judgement:
Appeals Nos.
680 to 682 of 1963.
Appeals by special leave from the judgment and decree dated February 8, 1960 of the Board of Revenue, U. P. in petitions Nos.
203 to 205 of 1958 59.
J. P. Goyal, for the appellant (in all the appeals).
Brijbans Kishore and Ramesh B. Saxena, for respon,dents Nos.
I to 3 (in all the appeals).
April 17, 1964.
The judgment of the Court was delivered ,by HIDAYATULLAH, J.
This judgment shall also govern the disposal of C. A. 681 of 1963.
These are appeals by special leave of this Court against a common order of the Board of Revenue, U.P. dated February 8, 1960 disposing of three .appeals.
Civil Appeal No. 682 of 1963 (since compromised) was also against the same decision.
The appellant in each 'of these appeals is one Amba Prasad who was the Zamindar of village Rhonda, Pargana and Tehsil Khurja, District Bulandshahr, before the coming into operation of the U. P. Zamindari Abolition and Land Reforms Act, 1950.
The opposite parties (who will be referred to as the answering respondents in this judgment) are persons whose names were recorded in column 23 (miscellaneous) in the Khasra for the year 1356 Fasli, as persons in possession and who claim, by reason of the entry, to be the recorded, occupants of the fields in dispute, and to have 'obtained adhivasi rights in the fields under section 20 of the Abolition Act.
Though the point in dispute appears to lie within a very narrow compass the history of litigation in respect of these plots is as tedious as it is long.
It must unfortunately be told to get a true measure of the ,arguments in the appeals.
Amba Prasad brought two suits under section 180 of the U.P. Tenancy Act, 1939 for ejectment from the fields now in dis pute and for damages, against Mohammad Ali and Mst.
Sharifan respectively because their names A ere recorded in the Khasra as tenants 'bila tasfia lagan '.
These suits were dismissed by the trial Judge and Aniba Prasad 's appeal to the Commissioner failed on November 30, 1943.
Amba Pra.sad then appealed to the Board of Revenue, U.P. and succeeded.
The order of the Board of Revenue, U. P. is dated March 19, 1949 (item No. 25).
Mohammad Ali had died by L/P(D)ISCI 26 802 then and was represented by one Faivazali and six others.
Sarifan had also died and was represened by one Abdul Sattar alias Chunna Khan and two others.
As a result of the decision of the Board of Revenue possession of the fields was delivered to Amba Prasad on July 1, 1949 the day of the commencement of the year 1357 Fasli.
The dakhalnamas are items Nos. 44 and 45 in this record and they mention fields Nos.
427/2, 428/2, 429, 430 and 380 (item No. 44) and fields Nos. 416, 418/1 and 418/2 (item No. 45) of village Rhonda, Pargana and Tehsil Khurja, District Bulandshahr.
Immediately after obtaining possession of the fields Amba Prasad was required to commence proceedings under section 145, Criminal Procedure Code before the Sub Divisional Magis trate, Anupshahr against Faiyazali and Abdul Sattar and others and on January 13, 1951 these proceedings terminated in favour of Amba Prasad (item No. 28).
The Sessions Judge Bulandshahr made a reference to the High Court of Allahabad recommending that the order be vacated but the High Court declined to interfere.
The order of the High Court is dated October 20, 1951 (item No. 29).
Meanwhile Amba Prasad started a prosecution under section 218, Indian Penal Code against the Lekhpal alleging that he had made false entries in the Revenue papers but the Magistrate, 1st Class, Buland shahr discharged him by his order dated July 24, 1950 (item No. 26).
An application for revision of the order filed by Amba Prasad was dismissed by the Sessions Judge, Bulandshahr on October 10, 1950 (item No. 27).
During the pendency of the proceedings under section 145,.
Criminal Procedure Code these fields remained under atta chment from August 23, 1949 (1358 F.) to November 6, 1951 (1359 F.).
Two suits were then commenced in the court of the Munsif, Khurja for declaration that crops of the fields under attachment belonged to the plaintiffs.
One suit (97 of 1951) was filed by Abdul Noor Khan and others (answering respondents) and the other (67 of 1952) was filed by Sarfraz Ali Beg and 8 others (respondents in C. A. 682 of 1963since compromised).
These suits were directed against Amba Prasad and the plaintiffs claimed to be in possession of the fields by virtue of entries to this effect in the remarks column of the Khasras of the relevant years.
These suits failed on August 9, 1952 and August 8, 1953 respectively (vide items Nos. 30 and 32).
It appears that proceedings under section 107,, Criminal Procedure Code were also started against A. Noor khan and others before Magistrate, 1st Class, Bulandshahrand they were bound over to keep the peace.
There is on the file of this case an order of the Sessions Judge, Buland shahr dismissing their application in revision on February 24, 1953 (item No. 31).
803 Meanwhile, the answering respondents and Sarfraz Ali and others commenced on November 6, 1951 three suits under section 61 read with section 183 of the U. P. Tenancy Act, 1939 .for declaration of Sirdar rights and to claim hereditary rights under section 180/2 ibid.
These suits were decreed against Amba Prasad by the Judicial Officer, Anupshahr on July 14, 1953.
He held that the Dakhaldehi of July 1, 1949 did not affect the plaintiffs and since they were shown to be in possession they were entitled to succeed (item No. 33).
Amba Prasad filed an appeal and the Commissioner, Meerut Division re versed the decision by his order dated April 1, 1954 (item No. 35).
The Board of Revenue, U. P. also dismissed the appeal of the plaintiffs on September 17, 1955 (item No. 38).
On October 10, 1953 two suits were filed by the answering respondents in these two appeals and a third by the res pondents in C. A. No. 682 of 1963 which has been compro mised.
These suits were under section 232/2O of the U. P. Zamin dari Abolition and Land Reforms Act.
It is with these suits that we are concerned in the appeals.
Two suits also under section 232/20 of the Abolition Act were filed by Ayub Ali Khan and Abdul Sattar Khan and others against Amba Prasad.
The answering respondents and Sarfraz Ali and others were joined as defendants in those suits.
The plaints in these two suits are dated December 28, 1954 and December 20, 1954 (items Nos. 36 and 38).
They were dismissed by the Sub Divisional Magistrate, Khurja on % lay 16, 1955.
The Addi tional Commissioner, Meerut, dismissed the appeals on Janu ary 30, 1950 in default of appearance (item No. 39).
On September 4, 1958 the Sub Divisional Officer, Khurja dismissed the three suits filed by the answering respondents ,and the respondents in the companion appeal.
In these suits the answering respondents relied on extracts from the Khasras of 1355F, 1356F, 1357F, 1358F and 1359F as showing their possession.
These lands, however, were under attachment from August 23, 1949 (1358F) to November 6, 1959 (1359F) and could not be in the possession of the answering respondents in the years 1358F and 1359F.
This fact was noticed by the Commissioner, Meerut Division, in his order dated April 1, 1954 and he cast doubts on the entries in 1355F ,and 1356F.
The Sub Divisional Officer took up the same line of reasoning and pointed 'out that in years subsequent to 1355F the entry would have found place in column 6 of the Khasra and not the remarks column.
He accordingly held that the entries of 1355 F and 1356 F were unreliable and .the answering respondents had not acquired adhivasi rights.
On Appeal, the Additional Commissioner, Meerut, reversed ,the decision on April 19, 1959 and decreed the suits.
Before the Commissioner the answering respondents claimed that as L /P(D)ISCI 26(a) 804 they were recorded occupants in 1356F they were not required to prove actual possession.
This proposition, it appears, was conceded by the counsel for Amba Prasad.
He only argued that the entries were not in accordance with paragraph 87 of the Land Records Manual and they were considered spurious in earlier litigation.
He also claimed that the answering respondents were barred by the principle of res judicata because though they were parties to the suits of Ayub Ali Khan and Abdul Sattar they did not claim adhivasi rights in those suits.
The learned Commissioner pointed out that the entries were no doubt suspected to be spurious by the Commissioner on April 1, 1954, but this was after July 1. 1952 which was the date of vesting and the case therefore was outside Expla nations 11 and III of section 20(b) of the Abolition Act.
The learned Commissioner, therefore, was of the opinion that them entries could not be discarded as they must have been completed under the rules before April 30, 1949, that is to say, even before the Dakhaldehi.
