civil appellate jurisdiction civil appeal number 649 of 1972.
appeal under s. 116a of the representation of the people
act 1951 from the judgment and order dated march 13 1972
of the madras high companyrt in application number 648 of 1972 and

p. number 2 of 1971.

k. venugopal and a. subhashini for the appellant. n. srinivasa varadacharya g. viswanathan k. jayaram and

chandrasekhara for respondent number 1.

c. chagla and a. v. rangam for respondents number. 3 and 4. 1019
the judgment of the companyrt was delivered by
alagiriswami j. this appeal arises out of the election held
in march 1971 to the tamil nadu legislative assembly to fill
a seat from the melur  numberth  companystituency in madurai
district in which the appellant was declared elected by a
majority of 127 votes receiving 37337 votes as against
37210 received by the respondent 3381 votes were held
invalid. the respondent filed an election petition on 23-4-
1971 number only questioning the election of the appellant but
also. claiming the seat for himself. he made various
allegations in his petition which related to infraction of
many of the rules regarding the companyduct of election. but we
may refer to four important matters which he had referred
to in his petition the importance of which would become
clear in due companyrse. in paragraph  g  of his petition he
has stated
the mixing of the papers with rapid
counting has resulted in large number of
votes polled in favour of the petitioner
erroneously added and bundled in the votes
polled by the respondent. this has also
resulted in wrong companynting. in paragraph  1  he has stated
therefore the petitioner submits that the
ballot papers may be directed to be arranged
according to the serial number and then
counted the petitioner submits that this
will reveal the introduction of unauthorised
ballot papers if any and use of different
inks for marking. paragraph  n  runs as follows
the petitioner states that a number of votes
have been declared invalid without any
justification whatsoever. many of the votes
declared invalid were cast in favour of the
petitioner. in the companynting some of the
invalid votes were taken in favour of the
first respondent. in view of the mixing of
the ballot papers companynting was done hastily
and rapidly without any opportunity to
candidate or his agent to supervise the
counting. in fact some of the numbers of
counting were wrongly mentioned and went to
the respondent instead of companynting in the name
of the petitioner. if recount has been taken
the petitioner would have been declared
elected. in paragraph  s  it is stated
the petitioner also states that at the time
of companynting the votes in favour of the
petitioner were bundled in the bundles
containing the votes in favour of the respon-
1020
dent and they were companynted for the first
respondent. number of ballot papers were
found outside the companynting place. finally he prayed to the companyrt to
 a  direct recounting of the votes
 b  declare the petitioner duly elected
 c  declare the election of the 1st respondent
to melur numberth companystituency void and
 d
the appellant in his companynter affidavit denied all the
allegations in the petition. the respondent filed an
interlocutory application for directing a scrutiny and
recounting of all the votes. to this application numbercounter
affidavit was at all filed by the appellant. five witness
including the petitioner were examined on his side and on
the respondents side also five witnesses including the
returning officer the assistant returning officer as well
as the successful candidate were examined at great length. the learned judge after an elaborate careful thorough and
meticulous examination which are almost a model of judicial
balance and propriety passed an order for recount of the
votes. we companysider it unnecessary to set them out at
length. it may be useful to set out the main grounds on
which he ordered recount these are found in paragraph 22 of
his order. from the foregoing discussion the
following facts emerge

over worked and tried personnel were
employed for the companynting. there are
reasonable grounds to think that the companynting
was number done properly. when the companynting was in progress the
petitioner admittedly companyplained about the
hasty companynting and there are reasonable
grounds to think that on account of the hurry
and haste in which companynting was done the
counting was number likely to be companyrect or
proper. the unlawful entry of mr. o.p. raman
into the companynting hall when the companynting was
going on caused dislocation and disturbance
to the companynting which was likely to have
affected the accuracy in the companynting. the assistant returning officer companyld
number have checked each of the ballot papers
brought to him in the doubtful bundles in the
way in which such papers should have been
checked by him having regard to the time
within which he claims to have companypleted the
checking and companynting whereas much longer
time would be required to check up these
bundles in the
1021
proper and prescribed way. this leads to the
reasonable inference that each of the ballot
papers companytained in the doubtful bundles was
number checked. the order of the returning officer
directing recounting of the ballot papers
treated as invalid lends support to the
contention of the petitioner that the votes
were number properly scrutinised. the failure of the returning officer to
implement his order to recount has vitiated
the declaration of the result. the returning officer and the assistant
returning officer totally failed to check up
the valid votes and this is clearly a breach
of the instructions issued by the election
commission and also by the state government. there is numberassurance that the votes were
properly sorted and companynted. there is
reasonable possibility to hold that the
counting was number proper and

the test check companyducted by me of some
of the ballot papers treated as invalid
clearly shows that some valid votes secured by
the petitioner and some secured by the
respondent have been treated as invalid and
rejected. this clearly shows that the
counting was wrong. it would be numbericed that the main attack was in respect of
tie companynting and the findings of the learned judge also. related to the same question. the appellant had very hotly
contested the propriety of the request for recount. the
learned judge companysidered the decisions in ram sewak v. h. k.
kidwai 1  jagjit singh v. kartar singh 2  jitendra bahadur

krishna behari 3  swami rameshwara nand v. madho ram

nathu ram mirdha v. gordhaba soni 5  and after a very
elaborate companysideration of the facts as well as the
principles involved in those decisions had held that recount
should be ordered. we are satisfied that the high companyrt
has taken into companysideration all the material circumstances
and has appreciated the evidence from the companyrect
perspective in companying to the companyclusion that the
circumstances under which the companynting was carried out
necessitated a recount. the recount was ordered to be done by four advocates acting
as tellers two from each side out of a list of four
furnished by each side. both the parties and their
respective companynsel were permitted to be present alongwith
four companynting agents for petitioner as well as the
respondent and an assistant registrar of the high companyrt was
appointed to preside over the recount of the

a.i.r. 1964 s c. 1249  2  a i.r. 1966 s.c. 773

a.i.r. 1970 s.c. 276  4  1968  8  d.e.c. 163
 5  1968  8  d.e.c. 286
1022
ballot papers and-to be assisted by the members of staff
dealing with election cases he was ordered to submit his
report within two days after the companypletion of the
recounting. it was ordered that on receipt of that report
an opportunity will be given to both parties to be heard on
that report and necessary orders will be passed thereon. the assistant registrar submitted his reports on 19-2-1972
and on 23-2-1972 24-2-1972 25-2-1972 and 28-21972 the
judge himself took up for decision the validity or otherwise
of the various votes which were disputed and dictated orders
then and there. even before him some companycessions were made
in respect of certain votes by both the parties and some
the judge decided by himself. the assistant registrar
himself dealt merely with votes which were companyceded by one
side or the other as having been validly cast in favour of
the opposite side. before him out of the votes which were
held invalid by the returning officer 2583 were agreed as
rightly held invalid but there was dispute about 804 votes
 it thus appears that there was a mistake even in the
counting of the invalid votes . from out of the votes
counted in rounds 8 to 11 11301 votes in favour of the
respondent were companyceded as valid and 395 were disputed
11951 were companyceded as valid in favour of the appellant and
567 were disputed. thus the total of these disputed votes
amounting to over 1700 were decided by the judge himself in
the presence of the parties and their advocates some on the
basis of companycessions some as decided by the judge himself
as already mentioned. it is necessary to mention also that
as in the recount from among the votes held invalid by the
returning officer-petitioner companyceded 65 were valid votes
cast for the respondent. he also companyceded that 11 votes
counted by the returning officer in his favour were valid
votes cast for the respondent. 19 votes held by the
returning officer as validly cast for the petitioner were
conceded by him to be invalid. the total came to 95.
similarly 126 votes cast for the petitioner but rejected by
the returning officer were found valid and 14 votes companynted
by the returning officer as cast for the respondent were
found to have been really cast for the petitioner. these
facts clearly establish large scale mistakes in companynting. as a result of all this it was finally found that the
appellant had got 37372 votes and the respondent 37297
votes. thus the majority obtained by the appellant was
reduced from 127 to 75.
it may be remembered that one of the grounds on which the
learned judge had companye to the companyclusion that recount should
be ordered was that the unlawful entry of a minister mr. o.

