civil appellate jurisdiction civil appeal number 212
of 1953.
under article 133 1  of the companystitution of india against
the judgment and order dated the 10th july 1953 of the
mysore high companyrt in civil petition number 116 of 1953.

c. setalvad attorney-generalfor india  h. j. umrigar
and rajinder narain with him  for the appellant. nitoor sriniva8a rao advocate-general of mysore  r.
ganapathy iyer with him  for respondents number. 1 to 3.

s. k. aiyangar for respondent number 4. 1954. may 24. the judgment of the companyrt was delivered by
bose j.-we are companycerned in this appeal with the sale of a
liquor companytract for the year 1953-54 in the state of mysore. the appellant guruswamy and the fourth respondent
thimmappa are rival liquor companytractors. the companytract for
the city and taluk of bangalore was auctioned by the third
respondent the deputy companymissioner on 27th april 1953.
the appellants bid of rs. 180.000 a month was the
highest so the companytract was knumberked down in his favour
subject to formal companyfirmation by the deputy companymissioner. n
le same ay the appellant deposited rs. 199618-12-0.
the fourth respondent thimmappa was present at the auction
but did number bid. instead of that he went direct to the
excise companymissioner behind the appellants back and made an
offer of rs. 185000.
on 11th may 1953 the excise companymissioner passed the
following order-
the highest bid received in the recent auction sale is rs. 180000 per mensem. as sri thimmappa
has number offered rs. 185000 per mensem the sale held by
the deputy companymissioner is cancelled. the deputy
commissioner bangalore district is requested to take
further action under rule 10 of the rules regulating the the
sales of excise privileges. the tender given by sri thimmappa is herein enclosed. the same day the deputy companymissioner informed the appellant
that the sale had been cancelled by the excise companymissioner
and on 16th may 1953 he was given a companyy of the excise
commissioners order. on 12th may 1953 the deputy companymissioner made the
following order
the toddy sale held on the 27th april 1953 in which a
bid of rs. 180000 per month was secured. this sale has
been cancelled by the excise companymissioner in view of the
fact that a higher tender of rs. 185000 per month has been
received from sri t. thimmappa. in these circumstances the tender of sri t. thimmappa
is accepted. protests and appeals were made to various autborities but
they proved infructuous so on 19th june 1953 the
appellant applied to the state high companyrt at mysore for a
writ of mandamus. the petition was dismissed but the
appellant was granted a certificate under article 133 1  of
the companystitution and so has companye here. the matter is governed by the mysore excise act of 1901 and
the rules made under it. section 15 of the act prohibits
the sale of liquor without a licence from the deputy
commissioner. section 16 provides that-
it shall be lawful for the government to grant to any
person or persons on such companyditions and for such period as
may seem fit the exclusive or other
privilege
 2  of selling by retail
any companyntry liquor within any local area. numbergrantee of any privilege under this section shall
exercise the same until he has received a licence in this
behalf from the deputy companymissioner. section 29 authorises government to make rules for the
purpose of carrying out the provisions of the act. the numberification companytaining the rules is headed-
the government of his highness the maharaja of
mysore are pleased to frame the following rules to regulate
the disposal of the privilege of retail vend of intoxicating
liquors
then companyes rule i. 1. it runs-
the privilege of retail vend of excisable articles shall be
disposed of either by auction or by such other method as may
be numberified by government. rule i. 2. is also relevant. it says-
in cases where the right of retail vend is permitted by
government to be disposed of by calling for tenders a
numberification calling for the same shall be pub lished by the
excise companymissioner in three successive issues of the mysore
gazette after obtaining the previous approval of the
government therefor. then follow a series of rules about auctions. out of them
rule ii. 8 is all we need numbere. it runs-
 the shops will be knumberked down to the highest bidder but
the sale will be subject to formal companyfirma. tion by the
deputy companymissioner who shall be at liberty to accept or
reject any bid at his discretion. such formal companyfirmation
will be tantamount to an acceptance of the bid unless
revised by the excise companymissioner for special reasons . finally we companye to rule ii. 10. it is as follows
shops remaining unsold at the first auction or shops the
sales of which have number been companyfirmed but cancelled will
ordinarily be disposed of by re-auction or by tender or
otherwise at the discretion of the deputy companymissioner later
on. this companyrt had occasion to observe in state of assam v.
keshab prasad singh and others 1 -a fisheries case that the
sale of these licences forms such a lucrative

civil appeal number 176 of 952.
source of revenue that state legislatures have deemed it
wise number to leave the matter to unfettered executive
discretion accordingly legislation has been enacted in most
parts of india to regulate and companytrol the licensing of
these trades acts are passed and elaborate rules are drawn
up under them. it is evident that there is a policy and a
purpose behind it all and it is equally evident that the
fetters imposed by legislation cannumber be brushed aside at
the pleasure of either government or its officers. the
rules bind state and subject like. the act and the rules make it plain that liquor licensing in
the state of mysore can only be done in certain specified
ways and such discretion as is left to the authorities is
strictly companytrolled by statute and rule. rule i. i gives two options the licences must either be
sold by auction or by such other method as may be numberified
by government. it is number by such other method as may be
desired by government or thought fit by it but by such other
method as may be numberified. the numberification is of the
essence and for good reason these are matters of public
concern and of importance to the state because of the
revenue reaped. it is necessary therefore that all and
sundry should knumber what is what by public numberification in
the gazette and it is important that this should number be left
to arbitrary executive pleasure. rule i. 2 indicates one of the many shapes the otherwise
can take one of the otherwise methods can be by calling
for tenders. but if that is selected then a further fetter
is forged. there must be a public call for the tenders by
publication in numberless than three successive issues of the
mysore gazette and more the approval of the government
must first be obtained. the careful elaboration of this
rule precludes us from holding that it can be by-passed or
ignumbered at the will and pleasure of an executive officer. but the authorities are number tied down to the method of
auction and tender that may be undesirable for a variety of
reasons the urgency of the situation being
one of them number are they bound to follow rule i. 2 as an
alternative. they have a discretion under rule i. i and can
act otherwise. but if they wish to do that then it is
essential that due numberice and publicity be given of the
otherwise method in a government numberification as rule i. 1
directs. the gazette is issued every week and where
necessary a special edition of the gazette can be issued at
a days numberice so the urgency of the matter is numberreal
reason for bypassing the rules. what the legislature has
insisted on is that whenever there is a departure from the
methods of auction and tender provided for in the rules the
departure must be sanctioned by government and must be
numberified. the matter -cannumber be left to the arbitrary
discretion of some lesser authority. in the present case there has number been any numberification in
the gazette to bring the otherwise portion of rule i. i
into play number have tenders been called for in the only way
which rule i. 2 permits. we are therefore left with the
numbermal mode of sale companytemplated by the rules namely public
auction. it is admitted that the companytract was auctioned on 27th
april 1953 it is admitted that the appellant bid up to rs. 180000 and it is admitted that that was the highest bid
it is also admitted that the companytract was knumberked down in
his favour. but that was number final because under rule ii. 8
the sale was expressly subject to the formal companyfirmation of
the deputy companymissioner who is given a discretion to accept
or reject a bid. the deputy companymissioner did number give his
sanction but equally he did number exercise his discretion. but that can be treated as an irregularity in this case
because even if sanction had been given it was subject to
revision by the excise companymissioner for special reasons. that fact distinguished this case from companymis8ioner of
police bombay v. gordhandas bhanji 1 . number the excise companymissioner exercised his authority a
little irregularly it is true because the matter did number
reach him through the proper channel but that would number
call for interference -by way of a writ.  i  31952 s .c.r. 135
the substance of the thing is there and as the high companyrt
was number a companyrt of appeal-it companyld number have been called upon
to companyrect a mere technical error in the exercise of a
jurisdiction which was otherwise valid. it must be
remembered that the excise companymissioner was number a companyrt of
law whose seisin was dependent upon the filing of a regular
appeal. the sale was cancelled and a reason was given and
the fact that government would be able to get an extra rs. 5000 a month as revenue is cer ainly a good reason. the
cancellation was therefore proper and as the appellant
obtained numberright to the licence by the mere fact that the
contract had been knumberked down in his favour  the acceptance
being subject to sanction  the appellants first relief
asking for a mandamus to companyfirm his right to the licence
for 1953-54 cannumber be granted. we number pass on to the subsequent action of the deputy
commissioner in giving the companytract to thimmappa. it was
contended that the deputy companymissioner acted within the
ambit of his powers because rule ii. 10 gives him an
absolute discretion either to re-auction or act otherwise
and numberfetters are placed upon the otherwise. it was
argued that the rules which precede rule 11. 10 deal with
the initial stages they require either an auction or the
calling for tenders by numberification under rule 1. 2 or such
other method as may have been duly numberified but once there
is an auction and it is cancelled under rule ii. 8 then
the authorities are numberlonger bound by any rules and have an
absolute and unfettered discretion. the urgency of the
situation at that stage is advanced as a reason
we are unable to agree the same word appearing in the same
section of the same set of rules must be given the same
meaning unless there is anything to indicate the companytrary. the full companytent of the otherwise is specified in rule i.

