judgement:
Civil Appeal No. 2182 of 1984.
Appeal by Special leave from the Judgment and Order dated the 17th April, 1984 of the Punjab and Haryana High Court in W.P. No. Nil of 1984 559 S.S. Ray and Krishnamurthi Swami for the Appellant.
K.G. Bhagat Addl.
General, A.K. Sen, H.B. Singh Advocate of Harayana, A. Subbha Rao, CV. and R.N. Poddar, for Respondent.
General, The following Judgments were delivered CHANDRACHUD, C.J. We had passed an interim order on April 18, suspending the operation of the order passed by the High Court of Punjab & Haryana, on April 17, 1984.
The High Court, by its aforesaid order, had stayed the issuance and publication of the notifications by the Election Commission of India under sections 30, 56 and 150 of the Representation of People Act, 1951.
We had directed that the special leave petition should be listed before us the next day for considering whether the interim order should be confirmed.
On February 28, 1984, this Court gave a judgment in Civil Appeal No.5501 of 1983, setting aside the election of the returned candidate from the 59 Taoru Assembly Constituency in Haryana.
As a result of that judgment, a vacancy arose in the Legislative Assembly of the State of Haryana from that Constituency.
On April 6, 1984, the Election Commission of India sent a message to the Chief Secretary, Haryana, who is the Chief Electoral Officer for the State of Haryana, informing him that the Commission had fixed a certain programme for holding the by election to the Taoru Constituency.
According to that programme, the notification under section 150 of the Representation of the People Act, 1951, was to be issued on April 18, 1984, the last date for filing nominations is April 25,1984, while the date of poll is May 20, 1984.
The Election Commission fixed an identical programme for filling 23 other vacancies in the legislative assemblies of Andhra Pradesh, Karnataka and West Bengal.
On April 7, 1984, the Election Commission received a telex message from the Chief Secretary, Government of Haryana, conveying the request of the Haryana Government that the proposed by election should be held along with the general elections to the Lok Sabha which are due later this year.
On April 11, 1984, the Chief Secretary wrote a letter to the Chief Election Commissioner renewing the aforesaid request for two reasons: 560 (1) The next general election to the Haryana Vidhan Sabha is due in May, 1987 and since the Taoru vacancy had occurred recently on February 28, 1984, there was no immediate necessity to fill it; and (2) deferring the by election would save time, labour and expense.
On April 12, 1984, the Election Commission informed the Chief Electoral Officers by a telex message that it had decided to adhere to the programme of by election to 24 vacancies in their respective jurisdictions.
The telex message mentioned specifically that the Commission had taken into consideration the replies received by it from various State Government and their Chief Electoral Officers on the question of holding the elections as proposed.
On the same date i.e. April 12, 1984 copies of notifications to be published on April 18, 1984 in the Haryana Gazette were sent to the Chief Electoral Officer of Haryana.
By a separate communication of the same date, the Commission informed all the political parties about the programme fixed by it for holding the by elections.
A press note was also issued to the same effect on the same date.
The Chief Secretary, Haryana, met the Chief Election Commissioner on April 14 and explained to him personally why it was neither advisable nor possible to hold the by election to the Taoru seat as proposed by the latter.
On April 16, the Chief Secretary wrote a letter to the Chief Election Commissioner reiterating the view of his Government.
He added in that letter that it would not be possible to hold the election during the proposed period because, the neighbouring State of Punjab was going through a serious problem of law and order, that there was a dispute regarding territorial adjustment and division of waters between the State of Haryana and the Akali Party in Punjab, that the said dispute was used by the Akali Party for stepping up terrorist activities, that the terrorists had attacked persons occupying high public offices, that there was a serious threat to the lives of many important persons in Haryana, that public meetings had been banned by the District Magistrate under section 144 of the Criminal Procedure Code and that the situation in the State was such that it would not be possible to hold public meetings for election purposes for a few months.
On April 17, the Chief Election Commissioner replied to the Chief Secretary 's letter of April 16 by saying that the Commission had taken the decision to hold the by election after taking into consideration all 561 factors, that it was not clear how the Constituency of Taoru in Gurgaon, which is about 35 kilometers from Delhi, and which is quite far away from Punjab would have any fall out of the Punjab situation and that the political parties who were duly informed of the proposed election programme had not opposed the holding of by election at this point of time.
On the same date that the Chief Election Commissioner wrote the aforesaid letter, the Government of Haryana filed a writ petition in the High Court of Punjab and Haryana and obtained an ex parte order, which is impugned in this special leave petition.
We passed the interim order on April 18 after hearing a fairly long and exhaustive argument from Shri Siddhartha Shankar Ray who appeared on behalf of the appellant, the Election Commission of India, and the learned Additional Solicitor General who appeared on behalf of respondent, the 'State of Haryana ' We heard further arguments of the parties on the 19th, Shri Asoke Sen appearing for the respondent.
Since the matter raises questions of general public importance, we grant special leave to appeal to the petitioner.
We often express our disapproval of the widely prevalent practice of parties obtaining ex parte orders when they can give prior intimation of the proposed proceedings to the opposite side, without much inconvenience or prejudice.
When the public authorities do so, it is all the more open to disapprobation.
But here, the parties have taken a tooth for a tooth.
The Government of Haryana obtained an ex porte order from the High Court when it could easily have been given prior intimation of the intended proceeding to the Election Commission of India.
The latter is constitutionally identifiable, conveniently accessible and easily available for being contacted on the most modern systems of communication.
The Election Commission of India, too, rushed to this Court on the 18th without informing the Government of Haryana that it proposes to challenge the order of the High Court and to ask for stay of that order.
The Government of Haryana is also identifiable and accessible with the same amount of case.
We do hope that the smaller litigants will not form the belief that the bigger ones can get away with such lapses.
Were it not for the fact that this matter brooked no delay, we would have hesitated to pass any interim order without the appellant giving prior intimation of its proposed action to the respondent.
As stated earlier notifications setting the election process in motion were to be issued on April 18.
One day before that, the State 562 Government approached the High Court in a hurry, asking it to stay the election process, which the High Court has done.
This Court held in the West Bengal poll case, A.K.M. Hassan Uzzaman vs Union of India,(1) that the imminence of the electoral process is an important factor which must guide and govern the passing of orders in the exercise of the High Court 's writ jurisdiction and that, the more imminent such process, the greater ought to be the reluctance of the High Court to take any step which will result in the postponement of the elections.
We regret to find that far from showing any reluctance to interfere with the programme of the proposed election, the High Court has only too readily passed the interim order which would have had the effect of postponing the election indefinitely.
Considering that the election process was just round the corner, the High Court ought not to have interfered with it.
The non speaking order passed by it affords no assistance on the question whether there were exceptional circumstances to justify that order.
The fact that the election process was imminent is only one reason for our saying that the High Court should have refused its assistance in the matter.
The other reason for the view which we are taking is provided by the very nature of the controversy which is involved herein.
The difference between the Government of Haryana and the Chief Election Commission centres round the question as to whether the position of law and order in the State of Haryana is such as to make it inexpedient or undesirable to hold the proposed by election at this point of time.
The Government of Haryana is undoubtedly in the best position to assess the situation of law and order in areas within its jurisdiction and under its control.
But the ultimate decision as to whether it is possible and expedient to hold the elections at any given point of time must rest with the Election Commission.
It is not suggested that the Election Commission can exercise its discretion in an arbitrary or mala fide manner.
Arbitrariness and mala fide destroy the validity and efficacy of all orders passed by public authorities.
It is therefore necessary that on an issue like the present, which concerns a situation of law and order, the Election Commission must consider the views of the State Government and all other concerned bodies or authorities before coming to the conclusion that there is no objection to the holding of the elections at this point of time.
On this aspect of the matter, the correspondence between the Chief Secretary of Haryana and the Chief Election Commissioner shows that the latter had taken all the 563 relevant facts and circumstances into account while taking the decision to hold the by election to the Taoru Constituency in accordance with the proposed programme.
The situation of law and order in Punjab and, to some extent, in Haryana is a fact so notorious that it would be naive to hold that the Election Commission is not aware of it.
Apart from the means to the knowledge of the situation of law and order in Punjab and Haryana, which the Election Commission would have, the Chief Secretary of Haryana had personally apprised the Chief Election Commissioner as to why the State Government was of the view that the elections should be postponed until the Parliamentary elections.
We see no doubt that the Election Commission came to its decision after bearing in mind the pros and cons of the whole situation.
It had the data before it.
It cannot be assumed that it turned a blind eye to it.
In these circumstances, it was not in the power of the High Court to decide whether the law and order situation in the State of Punjab and Haryana is such as not to warrant or permit the holding of the by election.