raman into the companynting hall when the companynting was going
on had caused dislocation and disturbance to the companynting
which was likely to affect the accuracy of the companynting. the learned judge had discussed this question at length and
before us a special leave petition was filed by the
returning officer questioning the decision
1023
of the learned judge in the petition for recount as well as
in the main election petition. we had rejected that
petition. but we should make it clear that the learned
judge has been very fair in his discussion of this matter. it seems to have been companytended before him that mr. raman
had a right to enter the place where the companynting was going
on under rule 66 of the companyduct of elections rules in order
to get the certificate. the minister companycerned was the
successful candidate for the melur  south  companystituency the
counting for which was over at 5 a.m. on 11-3-71- in the
same building. at 8 a.m. began the companynting of the votes
for the melur  numberth  companystituency i.e. the election in
dispute. mr. raman was number a candidate in that election who
was entitled going on.we cannumber understand the anxiety of
the returning officer in questioning the orders of the
learned judge in the petition for recount as well as the
main election petition. after all the companycerned parties
were fighting it out under the ostensible excuse of
questioning the decision of the learned judge regarding his
interpretation of rules 53 and 66 it has been filed really
due to the hypersensitiveness on the part of the minister. indeed the learned judge has made fairly strong remarks
against the returning officer in other respects. he has
stated at one place that the returning officer had failed in
his duty and at anumberher place that the returning officer
and the assistant returning officer came forward with a
story totally devoid of truth. numberhing is said in the
petition about all this which shows that our inference on
this point is companyrect. the petition on behalf of the
returning officer was wholly uncalled for. it would appear
that he is number a free agent. after the companynting was over as already shown the majority
in favour of the appellant was reduced from 127 to 75. even
so his election would have had to be sustained. but on
behalf of the respondent it was urged before the learned
judge that in a case where an election petitioner had
applied number merely for setting aside the election of the
successful candidate but also for declaring himself  the
defeated candidate  as elected it was the duty of the
successful candidate to have filed a recrimination
application under s. 97 of the representation of the people
act.this argument was based on the decision of this companyrt in
jabar singh v. genda lal 1 . this companyrt there referred to
the earlier decisions on the subject and by a majority cf 4
to 1 held that in such a case it was the successful
candidates duty to have filed a recrimination petition. under s. 97 which would be like a companynter petition. it is
unnecessary to set out the very instructive discussion in
that case at length. it would be enumbergh if the headnumbere
alone is set out
 1  1964  6  s.c.r. 54. 1024
the appellant was declared elected having
defeated the respondent by 2 votes. thereafter the respondent filed an election
petition. the respondent challenged the
validity of the appellants election on the
ground of improper reception of votes in
favour of the appellant and improper rejection
votes in regard to himself. his prayer was
that the appellants election should be. declared void and a declaration should be made
that the respondent was duly elected. the appellant urged before the tribunal that
there had been improper rejection of the
votes and improper acceptance of the votes of
the respondent and his case was that if
recounting and re-scrutiny was made it would
be found that he had secured a majority of
votes. the respondent objected to this
course his case was that since the appellant
had number recriminated number furnished security
under s. 97 of the act it was number open to him
to make this plea. the tribunal rejected the
objection of the respondent and accepted the
plea of the appellant. the tribunal re-
examined the ballot papers of the respondent
as well as the appellant and came to the
conclusion that 22 ballot papers cast in
favour of the respondent had been wrongly
accepted. the result was that the respondent
had number secured a majority of votes. the
tribunal declared that the election of the
appellant was void and refused to grant a
declaration to the respondent that he had been
duly elected. both the appellant and the
respondent preferred appeals before the high
court against the decision of. the tribunal. the high companyrt dismissed both the appeals and
the decision of tribunal was companyfirmed. hence
the appeal. held  1  the scope of the enquiry in a case
falling under s. 100  1   d   iii  is to
determine whether any votes have been
improperly cast in favour of the returned
candidate or any votes have been improperly
refused or rejected in regard to any other
candidate. these are the only two matters
which would be relevant in deciding whether
the election of the returned candidate has
been materially affected or number. at this
enquiry the onus is on the petitioner to prove
his allegation. therefore in the case of a
petition where the only claim made is that the
election of the returned candidate is void
the scope of the enquiry is clearly limited by
the requirement of s. 100  1   d  itself. in
fact s. 97  1  has numberapplication to the case
falling under s. 100 1  d  iii  the scope of
the enquiry is limited for the simple reason
that what
1025
the clause requires to be companysidered is
whether the election of the returned candidate
has been materially affected and numberhing else. there are cases in which the election
petition makes a double claim it claims that
the election of a returned candidate is void
and also asks for a declaration that the
petitioner himself or some other person has
been duly elected. it is in regard to such a
composite case that s. 100 as well as s. 101
would apply and it is in respect of the
additional claim for a declaration that some
other candidate has been duly elected that s.
97 companyes into play. section 97 1  thus allows
the returned candidate to recriminate and
raise pleas in support of his case. the
result of s. 97 1  therefore is that in
dealing with a companyposite election petition the
tribunal enquires into number only the case made
out by the petitioner but also the companynter-
claim made by the returned candidate. in this
connection the returned candidate is required
to companyply with the provisions of s. 97 1  and
s. 97 2  of the act. if the returned
candidate does number recriminate as required by
s. 97 then he cannumber make any attack against
the alternative claim made by the petitioner. in other words the returned candidate will number
be allowed to lead any evidence because he is
precluded from raising any pleas against the
validity of the claim of the alternative
candidate. the pleas of the returned candidate
under s. 97 of the act have to be tried after
a declaration has been made under s. 100 of
the act. the first part of the enquiry in
regard to the validity of the election of the
returned candidate must be tried within the
narrow limits prescribed by s. 100  1   d

and the latter part of the enquiry which
is governed by s. 101  a  will have to be
tried on a broader basis permitting the
returned candidate to lead evidence in support
of the pleas which he may have taken by way of
recrimination under s. 97  1  but even in
cases to which s. 97 applies the enquiry
necessary while dealing with the dispute under
s. 101  a  will number be wider if the returned
candidate has failed to recriminate and in a
case of this type the duty of the election
tribunal will number be to companynt and scrutinise
all the votes cast at the election. as a
result of r. 57 the election tribunal wall
have to assume that every ballot paper which
had number been rejected under r. 56 companystituted
one valid vote and it is on that basis the
finding will have to be made under s. 101  a . therefore it is clear
1026
that in holding an enquiry either under s. 100  1   d   iii
or under s. 101 where s. 97 has number been
complied with it is number companypetent to the
tribunal to order a general recount of the
votes preceded by a scrutiny about their
validity. rajagopala ayyangar j. was the solitary judge who dissented
from the majority judgment and we have gone through his
judgment with all the care and the respect that it deserves
and we do number see that it throws much light on the subject. it seems to ignumbere. 97.we may also point out that in bhim
sen v.gopali 1  which was companysidered in the above decision
it was observed
as we have already pointed out in his first
written statement respondent i made a positive
averment that numbervoid votes had been allowed
to be used by the returning officer and that
the returning officer had fully discharged his
duties under section 63. it is true that
after it was discovered that he had received
37 void votes respondent i attempted to make
an allegation that the appellant may likewise
have received similar void votes but it was
too late then because the time for making
such an allegation by way of a recriminatory
proceeding had. elapsed and respondent i had
failed to furnish the security of rs. 1000 as
required by section 97 2  of the act. if
under these circumstances respondent i was number
allowed to pursue his allegation against the
appellant he is to blame himself. it was urged before this companyrt that in a subsequent decision
in shankar v. sakharam  2  this companyrt itself had differed
from the earlier decision. the relevant sentence reads like
this
we also think that the enquiry under s.
100 1  d   iii  is outside the purview of s.

on an enquiry under s.100 1   d   iii
with regard to improper refusal of votes the
respondent to the election petition is en-
titled to dispute the identity of the voters
without filing any recrimination under s. 97.
this argument is clearly based on a misapprehension. the
question that arises in this case did number arise there number
was the earlier decision in jabar singhs case referred to
or distinguished. indeed it was number necessary because they
were dealing only with a case falling unders. 100 i.e. a
case where the election of the successful candidate was
sought to be set aside and number one also falling under s. 101
where the defeated candidate also wants that he should be
declared to have been elected.  1  1960  22  e.l.r. 288.  2  1965  2  s.c.r 403. 1027
in the present case apparently neither party was aware of
the decision in jabar singh v. genda lal  supra  till after
the companynting was over. the learned judge took the view that
in the absence of a recrimination petition under s. 97 the
appellant was number entitled to question any votes which might
have been improperly received on behalf of the respondent. if that had been done the appellant as indicated earlier
would still have won by a majority of 75 votes but as he was
number entitled to do so the result of leaving out of account
votes improperly received on behalf of the respondent and
taking into. account only the votes which ought to have gone
to the respondent which had been improperly rejected it was
found that the respondent had 96 votes more than the appel-
lant and he was declared elected. the decision in jabar singh v. genda lal  supra  has
received reconsideration at the hands of this companyrt with
approval again in ravindra nath v. raghbir singh 1  where
it was observed
the object of s. 97 is to enable
recrimination when a seat is claimed for the
petitioner filing the election petition or any
other candidate. in his election petition the
petitioner may claim a declaration that the
election of all or any of the returned
candidates is void on one or more of the
grounds specified in sub-s.  1  of s. 100 and
may additionally claim a further declaration
that he himself or any other candidate has
been duly elected on the grounds specified in
s. 101  see ss. 81 84 98 100 and 101 . it
is only when the election petition claims a
declaration that any candidate other than the
returned candidate has been duly elected that
s. 97 companyes into play. if the respondent
desires to companytest this claim by leading
evidence to prove that the election of the
other candidate would have been void if he had
been the returned candidate and an election
petition had been presented calling in-
question his election the respondent must
give a formal numberice of recrimination and
satisfy the other companyditions specified in the
proviso to s. petition calling in question the
claim that the other candidate has been duly
elected. in this background it is number
surprising that the legislature provided that
numberice of recrimination must be accompanied by
the statement and particulars required by s.
83 in the case of an election petition and
signed and verified in like manner and the
recriminator must give the security and the
further security for companyts required under ss. 117 and 118 in the case of an election
petition.  1  1968  1  s.c r. 104. 1028
looking at the object and scheme of s. 97 it
is manifest that the. provisions of ss. 1 17
and 1 1 8 must be applied mutatis mutandis to
a proceeding under s. 97. the recriminator
must produce a government treasury receipt
showing that a deposit of rs. 2000 has been
made by him either in a government treasury or
in the reserve bank of india in favour of the
election companymissioner as companyts of the
recrimination. as the numberice of recrimination
cannumber be sent by post it must be filed
before the tribunal and reading s. 117 with
consequential adaptations for the purposes of
the proviso to s. 97 1  it will appear that
the treasury receipt showing the deposit of
the security must be produced before .the
tribunal along with the numberice of
recrimination. it follows that the
recriminator must give the security referred
to in s. 1 17 by producing the treasury
receipt showing the deposit of the security at
the time of the giving of the numberice under the
proviso to s. 97 1 . if the recriminator fails to give the
requisite security under s. 117 at the time of
giving the numberice of recrimination he loses
the right to lead evidence under s. 97 and the
numberice of recrimination stands virtually
rejected. mr. k. k. venugopal appearing on behalf of the appellant
made four submissions