He held that the answering respondents (appellants before him) had acquired adhivasi rights.
Amba Prasad appealed to the Board of Revenue.
The Board dismissed his appeal on February 8, 1960 by the order now impugned.
This time the learned counsel for Amba Prasad conceded that the entry was made but contended that it was fraudulently made after July 1, 1949 and referred to the prosecution of the Lekhpal.
The Board 'of Revenue pointed out that there was no order for the correction of the entry before the date of vesting and the Lekhpal was acquitted of ' the charge under section 218, Indian Penal Code.
Since the entries were not corrected as required by Explanation 11 to section 20 the conditions of section 20(b) of the Abolition Act were held to be satisfied and the appeal was dismissed.
Mr. Goyal on behalf of Amba Prasad contends that these suits were barred by res judicata.
He submits that in the previous suits filed by Ayub Ali Khan and Abdul Sattar and others, the answering respondents were made defendants and could have raised the plea that they had acquired adhivasi rights and as they did not raise such a plea they cannot now raise it.
We do not accept this Contention.
The answering respondents had filed these suits even before Ayub Ali Khan and Abdul Sattar had filed their suits.
Further, the suits filed by Ayub Ali Khan and Abdul Sattar did not decide anything because they were dismissed owing to a technical flaw in the plaint.
Even the appeal was dismissed in default of appearance.
Lastly, the answering respondents and Amba Prasad were co defendants and no issue between them was tried or decided even if one was necessary to be tried.
805 Mr. Goyal next contends that the answer in respondents must show that they were in possession and that under Explanation I to section 20 they were evicted after June 30, 1948.
He submits that these conditions are not fulfilled by them.
Mr. Goyal also wishes to withdraw the concession made on behalf of Amba Prasad before the Tribunals below that the answering respondents need not prove their possession.
He says that the concession was made because there were rulings of the Allahabad High Court which bound the Revenue Tri bunals.
He submits that these rulings should be considered and urge that possession in 1356 Fasli must be proved.
He further submits that even entries in the Khasra and Khatauni to be of value must be made in accordance with sections 28 and 33 of the U. P. Land Revenue Act and he relies on paragraph 87 of the Land Record Manual to contend that the entries in favour of the answering respondents were irregular.
These contentions though they appear to be many are really two.
The first questions the entry and the other the right of the answering respondents even if the record be correct to claim adhivasi rights under section 20 of the Abolition Act.
We shall consider them separately.
The first question is whether these entries were regularly made.
It is pointed out that they were doubted by the Revenue Tribunals in some other proceedings and that the Lekhpal was also prosecuted under section 218, Indian Penal Code.
That, however, does not prove in these proceedings that the entries are spurious.
The Lekhpal was discharged and the Additional Commissioner has held here: "By making the entry in the remarks column it is also not possible to attribute any dishonest or collusive entry.
It appears that Shri Amba Prasad had filed a criminal case against the patwari but this was after the entries in the remarks column in favour of appellants had been made.
The entry in 1356 fasli cannot be discarded on the remarks in the judgments referred by the learned counsel for the respondent.
It appears that Sri Mohammad Ali and Srimati Sharifan were the proprietors and they mortgaged their share with present respondents and Sri Amba Prasad purchased the equity of redemption and got the share partitioned.
There was litigation between Sri Amba Prasad and Sri Mohammad Ali and Srimati Sharifan upto High Court.
Sri Amba Prasad and others filed suits against Srimati Sharifan and Sri Mohammad Ali under section 180 and it was decreed in the 2nd appeal on 19 3 49.
The possession was delivered on 1 7 1949, in execution of the decree.
The Khasra for 1356 fasli under 806 the rules may have been deposited some time before 31st July 1950 but the entries in the Khasras had to be completed upto 30th April 1949" Mr. Goyal relies upon paragraph 87 of the Land Records Manual and argues that the names of persons occupying land without the consent of persons whose names are recorded in column 5 of the khasra should have been entered in column 6 but column 6 is crossed out.
It is, however, to be seen that when a tenant leaves the neighbourhood without leaving in charge of his holding, a person responsible for the pay ment of his rent as it falls due and without giving a written notice to the land holder of such arrangement, the Lekhpal is required to show the name of the actual cultivator in the column of remarks preceded by the word 'qabiz ' (see Para.
85(c)).
That is how the entry stands and there is nothing on the record of this case on the strength of which it can be said that the entry in 1356F was not regularly made.
If it was wrong Amba Prasad ought to have got it corrected but the doubts cast on the entry cannot be said to have corrected it .as required by Explanation III to section 20 of the Abolition Act.
There is thus no doubt that the answering respondents were recorded as 'qabiz ' in 1356F.
There is also no doubt that if they were 'qabiz ' they were dispossessed after June 30, 1948.
The possession of Amba Prasad did not begin ,earlier than July 1, 1949.
There is nothing to show that the possession of the answering respondents was disturbed bet ween these two dates, because the attachment came much later.
Mr. Goyal, however, contends that the burden is on ,the answering respondents to prove their possession and eviction after June 30, 1948 before they can regain possession as adhivasis under section 20.
Mr. Brij Bans Kishore, however, joins issue and claims that the answering respondents have done enough when they show that they are recorded as 'occupants ' in the year 1356F.
He contends that it is not necessary to show possession though he does not admit that the Ian were not in his clients ' possession.
We have pointed out above that the eviction could not have taken place before July 1, 1949.
The Dakhalnamas show that possession was given to Amba Prasad on July 1, 1949.
In so far as the appellant is concerned he was not in possession before that date and the khasra for 1356F shows that the answering respondents were 'qabiz ' (in possession).
It is ,contended that the suit is for possession and the date of dispossession has not been given as required by rule 183.
No such objection appears to have been made at any time.
In any event, that date is useful only to calculate limitation and it is not Amba Prasad 's cases that there is any such bar.
807 The real dispute thus is whether a person who is recorded as 'qabiz ' but not as a tenant or a sub tenant can get the advantage of section 20 of the Abolition Act and claim rights as an adhivasi.
It is convenient at this stage to set out the material portions of section 20: "20.
Every person who (a) * (b) was recored as occupant (i)of any land (other than grove land or land to which section 16 applies) in the khasra or khatauni of 1356F prepared under sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901, or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under clause (c) of subsection (1) of section 27 of the United Provinces Tenancy (Amendment) Act, 1947, or (ii) * * * * be called adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof.
Explanation I Where a person referred to in clause (b) was evicted, from the land after June 30, 1948, he shall notwithstanding anything in any order or decree, be deemed to be a person entitled to regain possession of the land.
Explanation II Where any entry in the records referred to in clause (b) has been corrected before the date of vesting under or in accordance with the provisions of the U. P. Land Revenue Act, 1901, the entry so corrected shall for the purposes of the said clause, prevail.
Explanation III For the purposes of explanation 11 an entry shall be deemed to have been corrected before the date of vesting if an order or decree of a competent court requiring any correction in records has been made before the said date and had become final even though the correction may not have been incorporated in the records.
Explanation IV For the purposes of this section " occupant" as respects any land does not include a person who was entitled as an intermediary to the land or any share therein in the year l356 Fasli.
" The scheme of the section may now be noticed.
The section, speaking generally says that certain persons "recorded" a,, "occupants" of lands (other than grove lands or lands to which section 16 applies) shall be known as adhivasis and. 808 shall be entitled to retain or to regain possession of them, after the date of vesting which was July 1, 1952.
Such persons do not include an intermediary (Explanation IV).
Such persons must be recorded as occupants in the khasra or khatauni for 1356F (1 7 48 to 30 6 49).
If such a person is in possession be continues in possession.
If he is evicted after June 30, 1948 he is to be put back in possession notwithstanding anything in any order or decree.
By fiction such persons are deemed to be entitled to regain possession (Explanation 1).
The emphasis has been laid on the record of khasra or khatauni of 1356F and June 30, 1948 is the datuni line.
The importance of an entry in these two documents is further apparent from explanations 11 and 111.
Under the former, if the entry is corrected before the date of vesting (1 7 52), the corrected entry is to prevail and under the latter the entry is deemed to be corrected (even though not actually corrected) if an order or decree of a competent court ordering the correction had been made before the date of vesting and the order or decree had become final.