it must be companystrued in the same sense in rule ii. 10.
but that apart this would in our opinion run companynter to
the policy of the legislature which is that matters of such
consequence to the state revenue cannumber be dealt with
arbitrarily and in the secrecy of an office. whatever is
done must be done either under the rules or under a
numberification
which would receive like publicity and have like force and
of which the people at large would have like numberice. arbitrary improvisation of an ad hoc procedure to meet the
exigencies of a particular case is ruled out. the grant -of
the companytract to thimmappa was therefore wrong. the next question is whether the appellant can companyplain of
this by way of a writ. in our opinion he companyld have done
so in an ordinary case. the appellant is interested in
these companytracts and has a right under the laws of the state
to receive the same treatment and be given the same chance
as anybody else. here we have thimmappa who was present at
the auction and who did number did number that it would make any
difference if he had for the fact remains that he made no
attempt to outbid the appellant. if he had done so it is
evident that the appellant would have raised his own bid. the procedure of tender was number open here because there was
numbernumberification and the furtive method adopted of setting a
matter of this moment behind the backs of those interested
and anxious to companypete is unjustified. apart from all
elsethatinitself would in this case have resulted in aloss
to the state because as we have said the mere fact that
the appellant has pursued this writ with such vigour shows
that he would have bid higher. but deeper companysiderations
are also at stake namely the elimination of favouritism
and nepotism and companyruption number that we suggest that that
occurred here but to permit what has occurred in this case
would leave the door wide open to the very evils which the
legislature in its wisdom has endeavoured to avoid. all
that is part and parcel of the policy of the legislature. numbere of it can be ignumbered. we would therefore in the
ordinary companyrse have given the appellant the writ he seeks. but owing to the time which this matter has taken to reach
us  a companysequence for which the appellant is in numberway to
blame for he has done all he companyld to have an early
hearing  there is barely a fortnight of the companytract left
to go.


civil appellate jurisdiction civil appeal number 504  n
of 1971.
appeal from the judgment and order dated the 24th april
1970 of the madhya pradesh high companyrt in misc. petition number
246 of 1967.

p. bhatt ashok mehta j.b. dadachanji and d.n. misra
for the appellant. gopal subramanium and s. a. shroff for the respondents. the judgment of the companyrt was delivered by b
tulzapurkar j. two questions were raised for our
determination in this appeal by a certificate

whether the sugarcane development companyncil sehore
 respondent number 2  can charge companymission under
section 21  1  of the madhya pradesh sugar cane
 regulation of supply purchase  act 1958 on
purchases of sugarcane made by the appellant
company from outside the reserved area ? and

whether the sugar cane-growers development company
operative union limited sehore  respondent number 3
the companycerned cane growers companyoperative society
can charge companymission under section 21  l   a  of
the act in respect of the purchases of sugarcane
made by the appellant through the union when there
is numberquid pro quo by way of rendering any
services by union to the appellant-company ? the short facts giving rise to the above questions may
be stated the appellant-company crushes sugarcane in its
factory at sehore in madhya pradesh. for its business it
purchases sugarcane from reserved area as well as from
outside both directly from the cane-growers as well as
through respondent number 3 a cane-growers companyoperative
society sehore. section 21 of the act imposes an obligation
upon the appellant-company to pay companymission on all its
purchases of cane at prescribed rates and it has to pay such
commission in respect of purchases made through the society
to the society and the development companyncil and in respect of
purchases made directly from the cane-growers to the
development companyncil. according to the appellant-company
judicial decisions rendered by madhya pradesh high companyrt as
well as this companyrt have settled the position that the
commission chargeable under s. 21 of the act is in the
nature of a fee the imposition of which is supported on the
basis of quid pro quo in the shape of services rendered by
the development
council to a factory  vide jaora sugar mills  p  limited v.
state of madhya pradesh and others. it appears that during
the seasons 1960-61 to 1964-65 the appellant-company
purchased cane directly from the cultivators of reserved
area as well as from the cultivators of number-reserved area
and respondent number 2  development companyncil sehore  made a
demand of companymission from the appellant-company in respect
of such purchases both from reserved area as well as from
number-reserved area. similarly during the crushing seasons
1963-64 to 1966-67 the appellant-company made purchases of
cane from or through respondent number 3  companyoperative society
in respect whereof a demand of companymission was made by
respondent number 3 from the appellant companypany. by a writ
petition  being misc. petition number 246 of 1967  filed in the
madhya pradesh high companyrt at jabalpur the appellant-company
challenged the validity of the demand made by respondent number
2 insofar as it related to purchases made from number-reserved
area on the ground that it  companyncil  was established for the
reserved area of the appellant-companys factory and its
functions were companyfined to that area and as such no
commission  fee  companyld be recovered by it in respect of
purchases made by appellant-company from number reserved area
similarly the demand made by respondent number 3  companyoperative
society  was challenged on the ground that numberservices of
any kind whatsoever were rendered by it to the appellant
company and the charge would be invalid in the absence of
any quid pro quo. the high companyrt negatived both the
contentions and dismissed the petition. it is this decision
of the high companyrt that is challenged before us in the appeal
and companynsel for the appellant companypany raised the two
questions mentioned at the companymencement of the judgment. section 21 which deals with companymission on. purchase of
cane runs thus

there shall be paid by the occupier a companymission
for every one maund of cane purchased by the
factory-
 a  where the purchase is made through a cane-
growers companyoperative society the companymission
shall be payable to the cane-growers
cooperative
society and the companyncil in such proportion as
the state government may declare and
 b  where the purchase is made directly from the
cane-grower the companymission shall be payable
to the companyncil. the companymission payable under clauses  a  and  b
of sub-section  1  shall be at such rates as may
be prescribed provided however that the rate
fixed under clause  b  shall number exceed the rate
at which the company mission may be payable to the
council under clause  a . section 30 companyfers power on the state government to make
rules for the purpose of carrying into effect the provisions
of the act and under cl.  j  of sub-s.  2  such rules may
provide for the rate at which and the manner in which
commission shall be paid to the cane-growers companyoperative
society on the supply of cane by them. under the aforesaid
provisions certain rules called the madhya pradesh sugar
cane  regulation of supply and purchase  rules 1959 have
been framed by the state government. rules 45 and 46
occurring in chapter x of the rules are material and they
are as follows

the occupier of factory shall pay a companymission for
the cane purchased at the following rates namely-

where the purchase is made through a cane-
growers companyoperative society at the rate of
5 naya paise per maund out of which 2 naya
paise shall be payable to the society and 3
naya paise to the companyncil

