Article 191(1)(a) of the Constitution, the expressions 'the Government of India ' and 'the Government of any State ' are used and they provide that a person holding an office of profit under the 948 Government of India or a State Government is disqualified for being chosen as a member of Parliament or of a State Legislature respectively.
Article 98 and Article 187 of the Constitution provide for the appointment of separate secretariat staff of each House of Parliament and of the State Legislatures respectively.
Article 146 and Article 229 of the Constitution respectively deal with the appointment of officers and servants of the Supreme Court and of the High Courts.
Article 148(5) and Article 318 of the Constitution respectively deal with the conditions of service etc.
of the employees working in the office of the Comptroller and Auditor General of India and the Public Service Commissions.
Part XIV of the Constitution contains provisions relating to the services under the Union Government and the State Governments.
It contains Article 311 which guarantees certain rights which cannot be denied to the employees in the Legislature and in the Judiciary.
Dealing with the nature of the office held by the officers working in the High Court, who are governed by Article 229 of the Constitution this Court has observed in Pradyat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court(1) thus: "A close scrutiny of the terminology so used shows a marked departure in the language of article 320(3)(c) from that in articles 310 and 311.
Officers and members of the staff attached to a High Court clearly fall within the scope of the phrase "persons appointed to public services and posts in connection with the affairs of the State" and also of the phrase "a person who is a member of a civil service of a State" as used in articles 310 and 311.
The salaries of these persons are paid out of the State funds as appears from article 229(3) which provides that the administrative expenses of a High Court including all salaries, allowances and pensions payable to or in respect of officers and servants of the High Court, are chargeable upon the Consolidated Fund of a State.
The item relating to such administrative expenses has to from part of the annual financial statement to be presented to the State Legislative Assembly under article 202 and estimates thereof can form the subject matter of the discussion in the Legislature under article 203(1).
They must, therefore, be taken "to hold posts in connection with the affairs of the State and to be members of the civil service of the State".
949 Entry 5 of List II of the Seventh Schedule to the Constitution relates to 'Local Government ' that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self government or village administration.
In each of these cases it becomes necessary to examine the relevant provisions of law applicable to it in order to determine whether the officers and staff of the various organs are officers of Government or not.
Before taking up such examination the meaning of the expression 'Government ' has to be ascertained.
A student of International Law understands by the expression 'State ' as a fully sovereign independent community residing in a specified territory with a legal capacity to enter into international relations and having the power to fulfil the obligations which the international law imposes on the family of nations.
It should also have been admitted or recognised as a State on a footing of equality with other States.
A State implies the existence of a community or group of people occupying a geographical area or territory in which they permanently reside possessing internal sovereignty and independence of foreign control and a political organisation or agency through which the collective will of the people is expressed and enforced.
The last of the elements of a State referred to above is generally called as a Government.
A student of Political Theory and Comparative Politics may describe a Government as a monarchical, republican, democratic or dictatorial depending upon its peculiar features.
It may be federal or unitary.
A political philosopher may describe a Government as imperial, colonial, capitalist or socialist.
The above list is not really exhaustive.
But these are only different forms of Government and Government ' here is used in a very broad sense.
From the legal point of view, Government may be described as the exercise of certain powers and the performance of certain duties by public authorities or officers, together with certain private persons or corporations exercising public functions.
The structure of the machinery of Government and the regulation of the powers and duties which belong to the different parts of this structure are defined by the law which also prescribes to some extent the mode in which these powers are to be exercised or these duties are to be performed (See Halsbury 's Laws of England, Fourth Edition, Vol. 8, Para 804).
Government generally connotes three estates, namely, the Legislature, the Executive and the Judiciary while it is true that in a narrow sense it is used to connote the Executive only.
The meaning to be assigned 950 to that expression, therefore, depends on the context in which it is used.
In our Constitution, which has a federal structure, there are both at the level of the Union and at the level of the States detailed provisions, pertaining to the Legislature, the Executive and the Judiciary.
All the three organs are concerned with the governance of the country one organ makes the laws, the second enforces them and the third interprets them though sometimes their functions may be overlapping.
In this sense all the three organs together constitute the Government at their respective level.
It is significant that the President is a part of parliament under Article 79 of the Constitution, the executive power of the Union is vested in him under Article 53 (1) of the Constitution and he appoints Judges of the Supreme Court under Article 124 (2) and he can issue an order removing a Judge of the Supreme Court under Article 124 (4) of the Constitution, of course, subject to the limitations contained therein.
At the level of the State too the position is analogous to the position at the level of the Union.
The Governor is a part of the Legislature of the State under Article 168(1) of the Constitution.
The executive power of the State is vested in him under Article 154(1) and he is consulted in the appointment of judges of the High Court.
While under Article 235 of the Constitution, the High Court is vested with the control over the Subordinate Judiciary of the State, in the case of dismissal or removal of a judicial officer in the Subordinate Judiciary of the Governor has to issue the order though on the recommendation made by the High Court.
A study of these provisions shows that there is no water tight compartment between the three major organs of the State.
The Comptroller and Auditor General of India though he is assigned an independent status is an officer under the Union Government.
(See Gurugobinda Basu vs Sankari Prasad Ghosal & Ors.) The Judges of the Supreme Court and of a High Court are not servants of Government but hold a constitutional office (vide Union of India vs Sankal Chand Himatlal Sheth & Anr.(2) and Hargovind Pant vs Dr. Raghukul Tilak & Ors.(3) But the Comptroller and Auditor General of India and the Judges of the Supreme Court and of a High Court are not eligible to contest elections to Parliament and the State Legislatures in view of Article 102(1)(a) and Article 191(1)(a) of the Constitution, as the case may 951 be, because they are serving in connection with the affairs of the Union (See Article 360(4)(b) of the Constitution) and are, therefore, holding offices of profit under the Central Government.
The position of a person who works as an officer of the Legislature of a State is also the same.
Even though he belongs under Article 187 of the Constitution to the staff of the State Legislature, he is still an officer of Government in the broad sense in which the expression 'Government ' is used in Article 102(1)(a) and Article 191(1)(a) of the Constitution.
If the expression 'Government ' used here is construed as meaning the Executive Government only, then it would defeat the very purpose of these provisions of the Constitution.
Similarly he has to be treated as an officer of Government for purposes of section 21 of the Act also qualified for being appointed as the Returning Officer for an election held under the Act.
It is not disputed that after the commencement of the Constitution, the Secretaries of the State Legislatures almost as a matter of rule are being appointed as Returning Officers for election to the Rajya Sabha and for election to the Legislative Councils of States and Parliament has not thought it fit to amend suitably, section 21 of the Act expressly including the officers of the State Legislatures amongst the persons qualified to be appointed as Returning Officers even though it has amended that section once by specifically including officers of local authorities.
Parliament all along has treated the Secretaries of the State Legislatures as officers of Government for purposes section 21 and has found it convenient to do so having regard to the nature of the work to be carried out by them.
