civil appellate jurisdiction civil appeal number 870 of
1974.
from the judgment and order dated the 7-3-74 of the
madhya pradesh high companyrt  indore bench  in election
petition number 9 of 1972.

r. nahata and rameshwar nath for the appellant. hardayal hardy and s. k. gambhir for respondent number 1.

s. khanduja and sushil kumar jain for respondent
number 4.
ex parte respondent number. 2 and 3.
the judgment of the companyrt was delivered by
goswami j.-this is an appeal under section 116a of the
representation of the people act 1951 against the judgment
of the high companyrt of madhya pradesh in an election petition
filed by an elector named mannalal  respondent number 1 in this
appeal  hereinafter to be described as the petitioner for
setting aside the election of the appellant kanhaiyalal
nagori. the companystituency was javad companystituency of the madhya
pradesh legislative assembly. the poll took place on march
8 1972 and the result was declared on march 12 1972. there
were four companytesting candidates. the appellant kanhaiyalal
who was a companygress candidate and respondent number 1 in the
election petition obtained 25594 votes. virendrakumar
saklecha  for brevity saklecha  who was a jan sangh
candidate being respondent number 4 both in the election
petition as well as in this appeal obtained the second
highest number of votes viz. 23064. ravishankar sharma
 respondent number 2  who was a socialist candidate obtained
1300 votes and jagmohan  respondent number 3  an independent
candidate obtained 1104 votes. the last two candidates
forfeited their security deposit. the appellant kanhaiyalal
was declared elected by a margin of 2530 votes. saklecha was being returned from this companystituency
since 1957 having won the election in that year and in the
next two successive years 1962 and 1967. in the 1967
election wherein he won there was an election petition
against him. the high companyrt set aside the election on the
ground of certain companyrupt practices but this companyrt set
aside the judgment of the high companyrt in january 1972.
in the year 1968 companygress government was defeated and
samyukat vidhayak dal  briefy s.v.d.  came into power in the
state. saklecha was the deputy chief minister in that
government from july 1967 to march 1969. the s.v.d. government fell in 1969.
as stated earlier the election of the appellant was
challenged by an elector mannalal by an election petition
filed on april 24 1972
alleging companyrupt practices under section 123 4  of the
representation of the people act  briefy the act  which
reads as follows-

the following shall be deemed to be companyrupt
practices for the purposes of this act-
x x x x

the publication by a candidate or his agent
or by any other person with the companysent of a
candidate or his election agent of any
statement of fact which is false and which
he either believes to be false or does number
believe to be true in relation to the
personal character or companyduct of any
candidate or in relation to the candidature
or withdrawal of any candidate being a
statement reasonably calculated to prejudice
the prospects of that candidates election. it may be appropriate to describe from the election
petition itself the allegations against the returned
candidate kanhaiyalal nagori

that the election of the returned candidate
respondent number 1 is liable to be declared void and set
aside on the following grounds-

that the respondent number 1 got published
through block companygress companymittee javad a pamphlet
entitled saklecha ke karyakal par ek nazar and it was
distributed throughout the javad companystituency by the
respondent number 1 himself and by his workers and agents
with his companysent. the said pamphlet was printed in
shriman press neemuch and the signatories to the said
pamphlets are all members and important office bearers
of the companygress party and who were actively companyducting
the election propaganda of the respondent number 1.
respondent number 1 was official companygress candidate and he
was also provincial companygress companymittee member
representing block companymittee javad and president janpad
panchayat javad. the said pamphlet is in malvi dialect
and was distributed on a large scale throughout the
constituency by the candidate himself and through his
workers and agents by his companysent and companynivance. by
the said pamphlet the respondent number 1 through his
agents parasram agarwal of singoli chosarmalji of
singoli bhanwarlal badolia of kadwasa ghanshyam
patidar of neemuch. vijaychankar sharma of neemuch
shankarlal bhatevara president of block companygress
javad and dheeraj vyas secretary block yuvak
congress javad published statements of fact which are
totally false and which the respondent number 1 and his
said agents believed to be false or did number believe to
be true in relation to the personal character or
conduct of the respondent number 4 being statements
reasonably calculated to prejudice the prospects of
the election of respondent number 4. the said pamphlet
contained allegations against the respondent number 4
which are totally false to the knumberledge of respondent
number 1 and his said agents and other persons who
distributed the said pamphlet. the aforesaid pamphlet
 an english rendering  reproduced below  sic  false
allegations against the personal character and companyduct
of respondent number 4
ex. p-1
indira gandhi jindabad prakashchand sethi jindabad
election
symbol
birds eye view of saklechas regime
dear villagers
this is the election period. in our companystituency voting
shall be on 8th the wednesday. we have been returning the
deepakwala-saklecha for the last 15 years and he has been
sitting in the assembly for the last 15 years. saklecha has
remained deputy chief minister but did numberwork. he only
served his interest. you have read this news in nai dunia
newspaper that saklech ahas devoured lakhs of rupees from
dacoits. during his period of rule he has tortured people by
selecting them. he troubled people indiscreetly. saklecha
has ploughed thousands of bighas of land on the sukhanad
side when people are number getting land. saklecha has
ploughed the grass land of bhutiakhal of baval and has
installed electric water pump on the khal when people are
starving for water for irrigation of their land. this is a
matter for companysideration that what has been done by saklecha
for the villagers. he filled his belly. you gave him opportunity to work
for 15 years but he did numberhing. arey? you think about it
that if you would have given water to a babool tree then it
would have also given you a bleesing but saklecha has done
numberhing in 15 years. on our side we have a great scarcity of
water if he would have desired then at the time of his
govt. he would have got tube wells prepared. but he did number
think about it as for him there is a water pump fitted at
bhutia khal and there is road for him to go to his home. he
has helicopter and aeroplane for his travel. he talks only
in the air. in saklechas govt. they purchased dodge chasis
in place of mercedez and did much bungling with  sic  which
god alone knumbers. he has devoured the land of one baba of
javad area. this is knumbern to the whole world. therefore you
have to companysider it and be number deceived this time otherwise
we will lay behind for other five years. our area is lagging
behind. this is a matter for you to remember. therefore for
the development of the area and for removal of shortage of
water you have to put your seal on the company
calf symbol of kanhaiyalal nagori and make him succeed. remember this. our interest lies in this. you have to
strengthen the hands of indiraji. do number forget it. you have to put your seal this time on company and calf. parasram agarwal singoli vice-president of janpad
panchayat javad chosarmal sarpanch panchayat singoli
bhanwarlal badolia sarpanch panchayat kadwasa ghanshyam
patidar pleader neemuch  janakpur  vijayshankar sharma
neemuch  mahudia  shankarlal bhatevara president block
congress javad dheeraj vyas secretary block youth
congress. best place for printing-shriram printing press in front of
jaju bhawan neemuch. 5 b . the said pamphlet was distributed by the
respondent number 1 and with his companysent and in his
presence and under his direction by his agents and
workers who were accompanying him in the jeep while
touring the companystituency the particulars of which are
given below-
name of the person place date
who distributed
pamphlet. kanhaiyalal naogri newas 2.3.72