It is precisely in a situation like this that the ratio of the West Bengal Poll case would apply in its full rigor.
We must add that it would be open to the Chief Election Commissioner, as held in Mohd. Yunus vs Shiv Kumar Shastri,(1) to review his decision as to the expediency of holding the poll on the notified date.
In fact, not only would it be open to him to reconsider his decision to hold the poll as notified, it is plainly his duty and obligation to keep the situation under constant scrutiny so as to adjust the decision to the realities of the situation.
All the facts and circumstances, past and present, which bear upon the question of the advisability of holding the poll on the notified date have to be taken into account and kept under vigil.
That is a continuing process which can only cease after the poll is held.
Until then, the Election Commission has the focus, for good reasons, to alter its decision.
The law and order situation in the State, or in any part of it, or in a neighbouring State, is a consideration of vital importance for deciding the question of expediency or possibility of holding an election at any particular point of time.
We are confident that the Chief Election Commissioner, who is vested with important duties and obligations by the Constitution, will discharge those duties and obligations with a high sense of responsibility, worthy of the high office which he holds.
If he considers it necessary, he 564 should hold further discussions with the Chief Election Officer of Haryana and consult, once again, leaders of the various political parties on the question whether it is feasible to hold the poll on the due date.
One as important issue such as the holding of an election, which is of great and immediate concern of the entire political community, there can be no question of any public official standing on prestige, an apprehension which was faintly projected in the State 's arguments.
A sense of realism, objectivity and nonalignment must inform the decision of the Election Commission on that issue.
It was urged that the High Court of Punjab and Haryana would have a fair and clear understanding of the happenings in Punjab and their repercussions in Haryana which would justify its interference with the decision of the Election Commission to hold the by election now.
The first part of this argument need not be disputed and may even be accepted as correct.
Indeed, every citizen of this country who has some degree of political awareness, would have a fair idea of the situation in Punjab and its impact on the even flow in the neighbouring State of Haryana.
But the second part of the argument is untenable.
The circumstance that the High Court has knowledge of a fact will not justify the substitution by it of its own opinion for that of an authority duly appointed for a specific purpose by the law and the Constitution.
Different people hold different views on public issues, which are often widely divergent.
Even the judges.
A Judge is entitled to his views on public issues but the question is whether he can project his personal views on the decision of a question like the situation of law and order in a particular area at a particular period of time hold that the Election Commission is in error in its appraisal of that situation.
We suppose not.
For these reasons, we confirm the interim order which was passed by us on April 18, allow this appeal and set aside the High Court 's order of April 17.
Unless otherwise directed by the Chief Election Commissioner, the election programme will have to go through as already notified.
There will be no order as to costs.
THAKKAR, J. Holding of a by election to fill even a single vacancy at the earliest date is an extremely desirable end in a democratic framework.
Even so if such circumstances exist, and a 565 reasonable progrosis can be bonafide made, that holding the by election for filling up that vacancy, is fraught with grave danger, not only to the lives of election officers, candidates as also political leaders addressing election meetings, as also of voters, and poses a grave danger which altogether outweighs the advantage of holding the election along with the by elections in other States, should the matter not engage very serious attention of the Election Commission ? Not even when it is shown that with regard to the sensitive and explosive situation it was likely to worsen a situation which was already worse ? More is when all that was to be gained by holding the by election as proposed was to be able to hold it along with other by elections on the same day as in other States which had by itself no significance or virtue.
And if the Election Commission without due deliberation summarily turns down the request to defer the election programme for that by election even by a few days in such circumstances, can the High Court be faulted for passing an ad interim order, which has the result of postponing the election, not for an indefinite period, but for a few days till the parties are heard ? Is the order passed by the High Court in such circumstances so gross that instead of allowing the High Court to confirm it or vacate it, upon the other side showing cause, this Court should invoke the jurisdiction under Article 136 of the Constitution of India to set it aside ? More particularly when the consequence would be no more serious than this, namely, that the by election cannot be held (there is no virtue in doing so) on the same day along with other by elections.
That the High Court has the power to issue a direction or order which has the effect of postponing an election if the situation so demands would appear to be the law declared by a five judge Constitution Bench presided over by the learned Chief Justice who presides over this Bench as well.
In A.K.M. Hassan Uzzaman and other vs Union of India and others and Lakshmi Charan Sen and others vs A.K.M. Hassan Uzzaman and others the conclusions are recorded in the operative order dated March 30, 1982, reading as under: "1.
The transferred case and the appeals connected with it raise important questions which require a careful and dispassionate considerations.
The hearing of these matters was concluded four days ago, on Friday, the 26th.
Since the judgment will take some time to prepare, we propose, by this 566 Order, to state our conclusions on some of the points involved in controversy: (1) The High Court acted within its jurisdiction in entertaining the writ petition and in issuing a rule nisi upon it, since the petition questioned the vires of the laws of election.
But, with respect, it was not justified in passing the interim orders dated February 12 and 19, 1982 and in confirming those orders by its judgment dated February 25, 1982.
Firstly, the High Court had no material before it to warrant the passing of those orders.
The allegations in the writ petition are of a vague and general nature, on the basis of which no relief could be granted.
Secondly, though the High Court did not lack the jurisdiction to entertain the writ petition and to issue appropriate directions therein, no High Court in the exercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked.
The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court 's writ jurisdiction.
The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution.
India is an oasis of democracy, a fact of contemporary history which demands the courts the use of wise statesmanship in the exercise of their extraordinary powers under the Constitution.
The High Courts must observe a self imposed limitation on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefinite postponement of elections to legislative bodies which are the very essence of the democratic foundation and functioning of our constitution.
The limitation ought to be observed irrespective of the fact whether the preparation add publication of electoral rolls are a part of the process of 'election ' within the meaning of Article 329 (b) of the 567 Constitution.
We will pronounce upon that question later in our judgment.
(2) X X X X (3) X X X X 2.
For these reasons and those which we will give in our judgment later, we dismiss the writ petition filed in the Calcutta High Court which was transferred for disposal to this Court.
All orders, including interim orders, passed by the Calcutta High Court are hereby set aside.
Civil Appeals 739 to 742 of 1982 will stand disposed of in the light of the dismissal of the writ petition, out of which they arise.
X X X X 4.
X X X X Does Hassan 's case enjoin that no such interim order can ever be passed by the High Court ? The relevant extract from the conclusion recorded in Hassan 's case has been reproduced hereinabove.
Of course, the exact parameters of the decision and the true ratio cannot be known till the judgment containing reasons is born.
As on today no one can predict what exactly will be decided by the Court in Hassan 's case when the judgment eventually comes to be pronounced (who can make a guess about the colour or shade of the eyes of a child which is yet to be born ?).
But it can be reasonably said that the following: extract.
"The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court 's writ jurisdiction.
The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution.
" warrants the view that Hassan 's case does not enjoin that an interim order of such a nature can never be passed in any situation.
If that 568 were not so, the Court would not have said (1) that imminence of electoral process is a factor which must guide and govern the passing of orders (meaning thereby that while such orders can be passed this factor must be accorded due consideration) and (2) that "more imminent such process, the greater ought to be the reluctance of the High Court to do anything or direct anything to be done which will postpone the process indefinitely" (which means it must be done only with reluctance when elections are imminent.) The aforesaid statement of law made in the context of "general elections" does not warrant the view that Hassan 's case enjoins that an election programme cannot be postponed even for a few days even in the case of a by election, whatever be the situation, and whatever be the circumstances, in which the High Court is called upon to exercise its jurisdiction.
It is therefore not unreasonable to proceed on the premise that even according to Hassan 's case the Court has the power to issue an interim order which has the effect of postponing an election but it must be exercised sparingly (with reluctance) particularly when the result of the order would be to postpone the installation of a democratically elected popular government.
The portion extracted from the operative order in Hassan 's case brought into focus a short while ago which adverts to "imminence of elections" and to "directions which will inevitably result in indefinite postponement of elections to legislative bodies which are the very essence of the democratic functions of our Constitution" leaves no room for doubt that the observations were being made in the context of the expiry of the term of legislature as envisioned by Article 172 of the Constitution of India and consequential general elections for such legislature.
This must be so because the legislature would stand dissolved on the expiry of the term, and a new legislature has to be elected.
It is in this context (presumably) that a reference is made to "imminence of elections".
For a by election like the one we are concerned with, there can be no question of "imminence" or "indefinite postponement of elections" which would stall the installation of a democratically elected government.
It is no body 's case that the party position was such that the result of the election to this vacant seat would have tilted the majority one way or other.
No oblique motive has even been hinted at.
The High Court was therefore not unjustified in proceeding on the assumption that it had such a power.