It may be noted that even though Article 98 and Article 187 of the Constitution contemplate the establishment of a separate secretariat staff for each House of Parliament and of the State Legislature respectively, the salaries and allowances of the members of that staff are paid out of the Consolidated Fund of India or of the State, as the case may be after they are voted by the House or Houses concerned.
Their appointment and other conditions of service are regulated by Rules made by the President or the Governor, as the case may be, until appropriate law is made by Parliament or the State Legislature, as the case may be.
We are of the view that the word 'Government ' Article 102(1)(a) and in Article 191(1)(a) of the Constitution and the word 'Government ' in the expression 'an officer of Government ' in section 21 of the Act should be interpreted liberally so as to include within its scope the Legislature, the Executive and the Judiciary.
The High Court erred in equating the word 'Government ' occurring in section 21 of the Act to the Executive Government only and in further holding that the officers of the 952 State Legislature could not be treated as officers of Government for purposes of that section.
The finding of the High Court that the Secretary of the Uttar Pradesh State Legislature could not be appointed as the Returning Officer for the election to the Rajya Shaba is, therefore, unsustainable.
The second question to be considered is whether the nomination of the appellant was liable to be rejected on the ground that the proposer was not eligible to nominate a candidate as he had not made and subscribed the oath or affirmation as prescribed by Article 188 of the Constitution.
Section 33 of the Act prescribes the requirements for a valid nomination.
It provides that the nomination paper should be completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.
Clauses (d) and (e) of section 2(1) of the Act define the words 'election ' and 'elector ' respectively. 'Election ' means an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State other than the State of Jammu and Kashmir. 'Elector ' in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950).
Sub clause (b) of clause (1) of Article 80 of the Constitution states that the Council of States (the Rajya Sabha) shall in addition to twelve members nominated by the President under sub clause (a) thereof consist of not more than two hundred and thirtyeight representatives of the States and of the Union territories.
Clause (2) of Article 80 of the Constitution provides that the allocation of seats in the Council of States to be filled by representatives of the States and of the Union territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule to the Constitution.
Clause (4) of Article 80 provides that the representatives of each State in Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote.
Section 152 of the Act provides that the Returning Officer for on election by the elected members of the Legislative Assembly of a State to fill a seat or seats in the Council of States shall for the purposes of such election maintain in his office in the prescribed manner and from a list of elected members of that Legislative Assembly.
Clause (c) of sub rule (1) of Rule 2 of the 953 Conduct of Elections Rules, 1961 defines "election by assembly members" as an election to the Council of States by the elected members of the Legislative Assembly of a State or by the members of the electoral college of a Union territory or an election to the Legislative Council of a State by the members of the Legislative Assembly of a State.
Elector ' is defined by clause (d) of sub rule (1) of Rule 2 of the said Rules, in relation to an election by Assembly members as any person entitled to vote at that election.
In the present case, the notification containing the names of elected members of the Uttar Pradesh Legislative Assembly who participated at the election in question had been published under section 73 of the Act on June 9, 1980 and that the previous Legislative Assembly had been dissolved earlier in February, 1980.
This is not a case where general elections to the Legislative Assembly had been held before the normal tenure of the existing Legislative Assembly was over.
Section 73 of the Act which prescribes the publication of results of general elections reads thus: "73, Publication of results of general elections to the House of the People and the State Legislative Assemblies, Where a general election is held for the purpose of constituting a new House of the People or a new State Legislative Assembly, there shall be notified by the Election Commission in the Official Gazette as soon as may be after the results of the elections in all the constituencies (other than those in which the poll could not be taken for any reason on the date originally fixed under clause (d) of section 30 or for which the time for completion of the election has been extended under the provisions of section 153), have been declared by the returning officer under the provisions of section 53 or, as the case may be, section 66, the names of the members elected for those constituencies and upon the issue of such notification that House or Assembly shall be deemed to be duly constituted: Provided that the issue of such notification shall not be deemed (a) to preclude 954 (i) The taking of the poll and the completion of the election in any Parliamentary or Assembly constituency or constituencies in which the poll could not be taken for any reason on the date originally fixed under clause (d) of section 30; or (ii) the completion of the election in any Parliamentary or Assembly constituency or constituencies for which time has been extended under the provisions of section 53; or (b) to affect the duration of the House of the People or the State Legislative Assembly, if any, functioning immediately before the issue of the said notification." (emphasis added) On the publication of the notification on June 9, 1980 under section 73 of the Act in the instant case, the Assembly was deemed to be duly constituted.
Article 188 of the Constitution prescribes the oath to be taken or the affirmation to be made by every member of a Legislative Assembly or a Legislative Council.
It reads: "188.
Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
" Article 191 of the Constitution prescribes the disqualifications for membership of the Legislative Assembly or Legislative Council of a State.
On the incurring of any such disqualification a member of a Legislative Assembly or a Legislative Council ceases to be a member thereof.
Article 193 of the Constitution provides for the penalty for sitting and voting before making oath or affirmation under Article 188 of the Constitution or when not qualified or when disqualified the penalty being in respect of each day five hundred rupees to be recovered as a debt due to the State.
It does not say that if an elected member of a Legislative Assembly sits and votes before taking oath as prescribed by Article 188 of the Constitution he shall automatically cease to be a member of the House, even though it is possible that his seat maybe declared as vacant under Article 190(4) 955 of the Constitution if for sixty days he is absent from all meetings of the House without its permission.
Now the question is whether the making of oath or affirmation is a condition precedent for being eligible to act as a proposer of a valid nomination for election to the Rajya Sabha.
The rule contained in Article 193 of the Constitution, as stated earlier, is that a member elected to a Legislative Assembly cannot sit and vote in the House before making oath or affirmation.
The words `sitting and voting ' in Article 193 of the Constitution imply the summoning of the House under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting.
An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House.
Invariably there is an interval of time between the constitution of a House after a general election as provided by section 73 of the Act and the summoning of the first meeting of the House.
During that interval an elected member of the Assembly whose name appears in the notification issued under section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sahha.
That is the effect of section 73 of the Act which says that on the publication of the notification under it the House shall be deemed to have been constituted.
The election in question does not form a part of the Legislative proceedings of the House carried on at its meeting.
Nor the votes cast at such an election is a vote given in the House on any issue arising before the House.
The Speaker has no control over the election.
The election is held by the Returning Officer appointed for the purpose.
As mentioned earlier, under section 33 of the Act the nomination paper has to be presented to the Returning Officer between the hours of eleven o 'clock in the forenoon and three o 'clock in the afternoon before the last day notified for making nominations under section 30 of the Act.
Then all further steps such as scrutiny of nominations and withdrawal of nominations take place before the Returning Officer.
