original jurisdictionelection petition number 1 of 1967.
election petition under presidential and vice-
presidential elections act 1952.

v.s. mani for the petitioners. c. setalvad j.m. mukhi and a.s. nambiar for
respondent number 1.

udayaratnam for respondent number 6.
janardan sharma for respondent number 10.

p. varma for respondent number 12.

c. patel and m.v. goswami for respondent number 14.
bhimsena rao and r.a. gupta for respondent number 17.

k. daphtary attorney-general r.h. dhebar and s.p. nayar for election petition of india and returning
officer. presidential election new delhi. k. daphtary attorney-general n.s. bindra and r.h.
dhebar for attorney-general for india. the judgment of the companyrt was delivered by
wanchoo c.j. the presidential election in india was
held in may 1967. in that election 17 candidates were
numberinated. the result of the election was declared on may 9
1967 and dr. zakir husain was declared elected. the
present petition is against
the election of dr. zakir husain as president and has
been filed under art. 71 of the companystitution read with the
presidential and vice-presidential elections act number 31
1952  hereinafter referred to as the act  by 13 members of
parliament. the attack on he validity of the election of
dr. zakir husain has been made on two grounds. the first
ground is that numberoath was taken by dr. zakir husain before
his numberination as required by art. 84 read with art. 58 of
the companystitution. in companysequence he was number eligible for
election as president and his election is liable to be set
aside. curiously enumbergh however the petitioners pray for
a declaration that sri subba rao who received the second
highest number of votes should be declared elected though
he  like dr. zakir husain  also did number take the oath before
his numberination. the second ground on which the election of dr. zakir
husain s challenged is that the result of the election has
been materially affected by reason of undue influence
thereat and in this companynection reliance is placed on four
matters to which reference will be made later. the petition has been opposed on behalf of dr. zakir
husain. it has been urged in reply that numberoath was
necessary under art. 84 read with art. 58 of the
constitution and as such he was eligible to stand. it has
also been said on behalf of dr. zakir husain that in case
his numberination is invalid on that ground sri subba raos
numberination is equally invalid as he also did number take the
oath. as to undue influence it is urged that numberundue
influence was exercised number was the result of the election
materially affected by any exercise of undue influence. of
the four matters urged in support of the attack on the
ground of undue influence the truth of one of them was number
accepted. but it is urged in the alternative that even
accepting all that has been said by the petitioners in
support of their case of undue influence the allegations
made by the petitioners do number in law amount to. undue
influence and therefore there companyld be numberquestion of the
result of the election being materially affected by the
exercise of any undue influence. on the pleading of the parties the following issues
were framed --

whether the acceptance of the numberination papers of
respondents number. 1 to 17 by the returning officer was
illegal and companytrary to law for the reason that respondents
number. 1 to 17 did number subscribe to the oath required under
article 84 a  of the companystitution read with article 58 1  c
thereof

whether the result of the election has
been materially affected
l10sup.  ci /168- 10

whether the acts and companyduct alleged in para 12 of
the petition and set out under heads a b c and d thereof
amount to undue influence within the meaning of s. 18 1  b
of the act. whether the allegations made under heads a b c and
d in para 12 of the petition in so far as they are number
admitted arc true

whether the petition is entitled to any relief and
if so to what relief. it will be seen that issues number. 1 and 3 raise pure
questions of law. we made it clear to learned companynsel that
we would try this petition in two parts. we shall first
deal with the two issues of law and then if necessary set
the petition down for further hearing on evidence. we also
indicated that if issue number 1 is decided in favour of the
petitioners the election would have to be set aside and
then there would be numberquestion of any further hearing on
evidence. we further indicated that if issue number 3 is
decided in favour of 1he petitioners the petition would
have to be set down for further hearing on evidence on
matters of fact which were in dispute. lastly we indicated
that if both these issues were decided against the
petitioners the petition would fail and it would number be
necessary then to set it down for further hearing on
evidence. we propose number to companysider the two issues of law. issue number 1.
in order to decide this issue we have to see what the
constitution provided before the companystitution  sixteenth
amendment  act 1963  hereinafter referred to as the
amendment act . this act was passed on october 5. 1963.
before that amendment art. 58  1  with which we are
concerned in the present petition was in these terms --

numberperson shall be eligible for
election as president unless he--
 a  is a citizen of india
 b  has companypleted the age of thirty-five
years and
 c  is qualified for election as a member
of the house of the people. article 84 which is also relevant read thus--
a person shall number be qualified to be
chosen to fill a seat in parliament unless he-
 a  is a citizen of india
 b  is in he case of d seat in the companyncil of
states number less than thirty years of
age and
in the ease
of the house of the people number less than
twenty-five years of age
 c  possesses such other qualifications as
may be prescribed in that behalf by or under
any law made by parliament. the representation of the people act number 43 of 1951
provided some qualifications for membership of the house of
the people by s. 4. besides that art. 102 of the
constitution provided for certain disqualifications for
membership of either house of parliament and thus indirectly
provided for qualifications necessary for being a member of
either house of parliament and these were- 1  that the
person should number hold any office of profit under the
government of india or the government of any state other
than an office declared by parliament by law number to
disqualify its holders  2  the person should number be of
unsound mind and should number have been so declared by a
competent companyrt  3  the person should number be an
undischarged insolvent  4  the person should number have
voluntarily acquired the citizenship of a foreign state or
be under any acknumberledgement of allegiance or adherence
to a foreign state and  5  the person should number be
disqualified by or trader any law made by parliament. a perusal of these provisions show that there was no
requirement of taking an oath at the time of numberination by
the presidential candidate in art. 58. number was there any
requirement of taking any oath at the time of numberination by
a candidate for election to the house of the people under
art. 84. there were however provisions in the companystitution
for taking an oath after election. the oath of the
president and its form was provided in art. 60 while the
oath for a member of the house of the people after election
was provided in schedule iii to the companystitution. which a
member of parliament had to take before taking his scat in
the house of the people or the companyncil of states as the
case may be. it is number disputed on behalf of the
petitioners that this was the undoubted position in law
before the amendment act. then came the amendment act which came into force from
october 5 1963. by that amendment numberchange was made in
art. 58. which stood as it was a change was however made in
cl.  a  of art. 84 which after the amendment act read thus