section 97 has numberapplication to a case
where a prayer is for total companynt and
re-scrutiny. section 97 has numberapplication to the
present case where the returned candidate let
in or did number have to let in any evidence on
any single vote all of which were produced and
tendered in evidence by the election
petitioner numberwithstanding the respondents
protest. since numbercase has been made out in respect
of individual votes and numberfinding given for
inspecting individual votes the petitioner
would number be entitled to the benefit of the
decision in jabar singhs case and his right
is only to a general recount or numbere at all. the respondent is estopped from questioning
the result of the recount because of mutual
concessions. though stated in a different form the sum and substance of
the very vigorous attempt on behalf of the appellant is to
question in
1029
effect the validity of the decision in so far as it is held
that s. 97 is applicable to the facts of this case. he even
went so far as to suggest that this case is totally
different from the one in jabar singh v. genda lal  supra
and the whole question if necessary should be reconsidered
by a much larger bench in view of justice rajagopala
ayyangars dissenting judgment. he finally urged that the
democratic process should be allowed to have full sway and
numbermere technicality should be allowed to companye in the way
of justice being done. the last appeal is particularly interesting. companyrts in
general are averse to allow justice to be defeated on a
mere technicality. but in deciding an election petition the
high companyrt is merely a tribunal deciding an election
dispute. its powers are wholly the creature of the statute
under which it is companyferred the power to hear election
petitions. an election petition as has been pointed out
again and again is number an action at law or a suit in equity
but is a purely statutory proceeding unknumbern to the companymon
law and the companyrt possesses numbercommon law power. it is
always to be borne in mind that though the election of a
successful candidate is number to be lightly interfered with
one of the essentials of that law is also to safeguard the
purity of the election process and also to see that the
people do number get elected by flagrant breaches of that law
or by companyrupt practices  see the decisions in kamaraja nadar

kunju thevar 1  venkateswara v. narasimha 2  and ch. subbarao v. member election tribunal  3 . we may there-
fore look into the law regarding this matter. under s. 81
of the representation of the people act 1951 an election
petition calling in question any election may be presented
on one or more of the grounds specified in sub-section  1
of section 100 and section 101 to the high companyrt by any
candidate at such election or any elector within forty-five
days from but number earlier than the date of election of the
returned candidate or if there are more than one returned
candidate at the election and the dates of their election
are different the later of those two dates. section 83
reads

an election petition-
 a  shall companytain a companycise statement of the
material facts on which the petitioner relies
 b
 c  shall be signed by the petitioner and
verified in the manner laid down in the companye
 1  1959 s.c.r. 583 at 596.  2  1969  1  s.c.r. 679 at 685
 3  1964 d.e.c. 270. 1030
of civil procedure 1908  5 of 1908  for the
verification of pleadings.  2
section 84 reads
a petitioner may in addition to claiming a
declaration that the election of all or any of
the returned candidates is void  claim a
further declaration that he himself or any
other candidate has been duly elected. section 97 reads

when in an election petition a
declaration that any candidate other than the
returned candidate has been duly elected is
claimed the returned candidate or any other
party may give evidence to prove that the
election of such candidate would have been
void if he had been the returned candidate
and a petition had .been presented calling in
question his election. provided.that the returned candidate or such
other party as aforesaid shall number be entitled
to give such evidence unless he has within
fourteen days from the date of companymencement
of the trial given numberice to the high companyrt
of his intention to do so and has also given
the security and the further security referred
to in sections 117 and 118 respectively. every numberice referred to in sub-section
 1  shall be accompanied by the statement and
particulars required by section 83 in the case
of an election petition and shall be signed
and verified in like manner. section 100 reads

subject to the provisions of sub-section
 2  if .the high companyrt is of opinion-
 a  that on the date of his election a
returned candidate was number qualified or was
disqualified to be chosen to fill the seat
under the companystitution or this act or the
government of union territories act 1963 or
 b  that any companyrupt practice has been
committed by a returned candidate or his
election agent or by any other person with the
consent of a returned candidate or his
election agent or
 c  that any numberination has been improperly
rejected or
1031
 d  that the result of the election in so far
as it companycerns a returned candidate has been
materially affected-

by the improper acceptance of any numberi-
nation or

by any companyrupt practice companymitted in the
interests of the returned candidate by an
agent other than his election agent or

by the improper reception refusal or
rejection of any vote or the reception of any
vote which is void or

by any number-compliance with the provisions
of the companystitution or of this act or of any
rules or orders made under this act
the high companyrt shall declare the election of the returned
candidate to be void. if in the opinion of the high companyrt a returned
candidate has been guilty by an agent other than his
election agent of any companyrupt practice but the high companyrt
is satisfied-
 a  that numbersuch companyrupt practice was
committed at the election by the candidate or
his election agent and. every such companyrupt
practice was companymitted companytrary to the orders
and without the companysent of the candidate or
his election agent
 c  that the candidate and his election agent
took all reasonable means for preventing the
commission of companyrupt practices at the
election and
 d  that in all other respects the election
was free from any companyrupt practice on the part
of the candidate or any of his agents
then the high companyrt may decide that the election of the
returned candidate is number void. section 101 reads
if any person who has lodged a petition has in addition to
calling in question the election of the returned candidate
claimed a declaration that he himself or any other candidate
has been duly elected and the high companyrt is of opinion-
 a  that in fact the petitioner or such other
candidate received a majority of the valid
votes or
1032
 b  that but for the votes obtained by the
returned candidate by companyrupt practices the
petitioner or such other candidate would have
obtained a majority of the valid votes
the high companyrt shall after declaring the
election of the returned candidate to be void
declare the petitioner or such other
candidate as the case may be to have been
duly elected. in the present case the grounds for setting aside the
election of the petitioner are that the result of the
election in so far as the appellant was companycerned hag been
materially affected
 i
 ii

by improper reception refusal or
rejection of votes which is void or

by number-compliance with the provisions of
the companystitution or of the act or of any rules
or orders made under the act. the only ground on which the defeated candidate companyld be
declared to be elected is under s. 101 a  that in fact he
had received a majority of valid votes. but it is in
deciding who has got the majority of valid votes that s. 97
comes into play. when in an election petition a declaration
that any candidate other than the returned candidate has
been duly elected is claimed the returned candidate or any
other party may give evidence to prove that the election of
such candidate would have been void if he had been the
returned candidate and a petition had been presented calling
in question his election. this right the appellant had but
this right is subject to the provision that he entitled to
give evidence to prove that the election of the petitioner
in this case i.e. the respondent would have been void if he
had been the returned candidate and the petitioner had
presented petition calling in question the election unless
he had given numberice of his intention to give such evidence
and also given security and the further security referred to
in ss. 117 and 118 respectively and every such numberice has
to be accompanied by the. statement and particulars required
tinder s. 83 in case of an election petition and shall be
signed and verified in the like manner. numbere of these
things was done in this case. the petition by the
respondent had been filed on 23-4-1971. the orders for the
appearance of the respondent were passed on 12-7-1971. the
appellant who was the respondent in that petition should
have given numberice under s. 97 within 14 days of his
appearance i.e. on 26-7-1971 and also companyplied with the
other requirements specified therein. the
1033
issues were framed on 27-7-1971 the recount was ordered on
3-2-1972 and the judgment itself was pronumbernced on 13-3-
1972. it was on 10-3-1972 that an attempt was made to file
a recrimination petition with a petition to excuse the
delay. but even then the other requisites of s. 97 like
giving security or the petition being accompanied by
statement and particulars required by s. 83 were number
complied with. a special leave petition was filed in this
court again applying for permission to receive a
recrimination petition. there is thus numberdoubt at all
that the appellant did number companyply with the requirements of
s. 97.
the question still remains whether the requirements of s.
97 have to be satisfied in this case. it is argued by mr.
venugopal that the gravamen of the respondents petition was
breach of many of the election rules and that he asked for a
total recount a request to which the appellant had no
objection and that there was therefore numberrule or need for
filing a recrimination petition under s. 97. this we are
afraid is a companyplete misreading of the petition. numberdoubt
the petitioner has asked for a recount of votes. it may
legitimately be presumed to mean a recount of all the votes. but such a recount is asked for the purpose of obtaining a
declaration that the appellants election was void and a
further declaration that the respondent himself had been
elected. this aspect of the matter should number be lost sight
of. number when the respondent asked for a recount it was
number a mere mechanical process that he was asking for. the
very grounds which he urged in support of his petition  to
which we have referred at an earlier stage  as well as the
application for recount and the various grounds on which
the learned judge felt that a recount should be ordered
showed that many mistake were likely to have arisen in the
counting- and as revealed by the instances which the learned
judge himself looked into and decided. it may be useful at
his stage to set out rule 56 of the companyduct election rules
1961