Rule 69 of the Conduct of Elections Rules, 1961 provides that at an election by Assembly members where a poll becomes necessary, the Returning Officer for such election shall, as soon as may be after the last date for the withdrawal of candidatures, send to each elector a notice informing him of the date, time and place fixed for polling.
Part VI of the Conduct of Elections Rules, 1961 which contains Rule 69 and Part VII thereof deal with the procedure to be followed at an election 956 by assembly members.
Rule 85 of the Conduct of Elections Rules, 1961 provides that as soon as may be after a candidate has been declared to be elected, the returning officer shall grant to such candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgement of its receipt duly signed by him and immediately send the acknowledgement by registered post to the Secretary of the Council of States or as the case may be, the Secretary of the Legislative Council.
All the steps taken in the course of the election thus fall outside the proceedings that take place at a meeting of the House.
We may here refer to the decision of the Calcutta High Court in Bhupendra Nath Basu vs Ranjit Singh.(1) The facts of that case were these.
An election was held on February 14, 1913 to the Legislative Council of the Governor General from the constituency consisting of the non official additional members of the Bengal Legislative Council each having two votes to fill two seats in the Legislative Council of the Governor General.
There were at that time thirty four non official additional members but two of them had not taken the oath of allegiance at the time of the election as prescribed by the Bengal Council Regulation VII.
At the election there were four candidates the plaintiff Bhupendra Nath Basu, the Ist defendant Maharaja Ranjit Singh, the 2nd defendant Surendra Nath Banerjee and Nawab Badruddin Haidar.
As a result of the poll the second defendant got 22 votes, the first defendant got 18 votes, the plaintiff 17 and Nawab Badruddin Haidar 11 votes.
Accordingly defendants 1 and 2 were declared elected to fill the two seats.
The plaintiff after being unsuccessful in his petition to the Governor General filed a suit before the High Court questioning the validity of the election.
He prayed that the votes should be recounted after excluding the votes cast by the two members who had not taken the oath of allegiance.
Regulation VII referred to above provided that every person elected nominated under the regulations should before taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown and Regulation VIII provided that if such a person "fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor in Council may consider reasonable, the Governor, shall by notification in the local Official Gazette declare the election or nomination to be void or his seat to be vacate".
Such a declaration had not been made on the date of the election.
957 The contention of the plaintiff was rejected by the High Court in the following terms: "Moreover, I am not satisfied that the view of the Government as to the taking of the oath of allegiance is not a correct one.
Doubtless the English cases that were referred to, the case of the Mayor of Penryn (1 Strange 582) and The King vs Swyer (1830) 10 B. & C. 486) have decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken.
That does not get rid of the difficulty that arises from these Regulations.
These Regulations constitute an electoral College of elected members of the Local Council to elect two persons to be members of the Council of His Excellency the Governor General.
I am not satisfied on the Regulations that the learned Advocate General has called my attention to, that when the electors have the right of giving their votes by means of registered letter, for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected a member of the electoral college.
It is only for the purpose of exercising the legislative functions conferred by the Regulations and by the Act that the oath of allegiance is required.
Moreover, as the Advocate General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat; under Regulation VIII of the Bengal Council Regulations, the discretion is given to the Governor as to his declaring a seat to be vacant if the person elected fails to take an oath of allegiance.
In my opinion, in this case the Rule fails and must be discharged, and discharged with costs.
We are of the view that an elected member who has not taken oath but whose name appears in the notification published under section 73 of the Act can take part in all non legislative activities of an elected member.
The right of voting at an election to the Rajya Sabha can also be exercised by him.
In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under section 73 of the Act 958 and in the electoral roll maintained under section 152 of the Act, it should be held that there was no infirmity in the nomination.
For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under section 73 of the Act cannot be held to be illegal.
That is how even respondent No. 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation.
The second contention also fails.
No other contention was pressed before us.
We are therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous.
In the result we allow the above appeals, set aside the judgment of the High Court and dismiss the election petition filled by respondent No. 1.
Having regard to the novelty of the question raised in this case the parties are directed to bear their own costs throughout.
N.V.K. Appeals allowed.

summary/full:
After the Legislative Assembly of the State was dissolved by the President elections were held and after the results were declared the Election Commission issued a notification containing the names of the members elected for the constituencies on June 9, 1980.
The elected members were notified that they could take the oath as required by article 188 of the Constitution at the session of the Legislative Assembly which had been summoned to meet on June 27, 1980 and on subsequent days.
In the meanwhile, on June 17, 1980 the Election Commission issued a notification calling upon the elected members of the state Legislative Assembly to elect a person for the purpose of filling a vacancy in the Rajya Sabha.
For conducting the election the Secretary and Joint Secretary of the State Legislative Assembly were appointed respectively as the Returning Officer and the Assistant Returning officer.
The appellant and respondent No. 1 in Civil Appeal No. 1775 of 1981 were nominated as the candidates at that election.
At the time of scrutiny, respondent No. 1 filed objections to the nomination of the appellant raising two grounds: (1) that the appellant was disqualified as he was a Government 940 servant, and (2) that the proposer though an elected member of the Assembly, was not qualified to propose the appellant 's candidature as he had not yet taken the oath under Article 188 of the Constitution.
The appellant contended that as he had retired voluntarily from Government service he was not disqualified for being chosen as a member of the Rajya Sabha and that the proposer being an elected member of the Legislative Assembly was competent to propose even though he had not taken the oath as provided in article 188.
Overruling the objections the nomination papers of the candidates were accepted.
In the election the appellant was declared elected as a member of the Rajya Sabha.
Respondent No. 1 therefore filed an election petition.
The High Court set aside the appellant 's election on the grounds : (1) that as the Secretary of the Legislative Assembly was neither an officer of the Government nor of a local authority, he could not be appointed as the Returning Officer under s.21, and (2) that the proposer of the nomination paper had not made or subscribed the oath or affirmation as required by Article 188 of the Constitution on the date of nomination and consequently there was improper acceptance of the nomination of the appellant.
The appellant, the Election Commission of India, and the State preferred Appeals to this Court.
Allowing the Appeals, ^ HELD : 1 (i) The word `Government ' in Article 102 (1)(a) and in Article 191 (1)(a) of the Constitution and the word `Government ' in the expression an officer of Government in section 21 of the Representation of the People Act, 1951 should be interpreted liberally so as to include within its scope the Legislature, the Executive and the Judiciary.
[951 G H] (ii) The finding of the High Court that the Secretary of the State Legislature could not be appointed as the Returning officer for the election to the Rajya Sabha is unsustainable.
[952 A] (iii) The expressions `Government ' and an officer of Government ' are not defined in the Constitution or in the Representation of the People Act 1951.
Article 367 of the Constitution provides that unless the context otherwise requires, the , shall subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation for the Constitution.
Section 3 (23) of the gives an inclusive definition of `Government ' and suggests that there may be other organs of State which may be included within the meaning of expression `Government ', The expressions `Central Government ' and `State Government ' are defined in section 3 (8) and section 3 (60).