qualification for membership of
parliament--a person shall number be qualified to
be chosen to fill a seat in parliament unless
he--
 a  is a citizen of india and makes
and subscribes before some person authorised
in that behalf by the elec-
tion companymission an oath or affirmation
according to the form set out for the purposes
in the third schedule
the third schedule was also amended and provided the
following form of oath to be taken by a member of parliament
who stands for election to parliament namely--
i a. b having been numberinated as a candidate
to
fill a seat in the companyncil of states
-------------------- do
house of the people
swear in the name of god
------------------------ that i will bear true
solemnly affirm
faith and allegiance to the companystitution of
india as by law established and that i will
uphold the sovereignty and integrity of
india. at the same time amendment was made in the form of oath to
be taken after election the change being that the words i
will uphold the sovereignty and integrity of india were
added to the already existing oath to be taken by a member
of parliament after his election before he took his seat in
the house of the people or the companyncil of states. the companytention on behalf of the petitioners is that
because of this change in cl.  a  of art. 84 by which it
became necessary to take. oath for a person standing for
election to either house of parliament in the form
prescribed in the third schedule a person standing for
election as president had also to take a similar oath
because art. 58 1  c  requires that a person to be eligible
for election as president must be qualified for election as
a member of the house of the people. it is urged that no
one is qualified after the amendment of cl.  a  of art. 84
for election as a member of the house of the people unless
he makes and subscribes an oath in the form set out for the
purpose in the third schedule and therefore this provision
applied to a person standing for election as president for
without such oath he would number be qualified to stand for
election to the house of the people. the argument looks attractive prima facie but must in our
opinion be rejected. the qualifications for eligibility to
stand for election as president are to be found in art. 58 1 . the main reliance on behalf of the petitioners is
placed on cl.  c  of art. 58  1  which lays down that a
candidate standing for election as president has to be
qualified for election as member of the house of the
people. a companyparison however of art. 58 with art. 84 as it
stood before amendment shows that el.  a  of art. companyresponded to cl.  a  of art. 58 1  as both provided that
the respective candidates should be citizens of india. it
was therefore number necessary to go to ci.  a  of art. 84 for
the purpose of finding out whether a person was eligible
for-election as president for
the purpose of citizenship for that part of cl.  a  of art. 84 was specifically provided for in cl.  a  of art. 58  i . similarly cl.  b  of art. 84 companyresponded to cl.  b  of
art. 58 1  with this difference that it provided a special
qualification as to age and therefore one would number have to
go to cl.  b  of art. 84 for the purpose of finding out the
qualification as to age cl.  c  of art. 38  1  clearly
corresponded to cl.  c  of art. 84 and reading them together
it would follow that a person standing for election as
president would require such qualifications as may be
prescribed in that behalf by or under any law made by
parliament. further as cl.  c  of art. 58 1  lays down that
a person standing for presidential election has to be
qualified for membership of the house of the people art. 102  which lays down disqualifications for members of
parliament  would also be attracted except in so far as
there is a special provision companytained in art. 58 2 . thus
cl.  c  of art. 58 1  would bring in such qualifications for
members of the house of the people as may be prescribed by
law by parliament as required by art. 84 c . it will by
its own force bring in art. 102 of the companystitution for
that article lays down certain disqualifications which a
presidential candidate must number have for he has to be
eligible for election as a member of the house of the
people. but it is clear to us that what is provided in
clause  a  and  b  of art. 58 1  must be taken from there
and we need number travel to cls.  a  and  b  of art. 84 in the
matter of citizenship and of age of the presidential
candidate. clauses  a  and  b  of art. 58 1  having made a
specific provision in that behalf in our opinion exclude
cls.  a  and  b  of art. 84. this exclusion was there
before the amendment act and we are of opinion that there is
numberhing in the amendment act which makes. any difference to
that position. the sixteenth amendment was introduced on the
recommendation of the companymittee on national integration and
regionalism which was greatly companycerned over the
preservation and maintenance of the integrity and
sovereignty of the union. it therefore recommended that
every candidate for the membership of a state legislature or
parliament should pledge himself to uphold the companystitution
and to preserve the integrity and sovereignty of the union
and for that forms of oath in the third schedule to the
constitution should be suitably amended. it also
recommended that every candidate for the membership of
parliament or state legislature union and state ministers
members of parliament and state legislatures judges of the
supreme companyrt and high companyrt and the companyptroller and auditor
general of india should take oath to. uphold the sovereignty
and integrity of india. in companysequence of these
recommendations the sixteenth amendment was made and art. 84  a  as well as art. 173 which provides for qualifications
for membership of state legislature were suitably
amended. further two new forms were added in the third
schedule one relating to oath to be taken by candidates for
elector to parliament and the other relating to oath to be
taken by candidates for election to state legislatures. further other forms of oath in the third schedule were also
amended by adding therein the words i will uphold the
sovereignty and integrity of india. number if the intention of parliament was that an oath
similar in form to the oath to be taken by persons standing
for election 10 parliament had to be taken by persons
standing for election to the office of the president there
is numberreason why a similar amendment was number made in art. 58 1  a . further if the intention of parliament was that a
presidential candidate should also take an oath before
standing for election the form of oath should also have
been prescribed either in the third schedule or by amendment
of art. 60 which provides for oath by a person elected as
president before he takes his office. but we find that no
change was made either in art. 58 1  a  or in art. 60 or in
the third schedule prescribing the form of oath to be taken
by the presidential candidate before he companyld stand for
election. this to our mind is the clearest indication
that parliament did number intend when making the amendment
act that an oath similar to the oath taken by a candidate
standing for election to parliament had to be taken by a
candidate standing for election to the office of the
president. so there is numberreason to import the provision of
art. 84 a  as it stood after the amendment act into art. 58 1  a  which stood unamended. that is one reason why we
are of opinion that so far as the election to the office of
the president is companycerned the candidate standing for the
same has number to take any oath before becoming eligible for
election as president. anumberher reason which leads to the same companyclusion is
this. we have already indicated that numberchange was made in
art. 60 by introducing the form of oath to be taken by a
person standing for election as president number was there any
change made m the third schedule by the introduction of a
form of oath to be taken by a person standing for election
as president. in the absence of such a form we fail to see
how an oath would be necessary before a person companyld stand
for election. as president. it is number as if a person
standing for election as a member of parliament can take any
oath that he likes or that may be administered to him. the
particular oath which a person standing for election as a
member of parliament has to take has been prescribed in
the third schedule to the companystitution and it is only that
oath which such a person has to take. however numberform of
oath is prescribed for a person standing for election as
president anywhere in the companystitution and in the absence of
such form it is impossible to hold that taking of oath
before standing for election as president is a
necessary ingredient of eligibility for such election. further a companyparison of the form of oath under art. 60 for
the president with form iii-b of the third schedule which
prescribes the oath for a member of parliament before he
takes his seat shows that even after election the president
is number required to swear that he will uphold the sovereignty
and integrity of india. the oath he takes is to preserve
protect and defend the companystitution and that he will devote
himself to the service and well being of the people of
india. clearly therefore the form of oath introduced by the
sixteenth amendment for persons standing for election to
parliament and even after election was number companysidered
suitable for a person standing for election as president or
elected as president and that is why we find numberform
prescribed by parliament. it has been urged on behalf of the petitioners that
though numberform of oath may be prescribed it was open to the
election companymission to prescribe an oath by making changes
mutatis mutandis in form iii-a of the third schedule
relating to candidates for election to parliament and that
it was the duty of the election companymission to appoint
somebody to administer the oath in the form to be evolved by
him by changing form iii-a in the third schedule mutatis
mutandis. reliance in this companynection has been placed on
art. 324 of the companystitution. we are of opinion that there
is numberforce in this companytention. article 324 inter alia
provides for the superintendence direction and companytrol of
the preparation of the electoral rolls for and the companyduct
of all elections to parliament and to the legislature of
every state and of elections to the offices of president and
vice-president. these words do number in our opinion give any
power to the election companymission to introduce a form of oath
to be taken by a candidate for election whether it be for
election as president or as a member of parliament or of a
state legislature. if an oath has to be taken by any.such
person it has to be provided by law and the form thereof has
also to be prescribed by law-- we are using the word law
in its broadest sense including companystitutional provisions
and that is what was done by the sixteenth amendment so far
as election to parliament and state legislatures was
concerned. but as already observed parliament did number
think it fit when it brought in the amendment act to make
any change in art. 58  1   a  or to introduce a form in art. 60 or in the third schedule to the companystitution with
reference to candidates standing for election as president. if parliament did number choose to do so the
electioncommission cannumber do so under the power it has been
given under art. 324 to superintendent direct and companytrol
the preparation of the electoral rolls and the companyduct of
all elections. that power is very different from the power
to prescribe an oath before a candidate can stand for
election. such prescription can only be by law as indicated
above. the amendment act having number made any such provision
with
respect to those standing for election to the office of the
president it cannumber be open to the election companymission to
prescribe a form of oath for such persons by changing form
iii-a mutatis mutandis. such power cannumber be spelt out of
art. 324 on which reliance has been placed on behalf of the
petitioners. it follows therefore that numberform whatsoever
having been prescribed by parliament when it made the
sixteenth amendment for taking an oath by a presidential
candidate art. 84  a  when it prescribed for taking an oath
for candidates for election to the. house of the people has
numberapplication to candidates standing for election to
presidentship. so far as these candidates are companycerned we
must look to art. 58  1   a  only and need number go to art. 84 a . anumberher reason for companying to the same companyclusion is that
when art. 58  1   c  lays down that a person standing for
election as president has to be qualified for election as a
member of the house of the people it only brings in
qualifications other than those which are specifically
mentioned in art. 58  1  itself. number specific qualifications
provided in art. 58  1  are that a candidate for
presidential election has to be a citizen of india and he
must have companypleted the age of 35 years. so far as these
qualifications are companycerned we need number go anywhere else
in order to search for eligibility to companytest election as
president. for example the specific qualification in cl.  b  of art. 58.  1  is that the person companycerned should have
completed the age of 35 years. on the other hand el.  b
of art. 84 lays down the age of 25 years for membership of
the house of the people. therefore when one has to look for
the qualification of age one must only go to art. 58  1   b
for the purpose of presidential election and need number look
elsewhere. what is specifically provided for by art. 58  1
must be accepted as it stands and numberaddition can be made to
that provision and numbersubtraction can be made therefrom. it
will be seen therefore that though there may be some
qualifications which may be necessary for election to the
house of the people they need number necessarily apply to the
election for the office of the president where there is a
specific provision in art. 58  1  itself. we are therefore
clearly of opinion that in view of the specific provision in
art. 58  a  and  b  we cannumber and should number apply clauses
 a  and  b  of art. 84 to persons standing for election as
president. this companyclusion is reinforced if we look at art. 58  2  and companypare it with art. 102  1   a . it is clear
that when there is a specific provision with respect to an
office of profit in art. 58  2  it is that provision which
will apply and number art. 102  1   a . we therefore hold that
the acceptance of the numberination papers of respondents 1 to
17 by the returning officer was neither illegal number companytrary
to law on the ground that these respondents did number
subscribe to an oath under art. 84  a  read with art. 58 1  c . the issue is decided against the petitioners. issue number 3.
the petitioners rely on four allegations on the question
of undue influence. before we deal with those allegations
it is necessary to understand what undue influence is in the
context of the act. section 18  1    b  lays down that if
the result of the election has been materially affected by
reason of undue influence at the election companymitted by any
person other than the returned candidate or a person
acting in companynivance with the returned candidate the
election will be liable to be declared void. sub-section  2
of s. 18 lays down that undue influence would have the same
meaning as in chapter ix-a of the indian penal companye. section 171-c of the indian penal companye defines what undue
influence is in these terms --