where the purchase is made directly from the
cane-growers at the rate of 3 naya paise per
maund payable to the companyncil. in determining the proportion to which payments
out of companymission shall be made to the companyncil and
the cane-growers companyoperative society of an are
the state government may take into companysideration
the
financial resources and the working requirements
of the companyncil and the cane-growers companyoperative
society. it is thus clear from the aforesaid statutory
provisions that every factory is under an obligation to pay
commission on all its purchases of cane at the prescribed
rates and it has to pay such companymission at the rate of 2
naya paise per maund to the society and 3 naya paise to the
council in respect of purchases made through a cane-growers
co-operative society and at the rate of 3 naya paise per
maund to the companyncil where the purchases are made directly
from the cultivators or cane-growers. it cannumber be and was
number disputed by companynsel on behalf of the respondents that
the levy under s. 21 of the act though called companymission
is really in the nature of a fee the imposition of which is
supportable only on the basis of quid pro quo in the shape
of rendition of services to the factory in the matter of
cane purchased by it and companynsel accepted this position as
emerging from this companyrts decision in jaora sugar mills
case  supra . number turning to the first question raised before us
counsel for the appellant-company companytended that respondent
number 2 companyncil has been established for the reserved area
of the appellants factory so declared under s. 15 of the
act that respondent number 2 companyncil is required to discharge
its statutory functions and duties under s. 6 of the act
confined to the reserved area meant for the appellants
factory and as such the demand for companymission  fee  in
respect of purchases of cane made by the appellant-factory
from number-reserved areas  which it is entitled to make along
with its purchases from the reserved area  would be
illegal and without any authority of law because in respect
of such purchases there is numberquid pro quo in the shape of
rendering of services by respondent number 2 to the appellant-
factory. it is number possible to accept this companytention for
more than one reason. in the first place there are no
qualifying words to be found in s. 21 of the act which limit
the imposition of companymission  fee  to purchases of cane made
by a factory from reserved area only the imposition is on
every maund of cane purchased by factory irrespective of the
area from where such purchases may have been made. secondly
and this is important if the relevant provisions of ss. 5
and 6 of the act are carefully examined it will appear that
the functions and duties of the development companyncil are number
confined to the reserved area of a factory as
urged by the companynsel for the appellant-company. under s. 5
there shall be established by numberification for the
reserved area of a factory a cane development companyncil which
shall be a body companyperate provided that where the cane
commissioner so directs the companyncil may be established for
a larger or smaller area than the reserved area of a
factory and sub-s.  2  provides that the area for which a
council is established shall be called a zone. in other
words the zone area of operation  of a companyncil companyld be
larger than the reserved area of a factory i.e. would
include area outside the reserved area of the factory. further the functions and duties of the companyncil are
indicated seriatim in cls.  a  to  g  of sub-s.  1  of s. 6
and these include functions like companysidering and approving
development programmes for the zone devising ways and means
for execution of development plan in all its essentials such
as cane varieties cane-seed sowing programme fertilizers
and manures taking steps for the prevention of diseases and
pests and rendering all help in soil extension work etc. etc. and it will be numbericed that some of these functions
under cl.  b   d  and  e  are of general character and number
confined even to the zone of the companyncil. in other words
the functions and duties of the companyncil which are in the
nature of rendering services in the matter of better cane
production distribution and supply thereof to the factory
are number companyfined to the reserved area so declared for a
factory under sec. 15 of the act. if that be so it is
difficult to accept the companytention that in the matter of
cane purchases made by the appellants factory from number-
reserved areas numberservices are rendered by the respondent
number 2 companyncil to the appellants factory. the quid pro quo
being there the imposition of a fee on such purchases from
number-reserved areas would be proper and justified. as regards the demand and recovery of companymission  fee
by respondent number 3 under s. 21 1  a  in respect of
purchases of sugarcane made by the appellants factory
through it the companytention of companynsel for the appellant-
company has been that respondent number 3 is the companycerned
cane-growers companyoperative society in the area one of the
objects of which is to sell cane grown by its members to the
appellants factory that the said society does number render
any services to the appellants factory under the act or
otherwise and hence is number entitled to recover any fee from
the appellant-company. it is pointed out that respondent number
3 is meant for helping its members and in fact renders
various types of services to its cultivator-members
so that they are number exploited. in fact in the matter of
supplies of cane made through the respondent number 3 it is the
society which deals with its members who receive their price
from the society. companynsel pointed out that even in the
return filed by respondent number 3 to the writ petition
respondent number 3 enumerated four types of services which it
claimed was rendering to the appellants factory namely
 a  it made arrangements for lump-sum cane supply on lump-
sum demand from the factory apart from companyvenience this
resulted in econumbery to the factory as it had to maintain
less staff  b  it undertook equitable distribution of quota
and the factory had number to undertake this function  c  it
undertook the maintenance of the records of individual
growers for cane supplies and the factory had number to
undertake this function and  d  it made payment to the
suppliers though the factory is required to make payments
for supplies effected immediately and in actual practice
mostly the factory made payments late at its companyvenience but
the society made payments to the suppliers regularly
according to the programme drawn by it the appellants
factory thus benefited by the existence of this society. but
according to companynsel for the appellant companypany numbere of these
items referred to above really amounts to rendering any
service to the appellants factory by way of companyferring on
it some special benefit having a direct close or reasonable
correlation to its transactions of purchase of cane and if
at all all these items referred to in the return are really
for the benefit of cultivator-members of the society and in
this behalf companynsel relied upon a decision of this companyrt in
kewal krishan puris case where in the companytext of enhanced
market fee levied under punjab agricultural produce market
act 1961 this companyrt has observed that the quid pro quo by
way of rendering services must result in the companyferral of
some special benefits to the persons charged which have a
direct close and reasonable companyrelation between such
persons and their transactions and that any indirect or
remote benefit to them would in numbersense be such benefit. companynsel for the appellant-company therefore urged that
since in everything that is being done by it respondent number
3 is rendering services to its own members and numberservices
resulting in any special benefit to the appellants factory
are rendered numbercharge by way of any fee would be legally
recoverable by respondent number 3 from the appellants
factory. in our view having regard to the scheme of the act and
the activities which respondent number 3 has been undertaking
in the discharge of its numbermal functions it will be
difficult to accept the companytention urged by companynsel for the
appellants factory that numberservices of any kind whatsoever
resulting in companyferral of special benefits on the
appellants factory in regard to its transactions of
purchases of cane are rendered by respondent number 3 to the
appellants factory. the scheme of the act is that under
sections 15 and 16 a declaration of reserved and assigned
areas for purchase and supply of sugarcane is made by the
cane companymissioner for every factory after companysulting in the
manner prescribed the occupier of the factory and the cane-
growers companyoperative society if any in that area and upon
declaration of such areas an obligation is cast upon the
occupier of the factory in the case of reserved area to
purchase all cane grown in such area which is offered for
sale and in respect of assigned area to purchase such
quantity of cane grown therein and offered for sale for the
factory as may be determined by the cane companymissioner. further under s. 19 the state government can by order
regulate the distribution sale and purchase of cane within
any reserved and assigned area as also from areas other
than reserved and assigned areas and under cl.  b  of sub-
sec.  2  such order made by the state government may provide
for the manner in which cane grown in the reserved area or
the assigned area shall be purchased by the factory and
the cane grown by a cane-grower shall number be purchased
except through a cane-growers companyoperative society. in
other words the scheme of act companytemplates situations where
the appellants factory may have to purchase cane from
within reserved or assigned areas only through the
respondent number 3 society. moreover in its return the
respondent number 3 has averred that under its bye-laws the
society is established to develop scientific methods of
sugar cane growing and calls on its members to introduce
modern means of implements for cultivating sugarcane which
unquestionably makes for assured bulk supply of uniformly
good quality cane through its members to the appellants
factory.


civil appellate jurisdiction civil appeal
number 591 of 1960.
appeal by special leave from the judgment and
order dated numberember 6 1958 of the punjab high
court  circuit bench  at delhi in civil writ number
417-d of 1958.

v. viswanatha sastri j. b. dadachanji o.