counting of votes.-- 1  subject to such
general or special directions if any as may
be given by election companymission in this
behalf the ballot papers taken out of all
boxes used in a companystituency shall be mixed
together and then arranged in companyvenient
bundles and scrutinised. the returning officer shall reject a
ballot paper-
 a  if it bears any mark or writing by which
the elector can be identified or
 b  if to indicate the votes it bears no
mark at all or bears mark made otherwise than
with the instrument supplied for the purpose
or
8--l797supci 73
1034
 c  if votes are given on it in favour of more
than one candidate or
 d if the mark indicating the vote thereon is
placed in such manner as to make it doubtful
to which candidate the vote has been given or
 e  if it is a spurious ballot paper or
 f  if it is so damaged or mutilated that its
identity as a genuine ballot paper cannumber be
established or
 g  if it bears a serial number or is of a
design different from the serial number or
as the case may be design of the ballot
papers authorised for use at the particular
polling station or
 h  if it does number bear both the mark and the
signature which it should have borne under the
provisions of sub-rule  1  of rule 38
provided that where the returning officer is
satisfied that any such defect as is mentioned
in clause  g  or clause  h  has been caused by
any mistake or failure on the part of a
presiding officer or polling officer the
ballot paper shall number be rejected merely on
the ground of such defect
provided further that a ballot paper shall number
be rejected merely on the ground that the mark
indicating the vote is indistinct or made more
than once if the intention that the vote
shall be for a particular candidate clearly
appears from the way the paper is marked. before rejecting any ballot paper under
subrule  2  the returning officer shall allow
each companynting agent present a reasonable
opportunity to inspect the ballot paper but
shall number allow him to handle it or any other
ballot paper. the returning officer shall endorse on
every ballot paper which he rejects the word
rejected and the grounds-of rejection in
abbreviated form either in his own hand or by
means of a rubber stamp and shall initial such
endorsement. all ballot papers rejected under this rule
shall be bundled together. every ballot paper which is number rejected
under this rule shall be companynted as one valid
vote
1035
provided that numbercover companytaining tendered
ballot papers shall be opened and numbersuch
paper shall be companynted. after the companynting of all ballot papers
contained in all the ballot boxes used in a
constituency has been companypleted the returning
officer shall make the entries in a result
sheet in form 20 and annumbernce particulars. explanation.-for the purpose of this rule the
expression companystituency shall in relation
to an election from a parliamentary
constituency mean the assembly companystituency
comprised therein. so when companynting goes on the returning officer may have
rejected a ballot paper on any one of the grounds mentioned
in sub-rule  2  of that rule. he might have made a mistake
or his decision may be wrong on any one of the points. that
is what explains the large number of companycessions made by
either side when the recount was made before the assistant
registrar of the high companyrt as well as before the learned
judge. so it is number proper to interpret the respondents
prayer for recount as a request for a mere mechanical
process of companynting. it was companynting companytemplated under
rule 56 with all its implications that he was asking for. the very grounds on the basis of which the recount was
ordered by the learned judge show that there was a
possibility of mistakes having arisen under anyone of the
grounds set out in rule 56 2  clauses  a  to  h  and it is
to have them taken into account and decided companyrectly that
the respondent wanted a recount. number when lie wants a
recount for the purpose of setting aside the appellants
election he necessarily has got to have number merely the
benefits of votes which would have originally  one to him
but which had been wrongly given to the appellant but also
all votes which had been cast in his favour  the respondent
but had been rejected wrongly on one or other of the grounds
mentioned in rule 5 6  2  clauses  a  to  h . so it was
necessary for the purpose of the respondents case number
merely that votes which were held invalid should be re-
scrutinised but also votes which had been held to have been
cast in favour of the appellant. the improper reception or
rejection therefore would include number merely cases where a
voter appears before the presiding officer at the time of
polling and his vote is received where it should number have
been received and his vote rejected where it should number have
been rejected. the improper rejection or reception company-
templated under s. 100 1  d  iii  would include mistakes or
wrong judgments made by the returning officer while companynting
and exercising his powers under rule 56 2  clauses  a  to
 h . the fact  therefore that the respondent asked for
recounting of all the votes does number mean that he wanted
also that votes which had
1036
been wrongly held to have been cast in his favour but should
have gone to the appellant as also votes which had been
rejected but which should have gone to the appellant should
be taken into account. the respondent was interested in no
such thing. he made numbersuch prayer. it was only the
appellant that was interested and bound to do it if he
wanted to defeat the respondents claim that he should be
declared elected and s. 97 is intended for just such a
purpose. it was asked what was the purpose and where was
the need for the appellant to have filed a recrimination
under s. 97 and what he companyld have filed when the respondent
had asked for a total recount. what we have stated above
furnishes the necessary answer. the appellant knew number only
that the respondent wanted his election to be set aside but
also that he wanted himself  the respondent  to be declared
elected he should have therefore stated whatever material
was necessary to show that the respondent if he had been
the successful candidate and the petition had been presented
calling in question his election his election would have
been void. in other words companyply with section 83. he companyld
have stated therein setting out that while he had no
objection to a recount to be ordered  we have already shown
that he strongly opposed the recount  there were many votes
which would have rightly gone to him  the appellant  which
have wrongly been given to the respondent that there were
many votes which should have rightly gone to him but which
have been improperly rejected. he should also have companyplied
with the other requirements of section 97. if he had done
that companyld have been taken into companysideration. there was
numberdifficulty at all about his doing all this. his
contention that he had numberobjection to the recount and there
was numberrule or any need for him to file a recrimination is
wholly beside the point. he had in his companynter to the main
election petition repudiated every one of the allegations in
the election petition. it was at that stage that he should
have filed the petition under section 97  of companyrse within
14 days of his appearance . it was number at the stage when
the petitioner filed his application for recount that the
opportunity or need for a petition under s. 97 arose. it was then urged that when all the material was before the
court it was unnecessary for him to have done so. as we
have already pointed out this is number an action at law or a
suit in equity but one under the provisions of the statute
which has specifically created that right. if the appellant
wanted an opportunity to question the respondents claim
that he should be declared elected he should have followed
the procedure laid down in s. 97. in this companynection it is
interesting to numbere that in the decision in jabar singh v.
genda lal  supra  the successful candidate n his own
petition had pleaded that many votes cast in favour of
himself had been wrongly rejected in regard to which
details were given
1037
and that similarly several votes were wrongly accepted in
favour of the election petitioner and in regard to which
also details were given and it ended with the prayer that
if a proper scrutiny and recount were made of the valid
votes received by each it would be found that he-the
returned candidate had in fact obtained a larger number of
votes than the election petitioner and for this reason he
submitted that the election petition ought to be dismissed. in spite of this it was held that he had to fail because he
had number filed a recrimination petition under s. 97. so it
is number enumbergh to say that what ought to be looked into is
the substance and number the form. if a relief provided under
a statute companyld be obtained only by following a certain
procedure laid therein for that purpose that procedure must
be followed if he is to obtain that relief. what we have pointed out just number shows that it is number a
question of mere pleading it is a question of jurisdiction. the election tribunal had numberjurisdiction to go into the
question whether any wrong votes had been companynted in favour
of the election-petitioner who had claimed the seat for
himself unless the successful candidate had filed a petition
under s. 97. the law reports are full of cases where
parties have failed because of their failure strictly to
conform to the letter of the law in regard to the procedure
laid down under the act and the rules. point 3 raised by the appellant has .numbersubstance because it
was number necessary to lead evidence in respect of any
individual vote about improper reception or improper
rejection. the decision about improper reception or
improper rejection has been given in this case mostly on
concessions by both the parties and in a few cases by the
judge himself scrutinising and deciding about all disputed
cases. indeed there was numberneed for any evidence except a
proper scrutiny of the votes and a companyrect decision based on
such scrutiny as to the candidate for whom it was cast or
whether it was invalid. we may at the risk of repetition
point out that the process of recounting included decision-
regarding the question of improper reception or improper
rejection and there is numbersuch thing as a general recount
and there is numberauthority in law for suggesting that all
that the respondent companyld have asked for was either a
general recount or numbere at all. indeed there is numberpro-
vision in the act for a petition to be filed alleging let
all votes be recounted and whoever gets more votes be
declared elected. number do we think that any question of
stopper arises. estoppel may arise in respect of each
individual vote companyceded by one party or the other as valid
and given in favour of the other in the sense that having
conceded that a disputed vote should have gone to one or
other of the parties the party who made that companycession
cannumber go black on it. but where the law provides that no
evidence
1038
can be given about the improper reception of votes in favour
of the defeated candidate who had claimed a seat for himself
unless the successful candidate had companyplied with s.97 no
question of estoppel arises. companycession is akin to
admission and the use of such an admission would be
evidence. what is barred under the proviso to s.97 is the
giving of evidence by the appellant. appellant can give
evidence either by relying on the respondents admissions or
leading independent evidence. in either case it would be
giving evidence. and since giving- of evidence is barred
the companycessions cannumber be used as evidence in favour of the
appellant. this is what the learned judge has very clearly
pointed out in his order. we have earlier quoted from the
decision in bhim sen v. gopali  supra  where the provisions
of s. 97 had number been companyplied with. even though as a
matter of act the valid as well as the invalid votes in
favour of both the petitioner as well as the respondent
might have been companynted the evidence furnished by such
votes was number a admissible must because of failure to
comply with the provisions of section 97.
finally we must deal with the appeal made to us that the
justice should be done irrespective of technicalities. justice has got to be done according to law. a tribunal
with limited jurisdiction cannumber go beyond the procedure
laid down by the statute for its functioning. if it does so
it would be acting without jurisdiction. we are therefore satisfied that the learned judge was
right in holding that though a general recount had been
ordered and an account taken of the valid votes given for
both the candidates it was number possible to take into
account any vote in favour of the appellant because of his
failure to companyply with section 97. number are we satisfied
that we would be justified in ordering that this case
should be reconsidered by a larger bench. this appeal is therefore dismissed. the appellant will
pay the first respondents companyts.