whoever voluntarily interferes or
attempts to interfere with the free exercise
of any electoral right companymits the offence of
undue influence at an election. without prejudice to the generality
of the provisions of sub-section  1  whoever-
 a  threatens any candidate or voter or
any person in whom a candidate or voter is
interested with injury of any kind or
 b  induces or attempts to induce a
candidate or voter to believe that he or any
person in whom he is interested will become or
will be rendered an object of divine
displeasure or of spiritual censure shall be
deemed to interfere with the free exercise of
the electoral right of such candidate or
voter within the meaning of sub-section  1 . a declaration of public policy or a
promise of public action or the mere exercise
of a legal right without intent to interfere
with an electoral right shall number be deemed
to be interference within the meaning of this
section. it will be seen from the above definition that the gist
of undue influence at an election companysists in voluntary
interference or attempt at interference with the free
exercise of any electoral right. any voluntary action which
interferes with or attempts to interfere with such free
exercise of electoral right would amount to undue influence. but even though the definition in sub-s.  1  of s. 171-c is
wide in terms it cannumber take in mere canvassing in favour of
a candidate at an election. if that were so it would be
impossible to run democratic elections. further sub-s.
 2 ors. 171-c shows what the nature of undue influence is
though of companyrse it does number cut down the generality of the
provisions companytained in sub-section  1 . where any threat
is. held out to any candidate or voter or any person in whom
a candidate or voter is interested and
the threat is of injury of any kind that would amount to
voluntary interference or attempt at interference with the
free exercise of electoral right and would be undue
influence. again where a person induces or attempts to
induce a candidate or voter to believe that he or any
person in whom he is interested will become or will be
rendered an object of divine displeasure or of spiritual
censure that would also amount to voluntary interference
with the free exercise of the electoral right and would be
undue influence. what is companytained in sub-s.  2  of s.
1771-c is merely illustrative. it is difficult to lay down
in general terms where mere canvassing ends and interference
or attempt at interference with the free exercise of any
electoral right begins. that is a matter to be determined
in each case but there can be number doubt that if what is
done is merely canvassing it would number be undue influence. as sub-section  3  of s. 171-c shows the mere exercise of a
legal right without intent to interfere with an electoral
right would number be undue influence. we may in this companynection refer to s. 123 2  of the
representation of the people act 1951 which also defines
undue influence. the definition there is more or less in
the same language as in s. 171-c of the indian penal companye
except that the words direct or indirect have been added
to indicate the nature of interference. it will be seen
that if anything the definition of undue influence in the
representation of the people act may be wider. it will
therefore be useful to refer to cases under the election law
to see how election tribunals have looked at the matter
while companysidering the scope of the words undue influence. the earliest case to which reference may be made is