A general review of the constitutional provisions shows various expressions used in it to describe the several organs of the State.
In the expressions `the Union '`the States ' and `the Union Territories ' are used.
In Article 12 the expressions `Government and 941 Parliament of India ' and 'Government and the Legislature of each of the States ' are found suggesting that Government is different from the Union Legislature or the Legislatures of the States.
This is for purposes of In Article 102 (1) (a) and Article 191 (1) (a) the expression 'the Government of India ' and 'Government of any state ' are used and they provide that a person holding an office of profit under the Government of India or a State Government is disqualified for being chosen as a member of Parliament or of a State Legislature respectively.
Article 98 and Article 187 provide for appointment of separate secretariat staff of each House of Parliament and of the State Legislatures respectively.
[947 C H; 948 A] (iv) After the commencement of the Constitution, the Secretaries of the State Legislatures almost as a matter of rule were being appointed as Returning Officers for election to the Rajya Sabha and for election to the Legislative Councils of States, and Parliament had not thought it fit to amend suitably, section 21 expressly including the officers of the State Legislatures amongst the persons qualified to be appointed as Returning officers even though it had been amended once by specifically including officers of local authorities.
Parliament all along had treated the Secretaries of the State Legislatures as officers of Government for purposes of section 21, and had found it convenient to do so [951 C E] (v) Even though Article 98 and Article 187 contemplate the establishment of a separate secretariat staff for each House of Parliament and the State Legislature respectively, the salaries and allowances of the members of that staff are paid out of the Consolidated Fund of India or of the State, as the case may be after they are voted by the House or Houses concerned.
Their appointment and other conditions of service are regulated by Rules made by the President or the Governor, as the case may be, until an appropriate law is made by Parliament or the State Legislature.
[951 F G] (vi) In our Constitution, which has a federal structure there are both at the level of the Union and at the level of the State detailed provisions pertaining to the Legislature, the Executive and the Judiciary.
All the three organs are concerned with the governance of the country the first makes the laws, second enforces them and the third interprets them.
Sometimes their functions may be overlapping.
All the three organs together constitute the Government at their respective level.
[950 B C] (vii) The President is a part of the Parliament under Article 79 of the Constitution.
The executive power of the Union is vested in him under Article 53(1).
At the level of the State the position is analogous.
The Governor is a part of the Legislature of the State under Article 168 (1).
The Executive power of the State is vested in him under Article 154 (1) and he is consulted in the appointments of the judges of the High Court.
While under Article 235 the High Court is vested with the control over the subordinate Judiciary of the State, in the case of dismissal or removal of a judicial officer in the Subordinate Judiciary, the Governor has to issue the order though on the recommendation made by the High Court.
A study of these provisions shows that there is no water tight compartment between the three major organs of the State.
The Comptroller and Auditor General of India though he is assigned an independent status is an officer under the Union Government.
The Judges of the Supreme Court and of 942 a High Court are not servants of Government but hold a constitutional office.
But the Comptroller and Auditor General of India and the Judges of the Supreme Court and of a High Court are not eligible to contest elections to Parliament and the State Legislatures in view of Article 102 (1) (a) and Article 191 (1) (a) because they are serving in connection with the affairs of the Union and are therefore, holding offices of profit under the Central Government.
[950 C H; 591 A B] Pradyat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court ; ; Gurugobinda Basu vs Sankari Prasad Ghosal & Ors. ; ; Union of India vs Sankal Chand Himatlal Sheth & Anr [1978] I. section C. R. 423; & Hargovind Pant vs Dr.
Raghukul Tilak & Ors. ; referred to.
(viii) The position of a person who works as an officer of the Legislature of a State is also the same.
Even though he belongs under Article 187 to the staff of the State Legislature, he is still an officer of Government in the broad sense in which the expression 'Government is used in Article 102 (1) (a) and Article 191 (1)(a).
If the expression 'Government used is construed as meaning the Executive Government only, then it would defeat the very purpose of these provisions.
Similarly he has to be treated as an officer of Government for purposes of section 21 of the Act also qualified for being appointed as the Returning officer for an election held under the Act.
[951 A C] 2(1) This is not a case where general elections to the Legislative Assembly had been held before the normal tenure of the existing Legislative Assembly was over.
The previous Legislative Assembly having been dissolved in February 1980, on the publication of the notification containing the names of the elected members of the Legislative Assembly on June 9,1980 under Section 73, the Assembly was deemed to be duly constituted.
[953 D; 954 D] (ii) An elected member who has not taken 'oath ' but whose name appears in the notification published under section 73 of the Act can take part in all non legislative activities of an elected member.
The right of voting at an election to the Rajya Sabha can also be exercised by him.
[957 G] In the instant case the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under sec.
73 of the Act and in the electoral roll maintained under section 152.
There is therefore no infirmity in the nomination.
[957 H; 958 A] (iii) The words 'sitting and voting ' in Article 193 of the Constitution imply the summoning of the house under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting.
An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House.
Invariably there is an interval of time between the constitution of a house after a general election, and the summoning of the first meeting of the House.
During that 943 interval an elected member of the Assembly whose name appears in the notification issued under section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sabha.
[955 B D] (iv) The election for filling a seat in the Rajya Sabha does not from a part of the Legislative proceedings of the House carried on at its meeting.
Nor the vote cast at such an election is a vote given in the House on any issue arising before the House.
The speaker has no control over the election.
The election is held by the Returning Officer appointed for the purpose.
All the steps taken in the course of the election fall outside the proceedings that take place at a meeting of the House.
[955 E F; 956 B] Bhupendra Nath Basu vs Ranjit Singh, I. L. R. 41 Cal.
384, approved.


judgement:
Civil Appeal No. 688 of 1981.
From the Judgment and Order dated 5th January, 1981 of the Allahabad High Court at Allahabad in Election Petition No. 25 of 1980.
S.C. Birla and R.L. Kureel for the Appellant.
Yogeshwar Prasad and Ms. Rani Chhabra for the Respondent No. 1 Pramod Swarup for Respondent No.2.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
At the General Election to the Uttar Pradesh Vidhan Sabha held in 1979, Jhilmit Ram was elected from 968 the Jakhsuie Constituency reserved for the Scheduled Castes.
He secured 17822 votes, Chhedi Ram, the runner up secured 17449 votes.
Thus the difference between the successful candidate and the candidate who secured the next highest number of votes was 373 votes.
There were four other candidates of whom Moti Ram secured 6710 votes.
Chhedi Ram challenged the election of Jhilmit Ram on the ground that Moti Ram was a Kahar by caste, not entitled to seek election from the reserved constituency, that his nomination had been improperly accepted and that the result of the election was materially affected.
The Election Tribunal found that Moti Ram was a Kahar by caste and not a member of the Scheduled Castes.