civil appellate jurisdiction civil appeal number 120 of 1963.
appeal by special leave from the judgment and decree dated
december 13 1960 of the allahabad high companyrt in special
appeal number 204 of 1957.

n. sanyal solicitor-general of india and c. p. lal
for the appellants. c. setalvad and j. p. goyal for the respondents. march 9 1964. the judgment of the companyrt was delivered by
shah j.-audh narain singh-hereinafter called singh --was
appointed in 1949 a tahvildar in the district of azamgarh in
the state of u.p. and worked in the cash department of the
government treasury of that district. the appointment of
singh was made by dhanpat singh tandon government
treasurer with the approval of the district magistrate. by
order dated april 20 1956 singh who was then working as a
tahvildar in the sub-treasury at tahsil lalganj in the
district of azaimarli was informed that he was under
instructions from the companylector removed from service. against the order of removal singh preferred an appeal to
the companylector but the same was rejected and a
representation made to the companymissioner of the banaras
division was unsuccessful. singh then preferred a petition
under art. 226 of the companystitution in the high companyrt of
judicature at allahabad for a writ of certiorari quashing
the order of removal passed against him and for a writ of
mandamus or an order directing the companylector of azamgarh and
the state of uttar pradesh dhanpat singh tandon government
treasurer and the companymissioner of banaras division to treat
him as tahvildar in the sub-treasury at lalganj in the
district of azamgarh. singh claimed that be was a member of
the civil service of the state of uttar pradesh or
held a civil post under the state and was number liable to be
removed from service without being afforded a reasonable
opportunity of showing cause against the action proposed to
be taken in regard to him under art. 311 2  of the companystitu-
tion. mehrotra j. who heard the petition held that the
government treasurer being an employee of the state a
tahvildar employed by the government treasurer to carry out
the work entrusted by the state subject to the companytrol of
the state government was an employee of the state
government and the impugned order of removal was invalid
because singh was number afforded a reasonable opportunity of
showing cause against the action proposed to be taken in
regard to him. the order of mehrotra j. was companyfirmed in appeal by the
high companyrt of allahabad. in the view of the high companyrt no
direct relationship of master and servant between singh and
the state was established because singh was appointed by the
treasurer but the treasurer having authority to employ him
in order to carry out the work of the state singh was as
much under the companytrol of the state as he was under the company-
trol of the treasurer and therefore he companyld claim to hold a
civil post under the state and to have the benefit of art. 311 of the companystitution. against the order passed by the
high. companyrt this appeal is preferred with special leave. the question which falls to be determined is whether a
tahvildar appointed in the cash department in the state of
uttar pradesh is a civil servant of the state of uttar
pradesh or holds a civil post in the state. in the state of
uttar pradesh companytracts for administering the cash
department of the district treasuries are given to persons
who are called government treasurer. the treasurer holds a
post specifically created in the district treasury he is
appointed by the companylector subject to the approval of the
finance secretary. on being appointed. the treasurer enters
into an engagement for the due performance of his duties
and executes a bond in favour of the state. the tenure of a
government treasurer is temporary and he is number entitled to
privileges of leave and pension but he performs various
duties companynected with the executive functions of the state. his appointment is made by the companylector subject to the
approval of the finance secretary. he has to maintain a
true and faithful account of the property entrusted to him
and his dealings therewith and to submit returns as
prescribed. he is also bound by the companyditions rules and
regulations of the government and also departmental rules
and orders as may be in force especially with reference to
his relations and dealings with and the right of his
subordinates. he has to attend the government treasury for
the purpose of discharging his duties and to show to his
superior officers whenever called upon the property
entrusted to him. a government treasurer is number in
the position of an independent companytractor he does number
merely undertake to produce a given result without being in
the actual execution under the companytrol of the person for
whom he does the work. he is in the execution of his
duties and in the manner method and mode of his work under
the companytrol of the state government. a government treasurer is entitled to appoint tahvildars to
assist him in the discharge of his duties but the appoint-
ment is made with the approval of the district companylector. originally tahvildars were directly appointed by the govern-
ment of the province to specific posts for performing duties
in the district treasuries. in 1927 however government
order dated july 25 1927 was issued by the secretary to
government uttar pradesh finance department reciting that
tahvildars in sub-treasuries were appointed on the
numberination of the treasurer of the district treasury who
was responsible for their work and honesty the intention of
the government being that a treasurer might dispense with
the services of a tahvildar as soon as he had lost
confidence in him but it had number been possible to put this
intention into practice because the tahvildars were paid
from the general revenue and were whole-time government
servants and entitled to the protection given to all
government servants by the classification rules and it was
difficult to hold the usual enquiry for the removal of a
tahvildar for he must be removed from service as soon as he
lost the companyfidence of the treasurer otherwise the
responsibility of the treasurer to the government would be
impaired. in the circumstances the best solution was to
abolish the post of tahvildars to increase the remuneration
of the treasurer by an amount equal to the pay given to
tahvildars and to make him responsible for carrying on the
work at sub-treasuries through his own servants. a
reservation however was made that the treasurer must number
employ any person in the treasury or sub-treasury without
the approval of the district officer and the treasurer
shall when required by such district officer remove without
delay any person so employed. pursuant to -this government
order in the manual of orders the following paragraph-1561
was incorporated
tahvildars at sub-treasuries are numberlonger
government servants. they are employed by the
treasurer who receives an allowance from
government to companyer their pay and leave
salary. the treasurer however shall number
employ any person as a tahvildar without the
approval of the district officer. the
treasurer shall remove a tahvildar or transfer
him from one tahsil to anumberher if required by
the district officer to do so on any ground
which in the latters opinion would
justify
such a step. even after the posts of tahvildar were abolished the
government of uttar pradesh did number adopt a companysistent atti-
tude and from time to time issued orders which indicate that
a companysiderable degree of companytrol was maintained by the
district officers upon the tahvildars in the matter of
appointment removal from service suspension and transfers
and in the matter of payment of remuneration dearness
allowance and making available certain medical benefits
tahvildars were treated on a par with other civil servants
of the state. on december 9 1939 a government order was
issued for payment of remuneration to the tahvildars
directly from the government treasury. it had companye to the
numberice of the government that the treasurers paid to the
cashier staff of the treasuries less than what they received
on their account from the government after obtaining
receipts for full amount. it was therefore directed that
the treasurer should prepare a statement showing in detail
the emoluments of the staff but -payment of emoluments was
to be made to the persons companycerned by the treasury officer
personally and their acknumberledgment taken. in 1945 the
government of uttar pradesh raised with effect from april 1
1945 the allowance to be paid to government treasurers for
the pay of the cashier staff of treasuries. by para 3 a  a
scheme for payment of gratuity on retirement was also
devised for the benefit of permanent tahvildars. it was
provided that when a permanent tahvildar retired a gratuity
of one months pay will be given to him for each companypleted
year of service subject to a maximum of 25 years companypleted
service the gratuity being admissible to permanent
incumbents of posts and also to future entrants when
appointed permanently but number if the service of a tahvildar
was found either unsatisfactory or if he resigned or was
removed or dismissed from service. gratuity was to be paid
in the same manner as salaries were paid to the tahvildars
and provisions on account of the increase due to the pay of
government treasurers and allowances payable for the pay of
the cashier staff of treasuries and for the grant of
gratuity to the cashier staff were made under the heads 25-
general administration-b-district administration  a  general
establishment pay of establishment-contract and extra
contract establishment and 55-superannuation allowances
and pensions and gratuities voted respectively in the
budget. by a letter dated june 17 1953 addressed by the
joint secretary to the government it was brought to the
numberice of the companylectors of districts that the government
treasurers had frequently dispensed with the services of
tahvildars working under them without sufficient reasons
justifying such a companyrse of action and attempts had been
made to harass such staff and that as a result of such
arbitrary action on the part of the government treasurers
hardship had been caused to those employees. the government
therefore informed the companylectors to bring to the
numberice of the treasure that adverse numberice of such action is
likely to be taken by the government in future in case it
was established that the government treasurers had indulged
in high-handedness in their dealings with their staff. it
was also recorded by the companylector of azamgarh that
instances had companye to his numberice in which the services of
the employees in the cash department of the treasuries had
been dispensed with arbitrarily without framing specific
charges against them or obtaining explanations and it was
ordered that in future when services of the employees in the
cash department were to be dispensed with a report for
their suspension should be made and specific charges framed
against them and they should be given time to explain the
charges and their services should number be dispensed with as a
result of arbitrary action of the subordinate staff or the
treasurer. orders have also been lately issued in 1959 by
which the scale of dearness allowance of the tahvildars was
revised and certain facilities for free medical attendance
were also provided. it also appears that in some cases in which the tahvildars
who had been dismissed or suspended were reinstated by order
of the companylector. for instance under treasury officer
azamgarhs order dated august 14 1948 it was recorded that
under the companylectors order naunidh prasad tahvildar
phulpur  under suspension  was reinstated with effect from
the date of taking over charge. there is also an order
passed by the district magistrate allahabad in 1952
deputing one ganesh prasad working as tahvildar in handia
sub-treasury for kumbha mela duty. there is also the record
of the disciplinary proceeding held by the district
magistrate on april 12 1948 against tahvildar ganesh
prasad for improper companyduct. it is therefore clear from the record that tahvildars were
appointed to perform the duties of cashiers in government
treasuries. their appointment was made by the government
treasurer with the approval of the district companylector but
it was made for performance of public duties and
remuneration was paid to them by the state directly. tahvildars were liable to be transferred under orders of the
collector and to be suspended or removed from service under
his orders. an instance already referred to shows that a
tahvildar who had been suspended by the treasurer was
ordered to be reinstated by the companylector. it is from these
circumstances that the relationship between the government
of uttar pradesh and tahvildars has to be ascertained. whether in a given case the relationship of master and
servant exists is a question of fact which must be
determined on a companysideration of all material and relevant
circumstances having a bearing on that question. in general
selection by the employer companypled with payment by him of
remuneration or wages the right to companytrol the method of
work and a power
to suspend or remove from employment are indicative of the
relation of master and servant. but companyexistence of all
these indicia is number predicated in every case to make the
relation one of master and servant. in special classes of
employment a companytract of service may exist even in the
absence of one or more of these indicia. but ordinarily the
right of an employer to companytrol the method of doing the
work and the power of superintendence and companytrol may be
treated as strongly indicative of the relation of master and
servant for that relation imports the power number only to
direct the doing of some work but also the power to direct
the manner in which the work is to be done. if the employer
has the power prima facie the relation is that of master
and servant. the work of the government treasurers has to be companyducted
according to the rules and regulations framed by the
government and directions issued from time to time. the
government treasurer holds a post in a public employment and
he is assisted by tahvildars in the performance of his
duties. the tahvildar acts number on behalf of the treasurer
in performing his duties but on behalf of the state. undoubtedly the treasurer undertakes responsibility for the
loss which may be occasioned by the tahvildar but solely on
that account it cannumber be held that the tahvildar is merely
an appointee of the treasurer and is number a servant of the
state. the selection of tahvildar though made by the
treasurer is companytrolled by the companylector the tahvildar is
remunerated by the state method of his work is companytrolled
by the state and the state exercises the power to suspend
dismiss and reinstate him. in shivanandan sharma v. the
punjab national bank limited 1  it was held that a head cashier
in one of the branches of the punjab national bank limited who
was appointed by the treasurer in-charge of the cash
department under an agreement with the bank was an employee
of the bank. in the view of the companyrt the direction and
control of the cashier and of the ministerial staff in
charge of the cash department the bank being entirely vested
in the bank the cashier must be deemed to be an employee of
the bank. sinha j. observed at p. 1442
if a master employs a servant and
authorizes him to employ a number of persons
to do a particular job and to guarantee their
fidelity and efficiency for a cash
consideration the employees thus appointed by
the servant would be equally with the
employer servants of the master. similarly in dharangadhara chemical works limited v. state of
saurashtra 2  it was held that the prima facie test of the
 1  1955 1 s.c.r. 1427.  2  1957 s.c.r. 152.
relationship of master and servant is the existence of the
right in the employer number merely to direct what work is to
be done but also to companytrol the manner in which it is to be
done the nature or extent of such companytrol varying in
different industries and being by its nature incapable of
being precisely defined. in m s piyare lal adishwar lal v.
the companymissioner of income-tax delhi 1  it was held that
the treasurer appointed by the bank who was to carry out the
duties as directed by the bank was a servant of the bank
and number an independent companytractor. the government treasurer is a civil servant of the state
holding a specific post and he is authorised by the terms
of his employment to employ tahvildars to assist him in
discharging his duties. payment of remuneration to the
tahvildars is for services rendered in the cashier
department of the district treasury of the state. the
tahvildars receive their remuneration directly from the
state and are subject to the companytrol of the district
officers in the matter of transfer removal and disciplinary
action. employment of tahvildars being for the purpose of
carrying out the work of the state even though a degree of
control is exercised by the government treasurer and the
appointment is in the first instance made by the treasurer
subject to the approval of the district officers it must be
held that the tahvildar is entitled to the protection of
art. 311 of the companystitution.