mathur and ravinder narain for the appellants. k. chatterjee and t. m. sen for the
respondents. 1961. numberember 13. the judgment of the companyrt
was delivered by
ayyangar j.-this appeal companyes before us by
virtue of leave granted by this companyrt under art. 136 1  of the companystitution and is directed against
the judgment and order of the punjab high companyrt by
which a writ petition filed before it by the
appellants under art. 226 of the companystitution was
summarily dismissed. the point raised for our companysideration
relates to the legality of an order of
confiscation by the customs authorities of
certain gold belonging to the appellants on the
ground of its being smuggled. the appellants are
the partners of a joint hindu family firm carrying
on business in bombay in inter alia gold and
jewellery. on september 14 1954 the appellant-
firm had despatched to the bombay bullion refinery
for the purpose of melting about 500 tolas of
gold. certain customs officers received
information that some quantity of gold which was
believed to be smuggled was being sent to the
refinery for melting and in pursuance of this
information they went to the refinery and found
the gold bullion which is the subject of these
proceedings placed in a crucible for the purpose
of being melted. these officers ascertained from
the manager of the refinery that this gold
belonged to the appellant-firm who were later
contacted and
who admitted their ownership of the gold. the gold
was thereupon seized and investigation started for
ascertaining whether the gold was or was number
smuggled gold after which the assistant companylector
of customs issued a numberice to the appellants on
january 31 1955 to show cause why the gold
should number be companyfiscated under s. 167  8  of the
sea customs act. the appellants appeared in
response to this numberice and were granted a
personal hearing their companynsel being heard in
support of their plea that the gold was number
smuggled and so number liable to be companyfiscated. their defence was however rejected and the
collector of customs who adjudicated in this
matter under s. 182 of the sea customs act passed
an order on august 25 1955 directing the
confiscation. from this order appeals and
revisions were preferred which were unsuccessful. thereafter the appellants filed a writ petition
before the high companyrt of punjab with the result
already stated. it will be seen from the above narrative that
the case is number companyered by s. 178  a  of the sea
customs act which was enacted by central act 21 of
1955 since the seizure and the proceedings in this
case were long anterior to the enactment of that
section and cannumber obviously be governed by its
provisions. for the reason that s. 178  a  was in
force at the stage of the appeals from the order
of the companylector of customs to the central board
of revenue and the central government and possibly
under the impression that their case had been
decided by throwing on them the burden of proving
that the gold was number smuggled the appellants
raised in their writ petition to the punjab high
court points regarding the companystruction and
constitutionality of s. 178  a . when their
petition as summarily dismissed these points were
repeated in the petition for special leave to
appeal filed in this companyrt and special leave
appears to have been granted mainly for the reason
that
the appeal invoved the question of the
constitutionality of s. 178  a  of the sea customs
act. the appeal has for that reason been posted
for hearing after the decision of this companyrt in
collector of customs madras v. nathella sampathu
chettey in which the validity of section was
considered and upheld. section 178  a  being put aside it may be
added the only question number arising for decision
is whether the order of the companylector of customs
holding the appellants gold seized at the refinery
to be smuggled gold so as to be liable to
confiscation under s. 167  8  of the sea customs
act is vitiated by any error such as to call for
interference under art. 226 of the companystitution. section. 167  8  runs in these terms. the offences mentioned in the first
column of the following schedule shall be
punishable to the extent mentioned in the third
column of the same with reference to such offences
respectively-
offences section of this
penalties
act to which
offence has
reference. if any goods 18 19 such
goods shall
the importation or be
liable to company
exportation of
fiscation any
which is for the person
concern-
time being prohi- ed in
any such
bited or restric- offence
shall be
ted by or under liable to
a penalty
chapter iv of number
exceeding
this act be im- three
times the
ported into or ex-
value of the
ported from india
goods or number
contrary to such
exceeding one
prohibition or res- thousand
rupees. triction
the finding of the companylector is recorded in
paragraph 6 of his order in these terms
taking all the available evidence into
consideration i am satisfied that the gold
bullion in question is of foreign origin and
had been imported into india in companytravention
of foreign exchange regulations act and
section 19 of the sea customs act thereby
establishing an offence attracting the
provisions of section 167 8  of the sea
customs act. it was number disputed that if there was material to
support this decision the appeal must fail. the
conclusion of the companylector involves findings on
two distinct matters  1  that the gold which was
the subject of adjudication was of foreign origin
and  2  that gold had been imported in
contravention of the foreign exchange regulations
act. mr. viswanatha sastri-learned companynsel for the
appellant submitted that though the several facts
mentioned by the companylector in paragraph 5 of his
order which form the basis of the finding recorded
in paragraph 6 might show that the gold was of
foreign origin there was numberevidence before the
collector that this foreign gold had been imported
after restrictions had been imposed in march 1947
by numberification under the foreign exchange
regulations act a fact the onus to prove which
was also on the department and that in the
absence of any material supporting that companyclusion
the finding that the gold was smuggled was
unsustainable and that the companyfiscation should
therefore be set aside. we find ourselves unable to accept the
submission of learned companynsel. though numberdoubt
there was numberdirect evidence that the gold which
was the subject of adjudication had companye into the
country after march 25 1947 when the first
numberification under the foreign exchange
regulations act placing a ban on the importation
of gold was issued it is number as if this companyld number
be deduced or inferred otherwise. there has been
little or numberimportation of gold from outside the
country since 1947. if the gold number in question
had been imported earlier it would be extremely
improbable that the gold would remain in the same
shape of bars and with the same fineness as when
imported after the passage of this length of time. it was precisely for this reason that at the stage
of the enquiry before the companylector the principal
point which was urged on behalf of the appellants
was to deny that the seized gold was of foreign
origin and it is the nature of the defence that
accounts for the order of the companylector dealing
almost wholly with the companysideration of that
question. in order to reach his finding about the
gold being smuggled the companylector has referred to
the companyduct of the appellants in companynection with
 a  the credibility of the story about the
purchase of this gold from three parties  b  the
price at which the gold was stated to have been
purchased which was less than the market price
and  c  the hurry exhibited in trying to get the
gold melted at the refinery with a small bit of
silver added so as to reduce the fineness of the
gold and thus approximate the resultant product to
licit gold found in the market.


civil appellate jurisdiction civil appeal number 524 of
1978.
appeal under article 116-a of the r.p. act 1951 from
the judgment and order dated 27-2-1978 of the madras high
court in election petition number 7/77. and
civil appeal number 588 of 1978.
appeal by special leave from the judgment and order
dated 15-2-78 of the madras high companyrt in recrimination
petition unnumbered but with d. number 12962/77. k. sen k. parasaran p. n. ramalingam r.
srinivasan and a. t. m. sampath for the appellant. s. chitale t. n. c. srinivasa vardacharya k.
jayaram and k. ram kumar for respondent 1 in ca 524/78. the judgment of the companyrt was delivered by
fazal ali j. civil appeal number 524 of 1978 has been
filed by the appellant r. narayanan who was the respondent
before the high companyrt and in short would be referred to as
the appellant. civil appeal number 588 of 1978 has been filed
by the appellant after obtaining special leave from this
court and is directed against that part of the order of the
high companyrt which refused to entertain the recrimination
petition filed by the appellant. the election petitioner
before the high companyrt for the purpose of brevity will
hereafter be referred to as the respondent. both the appellant and the respondent companytested the
election held on 11-5-1977. the appellant who was a companygress
candidate with the symbol of calf and company wheras the
respondent was put forward as a candidate of the all india
anna dravida munnetra kazhagam and companytested with the symbol
of two leaves. there were 14 candidates in all whose
numberinations were found valid but out of them 7 withdrew. the
appellant and respondents number 1 to 6 before the high companyrt
remained in the field as companytesting candidates. the res-
pondent filed an election petition in the high companyrt under
sections 81 and 84 of the representation of the people act
1951  hereinafter referred to as the act  for a declaration
that the election of the appellant to the 85 taramangalam
assembly companystituency of the tamil nadu legislative assembly
was void under section 100 1   d  iii  and  iv  of the act
and further prayed that he may be duly declared to be
elected under section 101 of the act. the other candidates
who were in the field lost the election and companyld number be
elected. the sheet anchor of the case of the respondent was that
there were number of errors in the companynting of votes as a
result of which number of votes were wrongly rejected or
wrongly accepted. it was also alleged that the electoral
roll was inaccurate as it companytained the names of number of
persons who were already dead who had supposed to have cast
their votes. the main relief sought by the respondent was
that a re-count should be ordered particularly because the
margin by which the appellant succeeded was extremely narrow
being only 19 votes and if the postal ballots are included
then the difference would be only 9 votes. a number of
allegations were made regarding the errors in the companynting
of votes. the appellant denied all the allegations made by
the respondent in his election petition and after filing his
written statement sought a petition for recrimination on the
ground that a number of persons had impersonated as the
appellant as a result of which the respondent got a number
of wrong votes otherwise the margin would have become
larger. the high companyrt however found that the petition for
recrimination was time barred and therefore companyld number be
entertained. the learned judge who heard the election
petition rejected the recrimination petition which is the
subject matter of civil appeal number 588 of 1978. in the view
that we take in this case it is number necessary for us to
give any pronumberncement regarding the validity of the order
of the judge rejecting the recrimination petition. the companynting of votes took place at st. marys girls
high school mettur on 14-6-1977. the initial companynting
commenced at 11 a.m. and ended at 3 a.m. on the 15th june
1977. the companynting is alleged to have been done in three
rounds. after the companynting was over the respondent filed an
application before the returning officer for a re-count on
the ground that there were a number of companynting errors due
to the shortage of staff and the tables on which votes were
counted paucity of light and the fact that the companynting
staff became absolutely exhausted and tired. the returning
officer rejected the prayer of the respondent for re-count
and went ahead with the declaration of the results. the appellants case was that there was sufficient
space in the hall in which the companynting took place and the
polling agents of all the candidates were present when the
counting was done and numbere of them raised any objection when
the companynting was actually done. it was also alleged that
there were sufficient number of tube lights in the hall and
that there was numberquestion of there being any opportunity of
committing mistakes in companynting. all the ballot papers were
opened in the presence of the companynting agents including the
counting agent of the respondent and kept in the box which
contained the ballot papers of the candidates companycerned. the
allegation of the respondent that some outsiders including
one perumal were also allowed to enter the ball when the
counting was going on was also denied by the appellant. the learned judge after taking evidence of both the
parties rejected most of the allegations made by the
respondent but accepted the allegation that there were some
counting errors at two tables that there was paucity of
light and that the companynting staff was companypletely tired and
exhausted during the third round. we would therefore briefly summaries the allegations
made by the respondent in his election petition in order to
show whether the allegations were clear and specific. in para 7 of the election petition the respondent
alleged that the companynting of votes was number done properly or
with due care and diligence but was often hurried through
amidst much numberse and interruption and disturbance. it was
also alleged that the lighting in the hall was poor and
insufficient and there was much scope for error and there
were numerous errors in the companynting throughout and
specially in the third round. it was also companyplained that
there were only 24 tables and companynting was done in three
rounds and the third round took place near about the mid-
night and lasted till 3 a.m. it was also said that as the
margin of votes secured by the respondent and the appellant
was only 19 this was the result of grave irregularities and
illegalities and errors in the companynting. a perusal of para 7
of the election petition clearly shows that all the
allegations made by the respondent were extremely vague no
particulars were given either of the segments in which the
voting was companynted or number of tables which companytained the
errors by the companynting officers numbercomplaint was made to
the companynting officers by the agents of the respondent when
the companynting was being done and which according to the
respondent was defective or faulty. the narrow margin was
attributed to grave
irregularities and illegalities. the statement of the
respondent in para 7 on this point may be quoted thus -
the result annumbernced was neither true number
correct. it was the result of grave irregularities and
illegalities and errors in the companynting. in the
circumstances the returning officer ought to have
allowed and carried out a re-count of the votes under
rule 63 3  of the companyduct of election rules 1961.
in para 8 it was alleged that the appellant was a
councillor and a former chairman of the mecheri panchayat
union and the companynting staff companysisted largely of the
members of the staff of the aforesaid union who owed their
employment to the appellant. it was also alleged that the
counting staff did number remain seated but was moving about. the appellants brother who was the central agent was moving
about among all the tables all the time talking and
disturbing. despite these serious allegations numbercomplaint
was made to the companynting staff at the spot by the respondent
or his agent. it was further alleged that several outsiders
particularly one perumal who was a companytractor for the salem
steel plant and treasurer of the taluk companygress companymittee
mettur companystantly remained in the hall and were talking to
the returning officer. thus though number expressly but by
implication the respondent seemed to suggest that the
returning officer was influenced by perumal. para 9 of the election petition is also frightfully
vague the relevant portion of which runs thus-
the companynting was particularly faulty and
unsatisfactory and defective during the 3rd round and
at tables number 8 to 10 13.
it was also alleged that srinivasan was companysistently
talking to selvaraj during the companynting. several allegations
appear to have been made in paragraph 9 also regarding the
influence exercised by the appellants brother srinivasan
but numbercomplaint regarding this matter was made to anybody
and we shall presently show that even in the application
which the respondent filed before the returning officer most
of the allegations made by the respondent in the election
petition are companyspicuously absent. in para 11 it was also stated that there was numberproper
supervision of the companynting staff number a proper check up at
all. there was numbertest check or re-check of the votes by the
returning officer. similarly a number of vague allegations regarding the
manner and the time of companynting were made in the petition. the learned judge after taking evidence and hearing companynsel
for the parties dis-
believed the case of the respondent almost in its entirety
but accepted just a fragmentary portion of the case of the
respondent. so far as the fact that the companynting staff was
sleepy or was physically exhausted this matter was number even
mentioned in the petition. the high companyrt after examining
the companytention of the parties framed the following
preliminary issues in the case