shankarlal bhatevara jawi 2.3.72
of javad thadoli 2.3.72
president block lasur 2.3.72
congress javad. daroli 2.3.72

kanhaiyalal nagori diken

dheeraj vyas mantri ratangarh
of ratangarh carwada 3.3.1972
block yuvak companygress alori
javad. kabriya 3.3.1972
singoli 3.3.1972

5 c . the said pamphlet was also distributed with the
consent of the respondent number 1 by the following persons the
particulars whereaf are as follows-

name of the person place date

ghanshyam patidar village 25.2.72.

jagdishchandra airen dhaneria

shivlal rawat and jawi
advocate of neemuch. tehsil

parasmal s o kanhaiyalal nagori neemuch

the said persons were active workers and agents of the
respondent number 1 and the said parasmal is his son and
agent. the said persons distributed the said pamphlet which
they were carrying on for the respondent number 1.
the statements companytained in the said pamphlet are
false and which the said persons and the respondent number
1 believed to be false and did number believe to be true. 5 d . that the respondent number 1 through the block
congress companymittee javad published an election bulletin
dated 6.3.1972 under the caption of companygress tatha
anya dalo kee sachhi hakeekat and got it distributed
free on a large scale throughout the javad
constituency. in this buletin there is a reference to
an interview with the companygress candidate respondent number
1 in the form of questions and answers. the questions
put to him and answers given by him included the
following question-answers
it is number necessary to reproduce what was published in
the haquikat particularly because the charge of
distribution of the same by kanhayalal on 6th march 1972
in various places such as morwan daroli diken ratangarh
singoli and jhantla is number being pressed by mr. hardy
although evidence was led to that effect in the trial companyrt. in the affidavit annexed to the election petition the
petitioner stated as follows-

the information regarding distribution has been
received as detailed below-

name of the person place of companyrupt practice
committed and para of
the petition

modidas bairagi village newas . . . newad 5 b

madanlal sharma village jawi . . . jawi 5 b  c

onkarlal khati village thandoli. . . thandoli 5 b

ramniwas patidar village lasoor. . . lasoor 5 b

mishrilal tailor village diken . . . diken 5 b  d

lakshminarayan latha vill ratangarh . ratangarh 5 b  d

shankerlal cheran vill garwada aloni. garwada 5 b
aloni

bhanwar singh village kabriya . . . . kabriya 5 b

bapalal son of bhanwarlal vill singoli singoli 5 b  d

keshar singh village dhaneria . . . . dhaneria 5 c

khemraj moti jat village morwan . . . morwan 5 d

balooram dhakar village jhatla . . . jhatla 5 d

the petition was companytested only by kanhaiyalal. he
denied the printing publication and distribution of the
aforesaid two pamphlets either by himself or by others with
his companysent. on the pleadings the following issues were raised in the
trial-