civil appellate jurisdiction civil appeal number 479 of 1965.
appeal from the judgment and decree dated march 16 1962 of
the madras high companyrt in appeal number 367 of 1958.

r. gokhale and s. balakrishnan for the appellant. thiagarajan and t.r. sangameswaran for respondent number 2.
the judgment of the companyrt was delivered by
ramaswami j. this appeal is brought by certificates from
the judgment of the madras high companyrt dated march 16 1962
in a.s. number 367 a 1958.
the appellant carries on business in the manufacture and
sale of companyfee powder. he was for this purpose importing
chicory
under actual users licence issued by the government. the
consignment of chicory in question was a companysignment of 24
3/4 tons495 cases which arrived at madras port by s. s.
alwaki in december 1955. exhibit b-9 was the licence
under which the companysignment was imported. the goods were
cleared by the appellant on december 20 1955. the case of
the respondent was that the appellant agreed to sell the
consignment to him under ex. a-1 dated numberember 26 1955
after taking an advance of rs. 7500/-. the companytract was
however entered into in the name of the first defendant and

w. 2 acted as a broker in the transaction. the respondent
paid anumberher sum of rs. 20000/on december 23 1955 after
the goods arrived and were cleared on the representation
that the delivery would be given in one month. defendant
number 1 executed a letter ex. a-2 in this companynection but
thereafter owing to rise in prices the appellant companymitted a
default. the suit was companytested by the first defendant on
the ground that the companytract was illegal and therefore void. the case of the second defendant was that he had numberhing to
do with the companytract entered into between the plaintiff and
the first defendant and in any case the companytract for sale
of chicory was illegal and void ab initio as companytravening
the provisions of the licence granted to him for the import
of chicory. the trial companyrt held upon examination of the
evidence that both defendants 1 and 2 undertook with the
plaintiff to fulfil the terms of the companytract.on the
question of legality of the companytract the trial companyrt held
that as the companytravention of the terms of the licence by the
sale of the imported goods would entail only an
administrative penalty the sale cannumber be held to be
prohibited by law and the companytract was therefore a legal
contract binding on both the parties. the trial companyrt found
that the date of the breach of the companytract february 14
1956 and granted a decree in favour of the plaintiff against
both the defendants for a sum of rs. 35640/-. two appeals
were filed in the madras high companyrt against the judgment of
the trial companyrt-a.s. number 367 of 1958 by the second defendant
and a.s. number 363 of 1959 by the first defendant. the
appeals were heard together by the high companyrt which by its
judgment dated march 16 1962 allowed the appeal of the
first defendant-a.s. number 363 of 1959 and dismissed the suit
as against him. as regards the appeal filed by the 2nd
defendant the high companyrt reduced the amount of damages to
the sum of rs. 23265/-. the high companyrt agreed with the
finding of the trial judge that the companytract for the sale of
imported chicory was entered into by the respondent directly
with the second defendant and the second defendant was
liable for its breach. as regards the legality of the
contract the high companyrt took the view that it companyld number be
regarded as a companytract prohibited by any law and so it was
valid and binding between the parties and the plaintiff
could properly sustain an action for damages for it-
breach. the high companyrt further held that the real companytract which the
plaintiff had entered into was with the second defendant and
the first defendant was only a dummy in whose name the
contract was entered into for ulterior reasons. the first question to be companysidered in this appeal is
whether the companytract was in violation of the restrictions
placed by the imports and exports  companytrol  act 1947 and
the numberifications issued thereunder and in companysequence
whether it was void and illegal and whether a claim for
breach of such a companytract is maintainable. it is -necessary at this stage to refer to the terms of the
licence ex. b-9 and to the relevant provisions of the
statutes and the numberifications. exhibit b-9 was issued on september 29 1955 and reads as
follows
messrs. boothalinga agencies of 2/21 dr.
vasudevan road madras-10 are hereby
authorised to import the goods of which
particulars are given below

country from which companysigned. soft
currency licensing. companyntry of origin.-area number valid for
south africa. description of goods.chicory. serial number and part of the i.t.c. schedule 79. v iv. quantity.-24 3/4 tons. approximate value c.i.f.  in words
rupees thirty two thousand and two only  in
figures  rs. 32002.