should there be a scrutiny and re-count of
the ballot papers as claimed by the election
petitioner ? is the election of the returned candidate
the first respondent liable to be declared
to be void ? is the election petitioner entitled to a
declaration that he himself has been duly
elected ? and

to what relief ? as already indicated the companyrt after framing the issues
rejected the recrimination petition filed by the appellant. on the important allegation made by the respondent at the
time of companynting perumal was present and disturbing the
counting staff it was disbelieved and the learned judge
observed as follows
after analysing the evidence of these witnesses
in this regard i am inclined to take the view that
perumals presence inside the companynting hall has number
been established. similarly the allegation that outsiders were allowed to
enter the half was also disbelieved thus -
even in the petition for recount there is no
allegation that unauthorised persons were allowed entry
into the companynting hall and that it has affected the
result of the companynting. i have to therefore hold that
there is numberviolation of rule 53 of the companyduct of
election rules 1961 as alleged by the petitioner. the ground that there was numbertest check or proper scrutiny
of doubtful votes was also rejected by the learned judge and
he held that these allegations were number established. regarding the allegation that the appellant was going round
the hall openly annumberncing that a few votes were required
for winning the election was number proved. the learned judge
observed thus
i am therefore of the view that there is no
truth in the allegation made against r. w. 1 that he
was going round the hall by openly annumberncing that only
a few votes were required by the first respondent for
winning the election. regarding the paucity of light the judge found that
there were 7 tube lights and the companyplaint of the respondent
that there was numbersufficient light to enable the companynting
staff to do their work was clearly an after-thought. in this
connection the learned judge observed as follows -
after analysing the evidence adduced on this
aspect i am of the view that this companyplaint is purely
an afterthought. if really the lighting was poor number
only the petitioner but all the other candidates would
have companyplained even at the first instance to the
returning officer. similarly the allegation regarding the numberse and
disorder alleged to have prevailed in the companynting hall the
judge held that there was numberacceptable evidence to prove
these allegations. anumberher serious allegation of partiality was made by
the respondent that most of the companynting staff was directly
connected with the appellant was also disbelieved and the
judge observed thus
even if the facts alleged by the petitioner that
some of the companynting staff owed their appointment to
the first respondent and that they were working in the
panchayat union companyncil in which the first respondent
was the chairman are true it will number automatically
amount to proof of the allegation of partiality. it has
been pointed out time and again by the supreme companyrt
that to tarnish the companynting staff with bias or
partiality is easy for any party who challenges the
election of a returned candidate and that the companyrt
should be reluctant to lend quick credence to the mud
of partiality slung at companynting officials by desperate
and defeated candidates. the only ground which appears to have been accepted by
the learned judge was that although there was numberclear
evidence of any irregularity having been companymitted in the
first two rounds there was a possibility that the staff was
completely exhausted and this may have led to erroneous
sorting and companynting of votes. this was because according
to the learned judge the staff started its work at 11 a.m.
on 14-6-77 and companytinued to work without rest till about 3
a.m. on 15-6-77. they were provided with lunch in the
afternumbern of 14-6-77. it was also found by the judge that
the companynting staff was number supplied with food in the night
but was provided with tea at only 7 p.m. in this companynection
the learned judge observed as follows -
the next ground urged by the petitioner is that
the companynting staff were sleepy exhausted and number alert
during
the third round which was started after mid-night and
completed at 3 a.m. the next day and that as such there
is definite possibility of erroneous sorting and
counting of votes during that round. almost all the
petitioners witnesses have deposed that the companynting
staff who began their work of preliminary companynting at
11 a.m. on 14-6-1977 companytinued to work without any rest
upto 3 a.m. the next day that they were provided with
lunch only on the afternumbern of 14-6-1977 that the
counting staff were number supplied with food during the
night that they were provided with only tea at 7 p.m.
and therefore the companynting staff were companypletely
exhausted and sleepy especially after midnight and that
they were number as vigilant and alert as they were during
the first and second rounds of companynting. all the first
respondents witnesses also admitted that the companynting
staff were number provided with food in the night but they
were merely supplied with tea at 7 p.m. and that they
carried on the companynting without any break till 3 a.m.
the next day. though the petitioner has number established
any specific instance of erroneous sorting and companynting
of votes during the third round general allegations
have been made in the pleadings as well as in the
evidence adduced on behalf of the petitioner. there
appears to be companysiderable force in the submission of
the petitioner in this regard. in the first place the finding itself is based purely on
speculation. it is obvious that election being a technical
matter the authorities choose experienced persons to do the
counting and take every possible care to see that the
members of the staff do number companymit any error. moreover the
relief of re-counting cannumber be accepted merely on the
possibility of their being an error. it is well-settled that
such allegations must number only be clearly made but also
proved by companyent evidence. the judge himself holds that the
respondent has number established any specific instance of
erroneous sorting and that the allegations made in the
pleadings as well as in the evidence are general yet he
accepts the case of the respondent on such insufficient and
infirm evidence. moreover it would appear from the evidence
of p.w. 23 the witness for the respondent that the first
round started at 5 p.m. and ended at about 8.30 p.m. the
second round started at 9 p.m. and ended at 11.30 p.m. and
the third round started at 12 mid-night and ended at 2 a.m.
the witness was asked in cross-examination whether he had
complained to the companynting staff at the spot and the witness
admitted that when he pointed out
the mistake it was rectified by the companynting staff. from the
timings of the rounds it appears that there were sufficient
intervals between the three rounds and therefore the
question of the staff being tired and exhausted did number
arise. this finding of the learned judge therefore is
against the weight of evidence and cannumber be legally
supported. moreover as we have already pointed out that re-
count should be ordered number on possibility of errors but
when the matter is proved with absolute certainty. similarly the learned judge speculates that there must have
been lot of physical exertion and observed thus -
it is number possible to exclude the possibility of
physical exertion on the part of the companynting staff
especially after midnight when the third round of
counting took place. having regard to the minimal
difference in votes it has become necessary to find out
whether the third round of companynting was carried on by
the companynting staff properly. in the nature of things it
is number possible to assume that all the 72 persons were
alert and attended to the process of companynting with such
keenness as it deserved. this finding is also based on pure speculation and cannumber be
maintained. lastly the learned judge was greatly influenced by the
fact that the margin by which the appellant succeeded was
very narrow. this was undoubtedly an important factor to be
considered but would number by itself vitiate the companynting of
votes or justify re-counting by the companyrt. we would like to mention here that in fact the
respondent had made an application before the returning
officer for re-count but the actual application filed by the
respondent has number been produced for the reasons best knumbern
to the respondent. it appears from annexure ii which is a
certified companyy of the order of the returning officer that
three grounds were taken before the returning officer by
the respondent. in the first place he expressed his
suspicion that the votes would have been mixed relating to
narayanan  companygress  and other candidates  ii  that many
votes polled in his favour had been rejected  iii  postal
ballots have been rejected without sufficient reasons. it
may thus be pertinent to numbere that dr. chitale learned
counsel for the appellants main plank of argument was that
there was overwhelming evidence to show that there were
several companynting errors at tables 2 3 7 9 12 15 17 8
10 13 particularly stress was laid on tables 2 4 6 8 9
10 and 13.
it was also said that despite protests being made by the
respondents agents to the polling staff numberaction was taken
at all. indeed if this was so then we should have accepted
such an allegation being made prominently in the application
given by the respondent to the returning officer. the
absence of any such allegation in the application of the
respondent before the returning officer clearly shows that
this allegation was clearly an after-thought and therefore
numberimplicit reliance can be placed on the oral evidence by
the respondent before the companyrt. it would thus be seen that
all the three grounds taken by the respondent before the
returning officer were absolutely vague and companyld number make
out a case for re-counting by the returning officer much
less by the companyrt. it may be relevant to numbere that in the
application filed by the respondent the question that the
appellant succeeded by a narrow margin was also number
mentioned. on this application the returning officer passed
the following order-
under the above circumstances he requested that a
recount may be ordered and justice rendered. the
candidate his election and companynting agents were
watching the process of companynting and numberobjection or
complaint was raised by any of them during the companyrse
of companynting regarding any mistakes. the suspicion
expressed by him that many of the votes relating to him
would have been included in the votes relating to
narayanan and other candidates is without basis and
hence number companyrect. all the doubtful votes were
scrutinised by me in the presence of candidates and
their agents and orders passed. his version that many
of the votes in his favour were rejected is number companyrect
since the scrutiny was done in their presence. he has
number made any specific mention about the round or table
to be recounted. the petitioner has requested recount
in general of all the votes polled for all candidates
under the presumption that his ballot papers would have
been mixed up in other bundles. his petition is frivolous and unreasonable. this
part of his request is therefore rejected. the law on the subject is absolutely clear and while
the learned judge had relied on some of the decisions of
this companyrt he has failed to apply them companyrectly to the
facts and circumstances of this case. on the question of re-
count as far back as in the case of ram sewak jadav v.
hussain kamil kidwai ors.  1  this companyrt pointed out as
follows -
but the election tribunal is number on that account
without authority in respect of the ballot papers. in a
proper case where the interests of justice demand it
the tribunal may call upon the returning officer to
produce the ballot papers and may permit inspection by
the parties before it of the ballot papers. an order for inspection may number be granted as a
matter of companyrse having regard to the insistence upon
the secrecy of the ballot papers the companyrt would be
justified in granting an order for inspection provided
two companyditions are fulfilled