Does the ad interim order passed by the High Court merit being upturned in exercise of the jurisdiction under article 136 of the Constitution of India ? 569 The only question which arises is whether the presence was a case where the High Court could not have granted the ad interim order.
Be it realized that if the High Court had not granted the order and the Election Commission had not chosen to appear on or before April 18, 1984 the High Court would have perhaps become powerless to pass any order, whatever be the justification for it, as the "electoral process" would have 'actually ' commenced.
Can the High Court then be faulted for passing the impugned order faced as it was by an unprecedented situation like the present? On the one hand the Election Commission appeared to have been altogether oblivious to the dimension as regards the bonafide apprehension pertaining to the life and security of the National leaders who might address public meetings, the candidates, the officers engaged in election work, and the voters.
The danger was further aggravated in the face of open threats held out to the lives of the National leaders of different political parties.
What is more, the Election Commission has shown total unawareness of the circumstance that public meetings were prohibited under Section 144 of the Code of Criminal Procedure in the constituency going to the polls.
On the other hand the only consequence of granting a stay would have been to postpone the election programme by a few days in the event of the Election Commission not choosing to appear in the Court (to show cause why the ad interim order should not be made absolute) on or before April 18, 1984 which was the scheduled date for issuance of the notification announcing the election programme.
The Election Commission could have appeared before the High Court and got the stay vacated in time instead of approaching this Court by way of the present appeal by Special Leave.
The Election Commission could not have failed to realise that no serious consequence would have flowed from the impugned order even if stay was vacated, not immediately, but a few days later, for, it was only a by election to one single seat of no significance which would not have resulted in postponement of the installation of an elected government.
Worse come to worse, the by election could not have been held along with by elections in other States on the 'same ' day.
The Election Commission has not been able to show what possible detriment would have been suffered if the by election could not have been so held on that particular day.
If the High Court was prima facie satisfied that the Election Commission had failed to take into account vital matters and appeared to have acted on non consequential considerations, and had acted arbitrarily in turning down the request of the State Government as also the Chief Election Officer of 570 Haryana, why could the High Court not grant a stay? And should this Court interfere in such a fact situation? Learned Counsel for the Election Commission, though repeatedly requested, is unable to point out either from the affidavit filed on 18th, or from the additional affidavit filed on the 19th, that the aforesaid factors were taken into reckoning by the Commission.
It is not stated that these factors do not exist or have been invented by the State Government with any oblique motive.
The contents of the affidavits filed by the Election Commission reveal that it was altogether oblivious to all the relevant factors recounted earlier.
There is nothing to show that a single factor was present on its mental screen.
The Election Commission has not apprised the Court as to how and why any or all of these factors were considered to be immaterial.
No inkling is given as to how the Election Commission thought that the problems could be overcome.
By what process of self hypnotism did the Election Commission convince itself that free and fair elections could be held even when public meetings were banned in the constituency? How, and by what process of ratiocination did the Election Commission convince itself that free elections could be held in a situation where the candidates would consider it hazardous to contest or to indulge in election propaganda, and even voters would be afraid to vote? If the Election Commission had any idea as to how the hurdles could be crossed and problem resolved, it has chosen not to reveal its perception of the matter.
The Election Commission perhaps has good answers.
But silence is the only answer which has been given by the Commission as also its counsel on this aspect.
"I know my job and it is none of the business of the Courts" seems to be the attitude.
All that has been stated by the learned counsel for the Commission is that everything was considered (without even disclosing the content of the expression 'everything ').
Counsel has of course set up an alibi by saying that affidavits had to be prepared by burning mid night oil.
But in that case the concentration would have been on everything of importance and what was the essence of the matter could not have been overlooked or forgotten.
And if it has escaped attention, the conclusion is inevitable that the Election Commission had not attached due importance and weightage to the basic problem and had not applied itself seriously to a serious problem.
The fact is established that the Chief Secretary and the Chief Election Officer of Haryana, had personally apprised the Chief Election Commissioner of the prevailing situation sometime before 14th April, 1984.
The Election Commission has not even disclosed 571 this fact in the petition or in the additional affidavit.
Nor has the Election Commission apprised us as to what transpired at the meeting.
The Election Commission has been less than candid even to this Court.
No doubt the Chief Election Commissioner is holding a responsible post.
But that does not make him infallible or render his decision or act any the less arbitrary if he has failed to inform himself of all the relevant factors and has failed to direct his attention to the core problem.
It is no doubt true that theoretically the Election Commission can still postpone the polling, if it is so minded.
But should the Court remain a passive spectator in this extraordinary situation and leave the Nation to the mercy of an individual, however high be his office, when it is evident that he has secluded himself in his ivory tower and has shut his eyes to the realities of the situation and closed his mind to the progrrosis of the matter.
The Court can certainly satisfy itself whether the Election Commissioner had kept his eyes, ears and mind open, and whether he was able to show that all relevant factors including the consideration as to what advantage was to be secured as against the risk to be faced, entered into his reckoning.
If this is not shown to have been done, as in the present case, his decision is vitiated and the Court need not feel helpless.
The High Court was therefore fully justified in passing the impugned order.
Appeal is accordingly dismissed.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
To fill in the vacancy arising from the setting aside of the election of the returned candidate from the 59 Taoru Assembly Constituency in Haryana, by the Supreme Court, the appellant Commission sent a message and programme on April 6, 1984 to the Chief Electoral officer for the State of Haryana.
According to that programme, the notification under section 150 of the Representation of the People Act, 1951 was to be issued on April 18, 1984, the last date for filing nominations was April 25, 1984 while the date of poll was May 20, 1984 The Election Commission fixed an identical programme for filling 23 other vacancies in the legislative assemblies of Andhra Pradesh, Karnataka and West Bengal.
On April 7, 1984, the Election Commission was requested by the Haryana Government to hold the proposed by election alongwith the general elections to the Lok Sabha, due later in the year.
On April 11, 1984, the Chief Secretary wrote a letter to the Election Commissioner renewing the request to defer the by election.
On April 12, 1984 the Election Commissioner informed the Chief Election officers by a telex message that it had decided to adhere to the programme of by elections to all the 24 constituencies and copies of notifications to be published on April 18, 1984 were sent to the Chief Electoral officer, Haryana.
A Press not was issued to that effect after informing all the political parties.
The Chief Secretary, Haryana met the Chief Election Commissioner on April 14, 1984 and explained to him personally why it was neither advisable nor possible to hold the by election to the Taoru seat as proposed by the latter.
On April 16, 1984, the Chief Secretary wrote a letter reiterating the view of the Government to the Chief Election Commissioner.
On April 17, 1984, the Chief Commissioner replied to the letter of April 16, 1984 by saying that the Commission had taken the decision to hold the by election after taking the Punjab situation and taking into consideration all factors including the fact of non fact that the political parties were not opposed to the proposed byelection.
On the same day the Government of Haryana filed a writ petition in the High Court of Punjab and Haryana and obtained an ex parte order staying the issuance and publication of the 555 notification by the Election Commission under sections 30, 56 and 150 of the Representation of the People Act, 1951.
Hence the appeal by special leave of the Court.
Allowing the appeal, the Court.
^ HELD : (Per Majority) Per Chandrachud C.J. 1 : 1.
The widely prevalent practice of partices obtaining ex parte orders when they can give prior intimation of the proposed proceedings to the opposite side, without much inconvenience or prejudice has often been disapproved by this Court.
When the public authorities do so it is all the more open to disapprobation.
[561D E] 1 : 2.
The Government of Haryana obtained an ex parte order from the High Court when it could easily have given prior intimation of the intended proceedings to the Election Commission of India.
The letter is constitutionally identifiable, conveniently accessible and easily available for being contacted on the most modern systems of communication.
The Election Commission of India, too rushed to this Court on the 18th without informing the Government of Haryana that it proposes to challenge the order of the High Court and to ask for stay of that order.
The Government of Haryana is also identifiable and accessible with the same amount of case.
Were it not for the fact that this matter brooked no delay the Supreme Court would have hesitated to pass any interim order without the appellant giving prior intimation of its proposed action to the respondent.
[561E G] 1 : 3.
Despite the guideline indicated by the Supreme Court in the West Bengal poll case, A.K.M. Hassan Uzzaman vs Union of India, , regarding the passing of orders by the High Courts in exercise of their writ jurisdiction, the High Court of Punjab & Haryana far from showing any reluctance to interfere with the programme of the proposed election, the High Court has only too readily passed the interim order which would have had the effect of postponing the election indefinitely.
Considering that the election process was just round the corner, the High Court ought not to have interfered with it.
The nonspeaking order passed by it affords no assistance on the question whether there were exceptional circumstances to justify that order.
[562A C] 2.
The Government of Haryana is undoubtedly in the best position to assess the situation of law and order in areas within its jurisdiction and under its control.