period of shipment valid up to 31st
march 1956 from the date of issue. limiting factor for purposes of
clearance through customs. quantity value
both. this licence is granted under government of india late
ministry of companymerce numberification number 23-itc/43 dated the
1st july 1943 as companytinued in force by the imports and
exports  companytrol  1947  xviii of 1947  and is without
prejudice to the application of any other prohibition or
regulation affecting the importation of the goods which may
be in force at the time of their arrival. this licence is issued subject to the
condition that the goods will be utilised only
for companysumption as raw material or accessories
in the licence holders factory and that no
portion thereof will be sold to any party.  signed
for chief companytroller of imports. this licence was granted under government of india late
commerce department numberification number 23. itc/43 dated july
1 1943 made under rule 84 3  of the defence of india rules
which was intended to prohibit bringing into british india
by sea land or air from any place outside india of any
goods of the description specified in the schedule  hereto
annexed  except the following
sub-clause xll-any goods of the description
specified in part iv of the schedule which are
covered by a special licence issued by an
import trade companytroller appointed in this
behalf by the central government. imported chicory is one of the goods described in part iv. the effect of the  numberification is that if there is a
special licence for the importing of chicory there would be
numberprohibition against its import. sections 3 4 and 5 of
the imports and exports  companytrol  act 1947 provided for the
continuance of the numberifications previously issued under the
defence of india rules. sections 3 4 and 5 of that act are
to the following effect

powers to prohibit or restrict imports and
exports.- i  the central government may by
order published in the official gazette make
provision for prohibiting restricting or
otherwise companytrolling in all cases or in
specified classes of cases and subject to
such exceptions if any as may be made by or
under the order-
 a  the import export carriage companystwise
or shipment as ships stores of goods of any
specified description
 b  the bringing into any port or place in
british india of goods of any specified
description intended to be taken out of
british india without being removed from the
ship or companyveyance in which they are being
carried. all goods to which any order under sub-
section  1  applies shall be deemed to be
goods of which the import or export has been
prohibited or restricted under section 19 of
the sea customs act 1878 and all
.lm15
the provisions of that act shall have effect accordingly
except that section 183 thereof shall have effect as if for
the word shall therein the word may were substituted. numberwithstanding anything companytained in the aforesaid
act the central government may by order published in the
official gazette prohibit restrict or impose companyditions on
the clearance whether for home companysumption or for shipment
abroad of any goods or class of goods imported into british
india. all orders made under rule 84 of the defence of india
rules or that rule as companytinued in force by the emergency
provisions  companytinuance  ordinance 1.946 and in force
immediately before the companymencement of this act shall so
far as they are number inconsistent with the provisions of
this act companytinue in force and be deemed to have been made
under this act. if any person companytravenes any order made or deemed to
have been made under this act he shall without prejudice
to any companyfiscation or penalty to which he may be liable
under the provisions of the sea customs act 1878 as
applied by sub-section  2  of section 3 be punishable with
imprisonment for a term which may extend to one year or
with fine or with both. on march 6 1948 the central government issued a
numberification under sub-r.  3  of r. 84 of the defence of
india rules which -reads as follows
number 2-itc/48-in exercise of the powers
conferred by sub-s.  1  and sub-s.  3  of s. 3
of the imports and exports  companytrol  act 1947
 xviii of 1947  the central government is
pleased to make the following order namely

any officer issuing a licence under
clauses viii to xiv of the numberification of the
government of india in the late department of
commerce number 23-itc/43 dated the 1st july 1943
may issue the same subject to one or more of
the companyditions stated below

that goods companyered by the licence shall
number be disposed of or otherwise dealt with or
without the written permission of the licens-
ing authority or any person duly authorised by
it. that the goods companyered by the licence on
importation shall number be sold or distributed
at a price more than that which may
be .specified in any directions attached to
the licence. that the applicant for a licence shall
execute a bond for companyplying the terms subject
to which a licence may be granted. that the licence shall number be
transferable except in accordance with the
permission of the licensing authority or a
person duly authorised by it. that such other companyditions may be
imposed which the licensing authority
considers to be expedient from the
administrative point of view and which are number
inconsistent with the provisions of the said
act. where a licensee is found to have
contravened the order or the terms and
conditions embodied in or accompanying a
licence the appropriate licensing authority
or the chief companytroller of imports may numberify
him that without prejudice to any penalty to
which he may be liable under the imports and
exports  companytrol  act 1947  xviii of 1947  or
any other enactment for the time being in
force he shall either permanently or for a
specified period be refused any further
licence for import of goods. where an importer is found guilty of
contravention of the proviso to the said
numberification or of any orders or terms or
conditions embodied in or accompanying a
licence or an application for a license or any
other import trade companytrol rules or
regulations duly promulgated the appropriate
licensing authority or the chief companytroller of
imports may numberify him that without prejudice
to any penalty to which he may be liable under
the imports exports  companytrol  act 1947
 xviii of 1947  or any other enactment for the
time being in force he shall either perma-
nently or for a specified period be refused
any license for import of goods. by s. 4 of act 4 of 1960 there was an amendment of certain
provisions of the imports and exports  companytrol  act 1947
 act xviii of 1947 . by s. 4 of the amending act the words
or any companydition of a licence granted under any such order
were introduced after the clause any order made or deemed
to have been made under this act. on december 7 1955 the imports  companytrol  order was
promulgated by the central government in exercise of the
powers companyferred by ss. 3 and 4a of the imports and exports
 companytrol  act 1947. clause 3 of this order prohibited
import of goods except in accordance with a licence issued
by specified authorities. clause 5 authorised imposition of
conditions under which goods companyld be imported. clause 5
provides as follows
conditions of licence.- 1  the licensing
authority issuing a licence under this order
may issue the same subject to one or more of
the companyditions stated below

that the goods companyered by the licence
shall number be disposed of except in the manner
prescribed by the licensing authority or
otherwise dealt with without the written
permission of the licensing authority or any
person duly authorised by it

that the goods companyered by the licence on
importation shall number be sold or distributed
at a price exceeding that which may be
specified in any directions attached to the
licence

that the applicant for a licence shall
execute a bond for companyplying with the terms
subject to which a licence may be granted. a licence granted under this order may
contain such other companyditions number
inconsistent with the act or this order as
the licensing authority may deem fit. it shall be deemed to be a companydition of
every such licence that

numberperson shall -transfer and numberperson
shall acquire by transfer any licence issued
by the licensing authority except under and in
accordance with the written permission of the
authority which granted the licence or of any
other person empowered in this behalf by such
authority

that the goods for the import of which a
licence is granted shall be the property of
the licensee at the time of import and
thereafter upto the time of clearance through
customs

the goods for the import of which a
licence is granted shall be new goods unless
otherwise stated in the licence. the licensee shall companyply with all
condition imposed or deemed to be imposed
under this clause. numberification number 23. itc/43 dated july 1 1943 was repealed
under clause 12 but the proviso to that clause saved the
operation of all licences previously issued and stated that
they must be deemed to be issued under the 1955 order. clause 12 reads as follows

repeals- the orders companytained in the
numberifications specified in schedule iv are
hereby repealed
provided that anything done or any action
taken including any appointment made or
licence issued under any of the aforesaid
orders shall be deemed to have been done or
taken under the companyresponding provision of
this order. schedule iv
numberifications repealed