It rejected the evidence offered on behalf of Moti Ram that be was a Gond and not a Kahar and recorded a finding that deliberate attempts had been made to manufacture evidence to show that Moti Ram was a Gond.
The Tribunal also noticed that Moti Ram himself was not prepared to enter the witness box to give evidence.
Having a rived at the finding that Moti Ram 's nomination had been improperly accepted, however, the Tribunal was not prepared to set aside the election of Jhilmit Ram as it took the view that the result of the election had not been shown to have been materially affected as a result of the improper acceptance of the nomination.
The election petition was, therefore, dismissed.
Chhedi Ram has preferred this appeal.
We are afraid the appeal has to be allowed.
Under sec.
100(1)(d) of the Representation of the People Act, 1951, the election of a returned candidate shall be declared to be void if the High Court is of opinion that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination.
True, the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election.
The burden is readily discharged if the nomination which has been improperly accepted was that of the successful candidate himself.
On the other hand, the burden is wholly incapable of being discharged if the candidate whose nomination was improperly accepted obtained a less number of votes than the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next highest number of votes.
In both these situations, the answers are obvious.
The complication arises only in cases where the candidate, whose nomination was improperly accepted, has secured a larger number of votes than the difference between the number of votes secured by 969 the successful candidate and the number of votes got by the candidate securing the next highest number of votes.
The complication is because of the possibility that a sufficient number of votes actually cast for the candidate whose nomination was improperly accepted might have been east for the candidate who secured the highest number of votes next to the successful candidate, so as to upset the result of the election, but whether a sufficient number of voters would have so done, would ordinarily remain a speculative possibility only.
In this situation, the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes (the votes secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate.
If the number of votes secured by the candidate whose nomination was rejected is not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, it would be next to impossibility to conclude that the result of the election has been materially affected.
But, on the other hand, if the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved.
Under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down an impossible standards of proof and hold a fact as not proved.
In the present case, the candidate whose nomination was improperly accepted had obtained 6,710 votes, that is, almost 20 times the difference between 970 the number of votes secured by the successful candidate and the candidate securing the next highest number of votes.
Not merely that.
The number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate it was a little over one third.
Surely, in that situation, the result of the election may safely be said to have been affected.
The learned counsel for the respondents invited our attention to the decisions of this court in Vashist Narain Sharma vs Dev Chandra and Others(1), and Samant N. Balakrishna vs George Fernandez and Others, etc.(2) In Vashist Narain case, the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next largest number of votes was very nearly the same as the number of votes secured by the candidate whose nomination was improperly accepted.
Unless it was possible to say that all the wasted votes would have gone to the candidate who secured the highest number of votes next to the successful candidate, it was not possible to hold that the result of the election had been materially affected.
It was in those circumstances that Ghulam Hasan, J. observed: "But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected.
That is a matter which has to be proved and the onus of proving it lies upon the petitioner.
It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate.
The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many of which proportion of the votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100(1)(c) and hold without evidence that the duty has been discharged.
Should the petitioner fail to adduce 971 satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand".
We do agree with the observations of Ghulam Hasan, J. in the context of the facts of that case.
It does not, however, mean that whatever the number of wasted votes and whatever the margin of difference between the number of votes secured by the successful candidate and the number of votes secured by the next highest candidate, the court would invariably hold that the result of the election had not been materially affected.
In an appropriate case having regard to the margin of difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and the proporation which such margin bears to the wasted votes, it is permissible for the court to hold that the burden of proving that the result of the election has been materially affected has been discharged.
In Samant Balakrishna 's case, the court observed: "In our opinion the matter cannot be considered on possibility.
Vashist Narain 's case insists on proof.
If the margin of votes were small something might be made of the points mentioned by Mr. Hethamalani.
But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge.
There is no room, therefore, for a reasonable judicial guess.
The law requires proof.
How far that proof should go or what it should contain is not provided by the Legislature.
In Vashist 's case the provision was held to prescribe an impossible burden.
The law has however remained as before.
We are bound by the rulings of this Court and must say that the burden has not been successfully discharged".
We do not think that this case lays down any different principle than what we have already said.
On the other hand, the sentence underlined by us indicates that where the difference between the number of votes secured by the successful candidate and the number of votes secured by the highest candidate is marginal, it may be possible in the circumstances of a case to hold that the 972 burden has been discharged.
We have already indicated our view that in this case, the burden has certainly been discharged.
An attempt was made by the learned counsel for the respondents to dislodge the finding of the Election Tribunal that Moti Ram was a Kahar and not a Gond.
But having gone through the relevant evidence, we affirm the finding of the Election Tribunal and agree with the Election Tribunal that a crude attempt was made to fabricate evidence that Moti Ram was a member of the Scheduled Castes.
In the circumstances, the appeal has to be allowed.
We do so but without costs.
H.L.C. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant, the respondent and four other candidates contested the election to a legislative assembly from a constituency reserved for Scheduled Castes.
While the respondent was declared elected, the appellant secured the next highest number of votes and the difference in the number of votes secured by them was only 373.
The appellant challenged the election of the respondent on the ground that the result of the election had been materially effected by the improper acceptance of the nomination of a third candidate who had secured 6710 votes.
The Election Tribunal arrived at the finding that the candidate in question was not a member of the Scheduled Castes and hence is nomination had been improperly accepted, but nevertheless, refused to set aside the election of the respondent on the ground that the result of the election had not been shown to have been materially affected as a result of the improper acceptance of the nomination.
Allowing the appeal, ^ HELD: Under section 100(1)(d) of the Representation of the People Act, 1951, the election of a returned candidate shall be declared to be void if the High Court is of the opinion that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination and the burden of establishing the same is on the person impeaching the election.
Where the candidate whose nomination was improperly accepted has secured a larger number of votes than the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, there is a possibility that a sufficient number of votes actually cast for the candidate whose nomination was improperly accepted might have been cast for the candidate who secured the highest number of votes next to the successful candidate so as to upset the result of the election.
In such a situation, the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case.
If the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference 967 between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved.
[968 F G; 969 D F] Under the Evidence Act, a fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down an impossible standard of proof and hold a fact as not proved.
[969 G H] In the instant case, the candidate whose nomination was improperly accepted had obtained 6710 votes, that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes.
Further, the number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate it was a little over one third.
In such a situation the result of the election may safely be said to have been affected.
[969 H; 970 A B] Vashist Narain Sharma vs Dev Chandra, [1955] S.C.R. 509; and Samant N. Balakrishna vs George fernandes; , ; explained and distinguished.


judgement:
Civil Appeal No. 96 of 1972.
From the Judgment and Order dated 23rd December, 1971 of the High Court of Judicature at Allahabad in Second Appeal No. 3082 of 1971.
Yogeshwar Prasad, Mrs. Rani Chhabra and section K. Bagga for the Appellants.