But the ultimate decision as to whether it is possible and expedient to hold the elections at any given point of time must rest with the Election Commission Arbitrariness and mala fides destroy the validity and efficacy of all orders passed by public authorities.
It is therefore necessary that on an issue like the present, which concerns a situation of law and order, the Election Commission must consider the views of the State Government and all other concerned bodies of authorities before coming to the conclusion that there is no objection to the holding of the 556 elections at this point of time.
Hence the Election Commission came to its decision after bearing in mind the pros and cons of the whole situation.
It had the data before it.
It cannot be assumed that it turned a blind eye to it.
In these circumstances, it was not in the power of the High Court to decide whether the law and order situation in the State of Punjab and Haryana is such as not to warrant or permit the holding of the by election.
It is precisely in a situation like this that the ratio of the Bengal Poll case would apply in its full rigor.
[562E H, 563A B] 3 : 1.
However, it would be open to the Chief Election Commissioner to review his decision as to the expediency of holding the poll on the notified date.
In fact, not only would it be open to him to reconsider his decision to hold the poll as notified, it is plainly his duty and obligation to keep the situation under constant scrutiny so as to adjust the decision to the realities of the situation.
All the facts and circumstances, past and present, which bear upon the question of the advisability of holding the poll on the notified date have to be taken into account and kept under vigil.
That is to continuing process which can only cease after the poll is shield.
Until then, the Election Commission has the locus, for good reasons to alter its decision The law and order situation in the State, or in any art of it, or in a neighboring State, is a consideration of vital importance for deciding the question of expediency or possibility of holding an election at any particular point of time.
If he considers it necessary, he should held further discussions with the Chief Electoral officer of Haryana and consult, once again, leaders of the various political parties on the question whether it is feasible to hold the poll on the due date.
On an important issue such as the holding of an election, which is of great and immediate concern to the entire political community, there can be no question of any public official standing on prestige, an apprehension which was faintly projected in the State 's arguments.
A sense of realism, objectively and noa alignment must inform the decision of the election Commission on that issue.
[563D H] Mohd.
Yunus Saleem vs Shiv Kumar Shastri.
; @ 743 44; followed.
3 : 2.
Indeed, every citizen of this country who has some degree of political awareness, would have a fair idea of the situation in Punjab and its impact on the even flow of life in the neighbouring State of Haryana.
But the circumstance that the High Court has the knowledge of a fact will not justify the substitution by it of its own opinion for that of an authority duly appointed for a specific purpose by the law and the Constitution.
Different people hold different views on public issues, which are often widely divergent.
Even the Judges.
A Judge is entitled to his views on public issues but he cannot project his personal views on the decision of a question like the situation of law and order in a particular area at a particular period of time and hold that the Election Commission is in error in its appraisal of that situation.
[564D F] Per Thakkar, J. (Contra) : The exact parameters of the decision in Hassan 's case and the true 557 ratio cannot be known till the judgment containing reasons is born.
As on today no one can predict what exactly will be decided by the Court in Hassan 's case when the Judgment eventually comes to be pronounced (who can make a guess about the colour or shade of the eyes of a child which is yet to be born ?).
But it can be reasonably said that Hassan 's case does not enjoin that an interim order of such a nature can never be passed in any situation.
If that were not so, the court would not have said (1) that imminence of electoral process is a factor which must guide and govern the passing of orders (meaning thereby that while such order scan be passed this factor must be accorded due consideration) and (2) that "more imminent such process, the greater ought to be the reluctance of the High Court to do anything or direct anything to be done which will postpone that process indefinitely" (which means it must be done only with reluctance when elections are imminent).
In other words the power must be exercised sparingly (with reluctance) particularly when the order would be to postpone the installation of a democratically elected popular Government.
These observations were made by the Court in Hassan 's case in the context of the expiry of the term of legislature as envisioned by Article 172 of the Constitution of India and consequential general elections for such legislature as is evident from the elusion to "imminence of elections" and "indefinite postponement of elections to legislative bodies which are the essence of democratic functions of the Constitution.
" This must be so because the legislature would stand dissolved on the expiry of the term, and a new legislature has to be elected.
It is in this context (presumably) that a reference is made to "imminence of elections".
[567D E H; 568A F] For a By election like the present one, to fill a single vacancy .
there can be no question of "imminence" or "indefinite postponement of elections" which would stall the installation of a democratically elected government.
It is nobody 's case that the party position was such that the result of the election to this vacant seat would have tilted the majority one way or other.
No oblique motive has even been hinted at.
The High Court was therefore not unjustified in proceeding on the assumption that it had such a power.
[568F G] The High Court cannot be faulted for passing the impugned order faced as it was by an unprecedented situation like the present.
If the High Court had not granted the order and the Election Commission had not chosen to appear on or before April 18, 1984 the High Court would have perhaps become powerless to pass any other order, whatever be the justification for it, as the "electoral process" would have actually commenced.
The High Court was prima facie satisfied that the Election Commission had failed to take into account vital matters, appeared to have acted on non consequential considerations, and had acted arbitrarily in turning down the request of the State Government as also the Chief Election Officer of Haryana.
The High Court was therefore entitled to grant a stay.
[569A B] The Supreme Court in exercise of the jurisdiction under Article 136 of the Constitution of India should not interfere with the ad interim order passed by the High Court in such a fact situation.
On the one hand the Election Commission appeared to have been altogether oblivious to the dimension as regards the bonafide apprehension pertaining to the life and 558 security of the National leaders who might address public meetings, the Candidates the officers engaged in election work, and the voters.
The danger was further aggrevated in the face of open threats held but to the lives of the National leaders of different political parties.
What is more, the Election Commission has shown total unawareness of the circumstance that public meetings were prohibited under section 144 of the Cr. P. C. in the constituency going to the polls.
On the other hand the only consequence of granting a stay would have been to postpone the election programme by a few days in the event of the Election Commission commission not choosing to appear in the Court (to show cause why the ad interim order should no be made absolute) on or before April 18, 1984 which was the scheduled date for issuance of the notification announcing the election programme The Election Commission could have appeared before the High Court and got the stay vacated in time instead of approaching this Court by way of the present appeal by Special Leave.
The Election Commission could not have failed to refraise that no serious consequence would have flowed from the impugned order even if stay was vacated, not immediately, but a few days later, for, it was only a by election to one single seat of no significance which would not have resulted in postponement of the installation of an elected government.
Worse come to worse, the by election could not have been held along with by elections in other states on the 'same day '.
[569B G] More so when the Election Commission has not been able to show what possible detriment would have been suffered if the by election could not have been so held on that particular day.
How and by what process of ratiocination did the Election Commission convinced itself that free elections could be held in a situation where the Candidates would consider it hazardous to contest or to indulge in election propaganda, and even voters would be afraid to vote, even to this court.
[569G H, 570A] It is no doubt true that theoretically the Election Commission can still postpone the polling, if it is so minded.
But the Court should not remain a passive spectator in this extraordinary situation and leave the Nation to the mercy of an individual, however high be his office, when it is evident that he has secluded himself in his ivory tower and has shut his eyes to the realities of the situation and closed his mind to the prognosis of this matter.
The Court can certainly satisfy itself whether the Election Commissioner had kept his eyes, ears and mind open, and whether he was able to show that all relevant factors including the consideration as to what advantage was to be secured as against the risk to be faces, entered into his reckoning.
If this is not shown to have been done, as in the present case, his decision is vitiated and the Court need not feel helpless.
The High Court was therefore fully justified in passing the impugned order, and the Supreme Court should not upture it.
[571B D]


judgement:
Civil Appeal Nos.
2:96 of 1970, 2712 and 2714 of 1972 On appeal by Certificate from the Judgment and Decree dated 12.3.1970 of the ' High Court of the Mysore at Banglore in M F. Appeals No 155 & 168 of 1965.
K.N. Bhat and Miss Madhumulchandani for the appellant, in C.A. No. 2196 & Respondent CAs.
No. 271 ' 14.
K. Rajendra Choudhary for the Respondent in CA No. 2195 & Appellants in CAs.
2713 14.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
In respect of acquisition of land pursuant to notifications issued under section 4(1) of the Land Acquisition Act on November 28, 1957, compensation of Rs. 5250 for the land in section No. 83 and compensation at the rate of Rs. 800 per acre for the land in section No. 74 was awarded by the Land Acquisition Officer.
On a reference under section 18 of the Land Acquisition Act, the Civil Judge enhanced the compensation to Rs. 18,000 for the land in section No. 83 and Rs. 14,250 for the land in section No. 74.
The High Court, on appeal, further enhanced the compensation to Rs. 8000 per acre for the land in section No 83 and Rs. 2500 per acre for the land in section No. 74.