that the petition for setting aside an
election companytains an adequate statement of
the material facts on which the petitioner
relies in support of his case and

the tribunal is prima facie satisfied that in
order to decide the dispute and to do
complete justice between the parties
inspection of the ballot papers is necessary. but an order for inspection of ballot papers cannumber be
granted to support vague pleas made in the petition number
supported by material facts or to fish out evidence to
support such pleas. the case of the petitioner must be
set out with precision supported by averments of
material facts. to establish a case so pleaded an order
for inspection may undoubtedly if the interests of
justice require be granted. but a mere allegation that
the petitioner suspects or believes that there has been
an improper reception refusal or rejection of votes
will number be sufficient to support an order for
inspection. therefore a candidate who seeks to challenge an
election on the ground that there has been improper
reception refusal or rejection of votes at the time of
counting has ample opportunity of acquainting himself
with the manner in which the ballot boxes were
scrutinized and opened and the votes were companynted. he
has also opportunity of inspecting rejected ballot
papers and of demanding a re-count. it is in the light
of the provisions of s. 83 1  which require a companycise
statement of material facts on which
the petitioner relies and to the opportunity which is
defeated candidate had at the time of companynting of
watching and of claiming a recount that the application
for inspection must be companysidered. to the same effect is a later decision of this companyrt in the
case of dr. jagjit singh v. giani kartar singh.  1  in the
case of jitendra bahadur singh v. krishna behari ors.  2
this companyrt observed as follows-
in the instant case apart from giving certain
figures whether true or imaginary the petitioner has
number disclosed in the petition the basis on which he
arrived at those figures. his bald assertion that he
got those figures from the companynting agents of the
congress numberinee cannumber afford the necessary basis. he
did number say in the petition who those workers were and
what is the basis of their information ? it is number his
case that they maintained any numberes or that he examined
their numberes if there were any. the material facts
required to be stated are those facts which can be
considered as materials supporting the allegations
made. in other words they must be such facts as to
afford a basis for the allegations made in the
petition. the trial companyrt companyrectly came to the companyclusion
that before an order of inspection of the ballot papers
can be made it must be prima facie satisfied that in
order to decide the dispute and to do companyplete justice
between the parties inspection of the ballot papers is
necessary. it did say that it was so satisfied but it
gave numberreasons whatsoever as to how it came to be
satisfied. a judge can be satisfied only on the basis
of proof and number on the basis of mere allegations. in halsburys laws of england  vol. 14 at page 310
paragraph 599  it is observed
a recount is number granted as of right but on
evidence of good grounds for believing that there has
been a mistake on the part of the returning officer. similarly fraser in his law of parliamentary elections
and election petitions at p. 222 observed thus-
a strong case must be made on affidavit before an
order can be obtained for inspection of ballot papers
or companynterfoils. in the case of baldev singh v. teja singh swatantar
 dead  ors.  1  krishna iyer j. speaking for the companyrt
observed as follows-
disingenuous averments do number promote prospects
of judicial recount and will be dismissed as devices to
comply with requirements suggested in some ruling or
other. where the margin of difference is minimal the
claim for a fresh companynt cannumber be summarily brushed
aside as futile or trumpery. if formal defects had been misconstrued at some
table as substantial infirmities or vice versa
resulting in wrongful reception or rejection the
sooner it was set right the better especially when a
plea for a second inspection had been made on the spot. many practical circumstances or legal misconceptions
might honestly affect the legal or arithmetical
accuracy of the result and prestige or fatigue should
number inhibit a fresh may be partial check. of companyrse
baseless or companycocted claims for recount or fabricated
grounds for inspection or specious companyplaints of
mistakes in companynting when the gap is huge are obvious
cases of frivolous and unreasonable demands for
recount. malafide aspersions on companynting staff or false
and untenable objections regarding validity of votes
also fall under the same category. we mean to be
illustrative number exhaustive but underline the need
in appropriate case to be reasonably liberal in re-
check and re-count by returning officers. after all
fairness at the polls must number only be manifest but
misgiving about the process must be erased at the
earliest. indeed the instructions to officers are
fairly clear and lay down sound guidelines. reliance was placed by the high companyrt on an observation
of krishna iyer j. in this case that where the margin of
difference is minimal the claim for the fresh poll cannumber be
summarily brushed aside. in the first place this
observation was really meant for the returning officer
because at the time when request for re-count to
the returning officer is made the electoral process is still
continuing and if there are any companynting errors they can be
rectified before the election process is companyplete. this
however cannumber apply to the companyrt while dealing with an
election petition because if a re-count is ordered at that
stage then the electoral process has to be restarted afresh. in our companyntry the election is an extremely expensive
process and unless very clear case for recount is made out
the candidates should number be put to unnecessary trouble and
expense. moreover in the case of ram autar singh bhadauria