B. R. Agarwala, R. H. Pancholi and Ms. Vijayalakshmi Menon for the Respondent.
The Judgment of the Court was delivered by VENKATRAMIAH, J.
The short question which arises for consideration in this appeal by special leave is whether a nominee of a life insurance policy under section 39 of the (Act No. IV of 1938) (hereinafter referred to as 'the Act ') on the assured dying intestate would become entitled to the beneficial interest in the amount received under the policy to the exclusion of the heirs of the assured.
994 The facts leading to this appeal are these: One Jag Mohan Swarup who was governed by the died intestate on June 15, 1967 leaving behind his son, Alok Kumar (plaintiff No. 2), his widow Usha Devi (defendant) and his mother Sarbati Devi (plaintiff No. 1) as his heirs.
He had during his lifetime taken out two insurance policies for Rs. 10,000 each and had nominated under section 39 of the Act his wife Usha Devi as the person to whom the amount was payable after his death.
On the basis of the said nomination, she claimed absolute right to the amounts payable under the two policies to the exclusion of her son and her mother in law.
Thereupon Sarabati Devi and Alok Kumar (minor) represented by his next friend Atma Ram who was the father of Jag Mohan Swarup filed a suit in Civil Suit No. 122 of 1970 on the file of the Ist Additional Civil Judge.
Dehradun for a declaration to the effect that they were together entitled to 2/3rd share of the amount due and payable under the insurance policies referred to above.
Usha Devi, the defendant resisted the suit.
Her contention was that on the death of the assured, she as his nominee became absolutely entitled to the amounts due under the insurance policies by virtue of section 39 of the Act The trial court dismissed the suit.
The first appeal filed by the plaintiffs against the decree of the trial court was dismissed by the District Judge, Dehradun.
The second appeal filed by them against the judgment of the District Judge before the High Court of Allahabad was dismissed in limine under Rule 11, Order 41 of the Civil Procedure Code.
The plaintiffs have filed this appeal after obtaining special leave under Article 136 of the Constitution.
The only question which requires to be decided in this case is whether a nominee under section 39 of the Act gets an absolute right to the amount due under a life insurance policy on the death of the assured.
Section 39 of the Act reads: "39.
Domination by policy holder. (1) The holder of a policy of life insurance on his own life may, when effecting the policy or at any time before the policy matures for payment, nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death: Provided that where any nominee is a minor, it shall be lawful for the policy holder to appoint in the prescri 995 bed manner any person to receive the money secured by the policy in the event of his death during the minority of the nominee.
(2) Any such nomination in order to be effectual shall unless it is incorporated in the text of the policy itself, be made by an endorsement on the policy communicated to the insurer and registered by him in the records relating to the policy and any such nomination may at any time before the policy matures for payment be cancelled or changed by an endorsement, or a further endorsement or a will, as the case may be, but unless notice in writing of any such cancellation or change has been delivered to the insurer, the insurer shall not be liable for any payment under the policy made bona fide by him to a nominee mentioned in the text of the policy or registered in records of the insurer.
(3) The insurer shall furnish to the policy holder a written acknowledgement of having registered a nomination or a cancellation or change thereof, and may charge a fee not exceeding one rupee for registering such cancellation or change.
(4) A transfer or assignment of a policy made in accordance with section 38 shall automatically cancel a nomination: Provided that the assignment of a policy to the insurer who bears the risk on the policy at the time of the assignment, in consideration of a loan granted by that insurer on the security of the policy within its surrender value, or its reassignment on repayment of the loan shall not cancel a nomination, but shall affect the rights of the nominee only to the extent of the insurer 's interest in the policy.
(5) Where the policy matures for payment during the lifetime of the person whose life is insured or where the nominee or, if there are more nominees than one, all the nominees die before the policy matures for payment, the amount secured by the policy shall be 996 payable to the policy holder or his heirs or legal representatives or the holder of a succession certificate, as the case may be.
(6) Where the nominee or if there are more nominees than one, a nominee or nominees survive the person whose life is insured, the amount secured by the policy shall be payable to such survivor or survivors.
(7) The provisions of this section shall not apply to any policy of life insurance to which section 6 of the Married Women 's Property Act, 1874 applies or has at any time applied : Provided that where a nomination made whether before or after the commencement of the Insurance (Amendment) Act, 1946, in favour of the wife of the person who has insured his life or of his wife and children or any of them is expressed, whether or not on the face of the policy, as being made under this section the said section 6 shall be deemed not to apply or not to have applied to the policy.
" At the out set it should be mentioned that except the decision of the Allahabad High Court in Kesari Devi vs Dharma Devi on which reliance was placed by the High Court in dismissing the appeal before it and the two decisions of the Delhi High Court in section Fauza Singh vs Kuldip Singh & Ors.
and Mrs. Uma Sehgal & Anr.
vs Dwarka Dass Sehgal & Ors in all other decisions cited before us the view taken is that the nominee under section 39 of the Act is nothing more than an agent to receive the money due under a life insurance policy in the circumstances similar to those in the present case and that the money remains the property of the assured during his lifetime and on his death forms part of his estate subject to the law of succession applicable to him.
The cases which have taken the above view are Ramballav DhanJhania vs Gangadhar Nathmall.
Life Insurance Corporation of India vs United Bank of India Ltd. & 997 Anr., D. Mohanaeelu Muldaliar & Anr.
vs Indian Insurance and Banking Corporation Ltd. Salem & Anr., Sarojini Amma vs Neelakanta Pillai Atmaram Mohanlal Panchal vs Gunavantiben & Ors., Malli Dei and Lakshmi Amma Anr.
vs Sagnna Bhagath & Ors.
, Since there is a conflict of judicial opinion on the question involved in this case it is necessary to examine the above cases at some length.
The law in force in England on the above question is summarised in Halsbury 's Laws of England (Fourth Edition), Vol. 25, Para 579 thus : "579.
Position of third party, The policy money payable on the death of the assured may be expressed to be payable to a third party and the third party is then prima facie merely the agent for the time being of the legal owner and has his authority to receive the policy money and to give a good discharge; but he generally has no right to sue the insurers in his own name.
The question has been raised whether the third party 's authority to receive the policy money is terminated by the death of the assured; it seems, however, that unless and until they are otherwise directed by the assured 's personal representatives the insurers may pay the money to the third party and get a good discharge from him.
" We shall now proceed to analyse the provisions of section 39 of the Act.
The said section provides that a holder of a policy of life insurance on his own life may when effecting the policy or at any time before the policy matures for payment nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death.
If the nominee is a minor, the policy holder may appoint any person to receive the money in the event of his death during the minority of the nominee.
That means that if the policy holder is alive when the policy matures for payment he alone will receive payment of the money due under the policy and 998 not the nominee.
Any such nomination may at any time before the policy matures for payment be cancelled or changed, but before such cancellation or change is notified to the insurer if he makes the payment bon fide to the nominee already registered with him, the insurer gets a valid discharge.