The claimant has filed Civil Appeal No. 2196 of l970 to enhance the compensation and the State of Karnataka has preferred Civil Appeal Nos. 2713 and 2714 of 1972 to reduce the same.
We are unable to find any question of principle involved in any of the appeals and accordingly we have no option but to dismiss them, 916 However, in the appeal filed by the claimant, Shri K.N. Bhat, learned counsel, urged that in view of the Land Acquisition Amendment Act, 1984, his client is entitled to be paid solarium of 30% of the compensation instead of the 15% to which he had been held entitled by the lower courts under the unmended Act.
He relied open sec.
15(b) and sec.
30(2) of the 1984 Amendment Act which are in the following terms: "15.
In Section 23 of the Principal Act, (a) . . . . . . (b) in sub section (2) for the words "fifteen per centum", the words "thirty per centum" shall be substituted." . . . . . . . . . . . "30.
(1) . . . (2) The provisions of sub section (2) of section 23 and section 28 of the Principal Act as amended by clause (b) of section 15 and section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the Principal Act after the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill 1982, in the House of the People) and before the commencement of this Act," Shri Bhat 's submission was that section 30(Z) of Amendment Act made the amended section 23(2) which increased the solarium to thirty per centum applicable to all proceedings in regard to compensation which had not become final whether they be pending before the Collector, Court, High Court or Supreme Court.
We are unable to agree with Shri Bhat 's submission.
It is worth while remembering at this juncture that awards made by the Collector under section I l and by the Court on reference under section 18 only are described as awards in the Land Acquisition Act, while further appeals are provided to the High Court and the Supreme Court.
The new section 23(2), of course, necessarily applies to awards made by the Collector or Court after the commencement of the Act, that is after September 9, 1984 which was the date on which the act received that assent of the President.
917 The Bill which ultimately became the Amendment Act was introduced into Parliament on April 30, 1982.
Parliament obviously desired to give effect to the amended s 23(2) from the date of introduction of the Bill.
So the amended provision was expressly made applicable by section 30(2) to awards made by the Collector or Court between April 30, 1982 and September 24, 1984 also.
A natural corollary was that the new provision should apply to orders made by the High Court or by the supreme Court in appeals against such awards, that is, awards made between April 30, 1982 and September 24, 1984.
Parliament did not intend and could not have intended that whatever be the date of the award, however ancient it may be, solarium would stand enhanced to 'thirty per centum ' if an appeal happened by chance or accident to pending an April 30, 1982.
Surely it was not the intention of Parliament to reward those who kept alive the litigation of Parliament to make the amended section 23(2) applicable to all proceedings relating to compensation wherever they be pending, the words after the 30th day of April 1982 (the date of introduction of the Land Acquisition Amendment Bill, 1982 in the House of the People) and before the commencement of this Act" in section 30(2) and would become meaningless.
It is clear that Parliament wanted the amended s.23(2) to have very limited retrospectivity.
It made the provision applicable to awards made after April 30, 1982 and before September 24, 1984 also and further to appeals to the High Court as the Supreme Court arising from such awards.
In this view we see no force in the submission of Shri Bhat.
All the appeals are dismissed.
No costs.
N.V.K. Appeals dismissed.

summary/full:
The Land Acquisition (Amendment) Act, 1984 by section 15(b) amended section 23(2) of the Land Acquisition Act, 1894 to provide that in sub section (2) of section 23 for the words "fifteen per centum ', the words ' thirty per centum" shall be substituted.
Section 30(2) of the Amendment Act provided that the increased solution was to be applicable "in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the Principal Act after the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People) and before the commencement of this Act.
"The lands of the appellant claimant were acquired pursuant to notifications issued under section 4(1) Land Acquisition Act, 1894 on November 28, 1957 Being dissatisfied with the compensation awarded by the Land Acquisition Officer, Civil Judge and the High Court, appeals were filed to this Court for enhancement.
The State filed appeals for reduction of the compensation.
It was contended on behalf of the appellant claimant that section 30(2) of the Land Acquisition (Amendment) Act, 1984 made the amended section 33(2) which increased the solatium to thirty per centum" applicable to all proceedings in regard to compensation which had not became final whether they be pending before the Collector, Court, High Court, or Supreme Court.
Dismissing the Appeals, ^ HELD: The Parliament did not intend and could not have intended that whatever be the date of the award however ancient it may be, solarium 915 would stand enhanced to 'thirty per centum ' if an appeal happened by chance or accident to be pending on April 30,1982.
It was not the contention of parliament to reward those who kept alive the litigation even after several years.
If it was the intention of Parliament to make the amended section 23(2) applicable to all proceeding relating to compensation wherever they may be pending the words "after the 30th day of April 1982 (the date of introduction of the Land Acquisition(Amendment) Bill, 1982 in the house of the people and before the commencement of this Act in section 30(2) to have very limited retrospectivity.
it made the provision applicable to awards after April 30, 1982 and before September 24, 1964 also and further to appeals to the High Court as well as Supreme court arising from such awards [917C E]


judgement:
Appeal No. 24 of 1954.
Appeal under Article 132 read with Article 147 and Article 133(1)(c) of the Constitution of India from the judgment and order dated July 17, 1952, of the Punjab High Court in First Appeal from Order No. 9 of 1949 against the judgment and decree of the Sub Judge 1st 104 Class, Ferozepur dated February 9, 1949, in Civil Sui No. 134 of 1949.
Porus A. Mehta, R. Gopalakrishnan and R.H. Dhebar, for the appellant.
Hardayal Hardy, for the respondents.
April 30.
The Judgment of the Court was, delivered by section K. DAS J.
This is an appeal on the strength of a certificate granted by the High Court of Punjab at Simla.
The appellant is the Union of India and the respondent Messrs. Chaman Lal Loona and Company military contractors at Muktsar in the district of Ferozepur, now in the Indian State of Punjab.
The relevant facts are these.
In the Court of the ' senior Subordinate Judge at Ferozepur, in August, 1948, the respondent Company made an application, purporting to be an application under section 8(2) and section 20 of the Arbitration Act, 10 of 1940, wherein the respondent alleged that in 1945 the respondent had entered into a contract for the supply of " bhoosa " (fodder) to the military department of the then undivided India through the Manager, Military Farms, Lahore Cantonment.
The contract, it was alleged, was signed by the Assistant Director, Military Farms, on behalf of the then Government of India.
The agreement between the parties was that the said Manager would also supply, on payment of price, wire coils in connection with the supply of bhoosa presumably for the purpose of tying the bundles of fodder, and on the supply being made and on return of the wire coils, the military department would give credit for the price of the coils already paid by the respondent.
In November, 1945, the respondent supplied fodder and returned 152 bundles of wire coils.
The Manager, Military Farms, Lahore, informed the respondent, however, that out of 152 bundles of wire coils, said to have been sent, 24 bundles had not been received, though no note of such non delivery was made at the time the consignment was received.
The respondent had also deposited Rs. 11,026 by way of security with the military department in connection with the contract.
The agreement contained an 134 1042 arbitration clause to the effect that if a dispute arose between the parties, it should be decided by the arbitrator named therein, viz., the District Commander concerned.
The respondent said that he had a claim against the appellant for Rs. 720, the price of 24 bundles of wire coils at Rs. 30 per bundle, and for refund of Rs. 11,026, and prayed in terms of section 20 of the Arbitration Act that the appellant be directed to 'ale the agreement and other relevant documents, and that the Court do refer the dispute to the arbitrator named for the purpose of filing an award.
As required by sub section
(2) of section 20 of the Arbitration Act, the application was registered as a suit, and a notice was issued to the appellant to show cause.
The appellant showed cause by a written statement filed on November 4, 1948, in which the two substantial pleas taken were (1) that by reason of the provisions of the Indian Independence (Rights, Property and Liabilities) Order, 1947, hereinafter referred to as the Independence Order, 1947, the Dominion of India, and later the Union of India, had no liability in respect of the contract in question, the purposes of which contract as from August 15, 1947, were purposes exclusively for the Dominion of Pakistan; and (2) the Court at Ferozepore had no jurisdiction to try the suit, as the cause of action did not arise within its territorial jurisdiction.
The two issues which were tried by the learned Subordinate Judge were the aforesaid issues of liability and jurisdiction.
On jurisdiction, he found in favour of the respondent, on the ground that the respondent was a displaced person ' living in Muktsar which is in Ferozepore and therefore the Court at Ferozepore had jurisdiction to try the suit.
The High Court affirmed this finding, and as nothing now turns upon this issue, we are not called upon to make any pronouncement thereon.
The issue as to the liability of the appellant on the basis of the contract in question is, however, very much a live issue.
The learned Subordinate Judge found in favour of the appellant on this issue, and dismissed the application.