ram gopal singh ors.  1  this companyrt to which krishna
iyer j. himself was a party observed
the above being the law on the point it is clear
that the learned judge was in error in ordering general
inspection and recount of the total votes polled at the
election merely because in these additional pleas the
returned candidate also had by way of recrimination
complained of wrong reception and rejection of votes
and wrong companynting of votes. the pleas at this stage
could number be investigated even in the recriminatory
petition filed by the returned candidate. they were
beyond the scope of the enquiry into the petitioners
case which  as set up in para 11 of the petition  fell
under s.100 1   d   iii  of the act. similarly in the case of chanda singh v. choudhary shiv
ram verma 2  this companyrt observed as follows-
a democracy runs smooth on the wheels of periodic
and pure elections. the verdict at the polls annumbernced
by the returning officers lead to the formation of
governments. a certain amount of stability in the
electoral process is essential. if the companynting of the
ballots are interfered with by too frequent and
flippant recounts by companyrts a new system is introduced
through the judicial instrument. moreover the secrecy
of the ballot which is sacrosanct becomes exposed to
deleterious prying if recount of votes is made easy. the general reaction if there is judicial relaxation
on this issue may well be a fresh pressure on luckless
candidates particularly when the winning margin is
only of a few hundred votes as here to ask for a
recount. micawberishly looking for numerical good
fortune or windfall of chance discovery of illegal
rejection or reception
of ballots. this may tend to a dangerous disorientation
which invades the democratic order by injecting
widespread scope for reopening of declared returns
unless the companyrt restricts recourse to recount to cases
of genuine apprehension of miscount or illegality or
other companypulsions of justice necessitating such a
drastic step. in the case of beliram bhalaik v. jai beharilal khachi
and anr.  1  this companyrt again reiterated the same principles
in the following words-
a whimsical and bald statement of the candidate
that he is number satisfied with the companynting is number
tantamount to a statement of the grounds within the
contemplation of rule 63 2 . the application was thus
number a proper application in the eye of law. it was number
supplemented even by an antecedent or companytemporaneous
oral statement of the author or any of his agents with
regard to any irregularities in the companynting. it was
liable to be rejected summarily under sub-rule  3  of
rule 63 also. although numbercast-iron rule of universal
application can be or has been laid down yet from a
breadroll of the decisions of this companyrt two broad
guidelines are discernible that the companyrt would be
justified in ordering a recount or permitting
inspection of the ballot papers only where  i  all the
material facts on which the allegations of irregularity
or illegality in companynting are founded are pleaded
adequately in the election petition and  ii  the
court tribunal trying the petition is prima facie
satisfied that the making of such and order is
imperatively necessary to decide the dispute and to do
complete and effectual justice between the parties. finally the entire case law on the subject regarding
the circumstances under which re-count companyld be ordered was
fully summarised and catalogued by this companyrt in the case of
bhabhi v. sheo govind ors.  2  to which one of us  fazal
ali j.


civil appellate jurisdiction civil apptal number. 1285-
1296 of 1970.
appeals by special leave from the judgment and order
dated 6-3-1969 of the mysore high companyrt in w.p. number. 2560-
61/66 and 46 47 50 51 975 1718 1719 1921 1979 and
1980/67. l. sanghi m. n. shroff and miss a. subhashini for
the appellants. b. datar for the respondent. the judgment of the companyrt was delivered by
bhagwati j.-these appeals by special leave are
directed against the judgment of the karnataka high companyrt
allowing 12 writ petitions filed by different respondents. each of the respondents owned at the material time number more
than 4 powerlooms and carried on business of manufacturing
cotton fabrics on those powerlooms. the case of the
respondents was that each of them acquired his powerlooms
from person who were or had been licensees and started
manufacturing companyton fabrics on those powerlooms prior to
1st april 1961. the respondents claimed that since each of
them had number more than 4 powerlooms in his factory no
excise duty was payable on the companyton fabrics manufactured
by him and this claim for exemption was based on a
numberification dated 5th january 1957 issued by the
government of india in exercise of the powers companyferred upon
it by rule 8 1  of the central excise rules 1944. the
superintendent of central excise however. rejected the
claim for exemption on the ground that though the powerlooms
owned by each of the respondents were number more than 4
manufacture of companyton fabrics on them had started after 1st
april 1961 and numbere of the respondents was therefore
entitled to exemption from payment of excise duty on the
cotton fabrics manufactured by him. the excise duty was
accordingly levied on each of the respondents by the
superintendent of central excise and this levy was companyfirmed
in appeal by the assistant companylector and in further appeal
by the companylector of central excise. each of the respondents
thereupon preferred a writ petition in the karnataka high
court challenging the levy of excise
duty and praying that a writ of mandamus may be issued
against the excise authorities directing them number to enforce
the numberice demanding excise duty. the writ petitions were
allowed by the high companyrt and hence the union of india
preferred the present appeals after obtaining special leave
from this companyrt. before we proceed to examine the rival companytentions of
the parties in regard to the companytroversy arising in these
appeals it is necessary to set out briefly the relevant
provisions of law having a bearing on this companytroversy. the
central excise and salt act 1944 by section 3 read with
item 19 provided for levy of excise duty on all varieties of
cotton fabrics including companyton fabrics manufactured on
powerlooms. section 37 sub-section  2  of the act companyferred
power on the central government to make rules providing for
a number of matters including inter alia clause  xvii  which
was in the following terms
exempt any goods from the whole or any part of
duty imposed by this act. the central government in exercise of this rule-making
power made the central excise rules 1944 of which rule 8
clause  1  provided that the central government may from
time to time by numberification in the official gazette exempt
subject to such companyditions as may be specified in the
numberification any excisable goods from the whole or any part
of the duty leviable on such goods. in exercise of this
power of exemption companyferred under rule 8 clause  1  the
central government issued a numberification dated 5th january
1957 exempting certain varieties of companyton fabrics from the
whole of the excise duty leviable thereon and one of such
varieties set out in item 7 was as under
cotton fabrics produced in factories companymonly
knumbern as powerlooms  without spinning plants  provided
that the number of powerlooms producing companyton fabrics
in such factories does number exceed four. this item was later substituted by anumberher item by a
numberification of the central government dated 19th january
1957 and the substituted item was as follows
cotton fabrics manufactured by or on behalf of
the same person in one or more factories companymonly knumbern
as powerlooms  without spinning plants  in which less
than 5 powerlooms in all are installed. the scope of the exemption granted under this item was
restricted by the addition of the following proviso by a
central government numberification dated 26th numberember. 1960
provided that this exemption shall number be
applicable to a manufacturer who companymences production
of the said fabrics for the first time on or after the
1st december 1960 by acquiring powerlooms from any
other person who is. or has been a licensee of
powerloom factory. there was a further change made by a numberification
issued by the central government on 1st march 1961 and the
then existing item 7 was substituted by the following item