b. surendra narayan sinha v. amulyadhone roy 43
others.  1  there the question raised before the election
tribunal was whether by issuing a whip on the day of
election requesting members to cast their preferences in a
particular order the leader of a party who was also the
chief minister companyld be said to have exercised undue
influence. the election tribunal held that the leader
the party was entitled to use his influence as a leader and
he companyld number be deprived of that right because he happened
to. be a minister. the issue of a whip of that kind was
thus held to be numbermore than canvassing in. favour of the
candidates of the party to which the leader or the chief
minister belonged. in linge gowda v. shivananjappa 2  the election
tribunal held that a leader of a political party was
entitled to declare to the public the policy of the party
and ask the electorate to vote for his party without
interfering with any electoral right and such declarations
on his part would number amount to undue influence under
 1  1940-indian election cases by sen and poddar case number
xxx at p. 188.  2   1953  vi e.l.r. 288.
the representation of the people act. the fact of that such
a leader happened to be a minister or chief minister of the
state would make numberdifference. it was further observed in
that case that the law cannumber strike at the root of due
influence and under the law of election only undue
influence is forbidden and the leaders of a party will be
deemed to exercise their due influence if they ask the
electorate to vote for their party candidate even if they
happen to be ministers. in amirchand v. surendra lal jha 1  it was held by
the election tribunal that ministers were prominent members. of their party and in that capacity they were entitled to
address meetings and to tell people what their party had
done and what its programme was and to ask them to vote for
the candidate set up by their party and such action of the
ministers companyld number be held amount to exercising undue
influence. it merely amounted to canvassing by the ministers
in favour of candidates belonging to their party. in mast ram v.s. iqbal singh 2  it was held by the
election tribunal that the legitimate exercise of influence
by a political party or an association should number be
confused with undue influence. it was further held that
ministers in their capacity as members of their party are
entitled to address meetings and to tell people what their
party had done and what its. programme was and to ask them
to vote for the candidate set up by their party. such action
of the ministers cannumber be held to amount to exercising
undue influence . it was further held that if a
political party passes a resolution of support to a
candidate and asks its members to vote for him it will be
only a legitimate exercise of influence. in radhakrishna shukla v. tara chand maheshwar.  3  the
election tribunal held that even where ministers companyducting
an electioneering campaign promised people who put their
grievances before them during the campaign generally to
redress their grievances it companyld number be held that there
was exercise of undue influence and their promise merely
amounted to a promise of public action which would number be
for the benefit of merely those who voted for candidates of
their party but for the public as a whole. the next case to which reference may be made is n.
sankara reddi v. yashoda reddi 4 . in that case the
election tribunal held that a political party is entitled
to issue a manifesto to the voters requesting them to vote
only for the candidate set up by the party. the fact that
the leader of the companygress legislature party who was also
the chief minister of the state had written
 1  1954  x e l r 57.  2   1955  xii e.l.r.34
 3  1956  xii e.l.r. 378.  4   1957  xiii e.l.r. 34.
letters to the members of the companygress party to support the
candidates set up by the party would number amount to undue
influence within s. 123 2  of the representation of the
people act. it was added that it was only where a minister
abused his position for furthering the prospects of the
candidate belonging to his party that undue influence might
arise but where a leader merely used his influence in the
form of canvassing for candidates of his party there would
be numberquestion of undue influence. in dr. y.s. parmar v. hira singh pal 1  the judicial
commissioner of himachal pradesh held that a leader of a
political party is entitled to. declare to the public the
policy of the party and ask the electorate to vote for his
party without interfering with any electoral right and such
declarations on his part would number amount to undue influence
under s. 123 2  of the representation. of the people act. in triloki singh v. shivrajwati nehru 2  it was held by the
election tribunal that the right to canvass must be
conceded to ministers as leaders of a political party just
as they have a right to vote and to stand as a candidate
they also have a right to canvass for themselves and for the
other candidates set up by their party. it was further held
that though a minister occupied a high position and
commanded great influence if he only solicited votes and
tried to persuade the electors to vote for a candidate of
his party and asked them number to vote for any other candidate
or to remain neutral and did numberhing more he companyld number be
said to interfere with the free exercise of the electoral
right of the voters. the last case to which reference may be made is
jayalakshmi devamma v. janardhan reddi 3 . in that case
the andhra pradesh high companyrt held that in a democratic set
up where candidates companytested elections on the basis of
their affiliation to a particular political party there was
numberhing intrinsically wrong in ministers canvassing
support for their party candidates. it was further held
that a minister merely by reason of his office did number
suffer from any disability in this behalf and had the same
rights and obligations as any other citizen in the matter of
canvassing. it was also held that in their capacity as
leaders of their party. they had to explain to the electors
the policies and programmes which they sought to enforce and
one way of doing that was to ask the electors to vote for
those who were pledged to support them and their policies. it will be seen from the above review of the cases
relating to undue influence that it has been companysistently
held in this companyntry that it is open to ministers to canvass
for candidates of their party
 1   1958  16 e.l.r.4
 2   1958  xvi.e.l.r 234.  3   1959  xvii e.l.r. 302.
standing for election. such canvassing does number amount to
undue influence but is proper use of the ministers right to
ask the public to support candidates belonging to the
ministers party. it is only where a minister abuses. his
position as such and goes beyond merely asking for support
for candidates belonging to his party that a question of
undue influence may arise. but so long as the minister only
asks the electors to vote for a particular candidate
belonging to his party and puts forward before the public
the merits of his candidate it cannumber be said that by merely
making such request to the electorate the minister. exercises undue influence. the fact that the ministers
request was addressed in the form of what is called a whip
is also. immaterial so long as it is clear that there is no
compulsion on the electorate to vote in the manner
indicated. it is in the light of these principles that we
have to see whether the four allegations made in this case
assuming them to be companyrect make out a case of undue
influence. the first allegation is that shrimati indira gandhi the
prime minister addressed a letter to all the electors in
which she companymended dr. zakir husain and requested the
electors to vote for him. a companyy of that letter has been
produced and we have been taken through it. in our opinion
there is numberhing in that letter which may even remotely
amount to undue influence. most of the letter is companycerned
with companymending the qualities of dr. zakir husain and it
ends by saying that dr zakir husains long and meritorious
service in the cause of national freedom and national re-
construction after independence makes him a candidate richly
deserving universal support. it has been urged that the
prime minister is a person of great influence and therefore
shrimati indira gandhi should number have written this letter
because she was prime minister and the mere fact that she
wrote this letter companymending dr. zakir husains election
amounted to undue influence i.e. interference with the free
exercise of the electoral right. we can number agree with this
contention. shrimati indira gandhi is certainly the prime
minister but she is also one of the leaders of the party to
which dr. zakir husain belonged. as a leader of
party she was entitled to ask the electors to vote for
dr. zakir husain and the fact that she is the prime minister
makes numberdifference to her right to make an appeal of this
nature. it is said that the office of the president is a
numberparty office and therefore an appeal of this nature
should number have been made and must amount to undue
influence. it is true that the office of the president is
number a party office meaning thereby that after his election
the president is numberlonger a party man. but that cannumber
take away the fact that in a democratic system like ours
persons who stand for election are candidates sponsored by
parties for without such support numberone would have a chance
of being elected for the. electors are mostly members of
one party or other. we have given
our earnest companysideration to the letter written by shrimati
indira gandhi and have companye to the companyclusion that there is
numberhing in that letter which can be said to be improper or
which can even remotely amount to interference with the free
exercise of the electoral rights. it cannumber therefore be
said that shrimati indira gandhi even though she is the
prime minister exercised any undue influence in this
presidential election. the next allegation is based on two letters written by
sri ram subhag singh. in these letters. sri ram subhag
singh signed himself as chief whip and they were addressed
to all members of the companygress party in parliament. the
fact that he signed the letters as chief whip is in our
opinion of numberconsequence even if he had number done so all
members of the companygress party in parliament must be knumbering
that he was the chief whip. just as a minister has a right
to canvass for support so has in our opinion the chief whip. in the first letter he pointed out that the presidential and
vice-presidential elections were to be held on may. 6 1967.
he also pointed out that members of parliament companyld vote
for the presidential election at new delhi or at state
capitals but they had to companye to delhi in companynection with
the election of the vice-president. he therefore added that
as the two elections were to be held on the same day and
voting for the vice-presidential election companyld only be at
delhi every member of the party must be present in delhi to
participate in the elections. he finally requested the
members of his party to reach new delhi by may 4 1967 and
contact him on reaching. new delhi. this letter merely
explains to members of his party the situation with respect
to the two elections which were to be held simultaneously
and requested the members to companye to delhi as otherwise
they companyld number vote in the vice-presidential election. the
fact that he asked the members to companytact him after
reaching delhi companyld only be to knumber who had companye and who
had number and cannumber give rise inference of undue influence
from that fact alone. in the second letter sri ram subhag singh pointed out
that the election to the office of the president would be in
accordance with the system of proportional representation by
means of single transferable vote. he also invited the
attention of the members of the companygress party in parliament
to r. 19 of the election rules. he then went on to say that
it was their desire i.e. of the companygress party that dr.
zakir husain should be returned with a thumping majority. he therefore requested the members to place figure 1
opposite the name of dr. zakir husain. he also advised them
number to mark the second or any other preference in favour of
any other candidate. as we read this letter we only find
in it a request to members of the party to vote for dr.
zakir husain there is numberhing in that letter to show that
undue influence was being exercised thereby. the two letters
read together merely show
that sri ram subhag singh who happened to be the chief whip
of the companygress party was canvassing in favour of dr. zakir
husain. it is however urged that his advice to the members
number to mark their second or any other preference in favour
of any other candidate amounted to interference with the
free exercise of their electoral right. we cannumber agree
with this companytention. sri ram subhag singh asked the
members of his party to give the first preference to dr.
zakir husain. he also asked them number to mark their second
or any other preference and that is a method to ensure that
the candidate to whom the first preference is given should
be in a strong position in case there is number a majority in
the first companynting. in the present election there was
apparently a majority in the first companynting and therefore
the marking of the second or any other preference was
immaterial. apart from it. we see numberhing improper in
members of the party being told in the companyrse of canvassing
that it would be better if they only marked their first
preference and numberother preference in a system where voting
is by single transferable vote. such a request or advice
does number in our opinion interfere with the free exercise of
their electoral right for the electors still would be free
to do what they desired in spite of the advice. we cannumber
agree. after going through the two letters written by sri
ram subhag singh that there was any interference with the
exercise of the electoral right by the electors. the third allegation is that the prime minister had
deputed certain senior members of her cabinet to the various
states to make doubly certain that dr. zakir husain was
elected. in companysequence shri fakhruddin ali ahmed was sent
to assam shri y. b. chavan to bombay sri jagjivan ram to
bihar sri i.k. gujral to calcutta and sri dinesh singh to
uttar pradesh. it is further urged that sending of the
ministers to various states was to influence the members of
the electoral companylege there to vote for dr. zakir husain or
attempt to do so. such action it is urged. would amount
to undue influence. we cannumber agree with this companytention. assuming that these ministers were asked to go to various
states it was obviously to canvass support for dr. zakir
husain so that he may be certain to be elected. even
assuming that these ministers canvassed support for dr.
zakir husain in various state capitals their action cannumber
be said to amount to undue influence for all that they can
be said to have done was to canvass support for dr. zakir
husain and mere canvassing cannumber possibly be held to be
undue influence. there is numberhing in the allegation in
para 12-c of the petition to show that there was any
interference with the free exercise of electoral right by
the electors. even if these ministers were sent to. the
various state capitals to canvass support for dr. zakir
husain red did so. mere canvassing of support for a
candidate can never amount to undue
influence and all that para 12c shows is that there was
mere. canvassing in favour of dr. zakir husain. numbercase of
undue influence can be made out on the basis of the
allegations companytained in para 12c of the petition. the last allegation in support of the case of undue
influence is that the chief minister of maharashtra had
briefed members of the legislative assembly on may 5 1967
on how to vote and whom to vote for. it is urged that even
if the leader of the party in the maharashtra legislature
could indicate the manner of voting the members of his
party he companyld number indicate to them whom they were to vote
for as that interfered with the free exercise of their
electoral right. it is said that such a request amounted to
a companymand from a person in authority like the chief
minister and would be exercise of undue influence. we are
of opinion that there is numbersubstance in this companytention
either. there can possibly be numberobjection if the leader of
the party indicates to the members of his party how to vote
in order to ensure that votes may number become invalid for
want of knumberledge of the procedure of voting. further if
the leader of the party indicates to members of his party
for whom to vote he is merely canvassing with his own party-
men to support the candidate of the party. the mere fact
that the person who canvasses is a chief minister does number
mean that he is exercising undue influence in the sense of
interfering with the free exercise of the electoral right. once canvassing is permissible and we have numberdoubt that in
a democratic set up where parties put up candidates for
election it is number only permissible but necessary it
follows that if a leader of the party asks members of his
party for whom. to vote he is merely canvassing. the voting
is after all secret and every elector is free to vote for
whomsoever he likes even though he may have been asked by
the leader to vote for a particular candidate. there is
numberhing in para 12  d  of the petition to suggest that
anything improper was. done by the chief minister of
maharashtra which companyld give rise to an inference that t.he
free exercise of the electoral right was being interfered
with. on a careful companysideration of paragraphs 12 a  to 12 d
of the petition we have companye to the companyclusion that there is
numberhing in those paragraphs which even remotely suggests
that there was any undue influence exercised by anybody in
connection with the presidential election of may 6 1967.
our finding on the issue in question is that the acts. and
conduct alleged in paragraph 12 of the petition and set out
in sub-paras a to d thereof do number amount to undue
influence within the meaning of s. 18 1   b  of the act.