The High Court reversed that finding, and allowed the appeal.
In reversing the finding of the learned Subordinate Judge, the High 1043 Court relied on the provisions of the Joint Defence Council Order, 1947, to be referred to hereinafter as the Defence Order, 1947.
The precise ground on which the High Court proceeded may best be put in the words of Khosla J. who gave the leading judgment.
Khosla J. said: " In the present case the Lahore Military farm is situated at Lahore and whether the fodder was supplied in 1945 or after the 15th of August 1947, the purpose will be deemed.
to be a purpose of the Dominion of Pakistan on account of the territorial situation of Lahore.
But in the present case, the fodder was to be supplied to a Military Farm and the fodder, therefore, constituted Military stores.
Military Stores were kept joint and under the exclusive control of the Joint Defence Council who had the power of allocating these stores among the two Dominions and for transferring them from one place to another.
Therefore, fodder lying in the Military Farm, Lahore, was not, on 15th August 1947, the exclusive property of the Dominion of Pakistan but was under the exclusive control of the Joint Defence Council.
This fodder could be transferred to a farm in India and thus could become the property of the Dominion of India.
In the circumstances, it cannot be said that the contract for supply of fodder to the Military Farm, Lahore, was a contract exclusively for the purposes of the Dominion of Pakistan if the contract were viewed on the 15th of August 1947, and, that being so, it must be held that the contract was not a contract exclusively for the purposes of the Dominion of Pakistan.
The decision of the learned trial Judge on this point must, therefore, be set aside.
" The principal question in this appeal is whether the High Court is right in its view as to the true scope and effect of the relevant provisions of the Independence Order, 1947, and the Defence Order, 1947.
Learned counsel for the appellant has challenged the correctness of that view, and has submitted (1) that on a true construction of article 8 of the Independence Order, 1947, the contract under consideration in this case was as from the appointed day (i.e., August 15, 1947), a contract exclusively for the purposes of the Dominion of 1044 Pakistan and shall be deemed to have been made on behalf of that Dominion, and all rights and liabilities which have accrued or may accrue under such contract shall be the rights and liabilities of the Dominion of Pakistan; (2) that the Defence Order, 1947, which set up a Joint Defence Council and provides for the exercise of certain powers of control by the said Council under article 8 of that Order did not in any way affect the rights and liabilities arising out of the contract, which rights and liabilities were governed by the relevant provisions of the Independence Order, 1947; and (3) that, in any view, the claim in the present case did not relate to military stores as the High Court wrongly assumed, and the Defence Order, 1947, had no application at all to the facts of this case.
On behalf of the respondent, the correctness of each of the above submissions has been seriously contested, and learned counsel for the respondent has strongly contended that the view of the High Court as to the relevant articles of the Independence Order, 1947, and the Defence Order, 1947, is correct.
Learned counsel also raised a preliminary point of objection to the effect that on an application under section 20, Arbitration Act, the only point for decision was if there was an arbitration agreement and the question of liability was one for the arbitrator and not for the Court to decide.
Ordinarily, that would be so.
When, however, we pointed out to learned counsel that the Union of India as such was admittedly not a party to the arbitration agreement and could not be dragged, therefore, to an arbitration proceeding on the strength of an agreement to which it was not a party unless by operation of law it was deemed to be a party to the agreement, learned counsel gave up his preliminary objection and conceded that the question of liability must be decided in this case with reference to the provisions of the Independence Order, 1947, and the Defence Order, 1947.
It is convenient at this stage to set out the relevant provisions of the two Orders.
The Defence Order, 1947, was made in exercise of the powers conferred by. sub section
(1) of section 9 and in pursuance of sub section
(1) of section II of the Indian Independence Act, 1947, and was published 1045 on August 11, 1947.
The Independence Order, 1947, was made in exercise of the powers conferred by section 9 of the Indian Independence Act, 1947, and was published on August 14, 1947.
Both came into force at once.
Article 3 of the Defence Order, 1947, states: " (1) As from the 15th day of August, 1947, there shall be set up a Council to be known as the Joint Defence Council for India and Pakistan.
(2)The said Council, hereinafter referred to as the Joint Defence Council, shall consist of (i)the Governor General of India, (ii) the Defence Minister of India, (iii) the Defence Minister of Pakistan, and (iv) the Supreme Commander of His Majesty 's forces in India and Pakistan (hereinafter referred to as the Supreme Commander).
" Article 8, so far as it is relevant, is in these terms: " The Joint Defence Council shall be in exclusive control of (a)the division of the Indian forces between the Dominions and their reconstitution as two separate Dominion forces (b)the allocation, transfer and movement of officers and men belonging to the Indian forces for the purposes of such re constitution; (c)the allocation, transfer and movement for the purposes of such reconstitution of plant, machinery equipment and stores held by the Governor General in Council immediately before the 15th day of August, 1947, for the purposes of the Indian forces etc." The Independence Order, 1947, states in article 2 that the 'appointed day ' means the fifteenth August, 1947.
Article 3 so far as it is relevant for our purpose, states: " (1) The provisions of this Order relate to the initial distribution of rights, property and liabilities consequential on the setting up of the Dominions of India and Pakistan, and shall have effect subject to any agreement between the two Dominions or the Provinces concerned and to any award that may be made by the Arbitral Tribunal.
(2)Nothing in this Order affects the powers of control over military plant, machinery, equipment 1046 and stores conferred on the Joint Defence Council by the Joint Defence Council Order, 1947.
Article 8(1), which is very important for our purpose, is in these terms: " (1) Any contract made on behalf of the Governor General in Council before the appointed day shall, as from that day, (a)if the contract is for purposes which as from that day are exclusively purposes of the Dominion of Pakistan, be deemed to have been made on behalf of the Dominion of Pakistan instead of the Governor General in Council; and (b)in any other case, be deemed to have been made on behalf of the Dominion of India instead of the Governor General in Council; and all rights and liabilities which have accrued or may accrue under any such contract shall, to the extent to which they would have been rights or liabilities of the Governor General in Council, be rights or liabilities of the Dominion of Pakistan or the Dominion of India, as the case may be. " The first question is, what is the true scope and effect of article 8(1) of the Independence Order, 1947? Does it apply to the contract in question, and, if so, does the contract fall within the purview of cl.
(a) or cl.
(b) ? At one stage of the argument, learned counsel for the respondent contended that article 8(1) did not apply to what is sometimes described as executed contracts; this point was also urged before Kapur J. of the Punjab High Court (as he then was) and one of the reasons given by him for a reference of the case to a larger bench was the difficulty he felt if the contract in question which has been performed and executed long before August 15, 1947, so far as the respondent was concerned, attracted the operation of cl.
(a) of article 8(1).
It is necessary to appreciate clearly the distinction between the two classes of contracts where the consideration is either executed or executory. " An executed consideration consists of an act for a promise.
It is the act which forms the consideration. .
No contract is formed unless and until the act 1047 is performed, e.g., the payment for a railway ticket, but the act stipulated for exhausts the consideration, so that any subsequent promise, without further consideration, is merely a nudum pactum In an executed consideration the liability is outstanding on one side only; it is a present as opposed to a future consideration.
In an executory consideration the liability is outstanding on both sides.
It is in fact a promise for a promise; one promise is bought by the other The contract is concluded as soon as the promises are exchanged.
In mercantile contracts this is by far the most common variety.
In other words, a contract becomes binding on the exchange of valid promises, one being the consideration for the other.
It is clear, therefore, that there is nothing to prevent one of the parties from carrying out his promise at once, i.e., performing his part of the contract; whereas the other party who provides the consideration for the act of or detriment to the first may not carry out his part of the bargain simultaneously with the first party. " (Chitty on Contracts, Vol.
I, 21st Edn.
43 44).
On a plain reading of article 8(1) of the Independence Order, 1947, it is clear that it applies to both classes of cases; it says, in its concluding part, that " all rights and liabilities which have accrued or may accrue under any such contract, shall be rights or liabilities of the Dominion of Pakistan or the Dominion of India, as the case may be." If the contract has been fully and completely performed on both sides, no question of any further rights and liabilities under the contract is likely to arise.
If, however, the contract is one in which the consideration is executed on one side, there will be a right on one side and an outstanding liability on the other.
If the consideration is executory on both sides, there will be outstanding rights and liabilities on both sides.
In talking of " all rights and liabilities which have accrued or may accrue" under the contract, the Article clearly contemplates both classes of cases.
On this question, we approve of the view taken in Elahi Bux vs Union of India (1) and Krishna Ranjan vs (1) A.I.R. 1952 Cal.
1048 Union of India (1) and disapprove of the view expressed by Roxburgh J. in Union of India vs Loke Nath (2).
It is further clear that the first part of article 8(1) creates a legal fiction.