Such power of cancellation of or effecting a change in the nomination implies that the nominee has no right to the amount during the lifetime of the assured.
If the policy is transferred or assigned under section 38 of the Act, the nomination automatically lapses.
If the nominee or where there are nominees more than one all the nominees die before the policy matures for payment the money due under the policy is payable to the heirs or legal representatives or the holder of a succession certificate.
It is not necessary to refer to sub section (7) of section 39 of the Act here.
But the summary of the relevant provisions of section 39 given above establishes clearly that the policy holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy holder.
If that is so, on the death of the policy holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him.
Such succession may be testamentary or intestate.
There is no warrant for the position that section 39 of the Act operates as a third kind of succession which is styled as a 'statutory testament ' in paragraph 16 of the decision of the Delhi High Court in Mrs. Uma Sehgal 's case (supra).
If section 39 of the Act is contrasted with section 38 of the Act which provides for transfer or assignment of the rights under a policy, the tenous character of the right of a nominee would become more pronounced.
It is difficult to hold that section 39 of the Act was intended to act as a third mode of succession provided by the statute.
The provision in sub section (6) of section 39 which says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belong to the nominee or nominees.
We have to bear in mind here the special care which law and judicial precedents take in the matter of execution and proof of wills which have the effect of diverting the estate from the ordinary course of intestate succession and that the rigour of the rules governing the testamentary succession is not relaxed even where wills are registered.
As observed in the Full Bench decision of the Allahabad High Court in Raja Ram vs Mata Prasad & Anr.
which has interpreted 999 section 39 of the Act correctly, the judgment of that High Court in Kesari Devi 's case (supra) related to a different set of facts.
In Kesari Devi 's case (supra) the dispute arose regarding the person who was entitled to the succession certificate in respect of the amount payable under a life insurance policy which had been taken out by the assured between the widow of the assured and the widow of the nominee under section 39 of the Act.
On going through the judgment in Kesari Devi 's case (supra) we feel that the Court in that case paid little heed to the earlier judicial precedents of its own Court.
The decision of the Full Bench in Raja Ram 's case (supra) set at rest all doubts which might have been created by Kesari Devi 's case (supra) about the true import of section 39 of the Act in so far as the High Court of Allahabad was concerned.
In Fauja Singh 's case (supra) there is reference only two three cases Life Insurance Corporation of India vs United Bank of India Ltd. (supra), Matin vs Mahomed Matin and Kesari Devi 's case (supra).
The Court expressed its dissent from the Calcutta decision on the ground that decision had not considered sub section (6) of section 39 of the Act.
The Lahore case was one decided before the Act came into force.
The distinguishing features of Kesari Devi 's case (supra) are already mentioned.
Otherwise there is not much discussion in this case about the effect of section 39 of the Act.
We have carefully gone through the judgment of the Delhi High Court in Mrs. Uma Sehgal 's (case) supra.
In this case of the High Court of Delhi clearly came to the conclusion that the nominee had no right in the lifetime of the assured to the amount payable under the policy and that his rights would spring up only on the death of the assured.
The Delhi High Court having reached that conclusion did not proceed to examine the possibility of an existence of a conflict between the law of succession and the right of the nominee under section 39 of the Act arising on the death of the assured and in that event which would prevail.
We are of the view that the language of section 39 of the Act is not capable of altering the course of succession under law.
The second error committed by the Delhi High Court in this case is the reliance placed by it on the effect of the amendment of section 60(1) (kb) of the Code of Civil Procedure, 1908 providing that all moneys payable under a 1000 policy of insurance on the life of the judgment debtor shall be exempt from attachment by his creditors.
The High Court equated a nominee to the heirs and legatees of the assured and proceeded to hold that the nominee succeeded to the estate with all plus and minus points '.
We find it difficult to treat a nominee as being equivalent to an heir or legatee having regard to the clear provisions of section 39 of the Act.
The exemption of the moneys payable under a life insurance policy under the amended section 60 of the Code of Civil Procedure instead of 'devaluing ' the earlier decisions which upheld the right of a creditor of the estate of the assured to attach the amount payable under the life insurance policy recognises such a right in such creditor which he could have exercised but for the amendment.
It is because it was attachable the Code of Civil Procedure exempted it from attachment in furtherance of the policy of Parliament in making the amendment.
The Delhi High Court has committed another error in appreciating the two decisions of the Madras High Court in Karuppa Gounder & Ors.
vs Palaniammal & Ors.
and in B.M. Mundkur vs Life Insurance Corporation of India & Ors.
The relevant part of the decision of the Delhi High Court in Mrs. Uma Sehgal 's case (supra) reads thus: 10. "In Karuppa Gounder vs Palaniammal, AIR 1963 Mad. 245 (para 13), K had nominated his wife in the insurance policy.
K died.
It was held that in virtue of the nomination, the mother of K was not entitled to any portion of the insurance amount.
I am in respectful agreement with these views, because they accord with the law and reason.
They are supported by section 44 (2) of the Act.
It provides that the commission payable to an insurance agent shall after his death, continue to be payable to his heirs, but if the agent has nominated any person the commission shall be paid to the person so nominated.
It cannot be contended that the nominee u/s 44 will receive the money not as owner but as an agent on behalf of someone else vide B.M. Mundkur vs Life Insurance Corporation, AIR 1977 Mad. 72.
Thus, the nominee excludes the legal heirs.
" 1001 Two mistakes committed by the Delhi High Court in the above passage are these.
In Karuppa Gounder 's case (supra), the question was whether the amount payable under the insurance policy in question was joint family property or separate property of the assured.
In that connection, the High Court of Madras observed thus: "But where a coparcener has effected insurance upon his own life, though he might have received the premia from out of the funds which he might have received from the joint family, it does not follow that the joint family insured the life of the member or paid the premia in relation thereto.
It is undeniable that a member of a coparcenary may with the moneys which he might receive from the coparcenary effect an insurance upon his own life for the benefit of the members of his immediate family.
His intention to do so and to keep the property as his separate property would be manifested if he makes a nomination in favour of his wife or children as the case may be.
It would therefore appear that no general proposition can be advanced in the matter of the insurance policy of a member of a coparcenary and that each case must be dealt with in accordance with the circumstances surrounding it.
" It is obvious from the above passage that the above case has no bearing on the meaning of section 39 of the Act.
The fact of nomination was treated in that case as a piece of evidence in support of the finding that the policy was not a joint family asset but the separate property of the coparcener concerned.
No right based on the ground that one party was entitled to succeed to the estate of the deceased in preference to the other or along with the other under the provisions of the was asserted in that case.
The next error committed by the Delhi High Court is in drawing an analogy between section 39 and section 44(2) of the Act thinking that the Madras High Court had done so in B. M. Mundkur 's case (supra).