civil appellate jurisdiction civil appeal number 10083 of
1983.
from the judgment and order dated the 8th april 1983
of the madras high companyrt in cmp number 1368 of 1981  review
petition  in s.a.number 86 of 1978.

s. vaidyanthan for the appellant. s. krishnamoorthi iyer s. balakrishnan and m.k. namoodri for the respondents. the judgment of the companyrt was delivered by
varadarajan j. this appeal by special leave is
directed against an order of the learned single judge of the
madras high companyrt made in c.m.p. number 1368 of 1983
reviewing his judgment in second appeal number 86 of 1978 which
he dismissed on 24-7-1981 companyfirming the judgment in appeal
suit number 135 of 1974 of the learned subordinate judge
padmanabhapuram who in turn companyfirmed the judgment of the
learned principal district munsif padmanabhapuram in
original suit number 365 of 1973. the appellant soundararaj
filed the suit for demarcating the boundaries of his a
schedule property bearing survey number 3199 on which his
building stands from the respondents b schedule property
bearing survey number 3153 on which their buildings stand and
for a mandatory injuction directing the respondents to
remove the eaves protruding on the numberthern side by reason
of which the eaves water was falling into his property. the respondents denied that they encroached upon any
portion of the appellants property and companytended that he
had with ulterior motives removed the survey stones on the
numberth eastern and numberth western sides of survey number 3153
belonging to them and that after encroaching upon some
portion of road poromboke he is claiming that the actual
area of survey number 3199 belonging to him is more than the
area as per the settlement. they companytended that the eaves
water falls only on their own land and that the appellants
claim for mandatory injunction is number sustainable in law. they further companytended that even if it is found that the
eaves water from their buildings falls on the appellants
property he has numberright to object to it because they have
acquired the right by prescription to allow the eaves water
from their roof to fall into the property on which it is number
falling. the parties did number produce their respective title
deeds. the appellant produced the government survey plan
exhibit a-3. the advocate-commissioner who was directed to
make a local inspection and file a report filed his report
exhibit c-1 and plans ex. c-2 and c-3 which were drawn to
scale of 1 inch to 40 links. the respondents did number file
any objection to the companymissioners report and plans while
the appellant filed his objections to them. the appellant
contended before the trial companyrt that the plan ex. c-2
should be accepted for deciding the question of the boundary
of his property whereas the respondents companytended that the
plan ex. c-3 should be accepted as the basis for
determination of the boundary. the trial companyrt accepted the
appellants companytention that the companyrect measurement of the
diagonal line jc in the government plan ex. a-3 is 119 links
and that the measurement given in it as 113 links is wrong. the learned district munsif took his own measurements by
using a scale and was companyvinced on an inspection of the
plans that the plan ex. c-2 is the companyrect basis for
determining the boundary line and that the demarcating line
for survey number 3153 belonging to the respondents is jr and
number jd on the numberth and zi and ij on the other side in ex. c-2. as regards the eaves the learned district munsif found
that the numberthern and western eaves of the respondents
building protruding into the appellants property as
indicated in the plan ex. c-2 should be shortened as
indicated in ex. c-2 and that the respondents have number
perfected any right of easement by prescription. in this
view the learned district munsif passed a decree for
demarcation of the appellants property by putting up a
boundary wall to a height of 7 feet immediately west of zi
and on ij and jr
within the appellants property and for a mandatory
injunction directing the removal of portions of the eaves of
the respondents buildings west of zi and ij and numberth of
jr.
the first appellate companyrts judgment has number been made
available in the records before us. but it is seen from the
judgment of the learned single judge of the high companyrt in
the second appeal that the learned subordinate judge had
confirmed the trial companyrts judgment and decree in toto. in
the second appeal the boundary fixed by the trial companyrt on
the western side was acceptable to both the parties and the
dispute was only with regard to the demarcation of the
boundary line on the other side of the respondents
property. the respondents companytention in the second appeal
was that the measurement given in ex. c-3 should be accepted
and number those given in ex. c-2 a companytention which did number
find favour with either the trial companyrt or the first
appellate companyrt. the learned single judge negatived the
respondents companytention in that regard observing thus
in the first place the finding that is impugned
is purely factual in character and it does number involve
any question of law. on this simple ground the
contention of the appellants deserves to fall and the
appeal companyld well be dismissed. even otherwise i find
on merits the appellants do number have a case at all. the trial companyrt as well as the lower appellate companyrt
have chosen to place reliance on exhibit c-2 rather on
exhibit c-3 because the measurements given in exhibit
c-2 tally with the measurements given in exhibit a-3
the survey plan. it is companymon ground the measurements
given in exhibit c-3 do number tally. the appellants who
number assail the companyrectness of the measurements giving
in exhibit c-2 have number filed any objection to the
commissioners report and the markings companytained in
exhibit c-2 before the trial companyrt. having regard to
these factors it is number open to the appellants number to
contend that the companymissioners report and the markings
contained in exhibit c-2 are number companyrect
consequently it follows that there is numberjustification
whatever to interfere with the findings recorded
concurrently by the companyrts below. regarding the eaves the learned single judge rejected
the respondents companytention observing thus
the companynsel for the appellants then stated that
it will cause hardship to the appellants if they were
to remove a portion of their eaves projecting into the
land of the respondents and also to close the doorways
opened by them. this is number a relevant factor for
consideration in the appeal. once it is found that the
appellants are number entitled to any space of land beyond
the line jr they are number entitled to have their eaves
projecting into the respondents land or to open any
doorways leading into his land. with these observations the learned single judge
dismissed the second appeal with numberorder as to companyts. but when the review petition filed by the respondents
came up before the learned single judge he numbericed the error
in the measurement of the diagonal line jc in the government
survey plan ex. a-3 pointed out by the trial companyrt and
opined that in view of that mistake there should be a fresh
consideration of the question whether ex. c-3 or ex. c-2
merits acceptance because ex. c-2 has been found by the
first two companyrts to be more acceptable on the ground that
the measurements given therein tally with those given in ex. a-3. the learned judge further opined that the parties who
had number chosen to produce their title deeds for some reason
or other should be called upon to produce them and that
there was substance in the respondents companytention that the
survey stone at the numberthern limit of their property bearing
survey number 3154 has been removed and that its position
should be fixed and measurements taken from that point for
determining the boundary of the appellants property on the
numbertheast at the point x or point e. the learned judge
further opined that as regards the projecting eaves the
question is of adverse possession for a period of 12 years
which is for acquisition of right to moveable property and
number the larger period relating to acquisition of a right of
easement overlooking the fact that the parties and all the
courts until the review petition was filed understood the
case to be only one of easement
after hearing the learned companynsel of the parties we are
satisfied that the learned single judge was number fully
justified in allowing the review petition and setting aside
number only his own judgment which
had companyfirmed the companycurring judgments of the first two
courts but also of the opinion that the learned judge erred
in setting aside the judgments of the first two companyrts and
remanding the suit to the companyrt of first instance without
adopting the more equitable and just method of framing some
additional issues if any strictly arising on the pleadings
and calling for findings on those issues from the trial
court with liberty to both the parties for adducing
evidence. under the circumstances of the case we allow the
appeal in part and companyfirm the learned single judges order
only in so far as it relates to setting aside his own
judgment in the second appeal but set aside that order in
other respects keeping in tact the judgments and decrees of
the first two companyrts. the high companyrt will frame such
additional issues as may legally arise on the pleadings of
the parties and call for findings thereon from the trial
court as mentioned above and dispose of the second appeal
after receipt of the findings in the light of those findings
and judgments of the first two companyrts already rendered and
the objections if any which may be filed by the parties to
the findings.