There are thus two date lines.
They are June 30, 1948 and July 1, 1952, and the title to possession as adhivasi depends on the entries in the khasra or khatauni for the year 1356F. Before we proceed to decide whether the answering respondents satisfy the above tests we must consider what is meant by the terms 'occupant ' and 'recorded '.
The word 'occupant ' is not defined in the Act.
Since khasra records possession and enjoyment the word 'occupant ' must mean a person holding the land in possession or actual enjoyment.
The khasra, however, may mention the proprietor, the tenant, the sub tenant and other person in actual possession, as the case may be.
If by occupant is meant the person in actual possession it is clear that between a proprietor and a tenant the tenant, and between a tenant and the sub tenant the latter and between him and a person recorded in the remarks column as "Dawedar qabiz" the dawedar qabiz are the occupants.
This is the only logical way to interpret the section which does away with all intermediaries.
If rights are not to be determined except in the manner laid down by the section, the entries must be construed as explained by the four explanations.
Once we find out the right person in the light of the explanations, that person continues as an adhivasi after July 1, 1952, provided he is in possession or was evicted after June 30, 1948.
If he was evicted after June 30, 1948 he is entitled to regain possession in spite of any order or decree to the contrary.
The word 'occupant ' thus signifies occupancy and enjoyment.
Mediate possession, (except where the immediate possessor holds on behalf of the mediate possessor) is ,of no consequence.
In this way even persons who got into Occupation when lands were abandoned get recognition.
The 809 section eliminates inquiries into disputed possession by ac cepting the records in the khasra or khatauni of 1356F, or its correction before July 1, 1952.
It was perhaps thought that all such disputes would have solved themselves in the four years between June 30, 1948 and June 30, 1952.
There was, however, for some time a difference of opinion, on the point whether possession in 1356F should be proved, between the High Court of Allahabad and the Board of Revenue.
Section 20 came before this Court in The Upper Ganges Sugar Mills Ltd. vs Khalil ul Rehman and others(1) where the correctness of Lala Nanak Chand vs The Board of Revenue, U.P.(2) was challenged oil the ground that it had held that a mere entry in 1356F without possession in that year was sufficient.
This Court did not decide the question and left it open.
Subsequently, the Allahabad High Court in several decisions including the Full Bench decision in Ram Dular Singh and another vs Babu Sukh Ram and others(3) has endorsed the earlier view in Nanakchand vs Board of Revenue, U.P.(2) In L. Bhal Singh vs Bhop and another(4) the following passage from Nanak Chand 's case was expressly approved: "It seems to us that clauses (b)(i) and (b)(ii) of Sec. 20 do not require the proof of actual possession in the year 1356F.
What they require merely is the entry of a person 's name as an occupant in the Khasra or Khatauni of 1356F.
The words of the section are clear.
(Every person who was recorded as occupant in the Khasra or Khatauni in 1356F. etc.).
The words are not "every person who was an occupant in 1356F": nor are the words "every person who was recorded as an occupant in the year 1356F and who was also in possession in that year".
There is no warrant for introducing words in the section which are not there.
This conclusion is reinforced by what is stated in Explanation 11".
The Board of Revenue in Sugriva vs Mukhi etc.(5) has also adopted the same view.
In view of the long established line 'of cases we see no justification for reopening of this question.
The decision of the Board of Revenue was therefore right.
The appeal fails and is dismissed with costs.
One set of hearing fees.
Appeal dismissed.
(1) ; (2) (3) (4) at p. 291.

summary/full:
On October 10, 1953, the respondents filed suits under section 232 read with section 20 of the U. P. Zamindari Abolition, and Land Reforms Act, 1950 against the appellant before the Sub Divisional Officer.
Before the coming into operation of the Abolition Act the appellant (Amba Prasad) was Zamindar of the disputed land.
The names of the respondents were recorded in column 23 (miscellaneous) in the Khasra for the year 1356 Fasli as persons in possession of the disputed land.
The respondents claimed adhivasi rights under section 20 of the Abolition Act because they were recorded as occupants of the fields in dispute in the Khasra for 1356 Fasli.
The common case of the respondents was: (i) that they were in possession of the suit land (ii) that they were dispossessed after June 30, 1948 by the appellant, (iii) that as they were recorded occupants in 1356F they were not required to prove actual possession.
The case of the appellant was that the entry was fraudulently made after July 1, 1949.
These suits were dismissed by the Sub Divisional officer.
On appeal, the Additional Commissioner held that the respondents had acquired the adhivasi fights.
Against this order Amba Prasad (the appellant) appealed to the Board of Revenue.
The Board of Revenue dismissed the appeals.
The appellant then filed appeals in this Court.
Held:(i) Under section 20 of the Abolition Act (U. P. Zamindari Abolition and Land Reforms Act) a person continues as an adhivasi after July 1, 1952.
provided he is in possession or was evicted after June 30, 1948.
If he was evicted after June 30, 1948 he is entitled to regain possession in spite of any order or decree to the contrary.
(ii)The words "recorded as occupants" in section 20 of the Abo lition Act mean persons recorded as occupants in the Khasra or Khatauni for 1356 Fasli (1 7 48 to 30 6 49).
Such persons do not include an intermediary.
The word "occupant" must mean a person holding the land in possession or actual enjoyment.
Mediate possession (except where he immediate possessor holds on behalf of the mediate possessor) is of no consequence.
(iii)The appellant was not entitled to raise the plea of the correctness of the entry in Khasra because the entry was not corrected before the date of vesting (1 7 52) as required by Explanation (ii) to section 20 of the Abolition Act.
(iv)The title to possession as adhiwasi depends on the entries in the Khasra or Khatauni for the year 1356 Fasli.
Section 20 of the Abolition Act does not require the proof of actual possession.
Therefore, section 20 eliminates inquiries into disputed possession by accepting the record in the Khasra or Khatauni of 1356F. or its correction before July 1, 1952.
801 The Upper Ganges Sugar Mills Ltd. vs Khalil ul Rehman, ; , referred to.
Lala Nanak Chand vs Board of Revenue, U. P., 1955 A.L.J. 408, Ram Dular Singh vs Babu Sukh Ram, , Bhal Singh vs Bhop and Anr., and Sugriva vs Mukhi etc., , approved.


judgement:
Appeal No. 298 of 1964.
Appeal from the judgment and order dated May 31, 1963, of the Punjab High Court in F.A.0.
No. 5 E of 1962.
M.C. Setalvad, and B. P. Maheshwari, for the appellant.
Bawa Shiv Charan Singh, Hardev Singh and Y. Kumar, for the respondent.
April 17, 1964.
The judgment of the Court was delivered by GAJENDRAGADKAR, C. J.
The short question of law which arises in this appeal by special leave is whether by publishing and distributing a poster (Ext.
p. 10) in furtherance of his election, the appellant, Kultar Singh has committed a corrupt practice under section 123(3) of the Representation of the People Act, 1951 (No,.
43 of 1951) (hereinafter called 'the Act ').
The Election Tribunal which tried the election petition 792 filed by the respondent Mukhtiar Singh challenging the vali dity of the appellant 's election, as well as the High Court of Punjab which heard the appellant 's appeal against the decision of the Election Tribunal have answered this question .against the appellant.
Accordingly, the election of the appellant has been declared to be void.
Mr. Setalvad for the appellant contends that the view taken by the Election Tribunal and the High Court is based on a misconstruction of the impugned pamphlet.
The appellant was elected to the Punjab Legislative Assembly from the Dharamkot Constituency and he defeated his nearest rival, the respondent, by a margin of nearly 8,000 votes.
The appellant had stood for election on the Akali Dal ticket, while the respondent had been officially adopted by the Congress Party.
After the election of the appellant was declared, the respondent filed an election petition alleging that the appellant 's election was void inasmuch as for the purpose of .securing votes, he had appealed to his religion and had thereby committed a corrupt practice.
It appears that the election petition had also alleged that the appellant had appealed to his language and community, but with that part of the case we are no longer concerned in the present appeal, because the petition has not succeeded in that behalf.