The contract is actually made before August 15, 1947, (the appointed day); but as from that date, the contract shall be deemed to have been made on behalf of the Dominion of Pakistan, if the contract is for purposes which as from that day are exclusively purposes of the Dominion of Pakistan, and in any other case it shall be deemed to have been made on behalf of the Dominion of India.
What is the proper meaning of the expression " a contract for the exclusive purposes of the Dominion of Pakistan"? We assent to the view expressed by Chagla C.J. in Union of India vs Chinu Bhai Jeshingbhai (3).
Said the learned Chief Justice " It is clear from the language used in article 8 that the test to be applied with regard to this contract is not whether the contract was for the purposes of the Dominion of Pakistan at the date when it was made.
Ex hypothesi that test is clearly inapplicable.
All contracts contemplated by article 8 must be contracts which when made were made by undivided India by the Governor General in Council.
The test that must be applied is an artificial test and the test may be either if the contract had been entered into on August 15, 1947, whether it would have been a contract for the purposes of the Dominion of Pakistan, or if the Dominion of Pakistan had been in existence when the contract was entered into, whether it would have been a contract for the purposes of Pakistan.
" This, we think, is the correct test to apply for determining the true scope and effect of article 8(1) of the Independence Order, 1947, and applying this test, there is no doubt that the contract in question comes under cl.
(a) of the said Article.
The purpose of the contract was to supply fodder to the Manager, Military Farms, Lahore Cantonment, which farms were in Pakistan on the appointed day.
The contract was, therefore (1) A.T.R. (2) A.I.R. 1952 Cal. 140.
(3) I.L.R. , 130.
1049 exclusively for the purposes of the Dominion of Pakistan as from the appointed day.
The second question is do the provisions of the Defence Order, 1947, make any difference in the legal position ? The High Court thought, erroneously in our opinion, that they did.
It is true that cl.
(2) of article 3 of the Independence Order, 1947, says that nothing in that Order affects the powers of control over military plant, machinery, equipment and stores conferred on the Joint Defence Council by the Defence Order ' 1947.
Clause (3) of article 3 of the Independence Order, 1947, states that the powers of control over property conferred upon each Dominion by the Order shall include all powers of use, consumption, management etc.
This, however, is subject to such powers of control as are given to the Joint Defence Council.
Those powers of control are laid down in article 8 of the Defence Order, 1947, el.
(c) of which relates to "the allocation, transfer and movement for the purposes of such reconstitution of plant, machinery, equipment and stores held by the ' Governor General in Council immediately before the 15th day of August, 1947, for the purposes of the Indian forces.
" The point which is to be emphasised is that what is saved by cl.
(2) of article 3 of the Independence Order, 1947, is 'Powers of control ' of the Joint Defence Council with regard to certain essential military equipment etc.
includingstores.
There is no provision in the Defence Order, 1947, which affects the rights and liabilities of any of the two Dominions aris.
ing out of a contract, and those rights and liabilities are dealt with by the Independence Order, 1947.
The learned Judges of the High Court thought that the Defence Order, 1947, made a difference in the legal position in so far as the purpose of the contract was concerned.
They realised and said that ordinarily the purpose of supplying fodder to the Military Farms at Lahore was a purpose exclusively for the Dominion of Pakistan; but they thought that on the assumption that 'bhoosa ' was military store, the Joint Defence Council had powers of control over it and could send it wherever they wanted it to be sent; therefore, they 135 1050 said that the purpose of the contract was not a purpose exclusively for the Dominion of Pakistan.
We say this with great respect, but this line of reasoning appears to us to be due to a lack of proper appreciation of the distinction between the "purpose of the contract" and the "ultimate disposal of the goods" supplied under the contract.
The purpose of the contract is not determined nor modified by the ultimate disposal of the goods supplied under the contract, nor even by the powers of control exercised over the goods after the contract had been performed by the respondent.
Wherever the goods might be ultimately sent, the purpose of the contract remained what it was, that is, to supply fodder to the Manager, Military Farms, Lahore, which, on the test laid down by us, was clearly a purpose exclusively for the Dominion of Pakistan.
The Independence Order, 1947, determines the respective rights and liabilities under contracts.
If, under the Defence Order, 1947, some goods the liability for the price of which under the Independence Order, 1947, falls on, say, India, are allotted to Pakistan, then the value thereof will have to be adjusted in accounts.
Such allotment does not alter the rights or liabilities determined under the Independence Order, 1947.
We are, therefore, of the view that the High Court of Punjab was in error in inferring that on the strength of certain provisons of the Defence Order, 1947, the contract in question came within el.
(b) of article 8(1), and not cl.
We think that the learned Subordinate Judge correctly held that cl.
(a) applied and the Union of India had no liability under the contract.
Only a few words are necessary to dispose of the third contention urged before us.
The claim in the present case was a claim for a refund of the price paid for 24 bundles of wire coils and of the security deposit.
Such a claim did not relate to military stores, and the Defence Order, 1947, had no direct application to such a claim.
It was only for examining the purpose of the contract that the question of 'bhoosa ' being military store arose.
The High Court assumed that 'bhoosa ' was military store.
Without deciding whether 'bhoosa ' is military store or not, we have also proceeded on the 1051 same assumption; but even on that assumption, there is no difference in the legal position.
The purpose of the contract was still a purpose which, as from the appointed day, was a purpose exclusively for the Dominion of Pakistan.
It is worthy of note that el.
(c) of article 8 of the Defence Order, 1947, relates inter alia to stores held by the Governor General in Council immediately before August 15, 1947, for the purposes of the Indian forces.
There was nothing in the record to show that the 'bhoosa ' supplied by the respondent in 1945 was held by the Governor General in Council immediately before August 15, 1947, so as to vest the power of control in the Joint Defence Council and thereby affect the purpose of the contract, assuming, though we do not so decide, that such power of control can affect the purpose of the contract.
The original contract was not produced in this case, as it was not available in the appropriate office in India.
The respondent did not even produce a copy thereof, but gave oral evidence as to the purpose of the contract.
The Courts below proceeded on that oral evidence, and the appeal was argued before us on that footing.
We have determined the purpose of the contract as on August 15, 1947, on the basis of that evidence, without deciding the further question if oral evidence was admissible in this case as to the purpose of the contract.
For the reasons given above, we allow this appeal, set aside the judgment and decree of the High Court, and restore those of the learned Subordinate Judge.
The appellant will get costs throughout.
Appeal allowed.

summary/full:
The correct test to determine whether a contract made before the partition of India on behalf of the Governor General in Council comes within the purview of cl.
(a) of article 8(1) of the Indian Independence (Rights, Property and Liabilities) Order, 1040 1947, so as to be deemed to have been made on behalf of the Dominion of Pakistan, is either (1) if the contract was made on August 15, 1947, it would have been a contract for the purposes of the Dominion of Pakistan ; or (2) if Pakistan had existed on the day the contract was made, it would be a contract for the purposes of Pakistan.
Union of India vs Chinu Bhai jeshing bhai, I.L.R. 1953 Bom. 117, approved.
The purpose of a contract is not to be confused with the ultimate disposal of the goods supplied thereunder since such disposal can in no way determine or modify it.
Nor do the powers of control over military stores vested in the joint Defence Council by article 8(c) of the joint Defence Council Order, 1947, and saved by article 3(2) of the Indian Independence (Rights, Property and Liabilities) Order, 1947, whereby the goods might be transferred anywhere in India, make any difference and the rights and liabilities accruing from such contracts fall entirely to be adjudged by the provisions of the Indian Independence Order and not by the joint Defence Council Order.
The concluding part of article 8(1) makes it quite clear that the Article makes no distinction between contracts where the consideration is either executed or executory in nature and applies equally to both.
Elahi Bux vs Union of India, A.I.R. 952 Cal.
471 and Krishna Ranjait vs Union of India, A.I.R. 1954 Cal.
623, approved.
Union of India vs Loke Nath, A.I.R. 1952 Cal.
140, disapproved.
Consequently, in a case where the Union of India was sought to be made liable an the basis of a contract entered into on behalf of the Governor General of India in Council for the supply of fodder to the Manager, Military Farms, Lahore Cantonment, which was in Pakistan on August 15, 1947, and the trial Court found for the Union of India but the High Court, taking the view that the fodder constituted military stores under the exclusive control of the joint Defence Council on August 15, 1947, liable to be transferred anywhere in 'India, reversed that finding, the contract, even assumig that view to be correct, must be held to be one exclusively for the purposes of Pakistan as from the at date and the Union of India could not be made liable thereunder.


judgement:
Civil Appeal No. 874 of 1971 On appeal by Special Leave from the Judgment and Order dated 25 2 71 of the Andhra Pradesh High Court of Judicature at Hyderabad in Writ Petition No. 975/1969.