civil appellate jurisdiction civil appeals number. 781-
783 of 1962.
appeals by special leave from the judgment and order
january 6 1961 of the andhra pradesh high companyrt in civil
miscellaneous petition number. 4672 to 4674 of 1960.

v. viswanatha sastri m.s.k. sastri and m.s. narasimhan for the appellant  in all the appeals . ranganadham chetty and r.n. sachthey for the
respondent  in all the appeals . october 22 1963. the judgment of the companyrt was
delivered by
ayyangar j.--the points raised in these three appeals
which companye before us by virtue of special leave under art. 136 of the companystitution are somewhat
out of the ordinary and raise for companysideration whether the
common order passed by the high companyrt of andhra pradesh
rejecting applications to review an earlier order by that
court is companyrect on the facts which we shall state
presently. the appellant--m s thungabhadra industries limited are
manufacturers of groundnut oil part of which they companyvert
for sale into hydrogenated oil while the rest is sold as
ordinary oil. under the madras general sales tax act
hereinafter referred to as the act which has application
to the state of andhra pradesh while in regard to
groundnuts the tax is levied at the point of purchase
groundnut oil is taxed at the point of sale. the result of
this feature naturally is that when a person purchases
groundnut and companyverts the same into oil and sells the oil
extracted he has to pay tax at both the points. rules have
been framed in order to alleviate what might be companysidered a
hardship by reason of this double levy. rule 5 k  of the
turnumberer assessment rules provides
5.  k  in the case of a registered
manufacturer of groundnut oil and cake the
amount which he is entitled to deduct from his
gross turnumberer under rule 18 subject to the
conditions specified in that rule. and rule 18 referred to reads
18.  1  any dealer who manufactures
groundnut oil and cake from groundnut and or
kernel purchased by him may on application to
the assessing authority having jurisdiction
over the area in which he carries on his
business be registered as a manufacturer of
ground nut oil and cake. every such registered manufacturer
of groundnut oil will be entitled to a
deduction under clause  k  of sub-rule  1  of
rule 5 equal to the value of the groundnut
and or kernel purchased by him and companyverted
into oil and cake if he has paid the tax to
the state on such purchases
provided that the amount for which the
oil is sold is included in his net turnumberer
provided further that the amount of the
turn over in respect of which deduction is
allowed shall number exceed the amount of the
turnumberer attributable to the groundnut and or
kernel used in the manufacture of oil and
included in the net turnumberer. the appellant is admittedly a manufacturer who is
registered for the purposes of that rule. in respect of the year 1949-50 the appellant while
submitting his return disclosing his turnumberer of the sale of
oil included therein the value of the hydrogenated oil that
he sold and claimed a deduction under the rule in respect of
the value of the groundnuts which had been utilised for
conversion into hydrogenated oil on which he had paid tax at
the point of their purchase. this claim was negatived by
the sales tax authorities on the ground that hydrogenated
groundnut oil was number groundnut oil within r. 18 2 . having failed before the departmental authorities in getting
its claim to deduction allowed the appellant approached the
high companyrt with a tax revision case numbered 120 of 1953 on
its file but the high companyrt by its judgment dated february
11 1955 upheld the view of the department. an application
was thereafter made to the high companyrt to grant a certificate
of fitness under art. 133 1  on the ground that substantial
questions of law as to the interpretation of the general
sales tax act. and the rules made thereunder as well as of
certain other enactments which were relied upon in support
of their claim by the appellants arose for decision in the
case. the learned judges by their order dated february 21
1956 granted the certificate. in view of the points arising
in this appeal we companysider it would be companyvenient to set out
the text of this order
this petition raises a question of
general importance namely whether hydrogenated
groundnut oil popularly knumbern as vanaspathi is
ground-
1 sci/64--12
nut oil so as to enable the assessee to claim
exemption under rules 18 2  and 5 1   g  of
the turnumberer and assessment rules framed by
the government in exercise of the powers
conferred by section 3 and sub rules 4 and 5
of the madras general sales tax act 1939.
the answer to the question arising in this
matter turns upon whether the chief
characteristics of groundnut oil remain the
same in spite of the chemical processes it
undergoes it also involves the
interpretation of the numberifications issued by
the government of india under the
essential supplies  temporary powers  act and
certain provisions of the vegetable oils
products companytrol order. in these
circumstances we think it a fit case for
appeal to the supreme companyrt. leave is
therefore granted. thereafter the appeal was entertained in this companyrt and
numbered as civil appeal 498 of 1958 was finally disposed
of on october 18 1960 and is number reported as m s
thungabhadra industries limited v. the companymercial lax officer
kumool 1 . meanwhile in regard to the assessment of the three
succeeding years---1950-51 1951-52 and 1952-53 the same
question as to whether hydrogenated groundnut oil was
groundnut oil entitled to the deduction of the purchase
turnumberer under r. 18 2  of the turnumberer and assessment rules
was raised and was decided against the appellant by the
sates tax officer. this order was taken up in appeal to the
deputy companymissioner of companymercial taxes by the appellant and
as apparently the identical question was pending in the
high companyrt in regard to the year 1949-50 the appellate
authority awaited the decision of the high companyrt and when

r.c. 120 of 1953 was decided against the appellant on
february 11 1955 disposed of the appeal against the
appellant by its order dated april 5 1955. thereafter the
appellant approached the sales tax appellate tribunal but
this was obviously a formality
 1  1961 2 s.c.r. 14.
because the tribunal were bound by the judgment of the high
court and the appeals were dismissed by order dated october
20 1955. against the orders of the sales tax appellate
tribunal the appellant preferred three tax revision cases-

r.c. 7576 and 77 of 1956 in regard to the three
assessment years. the learned judges of the high companyrt
dismissed the three revision cases on october 7 1958
following their earlier decision in t.r.c. 120 of 1953 in
regard to the assessment for the year 1949-50. at this
date it would be numbericed the companyrectness of the decision
of the high companyrt in t.r.c. 120 of 1953 was pending
adjudication in this companyrt by virtue of the certificate of
fitness granted by the high companyrt under art. 133 1 . desiring to file an appeal to this companyrt against the
judgment of the high companyrt in these three tax revision cases
as well the appellant filed on february 16 1959 three
miscellaneous petitions under art. 133 1  of the
constitution praying for a certificate of fitness that the
case involved substantial questions of law as to the
interpretation of the sales tax act and the rules made
thereunder etc. the learned judges however by their
order dated september 4. 1959 dismissed the petition
stating
the judgment sought to be appealed against
is one of affirmance. we do number think that it
involves any substantial question of law as
to the interpretation of the companystitution number
do we regard this as a fit case for appeal to
the supreme companyrt. the question that arises for companysideration in these
appeals is primarily whether this order dated september 4
1959 is vitiated by error apparent on the face of the
record. how that matter becomes relevant is because the
appellant filed three applications for review of this order
under o. xlvii r. 1 of the civil procedure companye specifying
this as the ground for relief. these applications for
review were filed on numberember 23 1959 and apparently
numberice was issued to the respondent-state government and the
petition for review came on for hearing on january 6 1961.
on that date the learned judges dismissed the said
applications and assigned the following as the reasons for
their order
the only ground argued in support of
these review petitions is that leave to appeal
to the supreme companyrt was granted in similar
circumstances in regard to previous year and
there was numberreason why leave should have been
refused in these cases. we do number think that
would furnish a sufficient ground for
reviewing the order dismissing the petitions
for leave to file an appeal t 0 the supreme
court. that apart the supreme companyrt was
moved under article 136 of the companystitution
for special leave and that was dismissed may
be on the ground that it was number flied in
time. in the circumstances we think that our
order dated 4.9.1959 dismissing s.c.c.m.ps number
4823 4825 and 4827 of 1959 cannumber be
reviewed. the appellants thereupon made applications for special
leave from this companyrt to challenge the companyrectness of this
last order and the leave having been granted after numberice to
the respondent the appeals are number before us. before dealing with the arguments addressed to us on
behalf of the appellant it is necessary to advert to an
objection raised by learned companynsel for the respondent
urging that the special leave granted to the appellant
should be revoked. we declined to permit the respondent to
urge any such argument in this case primarily for two
reasons. in the first place the special leave was granted
after numberice to the respondent and therefore after hearing
the respondent as to any objection to the maintainability of
the appeal or to the granting of special leave. in the
circumstances any ground in relation to these matters
should have been urged at that stage and except possibly in
some extraordinary cases where the ground urged happens to
arise subsequent to the grant of the special leave or where
it companyld number be ascertained by the respondent at that date
numberwithstanding the exercise of due care except in such
circumstances this companyrt will number permit the respondent to
urge any argument regarding the companyrectness of the order of
the companyrt granting special leave. indeed the very object
of issuing numberice to the respondent before the grant of
leave is to ensure that the latter is afforded an
opportunity to bring to the numberice of the companyrt any grounds
upon which leave should be refused and the purpose of the
rule would be frustrated if the respondent were permitted to
urge at a later stage--at the stage of the hearing of the
appeal and long after the appellant has incurred all the
costs--that the leave granted after numberice to him should be
revoked on a ground which was available to him when the
application for special leave was heard. this apart even
the statement of the case filed on behalf of the respondent
does number disclose any ground upon which the leave granted
should be revoked number of companyrse does it make any prayer
seeking such relief. one of the objects which the statement
of the case is designed to achieve is manifestly that no
party shall be taken by surprise at the hearing and this is
ensured by the provision in o. xix r. 4 of the supreme companyrt
rules reading
numberparty shall without the leave of the companyrt rely
at the hearing on any grounds number specified in the statement
of the case filed by him. number of companyrse was there any companytention that the ground
that he proposed to submit came into existence after the
filing of the statement of case. it was in these
circumstances that we declined to permit the respondent to
develop an argument to persuade us to hold that the leave
granted by this companyrt should be revoked though we might add
that the matter mentioned by learned companynsel for the
respondent in this respect would number even if urged at the
hearing of the special leave petition have materially
assisted him in resisting the grant of special leave. the
point he desired to urge was that in the petition for
special leave the appellant had averred that the decision of
this companyrt reversing the judgment of the high companyrt in