According to the respondent, the appellant had addressed seven election meetings held in different places and on different dates and at those meetings, he and his supporters had made speeches asking the voters to vote for the appellant as he was the proper representative of the Sikh Panth, whereas the respondent represented the Hindu ridden Party, and so, the appellant would be able to protect the Sikh religion and the Sikh language.
The petition further alleged that at five of the seven election meetings organised by the appellant, the printed posters (Ext.
I to p. 10) bad been distributed by the appellant and these posters contained an appeal to the voters to vote for the appellant on the ground of his religion.
The appellant denied both these allegations.
He admitted that election meetings were held on his behalf and were ad dressed by him and his supporters, but he disputed the res pondent 's case that at these meetings any appeal to religion was made.
In regard to the posters, the appellant denied that he had anything to do with the said posters, except one Ext.
p. 9 and he pleaded that the said poster was innocent and its ,publication and distribution would not attract the provisions of section 123(3) of the Act.
On these pleadings, two broad questions arose for decision.
The first question was whether the speeches alleged to have been made by the appellant and his supporters at the election meetings included appeals to the voters to vote for the appellant on the ground of his religion; and the second 793 was whether the impugned posters Exts.
p. I to p. 10 were published or distributed by the appellant at the election meetings, and if yes, whether any one or more of them contained an appeal to the voters on the ground of the appellant 's religion.
Both these questions were answered by the Tribunal in favour of the respondent.
The High Court, however, has reversed the conclusion of the Tribunal on the first question: it has held that the evidence led by the respondent in support of his case that at the election meetings an appeal was made to the voters to support the candidature of the appellant or the ground of his religion, did not establish the respondent 's case.
In regard to the posters, the High Court has held that all the ten posters bad been distributed by the appellant, but in its opinion, except Ext.
p. 10, none of the others offended.
the provisions of section 123(3).
An argument was urged before the High Court by reference to the two posters in particular Exts.
p. 9 and p. IO.
The High Court rejected the respondents case with regard to poster Ext.
9, because it held that it was not clear that the poster contained an appeal to the voters or the ground of the appellant 's religion.
In regard to, poster Ext.
p. 10, however, the High Court agreed with the conclusion of the Tribunal and held that the said poster contained an appeal to the voters to vote for the appellant on the ground of his religion, and so, by publishing and distributing it at his, election meetings, the appellant had committed a corrupt practice under section 123(3) of the Act.
That is how on this narrow ground.
the decision of the Tribunal was confirmed by the High Court and that raises the question about the construc tion of the impugned poster Ext.
P. 10.
Before dealing with this question, it is necessary to refer to the provisions of section 123(3).
Section 123 provides for different acts which constitute corrupt practices under the Act.
Section 123(3) lays down, inter alia, that the appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, would amount to a corrupt practice.
It is thus, plain that if it is shown that the impugned poster which the appellant is proved to have published and distributed at his election meetings contained an appeal to the voters of his constituency to vote for him or the ground of his religion that would amount to a corrupt practice under section 123(3) of the Act and in that case, the election of the appellant would be void under section 100(1)(d)(ii).
It is true that a corrupt practice under section 123(3) can be committed by a candidate by appealing to the voters to vote for him on the ground of his religion even though his rival candidate may belong to the same religion.
If, for instance, Sikh candidate were to appeal to the voters to vote for him because be was a Sikh and add that his rival candidate 794 though a Sikh in name, was not true to the religious tenets of Sikhism or was a heretic and as such, outside the pale of the Sikh religion, that would amount to a corrupt practice under section 123(3), and so, we cannot uphold the contention that section 123(3) is in applicable because both the appellant and the respondent are Sikhs.
In fairness, we ought, however, to add that Mr Setalvad did not press this contention before us.
The corrupt practice as prescribed by section 123(3) undoubtedly constitutes a, very healthy and salutary provision which is intended to serve the cause of secular democracy in this country.
In order that the democratic process should thrive and succeed, it is of utmost importance that cur elections to Parliament and the different legislative bodies must be free from the unhealthy influence of appeals to religion, race, caste, community, or language.
If these considerations are allowed any sway in election campaigns, they would vitiate the secular atmosphere of democratic life, and so, section 123(3) wisely provides a check on this undesirable development by providing that an appeal to any of these factors made in furtherance of the candidature of any candidate as therein prescribed would constitute a corrupt practice and would render the election of the said candidate void.
In considering the question as to whether the distribution of the impugned poster by the appellant constitutes corrupt practice under section 123(3), there is one point which has to be borne in mind.
The appellant had been adopted as its can didate by the Akali Dal Party.
This Party is recognised as a political party by the Election Commission notwithstanding the fact that all of its members are only Sikhs.
It is well known that there are several parties in this country which subscribe to different political and economic ideologies, but the membership of them is either confined to, or predominantly held by, members of particular communities or religions.
So long a,; law does not prohibit the formation of such parties and in fact recognises them for the purpose of election and parliamentary life, it would be necessary to remember that an appeal made by candidates of such parties for votes may, if successful, lead to their election and in an indirect way, may conceivably be influenced by considerations of religion, race, caste, community or language.
This infirmity cannot perhaps be avoided so long as parties are allowed to function and are recognised, though their composition may be predominantly based on membership of particular communities or religion.
That is why we think, in considering the question as to whether a particular appeal made by a candidate falls within the mischief of section 123(3), courts should not be astute to read into the words used in the appeal anything more than can be attributed to them on its fair and reasonable ,construction.
795 That takes us to the question of construing the impugned poster.
The principles which have to be applied in constru ing such a document are well settled.
The document must be read as a whole and its purport and effect determined in a fair, objective and reasonable manner.
In reading such documents, it would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing political parties, the atmosphere is usualy surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors.
and the extravagance of expression in attacking one another, are all a, part of the game, and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or pamphlets must be construed in that light.
In doing so, however, it would be unreasonable to ignore the question as to what the effect of the said speech or pamphlet would be on the mind of the ordinary voter who attends such meetings and reads the pamphlets or hears the speeches.
It is in the light of these well established principles that we must now turn to the impugned pamphlet.
p. 10 has been translated by the High Court.
The correctness of this translation is not challenged by either party before us.
It reads thus: "Dear resident Sikhs, We, who are living in Singapore, Malaya, and South East Asia, place this before you, most respectfully, that at this critical juncture it is your duty to keep high the honour of the Panth.
This is not the time to criticise the weaknesses of the, leaders of the Panth; the need is that in the coming General Elections you should defeat the opponents of the Panth the same way as you did in the last Gurdwara Elections.
Every Sikh vote should go to the representatives of the Akali Dal.
and we hope that this prayer of ours from far off will be accepted by you and you will once again pre serve the bonour of the Panth.
Victory of the Panth will maintain the honour of the Panth.
By maintaining such honour we will reach our final goal, that is Punjabi Suba".
The poster then ends thus: "We remain anxious to, keep the honour and prestige of the Panth ever high Yours, Non resident brothers" 796 The respondent 's contention before the Tribunal and the High Court was that this appeal plainly and unambiguously invites the voters to vote for the appellant in order to preserve the honour and prestige of the Panth and it was urged that in the context, the Panth meant the Sikh religion.
Since the pamphlet clearly appeals to the voters to vote for the appellant and proceeds on the assumption that the election of the appellant would uphold the honour and prestige of the Sikh religion, that amounts to a corrupt practice, because the appeal is based on the ground of the appellant 's religion.
The courts below have accepted this contention.
The word 'Panth ' is one of Sanskrit origin and etymologically it means the path or the way.
It must be conceded that by itself it has come to indicate the Sikh religion because it has been used by Sikhs to denote their religion and their denomination as the followers of that Panth.
In that context, Panth may mean the Sikh religion and the followers of the Panth would be the persons who follow the path prescribed by the Sikh gurus and as such, would signify the Sikh community.
Panthic is an adjective which means, of the Panth or belonging to the Panth, and so, prima facie, the glory or prestige of the Panth may mean the glory or prestige of the Sikh religion.
The question which calls for our decision, however, is not what the word 'Panth ' in the abstract may mean in the Punjab.
The question which we have to answer is, what does the word "Panth" mean in the context of the pamphlet the distribution of which is alleged to constitute corrupt practice? It would be noticed that the word "Panth" occurs in six places in this pamphlet.