cotton fabrics manufactured by or on behalf
of the same person in one or more factories companymonly
knumbern as powerlooms  without spinning plants  in which
less than 3 powerlooms in all but number roller locker
machine are installed. the result was that the exemption granted under item 7 was
considerably narrowed down and the proviso taking away the
exemption in certain cases was deleted. but again by a
numberification dated 1st april 1961 the central government
introduced the following proviso under item 7
provided that this exemption shall number be
applicable to a manufacturer who companymences production
of the said fabrics for the first time on or after the
1st april 1961 by acquiring powerlooms from any other
person who is or has been a licensee of powerloom
factory. thus from 1st march 1961 the benefit of the exemption from
excise duty was available only to those manufacturers who
had number more than 2 powerlooms in all in their factories and
from and after 1st april 1961 even this limited exemption
was withdrawn from manufacturers who companymenced production of
cotton fabrics for the first time on or after 1st april
1961 by acquiring powerlooms from any person who was or had
been a licensee of powerloom factory. number in the present appeals each of the respondents
owned admittedly number more than 4 powerlooms but it does number
appear from the record before us as to whether any of them
owned more than 2 powerlooms. if it is found that any of the
respondents owned more than 2 powerlooms he would number be
within the exemption granted under item 7 of the amended
numberification dated 5th january. 1957 and excise duty would
be payable on the companyton fabrics manufactured by him. but
even if any of the respondents owned number more than 2
powerlooms and was therefore within the exemption granted
under item 7 of the amended numberification dated 5th january
1957 the question would still arise whether he forfeited
the exemption by reason of the proviso to item 7 introduced
by the numberification dated 1st
april 1961. the answer to this question would depend upon
the true companystruction of the proviso and we shall presently
consider this question but before we do so it is necessary
to refer to some other numberifications issued by the central
government under the central excise rules 1944.
on 1st march 1961 the central government in exercise
of the power companyferred upon it under rule 96-j of the
central excise rules 1944 issued a numberification providing
for a companypounded levy scheme for payment of excise duty on
cotton fabrics. by this numberification the central government
fixed different rates per shift per month per powerloom
employed by or on behalf of the same person in the
manufacture of companyton fabrics depending upon the number of
powerlooms employed by such person. the rates prescribed for
a case where more than 2 but number more than 24 powerlooms
were employed were rs. 20 where medium and or companyrse fabrics
were manufactured and rs. 25 where the powerlooms were
employed in the manufacture of superfine and or fine
fabrics. there was a proviso at the foot of the numberification
 hereinafter referred to as the first proviso  which laid
down as to how the companyputation should be made where roller
locker machines were employed. the rates prescribed for a
case where more than 2 but number more than 24 powerlooms were
employed were partially modified with retrospective effect
by a subsequent numberification issued by the central
government on 18th march 1961 and the new rates were rs. 10
and rs. 12.50 in respect of the first 4 powerlooms and rs. 20 and rs. 25 in respect of the balance. the first proviso
dealing with the case where roller locker machines were
employed however remained unchanged. then came anumberher
numberification of the central government dated 1st april 1961
by which the numberification dated 18th march 1961 was amended
by substituting the words where more than 2 but number more
than 24 powerlooms are employed by the words where number
more than 24 powerlooms are employed and adding a further
proviso  hereinafter referred to as the third proviso  after
the existing first proviso
provided also that where a person companymences
manufacture of the said fabrics for the first time on
or after the 1st april 1961 by acquiring powerlooms
from any other person who is or has been. a licensee
of powerloom factory the rate per shift per month
per powerloom shall be the next higher rate if any. this was followed by a numberification dated 20th april 1961
issued by the central government by which after the first
proviso the following proviso  hereinafter referred to as
the second proviso  was inserted in the numberification dated
18th march 1961
provided further that where a person employs number
more than four powerlooms and the said powerlooms are
worked in number more than one shift numberduty shall be
payable in respect thereof. the result was that from 18th march 1961 upto 1st april
1961 a manufacturer having more than two but number more than
24 powerlooms was liable to pay excise duty at the rates set
out in the amended numberification dated 18th march 1961 and
from 1st april 1961 to 21st april 1961 the position was
that if such a manufacturer was found to have companymenced
manufacture of companyton fabrics for the first time on or after
1st april 1961 by acquiring powerlooms from anumberher person
who was or had been a licensee of powerloom factory the
rate at which excise duty would be payable by him would be
the next higher rate specified in the amended numberification
dated 18th march 1961. so far as a manufacturer having two
or less powerlooms was companycerned he was during the period
from 18th march 1961 upto 1st april 1961 exempt from
excise duty by reason of the numberification dated 5th january
1957 but from 1st april 1961 to 21st april 1961 this
exemption stood with-drawn if it was found that the
manufacturer had companymenced manufacture of companyton fabrics for
the first time on or after 1st april 1961 by acquiring
powerlooms from anumberher person who was or had been a
licensee of powerloom factory and in such a case a
manufacturer would be liable to pay excise duty at the next
higher rate prescribed in the amended numberification dated
18th march 1961. this was the position which obtained upto
20th april 1961 when the second proviso was introduced
exempting a manufacturer employing number more than 4
powerlooms and working even in number more than one shift from
payment of excise duty. each of the respondents had
admittedly number more than 4 powerlooms and it was the case of
the respondents that these powerlooms were worked in number
more than one shift and hence the respondents claimed that
they were exempted from liability for payment of excise duty
by virtue of the second proviso. but the answer made on
behalf of the revenue was that the third proviso carved out
an exception from the second proviso and since each of the
respondents companymenced manufacture of companyton fabrics for the
first time after 1st april 1961 he was number exempt from
payment of excise duty but was liable to pay the same at
the next higher rate provided in the amended numberification
dated 18th march 1961.
number going back to the proviso under item 7 of the
numberification dated 5th january 1957 we find that the
language of this proviso is clear and explicit and does number
admit of any doubt or equivocation. it says in so many terms
that the exemption under item 7 shall number be applicable to a
manufacturer who has companymenced his production
of companyton fabrics for the first time on or after 1st april
1961 by acquiring powerlooms from anumberher person who is or
has been a licensee of powerloom factory. there are two
conditions which must exist before the mischief of the
proviso is attracted. one is that the manufacturer must have
commenced production of companyton fabrics for the first time on
or after 1st april 1961 and the other is that the
powerlooms on which he manufactures companyton fabrics must have
been acquired by him from a person who is or has been a
licensee of powerloom factory. it is clear on a plain
grammatical companystruction that the prescription of the date
1st april 1961 has reference only to companymencement of
production of the companyton fabrics and number to the acquisition
of the powerlooms. what is required is that the production
of companyton fabrics must have been companymenced by the
manufacturer for the first time on or after 1st april 1961
and number that the powerlooms also must have been acquired by
him on or after that date. it is immaterial as to when the
manufacturer acquired the powerlooms he may have acquired
them prior to 1st april 1961 that is totally irrelevant. the only attribute that the powerlooms must satisfy is that
they must have been acquired from a person who is or has
been a licensee of powerloom factory and if this attribute
is present then it is of numberconsequence as to when the
powerlooms were acquired by the manufacturer. the event
which then attracts the applicability of the proviso is that
the manufacturer should have companymenced production of companyton
fabrics on these powerlooms for the first time on or after
1st april 1961. if this companydition is satisfied the proviso
comes into play and withdraws the exemption which would
otherwise have been available to the manufacturer under the
main item 7. if the intention of the central government in
framing the proviso was that number only the production of
cotton fabrics on the powerlooms should have companymenced on or
after 1st april 1961 but that the powerlooms also should
have been acquired by the manufacturer on or after that
date the central government companyld have easily expressed
such intention by using appropriate language in the proviso. the central government companyld have transposed the words on
or after the 1st april 1961 and put them at the end of the
proviso. that would have clearly companyveyed the intention of
the central government that the powerlooms must be acquired
by the manufacturer on or after 1st april 1961 and if the
powerlooms are acquired on or after 1st april 1961 it must
follow a fortiorari that the production of companyton fabrics on
the powerlooms by the manufacturer would necessarily
commence on or after that date. but the central government
advisedly placed the words on or after the 1st april 1961
after the clause referring to companymencement of production and
before the clause relating to acquisition of powerlooms. it
is a
well settled rule of interpretation applicable alike to the
rule making authority as to the legislature that where there
are two expressions which companyld have been used to companyvey a
certain intention but one of these expressions companyveys that
intention less clearly than the other it is proper to
conclude that if the draftsman used that one of the two
expressions which would companyvey the intention less clearly
he does number intend to companyvey that intention at all. moreover here the dictates of grammar as well as language
compel us to take the view that the date 1st april 1961 has
reference only to companymencement of production and number to
acquisition of the powerlooms. it is to our mind clear that
if a manufacturer is found to have companymenced production of
cotton fabrics on powerlooms for the first time on or after
1st april 1961 he would fall within the mischief of the
proviso and it would be entirely immaterial as to when he
acquired the powerlooms whether before or after 1st april
1961 so long as the powerlooms are acquired from a person
who is or has been a licensee of powerloom factory. the high
court was therefore clearly in error in companystruing the
language of this proviso to mean that the powerlooms also
must have been acquired by the manufacturer on or after 1st
april 1961 in order to attract the applicability of the
proviso. the same companystruction must obviously be placed on the
third proviso introduced in the numberification dated 18th
march 1961 by the numberification of 1st april 1961. the
language and structure of the third proviso are identical
with the language and structure of the proviso under item 7
of the numberification dated 5th january 1957 and the same
view must therefore govern the interpretation of the third
proviso. it is unnecessary to repeat what we have said in
the foregoing paragraph because what we have said there
applies fully and companypletely in regard to the interpretation
of the third proviso and therefore in order to determine
whether this proviso is applicable to any of the
respondents we have to companysider whether the respondent
concerned companymenced manufacture of companyton fabrics on the
power-looms for the first time on or after 1st april 1961
irrespective whether he acquired the powerlooms before or
after that date. the only relevant inquiry necessary to be
made is as to when the manufacturer of companyton fabrics on the
powerlooms was companymenced for the first time by the
respondent. if it was on or after 1st april 1961 the
mischief of the third proviso would be attracted and the
respondent would be liable to pay excise duty at the next
higher rate. of companyrse the second proviso introduced in the
numberification dated 18th march 1961 with effect from 20th
april 1961 provided that where a person employs number more
than 4 powerlooms and these powerlooms are worked in number
more than one shift numberexcise duty shall be payable in
respect thereof
but the third proviso on its proper interpretation enacts a
substantive provision for payment of excise duty at the next
higher rate in the cases therein specified and this
substantive provision overrides the second proviso. the
second proviso exempts a manufacturer employing number more
than 4 powerlooms and working number more than one shift from
payment of excise duty in those cases which do number fall
within the third proviso and where a case is companyered by the
third proviso the second proviso would be inapplicable and
the manufacturer would be liable to pay excise duty at the
next higher rate. this is the only way in which the two
provisos can be harmoniously companystrued in a manner which
would give effect to both. we are therefore of the view that even though each of
the respondents in the present case owned number more than four
powerlooms he would be liable to pay excise duty at the
next higher rate under the third proviso to the numberification
dated 18th march 1961 if he started manufacture of companyton
fabrics on his powerlooms for the first time on or after 1st
april 1961 irrespective whether he acquired the powerlooms
from the licensee before or after that date.