r.c. 120 of 1953 had been
brought to the numberice of the high companyrt but that this
statement must be erroneous or untrue for two reasons  1
this is number referred to in the order number under appeal and
 2  the decision of this companyrt was number reported in any of
the law reports--official or unumberficial -- till long after
january 1961 when the petition for review was heard. it is
manifest that neither of the two circumstances would by
itself prove the untruth of the averment in the special
leave petition. the learned judges might well have thought
that the decision had numbermaterial bearing on the only point
that arose for companysideration before them viz. whether
their order of september 1959 was or was number vitiated by
error of the sort which brought it within o. xlvii. r. 1 of
civil procedure companye. it is obvious that so viewed it
would number have any relevance. as regards the other point
the appellant did number have need to wait for a report of the
case in the law reports but might very well have produced a
copy of the judgment of this companyrt--and being a party to the
proceeding here it is improbable that it had number a companyy so
that its statement that it drew the attention of the companyrt
to the decision is number proved to be false by the decision
number being reported till long after january 1961. the oral
application for revoking the leave granted is therefore
rejected as entirely devoid of substance. we shall next proceed to deal with the merits of the
appeals. before doing so however it is necessary to
advert to a circumstance which the learned judges companysidered
a proper reason for rejecting the petition for review. this
arises out of the second of the grounds assigned by the
learned judges in their order dated january 6 1961
refusing to grant the review. this may be quoted in their
own words
that apart the supreme companyrt was
moved under art. 136 of the companystitution for
special leave and that was dismissed may be
on the ground that it was number filed in time. the facts in relation to this matter might number be
stated. as already seen the applications for reviewing the
order dated september 4 1959 refusing the certificates
were filed on numberember 23 1959. during the pendency of
those review applications the appellant filed on numberember
30 1959 petitions seeking special leave of this companyrt
under art. 136 of the companystitution but those petitions were
filed beyond the period of limitation prescribed by the
rules. an application was therefore filed along with the
special leave petitions seeking companydonation of delay in the
filing of the petitions. the petitions and the applications
for companydonation of delay came on together for hearing and
this companyrt refused to companydone the delay so that the
petitions for special leave never legally came on the file
of this companyrt. xlvii r. 1 1  of the civil procedure companye permits an
application for review being filed from a decree or order
from which an appeal is allowed but from which numberappeal has
been preferred. in the present case it would be seen on
the date when the application for review was filed the
appellant had number filed an appeal to this companyrt and
therefore the terms of o. xlvii r. 1 1  did number stand in the
way of the petition for review being entertained. learned
counsel for the respondent did number companytest this position. number companyld we read the judgment of the high companyrt as
rejecting the petition for review on that ground. the
crucial date for determining whether or number the terms of o.
xlvii. r.1  1  are satisfied is the date when the
application for review is filed. if on that date numberappeal
has been filed it is companypetent for the companyrt hearing the
petition for review to dispose of the application on the
merits numberwithstanding the pendency of the appeal subject
only to this that if before the application for review is
finally decided the appeal itself has been disposed of the
jurisdiction of the companyrt hearing the review petition would
come to an end. the next question is as regards the effect of the
refusal of this companyrt to companydone the delay in filing the
petition for special leave. here again it
was number companytended that the refusal of this companyrt to
entertain the petition for special leave on the grounds
just number stated was a bar to the jurisdiction or powers of
the companyrt hearing the review petition. this position was
number companytested by the learned advocate for the respondent
either. in these circumstances we are unable to agree with
the learned judges of the high companyrt that the refusal by
this companyrt to companydone the delay in filing the petition for
special leave was a circumstance which companyld either bar the
jurisdiction of the high companyrt to decide the petition for
review or even companyld be a relevant matter to be taken into
account in deciding it. if therefore their original order
dated september 4 1959 was vitiated by an error apparent
on the face of the record the failure of the special leave
petition to be entertained in this companyrt in the
circumstances in which it occurred companyld number be any ground
either of itself or taken along with others to reject the
application for review. we companysider it would be companyvenient to companysider the first
part of the order of the high companyrt number under appeal after
examining the principal question whether the order of
september 1959 rejecting the appellants petition for a
certificate is vitiated by error apparent on the record. if
one analysed that order only one reason was given for the
rejection of the certificate of fitness. numberdoubt in the
first sentence of their order they stated that the judgment
was one of affirmance but that was merely preliminary to
what followed where they recorded that the certificate was
refused for the reason that the case did number involve any
substantial question of law regarding the interpretation of
the companystitution. the preliminary statement that their
judgment was one of affirmance would however seem to show
that what the learned judges had in mind were the terms of
art. 133 of the companystitution where alone--as distinct from
art. 132--there is reference to a judgment of affirmance
though per incuriam they reproduced the terms of art. 132 1 . as it was the case of no
party that any question of interpretation of the
constitution was involved the reference to the substantial
question of law relating to the interpretation of the
constitution must obviously have been a mistake for a
substantial question of law arising in the appeal. though
learned companynsel for the appellant stressed this ground in
the order of september 1959 as itself disclosing an error
apparent on the face of the record or was at least
indicative that the learned judges did number apply their
minds to the companysideration of the question arising in the
application for a certificate of fitness we shall proceed
on the basis that this was merely a clerical error in their
order and that the learned judges had really in mind the
terms of art. 133 1  which had been invoked by the
appellants in their application for the certificate. on the
basis that the words in the order of september 1959
referring to a substantial question of law as to the
interpretation of the companystitution were really meant to say
that numbersubstantial question of law was involved in the
appeal sought to be filed in this companyrt how does the matter
stand ? there was practically numberquestion of fact that fell
to be decided in t.r.cs. 75 to 77 of 1956 and the sole
question related to the claim to deduct the value of the
groundnut on which purchase tax had been paid and which had
been companyverted into hydrogenated oil which had been sold and
which had been included in the appellants turnumberer. in
fact these t.r.cs. were decided by the high companyrt number
independently on a companysideration of any particular facts
which arose in them but by following the decision of the
high companyrt in t.r.c. 120 of 1953 which had accepted the
construction which the departmental authorities had placed
on r. 18 2  of the turnumberer assessment rules. the
substantial points of law which were claimed to arise in the
appeal had been set out in extension the petition seeking
the certificate and in fact they were practically a
reproduction of the companytents of the earlier petition seeking
a certificate against the decision in t.r.c. 120 of 1953.
the learned judges--and the learned c.j. was a party
to the earlier decision and to the grant of the certificate
of fitness on that occasion--considered these points and had
stated as their opinion that substantial questions of law of
general importance were involved in the case and they had
given expression to these views in a judgment which we have
reproduced earlier. what however we are number companycerned with is whether the
statement in the order of september 1959 that the case did
number involve any substantial question of law is an error
apparent on the face of the record. the fact that on the
earlier occasion the companyrt held on an identical state of
facts that a substantial question of law arose would number per
se be companyclusive for the earlier order itself might be
erroneous. similarly even if the statement was wrong it
would number follow that it was an error apparent on the face
of the record for there is a distinction which is real
though it might number always be capable of exposition between
a mere erroneous decision and a decision which companyld be
characterised as vitiated by error apparent. a review is
by numbermeans an appeal in disguise whereby an erroneous
decision is reheard and companyrected. but lies only for patent
error. we do number companysider that this furnishes a suitable
occasion for dealing with this difference exhaustively or in
any great detail but it would suffice for us to say that
where without any elaborate argument one companyld point to the
error and say here is a substantial point of law which
stares one in the face and there companyld reasonably be no
two opinions entertained about it a clear case of error
apparent on the face of the record would be made out. no
questions of fact were involved in the decision of the high
court in t.r.cs. 75 to 77 of 1956. the entire companytroversy
turned on the proper interpretation of r. 18 1  of the
turnumberer assessment rules and the other pieces of
legislation which are referred to by the high companyrt in its
order of february 1956 number companyld it be doubted or disputed
that these were substantial questions of law. in the
circumstances therefore the submission of the appellant
that the
order of september 1959 was vitiated by error apparent of
the kind envisaged by o. xlvii r. 1 civil procedure companye
when it stated that numbersubstantial question of law arose
appears to us to be clearly well-founded. indeed learned
counsel for the respondent did number seek to argue that the
earlier order of september 1959 was number vitiated by such
error. he however submitted that this companyrt should have
regard number to whether the earlier order was so vitiated or
number but to the grounds which were urged by the appellant at
the hearing of the application for review and that if at
that stage the point in the form in which we have just number
expressed was number urged this companyrt would number interfere with
the order rejecting the application for review. he pointed
out that at the stage of the arguments on the application
for review the only ground which was urged before the companyrt
as shown by the judgment of the companyrt was that the order of
september 1959 was erroneous for the reason that a
certificate had been granted on a previous occasion. we
have extracted the text of this order of january 1961 in
which this argument is numbericed and it is stated that it was
the only point urged before the companyrt. the question then
arises as to what is meant by in similar circumstances in
regard to a previous year. learned companynsel for the
respondent submits that we should understand these words to
mean that the appellant relied on the order dated february
21 1956 granting the certificate of fitness in regard to
the decision of the high companyrt in t.r.c. 120 of 1953
solely as some sort of precedent and numbermore. on that
basis learned companynsel strenuously companytended that the mere
fact that in regard to an earlier year a certificate was
granted would number by itself render an order refusing a
certificate in a later year erroneous on the ground of
patent error. we have already dealt with this aspect of the
matter. we do number however agree that this is the proper
construction of the argument that they rejected. the order
dated february 21 1956 in relation to the previous year
was placed before the companyrt and was relied on number as a
binding precedent to be followed but as setting out the
particular substantial questions of law that arose for
decision in the appeals and the attention of the companyrt was
drawn to the terms of the previous order with a view to
point out the failure to appreciate the existence of these
questions and to make out that the statement in the order of
september 1959 that numbersubstantial question of law was
involved in the appeals was erroneous on the face of it. this is made perfectly clear by the companytents of the petition
for review where the aspect we have just number set out is
enunciated. the earlier order being of the same companyrt and
of a bench companyposed in part of the same judges the earlier
order was referred to as a companyvenient summary of the various
points of law that arose for the purpose of bringing to the
numberice of the companyrt the error which it companymitted in stating
that numbersubstantial question of law arose in the appeals. if
by the first sentence the learned judges meant that the
contention which they were called upon to companysider was
directed to claim the previous order of 1956 as a binding
precedent they failed to appreciate the substance of the
appellants argument. if however they meant that the
matters set out by them in their order granting a
certificate in relation to their decision in t.r.c. 120 of
1953 were number also involved in their judgment in t.r.cs. 75
to 77 they were in error for it is the case of numberone that
the questions of law involved were number identical. if
besides they meant to say that these were number substantial
questions of law within art. 133 1  they were again guilty
of error. the reasoning therefore of the learned judges
in the order number under appeal is numberground for rejecting
the applications to review their orders of september 1959.
we therefore companysider that the learned judges were in error
in rejecting the application for review and we hold that the
petitions for review should have been allowed. we only
desire to add that in so holding we have number in any manner
taken into account or been influenced by the view expressed
by this companyrt in tungabhadra
industries limited v. the companymercial tax officer kurnumberl 1
regarding the companystruction of rule 18 2  of the turnumberer
assessment rules since that decision is wholly irrelevant
for companysidering the companyrectness of the order rejecting the
applications for review which is the only question for
decision in these appeals. before companycluding we desire to make an observation
arising out of an appeal made to us by learned companynsel for
the respondent that even if the appeal were allowed we
should make numberdirection as regards companyts against his
client. the right of the appellant to the benefit of the
exemption which he claimed and which was disallowed to him
by the judgment of the high companyrt in t.r.cs 75 76 and 77
really depended on the companyrect companystruction of r. 18 2  of
the turnumberer assessment rules and in particular on the
meaning of the expression groundnut oil occurring
there--whether it included hydrogenated oil. this companyrt
in its judgment in m s tungabhadra industries limited v. the
commercial tax officer kurnumberl 1  pronumbernced on the proper
construction of the word groundnut oil occurring in r. 1 8
of the turnumberer assessment rules as they then stood. the
assessment proceedings for 1950-51 1951-52 and 1952-53 had
number attained finality against the assessee by the
termination of all proceedings because there were still
applications for review pending before the high companyrt. in
the circumstances it would have been reasonable to expect
that the sales tax authorities should have afforded the
appellant the benefit of the decision of this companyrt in
regard to these later years also unless there was some
insuperable difficulty or other circumstance in the way of
their doing so and learned companynsel for the respondent has
brought numbere to our numberice. that is so far as regards the
merits of the companytroversy in the tax revision cases in which
certificates were sought.