First, reference is made to the honour of the Panth, then it is said that it is not the time to criticise the leaders of the Panth.
In both these places, the word "Panth" may conceivably mean the Sikh religion.
But when we go +to the use of the word "Panth" in the next sentence, it becomes clear that the said word cannot possibly mean the Sikh religion.
The relevant portion of the pamphlet says to the electors: you should defeat the opponents of the Panth the same way as you did in the last Gurdwara Elections.
It is common ground that the Gurdwara Elections were fought between different parties of the Sikhs and the Akali Dal party triumphed at the said Elections.
Therefore, there is no doubt whatever that in this sentence, the Panth cannot possibly mean the Sikh religion.
The expression "the opponents of the Panth" obviously means the opponents of the Akali Dal party and what the pamphlet purports to tell the electors is, just as at the last Gurdwara Elections the Akali Dal Party succeeded over its opponents, so should the Akali Dal Party triumph in the election in question.
The next sentence makes it still clearer that the Panth and the Akali Dal Party are treated as 797 synonymous in this portion because it says "every Sikh vote should go to the representatives of the Akali Dal", and that can be reconciled with the previous sentence only on the basis that in the minds of those who drafted the impugned poster, the Akali Dal Party and the Panth are the same.
Then the poster says that the prayer made in the poster, if accepted, will once again preserve the honour of the Panth; the words "once again" take us back to the triumph which the Akali Dal Party achieved at the last Gurdwara Elections, and so, the Panth in this context must mean the Akali Dal Party; and in the end when the pamphlet refers to the victory of the Panth and the honour of the Panth, it must be taken to refer to the victory and honour of the Akali Dal Party.
The last sentence is very significant.
It says that by maintaining such honour, meaning the honour of the Panth which is the Akali Dal, we will reach our final goal, that is, the Punjabi Suba.
It is not disputed that at these elections, the Akali Dal Party propagated for the creation of the Punjabi Suba and the crux of the appeal made by the impugned poster is that if the voters returned the Akali Dal candidate, the honour and prestige of the Akali Dal would be maintained and the ideal of the Punjabi Suba attained.
In the end, the poster also says that those who issued it were anxious to keep the honour and prestige of the Panth ever high.
We have carefully considered the view taken by the Punjab High Court and the Tribunal, but we are satisfied that the said view is inconsistent with a fair and reasonable construction of the impugned poster.
In fact, the High Court does not appear to have considered the different places in the poster where the word "Panth" has been used and no attempt has been made to co relate these sentences and to enquire whether the meaning attributed by the High Court to the word "Panth" is justified in regard to all the sentences in which that word occurs.
It is an elementary rule of construction that the same word cannot have two different meanings in the same document.
unless the context compels the adoption of such a course.
Afterall, the impugned poster was issued in furtherance of the appellant 's candidature at an election, and the plain object which it has placed before the voters is that the Punjabi Suba can be achieved if the appellant is elected; and that necessarily means that the appellant belongs to the Akali Dal Party and the Akali Dal Party is the strong supporter of the Punjabi Suba.
In these proceedings, we are not concerned to consider the propriety, the reasonableness or the desirability of the claim for Punjabi Suba.
That is a political issue and it is perfectly competent to political parties to hold bona fide divergent and conflicting views on such a political issue.
The significance of the reference to the Punjabi Suba in the impugned 798 poster arises from the fact that it gives a clue to the mean.
ing which the poster intended to assign to the word "Panth".
Therefore, we are satisfied that the word "Panth" in this poster does not mean Sikh religion, and so, it would not be possible to accept the view that by distributing this poster, the appellant appealed to his voters to vote for him because of his religion.
In this connection, it may be relevant to refer to the oral evidence led in this case.
Kartar Singh has stated that since the last 30 years the other name of the Akali Party is Panthic Party.
This witness had been actively helping the appellant in his election, and he added that at the said election, there was a common front of all the opposition parties against the Congress.
These parties were Jan Sangh, Swatantra Party, Akali Party and others.
Another witness Ajmer Singh admitted that Shiromani Akali Dal was a political party of the Sikhs.
He also stated that excepting 1957 elections, for which there was settlement with the Congress, the Akali Dal had been fighting in all the elections.
In 1957, the Akali candidates contested the election on the Congress ticket.
In 1958, the Akali Dal started an agitation for getting Punjabi Suba because it thought that the Regional Formula had not been property implemented by the Government.
This evidence would show that the Akali Dal Party is also known as the Panthic Party and that one of the major issues on which it fought the Congress party at the election in question was the creation of a separate province which it calls the Punjabi Suba.
In construing the impugned poster, the High Court does not appear to have taken into account this oral evidence.
It is true that oral evidence would not be of any material assistance in construing the words in pamphlet; but as we have just indicated, the word "Panth" used in six places in the pamphlet can be properly interpreted only to mean the Akali Dal Party and it is in that context that the statements made by the witnesses as to the name by which the Akali Dal Party is known in popular minds, may have some relevance.
It appears that a similar question has been considered by the Election Tribunals on two occasions in the past.
In Sardul Singh Caveeshar vs Hukam Singh and Ors.(1) the Elec" tion Tribunal had to consider the denotation of the words "Panth" and "Panthic" candidate and it has observed that though the words "Panthic candidate" would literally signify a candidate of the Sikh Community, after the Akali Dal Party came to be known as the Panthic Party in the popular minds.
the word "Panthic" candidate came to signify a candidate of the Akali Dal Party.
It appears from this judgment that the Akali Dal Party called itself the Panthic Party even at the time when there were separate Sikh electorates, and that has (1) (1953) VI E.L.R., 316 at 326.
799 a significance of its own.
When there were separate Sikh electorates, the candidates who fought against each other would all be Sikh and yet, the Akali Dal Party which set up its own ,candidates, described itself as a Panthic Party and its candidates as Panthic candidates, (vide Baba Gurdit vs Sardar Partap Singh Kairon)(1).
These decisions tend to show that the Akali Dal Party is known as Panthic Party and its candidates as Panthic candidates, and that incidentally may be of some help to determine the true denotation of the word "Panth" used in the impugned poster in the present case.
Unfortunately, these decisions also do not appear to have been placed before the High Court.
Before we part with this appeal, we may refer to a recent decision of this Court in Jagdev Singh Sidhanti vs Pratap Singh Daulta and Ors.
In that case, the election of the successful candidate was challenged on the ground that he had committed a corrupt practice under s.123(3) of the Act in that he had appealed to the voters to vote for him on the ground of his language, and the High Court had upheld that contention.
In reversing the conclusion of the High Court, this Court pointed out that the reference to the language on which the challenge to the successful candidate 's election was based, had to be considered in the context of the main controversy between the parties and that controversy was that the Hariana Lok Samiti which had sponsored the candidature of the successful candidate wanted to resist the imposition of Punjabi in the Hariana region and that was clearly a political issue.
If in propagating its views on such a political issue, a candidate introduces an argument based on language, the context of the speech in which the consideration of language has been introduced must not be ignored, and that is how this Court held that the corrupt practice alleged against the successful candidate had not been established.
Political issues which form the subject matter of controversi,es at election meetings may indirectly and incidentally introduce considerations of language or religion, but in deciding the question as to whether corrupt practice has been committed under s.123(3), care must be taken to consider the impugned speech or appeal carefully and always in the light of the relevant political controversy.
We are, therefore, satisfied that the High Court was in error in coming to the conclusion that the impugned poster Ext.
P 10 attracted the provisions of s.123(3) of the Act.
The result is, the appeal is allowed, the decision of the High Court is set aside and the election petition filed by the respondent is dismissed with costs throughout.
Appeal allowed .
(1)Indian Election Cases by Doabia Vol. 1, p. 92.
(2) A.I.R. 1963 S.C. 183.

dataset_name: IN-Abs

summary/full:
The respondent challenged the appellant 's election before the Tribunal alleging that it was void inasmuch as for the purpose of securing votes the appellant had appealed to his religion and had thereby committed a corrupt practice.
He had addressed seven election meetings and in those meetings he and his supporters had asked the voters to vote for him as he was the proper representative of the Sikh Panth, and so, he would be able to protect the Sikh religion and the Sikh language.