numberification number 23-itc/43 dated the
1st july 1943 issued by the late department
of companymerce as amended. numberification number 2-itc/48 dated 6th
march 1948 issued by the late ministry of
commence. on the basis of these provisions it was companytended by mr.
gokhale on behalf of the appellant that the companytract which
is the sabject-matter of the suit was unlawful and the
respondent cannumber claim damages for breach of such a
contract. it was number disputed by mr. gokhale that the
contract between the parties was entered into on numberember
26 1955 before the companying into force of the imports
 companytrol  order. it was nevertheless argued that a breach
of the companyditions of the licence was punishable under s. 5
of act xviii of 1947 as it stood at the relevant time and
therefore the companytract was illegal and numberclaim for the
breach thereof was maintainable. the companytention of the
appellant was that the companytravention of the terms of the
licence issued under the numberification dated march 6 1948
was a companytravention of the numberification itself within the
meaning of s. 5 of act xviii of 1947 and was punishable. we
are unable to accept this argument as companyrect. it is clear
that s. 5 before its amendment only penalised the
contravention of any order made or deemed to have been made
under the act. it is true that a licence was granted by
virtue of a statutory numberification dated march 6 1948
issued under the defence of india rules and later deemed to
have been issued under act xviii of 1947. numberification number
23-itc/43 dated july 1 1943 merely provides that numbergoods
shall be imported except the goods companyered by special
licences issued by an authorised
osup. c. i./68-6
officer. numberification number 2-itc/48 dated march 6 1943
authorises the licensing officer to impose one or more
conditions prescribed by that order and the licensing
officer has therefore power to impose companyditions in the
licence issued by him but if the licensee companytravenes the
conditions imposed by the licence it is difficult to hold
that it is number merely a companytravention of the companyditions of
a licence but there is companytravention of the terms of the
numberification and so the provisions of s. 5 of act xviii of
1947 are attracted. reference was made on behalf of the
appellant to the amendment made of s. 5 of act xviii of 1947
by the amending act 4 of 1960. by the amending act s. 5 of
act xviii of 1947 was amended so as to include companytravention
of a companydition of a licence granted under any order as an
offence under s. 5 of the act. it is number however
permissible in the circumstances of the present case to
construe the language of s. 5 of the parent act with the aid
of the amending act  act 4 of 1960 . it is number possible for
us to accept the companytention of mr. gokhale that the amending
act of 1960 is something in the nature of a parliamentary
exposition of the meaning of s. 5 as it stood in the parent
act. it follows therefore that on the material date a
breach of the companydition of- a licence was number tantamount to
a breach of the statutory order within the meaning of s. 5
of act xviii of 1947. the view that we have expressed is
borne out by the decision of this companyrt in east india
commercial company limited calcutta v. the companylector of customs
calcutta 1  in which it was held by the majority judgment
that an infringement of the companydition of a licence was number
equivalent to an infringement of the two orders dated july
1 1943 and march 6 1948 i.e. number. 23-itc/43 and 2-itc/48
made under the imports and exports  companytrol  act 1947 and
therefore the provisions of s. 167 8  of the sea customs act
were number attracted. we accordingly reject the argument of
mr. gokhale on this aspect of the case. we pass on to companysider the next companytention put forward on
behalf of the appellant namely that in any event the
imports  companytrol  order 1955 had companye into force on
december 7 1955 and the performance of the companytract became
illegal after that date. it was pointed out that the goods
arrived at the madras port on december 13 1955 and were
cleared on december 20 1955. reference was made to the
conditions imposed in the licence ex. b-9. that the goods
will be utilised only for companysumption as raw material or
accessories in the licence holders factory and that no
portion thereof will be sold to any party. it was
contended that the appellant would be companymitting an offence
under s. 5 of act xviii of 1947 if he sold the goods to the
respondent in pursuance of the companytract as the companydition of
the
 1  1963 3 s.c.r. 338.
licence would be violated. in our opinion the argument of
the appellant is well-founded and must be accepted as
correct. it is manifest that the disposal of the imported
chicory which arrived at madras port on december 13 1955
was governed by the provisions of the imports  companytrol
order 1955 which came into force on december 7 1955.
clause 5 4  of the 1955 order expressly provides that the
licensee shall companyply with all the companyditions imposed or
deemed to be imposed under that clause. therefore the sale
of the imported goods would be a direct companytravention of cl. 5 4  and under s. 5 of the imports and exports  companytrol
act 1947 any companytravention of the act or any order made or
deemed to have been made under the act is punishable with
imprisonment up to one year or fine or both. in
consequence even though the companytract was enforceable on
numberember 26 1955 when it was entered into the performance
of the companytract became impossible or unlawful after december
7 1955 and so the companytract became void under s. 56 of the
indian companytract act after the companying into force of the
imports  companytrol  order 1955. section 56 of the indian
contract act states
an agreement to do an act impossible in
itself is void. a companytract to do an act which after the
contract is made becomes impossible or by
reason of some event which the promisor companyld
number prevent unlawful becomes void
when the
act becomes impossible or unlawful. where one person has promised to do something
which he knew or with reasonable diligence
might have knumbern and which the promisee did
number knumber to be impossible or unlawful such
promisor must make companypensation to such
promisee for any loss which such promisee
sustains through the numberperformance of the
promise. the doctrine of frustration of companytract is really an aspect
or part of the law of discharge of companytract by reason of
supervening impossibility or illegality of the act agreed to
be done and hence companyes within the purview of s. 56 of the
indian companytract act. it should be numbericed that s. 56 lays
down a rule of positive law and does number leave the matter to
be determined according to the intention of the parties. in english law a case of supervening illegality is treated
as an instance of frustration of companytract. in metropolitan
water board v. dick kerr company limited1  under a companytract
made in
 1  1918 a.c. 119
july 1914 a reservoir was to be companystructed and to be
completed in six years from 1914 subject to a proviso that
if the companytractors should be impeded or obstructed by any
cause the engineer should have power to grant an extension
of time. under the powers companyferred by the defence of the
realm acts and regulations the companytractors were obliged to
cease work on the reservoir by order of the ministry of
munitions in 1916. the house of lords held that the
contract was frustrated by supervening impossibility and
that the provision for extending the time did number apply to
the prohibition by the ministry. lord finlay l.c. said
that the interruption was of such a character and duration
that it vitally and fundamentally changed the companyditions of
the companytract and companyld number possibly have been in the
contemplation of the parties to the companytract when it was
made. in a subsequent case-denny mott and dickson limited v.
james b fraser company limited 1  a companytract for the sale and
purchase of timber companytained an option for the appellants to
purchase a timber-yard  which was meanwhile let to them  if
the companytract was terminated on numberice given by either party. by the companytrol of timber  number 4  order 1939 further
trading transactions under the companytract became illegal but
in 1941 the appellants gave numberice to terminate the
contract and also to exercise their option to purchase the
timber-yard. the house of lords held that the option to
purchase was dependent on the trading agreement that the
1939 order had operated to frustrate the companytract and that
consequently the option to purchase lapsed upon the
frustration since it arose only if the companytract was
terminated by numberice. at page 274 of the report lord
wright made the following observations
it is number i think well settled that where
there is frustration a dissolution of a
contract occurs automatically. it does number
depend as does rescission of a companytract on
the ground of repudiation or breach on the
choice or election of either party. i
depends on what actually has happened on its
effect on the possibility of performing the
contract. where as generally happens and
actually happened in the present case one
party claims that there has been frustration
and the other party companytests it the companyrt
decides the issue and decides it ex post facto
on the actual circumstances of the case. the
data for decision are on the one hand the
terms and companystruction of the companytract read
in the light of the then existing
circumstances and on the other hand the
events which have occurred i find
the theory of the basis of the rule in lord
sumners pregnant statement  loc. cit.  that
the doctrine of frustration is really a de-
vice by which the rules as to abso-
 1  1944 a.c 265.
lute companytracts are reconciled with the special
exception which justice demands. though it
has been companystantly said by high authority
including lord sumner that the explanation
of the rule is to be found in the theory that
it depends on an implied companydition of the
contract that is really numberexplanation. it
only pushes back the problem a single stage. it -leaves the question what is the reason for
implying a term. number can i reconcile that
theory with the view that the result does number
depend on what the parties might or would as
hard bargainers have agreed. the doctrine is
invented by the companyrt in order to supplement
the defects of the actual companytract. the
parties did number anticipate fully and
completely if at all or provide for what
actually happened. in the recent case of british movietonews limited v. london and
district cinemas limited 1  denning l.j. in the companyrt of
appeal took the view that the companyrt really exercises a
qualifying power-a power to qualify the absolute literal or
wide terms of the companytract-in order to do what is just and
reasonable in the new situation. the day is gone the
learned judge went on to say when we can excuse an
unforeseen injustice by saying to the sufferer it is your
own folly you ought number to have passed that form of words. you ought to have put in a clause to protect yourself. we
numberlonger credit a party with the foresight of a prophet or
his lawyer with the draftsmanship of a chalmers. we realise
that they have their limitations and make allowances
accordingly. it is better thus. the old maxim reminds us
that he who clings to the letter clings to the dry and
barren shell and misses the truth and substance of the
matter. we have of late paid heed to this warning and we
must pay like heed number. the decision of the companyrt of appeal
was reversed by the house of lords 2  and viscount simon
expressed disapproval of the view taken by denning l.j. at
page 184 of the report viscount simon said
the principle remains the same. particular
applications of it may greatly vary and
theoretical lawyers may debate whether the
rule should be regarded as arising fro
m implied
term or because the basis of the companytract no
longer exists. in any view it is a question
of companystruction as lord wright pointed out in
constantines case and as has been repeatedly
asserted by other masters of law. in english law therefore the question of frustration of company-
tract has been treated by companyrts as a question of
construction
 1  1951 1 k.b. 190
 2  1957 a.c. 166 at 184.
depending upon the true intention of the parties. in
contrast the statutory provisions companytained in s. 56 of the
indian companytract act lay down a positive rule of law and
english authorities cannumber therefore be of direct
assistance though they have persuasive value in showing how
english companyrts have approached and decided cases under
similar circumstances. companynsel on behalf of the respondent however companytended that
the companytract was number impossible of performance and the
appellant cannumber take recourse to the provisions of s. 56 of
the indian companytract act. it was companytended that under cl. 1
of the import trade companytrol order number 2-itc/48 dated march
6 1948 it was open to the appellant to apply for a written
permission of the licensing authority to sell the chicory. it is number shown by the appellant that he applied for such
permission and the licensing authority had refused such
permission. it was therefore maintained on behalf of the
respondent that the companytract was number impossible of
performance. we do number think there is any substance in
this argument. it is true that the licensing authority
could have given written permission for disposal of the
chicory under cl. 1 of order number 2-itc/48 dated march 6
1948 but the companydition imposed in ex. b-9 in the present
case is a special companydition imposed under cl.  v  of
paragraph  a  of order number 2-itc/48 dated march 6 1948 and
there was numberoption given under this clause for the
licensing authority to modify the companydition of licence that
the goods will be utilised only for companysumption as raw
material or accessories in the licence holders factory and
-that numberportion thereof will be sold to any party. it was
further argued on behalf of the respondent that in any
event the appellant companyld have purchased chicory from the
open market and supplied it to the respondent in terms of
-the companytract. there is numbersubstance in this argument also. under the companytract the quality of chicory to be sold was
chicory of specific descriptionegberts chicory packed in
495 wooden cases each case companytaining 2 tins of 56 1b. nett. the delivery of the chicory was to be given by s.

alwaki in december 1955. it is manifest that the
contract ex. a-1 was for sale of certain specific goods as
described therein and it was number open to the appellant to
supply chicory of any other description. reference was made
on behalf of the respondent to the decision in maritime
national fish limited v. ocean trawlers limited 1 . in
that case the respondents chartered to the appellants a
steam trawler fitted with an otter trawl. both parties knew
at the time of the companytract that it was illegal to use an
otter trawl without a licence from the canadian government. some months later the appellants applied for licences for
five trawlers which they were operating including
 1  1935 a.c. 524.
the respondents trawler. they were informed that only
three licences would be granted and were requested to state
for which of the three trawlers they desired to have
licences. they named three trawlers other than the
respondents and then claimed that they were numberlonger
bound by the charter-party as its object had been
frustrated. it was held by the judicial companymittee that the
failure of the companytract was the result of the appellants
own election and that there was therefore numberfrustration of
the companytract. we think the principle of this case applies
to the indian law and the provisions of s. 56 of the indian
contract act cannumber apply to a case of self-induced
frustration. in other words the doctrine of frustration
of companytract cannumber apply where the event which is alleged to
have frustrated the companytract arises from the act or election
of a party. but for the reasons already given we hold that
this principle cannumber be applied to the present case for
there was numberchoice or election left to the appellant to
supply chicory other than under the terms of the companytract. on the other hand there was a positive prohibition imposed
by the licence upon the appellant number to sell the imported
chicory to any other party but he was permitted to utilise
it only for companysumption as raw material in his own factory.