In B.M. Mundkur 's case (supra), the High Court of Madras instead of drawing an analogy between section 39 and section 44(2) of the Act actually contrasts them as can be seen from the following passage: 1002 "There are vital differences between the nomination contemplated under Section 39 of the Act and the nomination contemplated under the proviso to Section 44(2) of the Act.
In the first place, the sum assured, with which alone Sec.
39 was concerned, was to be paid in the event of the death of the assured under the terms of the contract entered into between the insurer and the assured and consequently it was the contractual right which remained vested in the insured with reference to which the nomination happened to be made.
It should be pointed out that the nomination as well as the liability on the part of the insurer to pay the sum assured become effective simultaneously, namely, at the moment of the death of the assured.
So long as he was alive, the money was not payable to him, in the case of a whole life policy, and equally, having regard to the language of Section 39(1) of the Act, the nominee 's right to receive the money arose only on the death of the assured, Section 39 itself did not deal with the title to the money assured, which was to be paid by the insurer to the nominee who was bound to give discharge to the insurer.
It was in this context that the Court took the view that the title remained with the estate of the deceased, and therefore, with the heirs of the deceased, that the nomination did not in any way affect the title and that it merely clothed the nominee with the right to receive the amount from the insurer.
On the other hand, the provisions and purport of Section 44 of the Act are different.
In the first place under Section 44(1) it was a statutory right conferred on the agent to receive the commission on the renewal premium notwithstanding the termination of the agreement between the agent and the insurer, which provided for the payment of such commission on the renewal premium.
The statute also prescribed the qualification which rendered the agent eligible to receive commission on such renewal premium.
Section 44(1) provides for the payment of the commission to the agent during his lifetime only and does not contemplate the contingency of his death and the commission being paid to anybody even after his death.
It is section 44(2) which deals with the 1003 payment of commission to the heirs of deceased for so long as such insurance agent been alive.
Thus it was not the general law of inheritance which conferred title on the heirs of the deceased insurance agent to receive the commission on the renewal premium, but it was only the particular statutory provision, namely, Section 44(2) which conferred the right on the heirs of the deceased agent to receive the commission on the renewal premium.
In other words, the right of the heirs to receive the commission on renewal premium does not arise under any law of succession and it is a right directly conferred on the heirs by Section 44(2) of the Act, even though who the heirs of the deceased insurance agent are will have to be ascertained under the law of succession applicable to him.
Thus the statute which conferred such a right on the heirs is certainly competent to provide for an exception in certain cases and take away such a right from the heirs; and the proviso which has been introduced by the Government of India notification 1962 has done exactly this in taking away the right of the heirs conferred under the main part of Section 44(2), in the event of the agent, during his lifetime, making a nomination in favour of a particular person and not cancelling or altering that nomination subsequently.
If the statute itself was competent to donfer such a right for the first time on the heirs of the deceased agent it is indisputable that the statute could take away that right under stated circumstances.
" The reasons given by the Delhi High Court in this case in support of its view are not tenable.
Moreover there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982.
The Act has been in force from the year 1938 and all along almost all the High Courts in India have taken the view that a mere nomination effected under section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy.
Yet Parliament has not chosen to make any 1004 amendment to the Act.
In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous, the Court should be slow to take a different view.
The reasons given by the Delhi High Court are unconvincing.
We, therefore, hold that the judgments of the Delhi High Court in Fauja Singh 's case (supra) and in Mrs. Uma Sehgal 's case (supra) do not lay down the law correctly.
They are, therefore, overruled.
We approve the views expressed by the other High Courts on the meaning of section 39 of the Act and hold that a mere nomination made under section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured.
The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy, The amount; however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.
In view of the above conclusion, the judgments and decrees of the High Court, the first appellate court and the trial court are liable to be set aside.
They are accordingly set aside.
Since it is not disputed that the plaintiffs are under the law of succession governing them each entitled to 1/3 share in the estate of the deceased, it is hereby declared that each of the plaintiffs is entitled to 1/3rd share in the amount received under the insurance policies in question and the interest which may have been earned by its investment.
The suit stands decreed accordingly.
Parties shall, however, bear their own costs throughout.
S.R. Appeal allowed.

summary/full:
The appellants being mother and son of one Jagmohan Swarup who was governed by the and who died intestate on June 15, 1967 filed Civil Suit No. 122 of 1970 on the file of the first Additional Civil Judge, Dehradun for a declaration to the effect that they were together entitled to 2/3rd share of the amount due and payable under the insurance policies though the deceased assured has nominated the respondent his widow as the person to whom the amounts were payable.
The respondent contested the suit claiming that she has the absolute right to the amounts to the exclusion of her son and her mother in law.
The suit was dismissed.
The First Appeal before the Dt.
Judge, Dehradun and the Second Appeal before the High Court were dismissed.
Hence the appeal after obtaining special leave of the Court.
Allowing the appeal, the Court, ^ HELD: 1.1 A mere nomination made under Section 39 of the does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the accused.
The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy.
The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.
[1009G, 1004 B D] 1.2 An analysis of the provisions of Section 39 of the Act clearly established that the policy holder continues to hold interest in the policy during his life time and the nominee acquires no sort of interest in the policy during the life time of the holder.
If that is so, on the death of the policyholder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him.
such succession may be testamentary or intestate.
The tenuous character of the right of a nominee becomes more pronounced when one contrasts the provisions of Section 39 with that of 993 Section 38.
Section 39 of the Act was not intended to act as a third mode of succession provided by the stature and incorrectly styled as "statutory testament" by the Delhi High Court.
[998 C E] 1.3 The language of Section 39 of the Act is neither capable of altering the course of succession under law nor can be said to have equated a nominee to an heir or legatee.
[999F] section Fauza Singh vs Kuldip Singh & Ors.
AIR 1978 Delhi 276; Mrs. Uma Sehgal & Anr.
vs Dwarka Dass Sehgal and Ors.
AIR 1982 Delhi 36; overruled.
Rama Bhallav Dhandhania vs Gangadhar Nathmall AIR 1966 Cal.
275; D. Mohananardu Mudaliar and Anr.
vs Indian Insurance and Banking Corporation Ltd., Salem and Anr. ; Sarojini Amma vs Neelakanta Pillai AIR 1961 Kerala 126, Life Insurance Corporation of India vs United Bank of India Ltd. & Anr. ; Raja Ram vs Mata Prasad and Anr.
AIR 1972 All. 167; Mallidei and Anr.
vs Kanchan Prana Dei AIR 1973 Orissa 83; Lakshmi Amma and Anr.
vs Saguna Bhagathi & Ors.
ILR 1973 Karnataka 827; Atmaram Mohanlal Panchal vs Gunavantiben and Ors.
AIR 1977 Gujarat 134 approved.
Karuppa Gounder & Ors.
vs Palaniammal & Ors.
AIR 1963 Madras 245; B. M. Mundkur vs Life Insurance Corporation of India and Ors.
AIR 1977 Mad. 72, discussed and distinguished.