It was further alleged that at five of the seven election meetings organised by him, the printed posters (Exts.
p. 1 to p. 10) had been distributed by him and they contained an appeal to the voter , to vote for him on the ground of his religion.
The appellant denied both these allegations.
He disputed the respondent 's case that at these meetings any appeal to religion was made.
In regard to the posters, he denied that he had anything to do with the said posters, except one Ext.
p. 9 and pleaded that the said poster was innocent and its publication and distribution would not attract the provisions of section 123(3) of the Act.
Both these questions were answered by the Tribunal in favour of the respondent.
On appeal, the High Court reversed the conclusion of the Tribunal on the first question.
lit regard to the posters, it held that all the ten posters had been distributed by him, but, in its opinion, except Ext.
p. 10, none of the others offended the provisions of section 123(3) of the Act.
In regard to poster Ext.
p. 10, however, it agreed with the conclusion of the Tribunal and held that the said poster contained an appeal to the votes to vote for the appellant on the ground of his religion, and so, by publishing and distributing it at his election meetings, he had committed a corrupt practice under section 123(3) of the Act.
In this Court the appellant contended that the view taken by the Election Tribunal and the High Court was based on a misconstruction of the impugned pamphlet.
Held:In considering the question as to whether a parti cular appeal made by a candidate falls within the mischief of section 123(3) of the Act, courts should not be astute to read into the words used in the appeal anything more than can be attributed to them on its fair and reasonable construction.
The view taken by the High Court and the Tribunal was inconsistent with a fair and reasonable construction of the impugned poster.
In fact, the High Court did not consider the different places in the poster where the word "Panth" had been used and no attempt was made to co relate these sentences and to enquire whether the meaning attributed by the High Court 791 to the word "Panth" was justified in regard to all the sentences in which that word occurred.
The significance of the reference to the Punjabi Suba in the impugned poster arises from the fact that it gives clue to the meaning which the Poster intended to assign to the word "Panth".
Therefore, the word "Panth" in this poster did not mean Sikh religion and so, it would not be possible to accept the view that by distributing this poster, the appellant had appealed to voters to vote for him because of his religion.
In construing the impugned poster, the High Court did not take into account the oral evidence.
It is true that oral evidence would not be of any material assistance in construing the words in the pamphlet; but, the word "Panth" used in six places in the pamphlet could be properly interpreted only to mean the Akali Dal party and it was in that context that the statements made by the witnesses as to the name by which the Akali Dal Party was known in popular minds, might have some relevance.
Sardul Singh Caveeshar vs Hukam Singh, (1953) VI, E.L.R. 316 and Baba Gurdit Singh vs Sardar Partap Singh Kairon, Indian Election Cases by Doabia, Vol. 1, p. 92, referred to.
Political issues which form the subject matter of contro versies at election meetings may indirectly and incidentally introduce consideration of language or religion, but in deciding the question as to whether corrupt practice had been committed under section 123(3), care must be taken to consider the impugned speech or appeal carefully and always in the light of the relevant political controversy.
Therefore, the High Court was in error in coming to the conclusion that the impugned poster Ext.
P. 10 attracted the provision of section 123(3) of the Act.
Jagdev Singh Sidhanti vs Partap Singh Daulte, ;


judgement:
Appeal No. 221 of 1964.
Appeal from the judgment and order dated September 5, 1963 of the Madhya Pradesh High Court in Misc.
Petition No. 334 of 1962.
M. C. Setalvad, B. V. Shukla, Rameshwat Nath, section N. Andley,and P. L. Vohra, for the appellant.
B. Sen and I. N. Shroff, for the respondents.
April 21, 1964.
The Judgment of the Court was delivered by DAS GUPTA, J.
This appeal raises the question of the validity of the Madhya Pradesh Minimum Wages Fixation Act, 1962 (Act No. 16 of 1962).
The appellant is the Manager of a Bidi counting and labelling factory of M/s. Mohanlal Har govindas, Jabalpur, who are engaged in the trade of purchase and sale of Bidi in the State of Madhya Pradesh and other States of India.
In 1951 the State of Madhya Pradesh fixed rates of minimum wages payable to workmen engaged in Bidi making manufactories.
This was done in accordance with the provisions of the (Central Act 11 of 1948).
These rates of minimum wages were revised in the year 1956 by a notification of the Madhya Pradesh Government dated the 23rd February 1956.
New rates of minimum 822 wages for workmen engaged in the Bidi making manufactories were notified by the Madhya Pradesh Government by a notification dated the 30th December 1958.
The notification directed that these rates would come into force from January 1, 1959.
The validity of this notification was however successfully challenged by the present appellant before the Madhya Pradesh High Court.
To meet the situation the Madhya Pradesh Legislature enacted the Minimum Wages (Madhya Pradesh Amendment and Validation) Act, 1961 (Madhya Pradesh Act No. 23 of 1961).
Section 31A which was introduced by this Act into the Central Act (No. 11 of 1948) provided that the rates of minimum wages fixed or revised under the notification of the 30th December 1958 "shall be and shall always be deemed to have been validly fixed and revised and shall be deemed to have come into force on the date men tioned in the said notification, notwithstanding any judicial decision to the contrary or any defect or irregularity in the constitution of the Advisory Board under section 7 of the principal Act read with section 9 thereof or publication of the notification in the Gazette or non compliance with any other requirement of law and shall not be called in question in any court merely on the ground that there was failure to comply with the provisions of the principal Act.
" The appellant and some other Bidi manufactories of Madhya Pradesh challenged the validity of this Act before the High Court by petitions under article 226 of the Constitution.
The High Court allowed the applications, struck down section 31A as invalid and restrained the Government from enforcing the section and from giving effect to the impugned notification dated the 30th December, 1958.
The High Court gave its decision on the 2nd May 1962.
On the 21st June 1962 the Madhya Pradesh Ordinance No. 4 of 1962 was passed fixing rates of minimum wages retrospec tively.
The Ordinance was later replaced by an Act, the Madhya Pradesh Minimum Wages Fixation Act, 1962.
On the 5th October 1962, the appellant made an application to the High Court of Madhya Pradesh under article 226 and article 227 of the Constitution challenging the validity of this Act and praying for a declaration that the Act is ultra vires, void and inoperative and a writ in the nature of mandamus re straining the State of Madhya Pradesh and the other respon dents from giving effect to or enforcing the provisions of the Act.
The High Court has held that the Act is valid and has disallowed his application.
Against that decision the present appeal has been preferred.
The challenge to the validity of the Act is based on three principal grounds.
The first is that in enacting Act No. 16 823 of 1962 the Madhya Pradesh Legislature was really not exer cising its independent legislative power but only validating the notification dated the 30th December 1958 which it was not competent to do.
The second ground is that by giving retrospective effect to the rates of wages fixed by this Act the State has put unreasonable restrictions on the appellant 's fundamental rights under article 19(l)(f) & (g) of the Constitution.
The last ground on which the Act was challenged as invalid is thatby making provisions of section 20 and section 22 of the Central Act No. 11 of 1948 applicable to the wages now fixed the Act has contravened article 20(1) of the Constitution.
The impugned Act is a short Act of five sections only.
The first section giver, the title of the Act and the fifth section repeals the Ordinance to replace which this Act was passed.
Three remaining sections are in the following words: "2.
The expression used in this Act and defined in the minimum Wages Act, 1948 (XI of 1948), in its application to the State of Madhya Praderh shall have the meanings assigned to them in the said Act.
Notwithstanding anything contained in section 5 of the (XI of 1948), in its application to the State of Madhya Pradesh (hereinafter referred to as the said Act) or any other provisions contained therein relating to the fixation or revision of minimum rates of wages in scheduled employments and any judgment, decree or order of any court to the contrary, the minimum rates of wages in respect of employments in items 2, 3, 5, 6, 7, 8 and I 1 in Part I and in respect of employment in Part 11 of the Schedule to the said Act shall be and shall always, in respect of each employment, be deemed to be as specified in Table appended hereto and it is hereby enacted that the said minimum rates of wager, shall be payable by the employer in the said scheduled employments and be enforceable against him with effect from the 1st January 1959, as if the provi sions herein contained have been in force at all material times.