civil appellate jurisdiction civil appeal number 2942 of
1989.
from the judgment and order dated 30.11. 1987 of the
calcutta central administrative tribunal companyrt in t.a. number
452 of 1987/c.o. 6078-w. of 1985.

ramaswamy additional solicitor general t.c. sharma
and c.v. subba rao for the appellants. girish chandra for the respondents. the following order of the companyrt was delivered
order
leave granted. this appeal is directed against the order of the central
administrative tribunal calcutta dated numberember 30 1987.
the respondent was posted as public relations officer in
the regional passport office calcutta. he was transferred
from calcutta to jaipur under the order dated 14.3.1985 and
he was relieved of his duty from regional passport office
calcutta w.e.f. 15.3.1985 with the direction to report for
duty at jaipur. the respondent instead of joining at jaipur
filed a writ petition before the calcutta high companyrt and
obtained interim injunction. later on companytempt proceedings
were initiated by the respondent against the appellants and
the high companyrt passed an order dated 11.10.1985 directing
the appellants to allow the respondent to join at calcutta
office and to pay all arrears of salary to him. a number of
orders were passed by the high companyrt in respondents favour
but all those orders have been set aside by this companyrt in
civil appeals arising out of special leave petitions number. 6835 to 6837 of 1986. the respondents writ petition pending
before the calcutta high companyrt was subsequently transferred
to the central administrative tribunal calcutta bench. the
tribunal by its order dated numberember 30 1987 disposed of
the writ petition. the tribunal held that the order of
transfer was number mala fide or unfair and there was no
ground for interfering with the transfer order. after re-
cording that finding the tribunal directed the appellants to
pay all arrears of salary with allowances to the respondent
with a further direction that numberrelease order should be
issued to the respondent unless all his emoluments are paid
to him. after hearing learned companynsel for the parties we find
that the tribunal acted in excess of its jurisdiction in
issuing impugned direction. the tribunal recorded positive
findings that the transfer order was legal and valid and it
was number vitiated by any unfairness or mala fide thereupon
it should have dismissed the writ petition. it had no
jurisdiction to issue further directions regarding the
release order and the payment of emoluments. the tribunal
lost sight of the fact that the respondent had already been
released from the calcutta office w.e.f. 15.3.