M. K. Ramamurthy and J. Ramamurthy for the Appellant.
T. V. section N. Chari, B. Parthasarthy, A S Nambiar, Attar Singh and G. N. Rao for the Respondents.
The Judgment of the Court was delivered by TULZAPURKAR, J.
In April 1960 the Regional Transport Authority, Chittoor, acting under section 47 (3) of the decided to open a new long distance route called Tada to Tada (ring route) and fixed the number of vehicles for which stage carriage permits would be issued at two on that route.
In August 1960 a Notification was published under section 57 (2) of the Act inviting applications for the grant of two such stage carriage permits.
Several applications received in pursuance of such Notification were notified 806 under section 57 (3) on 18th October, 1960 for submission of representations in connection therewith.
Two permits one to K. Ramachandra naidu and the other to M/s Associated Transports (Madras) Private Limited, were granted by the Regional Transport Authority in November 1960, The unsuccessful applicants filed appeals to the Appellate Authority (STAT) who s t aside the order granting the two permits on the ground that the Regional Transport Authority itself had not been properly constituted inasmuch as it did not comprise a non official member as required by section 44 of the Act and the matter was remanded.
Thereafter the Regional Transport Authority was properly constituted by including within it a non official member.
However, after it was so properly constituted the Regional Transport Authority did not issued a fresh Notification under section 57 (2) inviting fresh applications but proceeded to consider the several applications that had been received in pursuance of the earlier Notification issued under section 57 (2) and after re affirming the necessity for the grant of two permits only on that route granted two stage carriage permits one to the appellant (R. Srihari Naidu) and the other to respondent No. 5 (M/s Navyandhra Labour Transport).
In appeals preferred by the aggrieved applicants the Appellate Authority (STAT) confirmed the grant of the state carriage permit to respondent No. 5 but set aside the permit granted to the appellant and instead granted it to respondent No.4 (V. Janakirami Reddy).
The appellant went in revision to the State Government against the order of the Appellate Authority but the same was rejected by the State Government; in other words the grant of the permit to respondent No. 4 in place of the appellant was confirmed.
The appellant moved the High Court by means of a writ petition under article 226 of the Constitution and challenged the order of the State Government passed in revision on 18th March, 1969.
Two grounds were urged in support of the Writ Petition: (a) that after the Regional transport Authority had been properly constituted no Notification inviting fresh applications was issued by that Authority but the authority only considered those applications which had been received by the Secretary of the earlier Body the Regional transport Authority invalidly constituted in breach of section 44 under the authority that had been delegated by that body to the Secretary the contention being that at the time when such earlier Notification was issued under section
S7(2) the delegation of power by such invalidly constituted Authority to its Secretary to issue such Notification would be invalid and therefore, the further proceedings adopted for consideration of such applications and grant of permits pursuant to 807 such consideration was invalid, and (b) that on merits the Appellate Authority ought not to have interfered with the five marks that had been granted to the appellant by the Regional Transport Authority and reduced the same to three and further that the Appellate Authority ought not to have relied upon the only solitary adverse entry in the appellant 's record to reject his application while preferring that of respondent No. 4.
The High Court rejected both the contentions and dismissed the Writ Petition.
It is this decision of the High Court that has been challenged by the appellant before us in this appeal.
In support of the appeal counsel for the appellant pressed before us the self same two contentions that were urged before the High Court.
In our view the first contention is liable to be rejected on three grounds.
In the first place it was not disputed that applications under section 57 (2) of the Act for the grant of stage carriage permits could be filed voluntarily and without any Notification being issued in that behalf If that be so the question whether a fresh Notification inviting fresh applications by the properly constituted Regional Transport Authority ought to have been issued or not or whether the properly constituted Regional Transport Authority could proceed to act on the earlier Notification issued by the Secretary would be immaterial and of no consequence and the ultimate decision not to grant stage carriage permit to the appellant cannot be disturbed on this ground.
Secondly in our view the non issuance of a fresh Notification by the properly constituted Regional Transport Authority could, if at all, be made a ground of attack by those persons who were unable to make applications because of such non issuance and not by the appellant who had made an application in that behalf and who took his chance to obtain the permit on the basis of his application which was in fact considered by the Regional Transport Authority and thereafter by the Appellate Authority.
Thirdly sub s.(2) of section 134 of the Act provides: "No order made by a competent authority under this Act shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings, unless it appears to the prescribed appellate authority or revisional authority, as the case may be that such error omission or irregularity has, in fact, occasioned a failure of justice.
" If was not disputed that the initial order granting the permit to the appellant was passed by a properly constituted Regional Transport 808 Authority and the appellate order was also passed by State Transport Appellate Tribunal which was the properly constituted Appellate Authority and both these Authorities had passed their orders on a consideration of the entire material placed before each of them and after giving a full hearing to the appellant and as such no failure of justice had occassioned; therefore, in our view the error or omission that is said to have taken place in the instant case [of there being no proper Notification issued inviting applications for permits under s.57 (2)1 can not be made a ground to upset the final order that has been passed in the case.
On these grounds the first contention must be rejected.
As regards the second contention it must be observed that the High Court has taken the view that the contention really pertained to the merits of the claim of the stage carriage permit and it could not interfere with the finding of fact recorded against the appellant in that behalf in exercise of its extra ordinary jurisdiction under article 226 of the Constitution and alternatively the High Court has also taken the view that the grounds on which the marks of the appellant were reduced and the reasons for ultimate rejection of the appellant 's application were justified.
Having regard to this view of the High Court we do not feel that we should interfere in the matter on merits.
The appeal is, therefore.
dismissed with no order as to costs.
M. L. A. Appeal dismissed.

summary/full:
An order granting two stage carriage permits by the Regional Transport Authority was set aside in appeal on the ground that the RTA had not been properly constituted.
Thereafter, the Regional Transport Authority, on its proper constitution, did not issue a fresh Notification section 57 (2) of the inviting fresh applications but granted a stage carriage permit to the appellant on the basis of applications received in pursuance of the earlier Notification.
On appeal by the aggrieved applicants the Appellate Authority set aside the said order and instead granted the permit to respondent No. 4.
The appellant 's revision application before the State Government having been failed, he filed a writ petition in the High Court against the order of the State Government on the grounds, (i) that at the time when the earlier Notification was issued section 57(2), the delegation of power by the invalidly constituted Authority to its Secretary to issue such Notification would be invalid and therefore the further proceedings adopted for consideration of such applications and grant of permits pursuant to such consideration was invalid; and (ii) that on merits the Appellate Authority ought not to have interfered with the five marks that had been granted to the appellant by the Regional Transport Authority and reduced the same to three and further that the Appellate Authority ought not to have relied upon the only solitary adverse entry in the appellant 's record to reject his application while preferring that of respondent No. 4.
The High Court also dismissed the writ petition.
The appellant advanced the same contentions before the Supreme Court, Dismissing the appeal, ^ HELD: (1) The first contention is liable to be rejected on three grounds, namely, (i) It was not disputed that applications under section 57 (2) of the Act for the grant of stage carriage permits could be filed voluntarily and without any Notification being issued in that behalf.
If that be so, the question whether a fresh Notification inviting fresh applications by the properly constituted Regional 805 Transport Authority ought to have bean issued or not or whether the properly A constituted Regional 'transport Authority could proceed to act on the earlier Notification issued by the Secretary would be immaterial and of no consequence and the ultimate decision not to grant stage carriage permit to the appellant cannot be disturbed on this ground; (ii) The non issuance of a fresh Notification by the properly constituted Regional Transport Authority could, if at all, be made a ground of attack by those persons who were unable to make applications because of such non issuance and not by the appellant who had made an application in that behalf and who took his chance to obtain the permit on the basis of his application which was in fact considered by the Regional Transport Authority and thereafter by the Appellate Authority; and (iii) The initial order granting the permit to the appellant was passed by a properly constituted Regional Transport Authority and the appellate order was also passed by State Transport Appellate Tribunal which was the properly constituted Appellate Authority and both these authorities had passed their orders on a consideration of the entire material placed before each of them and after giving a full hearing to the appellant and as such no failure of justice had occassioned.
[807C F; H; 8U8A] (2) This Court will not be justified in interfering in the matter on merits, since the High Court has rightly taken the view, (i) that the second contention really pertained to the merits of the claim of the appellant to the stage carriage permit and it could not interfere with the finding of fact recorded against the appellant in that behalf in exercise of its extra ordinary jurisdiction under article 226 of the Constitution; and (ii) that the grounds on which the marks of the appellant were reduced and the reasons for ultimate rejection of the appellant 's application were justified.
[808C D]