The provisions of section 4 A, section 5A, in so far as they relate to revision of minimum rates of wages, and of sections 12 to 30 A of the said Act, and the rules made thereunder shall apply to minimum rates of wages specified in section 3 as they apply to minimum wages in respect of scheduled employments fixed in accordance with the said Act; 824 Provided that with respect to claims arising out of payment of minimum rates of wages specified in section 3 pertaining to a period prior to the publication of the Madhya Pradesh Minimum Wages Fixation Ordinance, 1962 (4 of 1962) in the Gazette, the period of one year referred to in the first proviso to sub section (2) of section 20 of the said Act shall be counted with effect from the 21st June, 1962, the date of the publication of the said Ordinance in the Gazette.
" It is not disputed that the Madhya Pradesh legislature had the legislative competence to make a law as regards minimum wages under Entry 24 of List III (Sch.
Seventh).
Mr. Setalvad contends that this power of independent legislation was not really exercised by the legislature and that in the guise of independent legislation it has in substance passed a validating Act, after an attempt to validate the notification of the 30th December, 1958, had failed.
In support of his argument that it is not independent legislation Mr. Setalvad laid stress on the language of section 2.
That section merely says that the expressions used in this Act shalt have the same meaning for the purpose of this Act as defined in the of 1948.
According to the learned counsel, this shows that this was really a dependent and not independent legislation.
We can find no substance in this argument.
The definition of expressions used in an Act with reference to other Act is a well known device in legislative practice generally adopted for the sake of brevity.
The definition would remain effective even after the other Act with reference to which the definition was given ceases to exist.
This fact of defining expressions in an Act with reference to some other Act cannot therefore have the effect of making this Act de pendent on such other Act.
Mr. Setalved next urged that quite clearly the object of section 3 was to validate the minimum rates of wages as fixed by the notification dated the 30th December 1958 and nothing more.
As we read the section we find that it merely fixed wages in respect of certain employments at the rates mentioned in the Table appended to the Act.
We are informed that the rates mentioned in the Table are identical with the rates men tioned in the notification dated the 30th December, 1958.
The effect of enactment of section 3 would therefore be the same as if the notification of 1958 had been validated.
To say that, however, is not to say that this Act has validated or that even it seeks to validate the 30th December 1958 notification.
On the face of it the legislature was fixing for itself the minimum rates of wages in certain scheduled employments.
That is stated in the preamble and is plain from section 3 itself.
The fact 825 ,that rates mentioned in the Table appended to the Act hap pened to be the same as rate; , fixed elsewhere cannot reason,ably justify a conclusion that the validation of the old rates was being affected.
Independent legislation does not cease to be so, merely because its effect is the same as it would have been if a validating Act had been passed.
The contention that this Act was not independent legislation cannot therefore be accepted.
Nor is it possible to accept the argument that the Act is an unreasonable restriction on the appellant 's fundamental rights under article 19(1)(f) and (g) of the Constitution.
Restriction there undoubtedly is, but we are not satisfied that the restriction is unreasonable.
Section 3 of the Act makes the new rater, of wages effective from January 1 , 1959.
Section 4 makes the various provisions of the Central Act No. 11 of 1948 available for revision and enforcement of the rates as specified in section 3.
The consequence is that if an employer does not pay the rates as specified, an application may be made under section 20 of Act 11 of 1948 to enforce such payment.
He will be liable also to prosecution and penalties under section 22 of the Act.
What according to the learned counsel makes the Act unreasonable is that such application can be made and such prosecution and penalties can be imposed even in respect of the past period from 1st January 1959 upto the date of the Act.
How is it possible for the employer, it is urged, to pay such arrears which might amount in many cases to considerable sums of money when the accounts for the past years had been closed, profits had been distributed and the available surplus had either been spent or invested in other ways? We have no hesitation in agreeing to the proposition that the retrospective operation of legislation is a relevant circumstance in deciding its reasonableness.
It is, however, clearly established by a long series of decisions of this Court that this is not necessarily a decisive test.
We may mention in this connection the decision of this Court in Rai Ramkrishna vs State of Bihar(1).
There the Court had to consider the question whether the retrospective operation of the Bihar Taxation of Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 put such an unreasonable restriction on the fundamental rights guaranteed under article 19(1)(f) and (g) of the Constitution as to make the Act invalid to the extent of its retrospective operation.
The Bihar Finance Act, 1950 (Bihar Act XVII of 1950) had imposed a tax on passengers and goods carried by public service motor vehicles in Bihar.
In an appeal arising out of a suit filed by the passengers and owners of goods, this Court struck down Part 111.
of the ,aid Act as unconstitutional.
This judgment was pronounced on the 12th (1) ; 826 December 1960.
Then an Ordinance, viz., Bihar Ordinance No. 11 of 1961 was issued on August 1, 1961.
By this Ordinance the material provisions of the earlier Act of 1950 were validated and brought into force retrospectively from the date when the earlier Act had purported to come into force.
Subsequently, the provisions of this Ordinance were incorporated in the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961.
Section 23 of the Act provided that any amount paid, collected or recovered or purported to have been paid, collected or recovered as tax or penalty under the provisions of Part III of the Bihar Finance Act, 1950 or rules made thereunder during the period beginning with the first day of April 1950 and ending on the thirty first day of July 1961, shall be deemed to have been validly levied, paid, collected or recovered under the provisions of this Act.
It was urged that this retrospective operation for such a long period like 10 years itself made the provisions unconstitutional.
In repelling this contention, Gajendra gadkar, J. (as he then was) speaking for the Court observed thus: "If a statute passed by the legislature is challenged in proceedings before a court and the challenge is, ultimately sustained and the statute is struck down, it is not unlikely that the judicial proceedings, may occupy a fairly long period and the Legislature may well decide to await the final decision in said proceedings before it uses its legislative powerto cure the alleged infirmity in the earlier Act.
In such a case, if after the final judicial verdict is pronounced in the matter the legislature passes a validating Act, it may well cover a long period taken by the judicial proceedings in court and yet it would be inappropriate to hold that because the retrospective operation covers a long period, therefore, the restriction imposed by it is unreasonable." These observations which were made in respect of a validating Act apply fully to a legislation as in the Act now under consideration.
It is not also possible to accept the picture presented by Mr. Setalvad of the employers ' financial difficulties in making payment for the past period as a fair representation of the true facts.
For practically the entire period from the 1st April 1959 to the date of the present Act the employers had before, them the provisions of what purported to be a good law requiring them to pay at these very rates.
As good businessmen they are expected to have made provisions 827 for payments on these very rates, even though they intended to challenge the validity of the previous Act and ultimately succeeded in that attempt.
We are not prepared to believe that such provisions are not generally made.
The hardship which according to Mr. Setalvad the employers would have to face in making the payments for the past periods is, in our judgment, more imaginary than real.
But, urges the learned counsel, section 3 of the Act while giving to the rates of wages fixed by the Act retrospective effect from the 1st January 1959 has also made wages at these new rates payable on January 1, 1959 for the past period.
The result of this, according to the learned counsel, is that as soon as an application is made under section 20 of Act 11 of 1948 the employer would be liable not only to pay the arrears of wages but also compensation as provided in sub section 3 of section 20.
Sub section 3 of section 20 of Act 11 of 1948 provides, inter alia, that the minimum wage authority may direct: "In the case of a claim arising out of payment of less than minimum rates of wages, the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid, together with the payment of such compensation as the Authority may think fit, not exceeding ten times the amount of such excess.
" It has further provided that the authority may direct pay ment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application.
If the legal position were as urged by the learned counsel, that section 3 made the new rates of wages for the past period payable on January 1, 1959 or the apprehension that the em ployer might be made to pay heavy compensation may well be true.
Another consequence of that legal position would be that the employer would also be liable to prosecution under section 22 of the Act for his omission to pay on January 1, 1959 the rates which were fixed first by the Ordinance and then by the impugned Act.
We are satisfied however that section 3 of the impugned Act does not make the new rates of wages payable on the 1st January 1959.
The words used are. . and it is hereby enacted that the said minimum rates of wages shall be payable by the employer in the said scheduled employments and be enforceable against him with effect from the 1st January 1959, as if the provisions herein contained have been in force at all material times.
" By these words, it is urged on behalf of the appellant, the legislature not only made the minimum wages effective from the 1st January 1959 but also made them payable on that date for the past period.
In other words, the sentence is sought to be read as saying: 828 "the said minimum rates of wages shall be payable by the employer in the said scheduled employments with effect from, 1st January 1959 and shall be enforceable against him with effect from 1st January 1959.
" If that had been the intention of the legislature the appropriate words to use would have been "the said minimum rates of wages shall be payable by the employer in the said scheduled employments and enforceable against him with effect from 1st January 1959.
" No purpose would be served by the word "be" before the word "enforceable" if the phrase "with effect from the 1st January 1959" was intended to apply both to "payable" and to " enforceable".
The very fact that the legislature took care to say "be enforceable" in the latter part of the sentence shows clearly that while it was intended that the new rates would be enforceable against the employer with effect from the 1st January 1959 no date was being prescribed by section 3 as regards the date on which it became payable.
An examination of section 4 of the Act further makes it clear beyond any reasonable doubt that it was the intention of the legislature that new rates became payable only on the 21st June 1962, the date of the publication of the Ordinance which was later replaced by the Act.
Section 4 makes applicable to the minimum rates of wages as fixed by section 3, the provisions of section 4A and section 5 of the (Act 11 of 1948), that is, the provisions as regards the revision in future of the rates fixed by the impugned Act, and of sections 12 to 30A.
Among the sections thus included is therefore section 20 which prescribes the procedure for claims arising out of payment of less than the minimum rates of wages.
The first proviso to sub section 2 of section 20 prescribes a period of limitation within which an application on such claims has to be made.
The period prescribed is one year from the date on which the minimum wages became payable.
It was thus necessary for the legislature when giving retrospective effect to the rates fixed by section 3 of the impugned Act to indicate the date on which the new rates would become payable.
This indication is clearly given by the proviso to section 4.
The proviso (which has already been set out) is in these words: "Provided that with respect to claims arising out of payment of minimum rates of wages specified in section 3 pertaining to a period prior to the publication of the Madhya Pradesh Minimum Wages Fixation Ordinance 1962 (4 of 1962) in the Gazette, the period of one year referred to in the first proviso to sub section (2) of section 20 of the said Act shall be counted with effect from the 21st June 1962, the date of publication of the said Ordinance in the Gazette.
" 829 The above provision that "the period of one year referred to in the first proviso to sub section (2) of section 20 of the said Act shall be counted with effect from the 21st June 1962" is a clear statement of the legislature 's intention that it is on the 21st June 1962 that the rates which had become enforceable under section 3 with effect from 1st January 1959 became payable.
That is how the High Court has construed the section and in our judgment that construction is correct.
The appellant 's apprehension that he might be made liable for payment of compensation under section 20(3) or to prosecution under section 22 of the (Act 11 of 1948) as a result of the mere passing of the Act is therefore groundless.
It is clear that the duty to pay at these rates arose only on and from the 21st June 1962 and no liability to pay compensation under section 20(3) or to prosecution under section 22 of the would arise if payment was made on the 21st June 1962.
It was then urged that it would be unreasonable to expect the employer to be able to make such payment on the 21st June 1962, the date of publication of the Ordinance.
Some time would elapse, it is pointed out, before the employer could acquaint himself with the detailed provisions of the Act and some further time in making arrangements for payment; there was thus the risk of an application being made against him under section 20 of the , and an order directing him to pay compensation.
While there is no doubt a theoretical possibility of such a thing happening, the risk appears to us practically non existent.
It is to be noticed that it is discretionary with the minimum wage authority to make an order for payment of compensation.
It is very unlikely that the authority will in the use of his discretion make an order for payment of compensation when he finds that the employer has made the payment within a few days after the 21st June 1962.
The risk of prosecution under section 22 because of failure to pay exactly on the 21st June 1962 is even less.
But such prosecution, it may be pointed out, will be entertained by courts only after an application under section 20 as regards the facts had been made and partly succeeded and the appropriate Government or an officer authorised by it has sanctioned the making of a complaint.
It does not appear to us likely that prosecution will be launched because of failure to pay exactly on the 21st June 1962.
The contention that section 3 and section 4 of the impugned Act impose unreasonable restrictions on the appellant 's fundamental rights must therefore be rejected.
The last ground urged in support of the appeal.
viz., that the impugned Act contravenes article 20(t) of the Constitution, is based on the assumption that the new rates of wages be came payable on the 1st January 1959 even as regards the 830 past period.
If that assumption were correct it would no doubt be also correct to say that the combined effect of sections 3 and 4 of the impugned Act was to make the employer liable to conviction for offences for violation of a law which was not in force at the time of the commission of the act charged.
We have already held however that on a proper construction of sections 3 and 4, the new rates of wages for the past period became payable not on the 1st January 1959 but on the 21st June 1962.
The attack on the validity of the sections on the ground of article 20(l) of the Constitution therefore fails.
All the points raised in the appeal fail.
The appeal is accordingly dismissed with costs.
Appeal dismissed.

summary/full:
The appellant was the manager of a Bidi counting and labelling factory.
In 1951, the State of Madhya Pradesh fixed rates of minimum wages payable to workmen in accordance with the provisions of the .
These rates were revised in the year 1956 and new rates were notified by the Government by a notification dated December 30, 1958 directing that these rates would come into force from January 1, 1959.
The validity of this notification was successfully challenged by the appellant before the High Court.
To meet the situation the Legislature enacted the Minimum Wages Act, 1961 giving effect to the impugned notification.
On challenge ,of this Act by the appellant and other Bidi manufactories, the High Court allowed the applications and restrained the Government from giving effect to the impugned notification.
There after, the Madhya Pradesh Ordinance No. 4 of 1962 was passed fixing rates of minimum wages retrospectively.
The ordinance was later replaced by an Act, the Madhya Pradesh Minimum Wages Fixation Act, 1962.
On challenge of the validity of this Act by the appellant, the High Court held the Act to be valid ,and disallowed the application.
In this Court the validity of the Act was challenged on the ground (1) that in enacting the Act of 1962 the Legislature was not exercising its independent legislative power but only validating the notification dated December 30, 1958 which it was not competent to do, (2) that by giving retrospective effect to the: rates of wages fixed by this Act the State had put unreasonable restrictions on the appellant 's fundamental rights under article 19(l)(f) & (g) and (3) that by making the provisions of sections 20 and 22 of the Central Act of 1948 applicable to the wages now fixed the Act had contravened article 2b(1) of the Constitution.
Held:(i) The contention that the Act was not independent legislation cannot be accepted.
Section 2 of the Act merely says that the expressions used in this Act shall have the same meaning for the purpose of this Act as defined in the Minimum Wages Act of 1948.
The definition of expressions used in an Act with reference to another Act is a well known device in legislative practice generally adopted for the sake of brevity.
The definition would remain effective even after the other Act with reference to which the definition was given ceases to exist.
This fact of defining expressions in an Act with reference to some other Act cannot therefore have the effect of making this Act dependent on such other Act.
821 It is clear from section 3 of the impugned Act that the legislature was fixing for itself the minimum rates of wages in certain ,scheduled employments.
The fact that the rates mentioned in the Table appended to the Act happened to Le the same as the rates fixed elsewhere cannot reasonably justify a conclusion that the validation of the old rates was being affected.
Independent legislation does not cease to be so, merely because its effect is the same as it would have been if a validating Act had been passed.
(ii)The retrospective operation of legislation is a relevant circumstance in deciding its reasonableness.
It is, however, not necessarily a decisive test.
Section 3 of the Act does not make the new rates of wages payable on the 1st January 1959.
The proviso to section 4 is a clear statement of the legislature 's intention that it is on the 21st June 1962 that the rates which had become enforceable under section 3 with effect from 1st January 1959 became payable.
The appellant 's apprehension that he might be made liable for payment of compensation under section 20(3) or to prosecution under section 22 of the as a result of mere passing of the Act must therefore be held to be ground less.
The contention therefore that sections 3 and 4 of the impugned Act impose unreasonable restrictions on the appellant 's fundamental rights must be rejected.
Rai Ramkrishna vs State of Bihar, ; , applied.
(iii)On a proper construction of sections 3 and 4 of the impugned Act, the attack on the validity of the section on the ground of a contravention of article 20(l) of the Constitution must also fail.