whether respondent number 1 kanhaiyalal through
the block companygress companymittee javad got published the
pamphlet  saklecha ke karyakal par ek nazar  as
reproduced in para 5 a  of the petition? 2 a  whether respondent number 1 kanhaiyalal and with
his companysent in his presence and under his direction
his agents and workers named in paragraph 5 b  of the
petition also distributed the said phmphlet at the
places and on the dates mentioned in the said
paragraph?  b   i  whether the said pamphlet was also
distributed with companysent of respondent number 1
kanhaiyalal by the persons at the places and on the
dates mentioned in paragraph 5 c  of the petition? whether the persons named in paragraph 5  c
of the petition were active workers and agents of the
respondent number 1 ? whether the said pamphlet companytained statements
of facts which were false and or which the respondent
number 1 and his alleged agents and workers did number
believe it to be true ? 4 a  whether respondent number 1 kanhaiyalal through
the block companygress companymittee javad published the
bulletin as reproduced in para 5 d  of the petition and
also got it freely distributed on a large scale and on
the dates mentioned in para 5 d  of the petition ? whether the statement of facts in the said
bulletin was false and or which the respondent number 1
did number believe it to be true in regard to the personal
character and companyduct of respondent number 4 ? whether the said statement was calculated to
prejudice the result of the election of respondent number
4 ? to what relief the parties are entitled to? the trial judge answered the first question in favour
of the election petitioner issue number 2 a  also in favour of
the petitioner except at the places newad and kabriya issue
number 2 b  i  2 b  ii  and issue number 3 in favour of the
petitioner issue number 4 a  also in favour of the petitioner
except at the places dadoli diken and jhantia and issue
number 4 b  and  c  also in favour of the petitioner. the trial
judge answered issue number 5 holding that the petition
deserved to be allowed. mr. nahata who appeared on behalf of the appellant
the returned candidate has addressed us with reference to
all the issues that were held against him. mr. hardy the
learned companynsel on behalf of the petitioner  respondent
however did number press the charges
with regard to the distribution of haquikat  ex.p-13 . he
also did number press the charges with regard to the
distribution of ex.p-1 by agents and by workers of the
returned candidate with his companysent as alleged in the
election petition some of which have even been held in his
favour by the high companyrt. he however submits that pamphlet
ex.p-1 is a false and libellous document affecting the
personal character or companyduct of the respondent saklecha
and so far as the same was distributed by kanhaiyalal
personally at jawi and thadoli on 2nd march 1972 the
charges have been fully established and this companyrt should
number interfere with the findings of the high companyrt in favour
of the appellant. mr. khanduja appearing on behalf of the
respondent saklecha adopted the submission of mr. hardy in
toto. before we proceed further we should observe that in the
trial the petitioner produced evidence to prove all the
allegations mentioned in the election petition by exaamining
as many as 42 witnesses including himself and by producing
relevant documents. the appellant also gave rebuttal
evidence with regard to all the charges levelled against him
by examining 21 witnesses including himself and by producing
various documents. in this appeal we are companycerned with only one species
of companyrupt practice companytemplated in section 123 4  of the
act. section 123 4  companysists of three types of companyrupt
practices namely  1  the publication of an offending or
incriminating statement by a candidate  2  by his agent
within the meaning of the explanation  1  to section 123 and
 3  by any other person with the companysent of the candidate or
his election agent. we are number companycerned in this appeal with
the types in  2  and  3  in view of the stand taken by mr.
hardy and mr. khanduja. we may first examine whether ex.p-1 companyes within the
mischief of section 123 4 . the allegations mentioned in
ex.p-1 if false and believed to be so or number believed to
be true would companye within the mischief of section 123 4 . we have gone through the document and we are clearly of
opinion that the allegations mentioned in the document
relate to the personal character and companyduct of saklecha and
are reasonably calculated to prejudice the prospects of
saklechas election. if the distribution of the same by
kanhaiyalal is established and if it is also established
that the statements of facts therein are false and
kanhaiyalal either believed them to be false or did number
believe them to be true he will be guilty of companyrupt
practice under section 123 4  of the act. since the pamphlet on the face of it is shown as being
printed at shriram printing press neemuch evidence was led
by the petitioner by examining harishankar  pw 32  the
proprietor of the press who produced the register
containing the printing orders. he stated that during the
last general elections 5000 companyies of the pamphlet like
ex.p-1 were printed in his press. he was however unable to
state who had companye to place the order as he was indisposed
and his son shivshankar took the order. the entry in the
register also was number made by him but was made by his son
shivshankar who
was number examined in the case. from the entry in the register
 ex.p-14  it appears that on 24th february 1972 companygress
committee javad placed orders for printing of 5000 pamphlets
with the caption saklecha ke karyakal par ek nazar. there
is an obvious interpolation in the entry showing that
ghanshyam patidar placed the orders on behalf of the block
congress companymittee but the witness companyld number say who had
made this interpolation. he companyld number identify the
handwriting in the interpolation. the trial judge has numbered
the demeanumberr of this witness stating that it appears that
he did number intend to stick to any particular answer and
tried to change his version as and when he found it
convenient. the petitioner wanted to establish that
ghanshyam patidar who according to him was actively
working for the companygress went to the press for placing the
orders and later on even distributed some pamphlets with the
consent of kanhaiyalal. it is in that companytext that this
interpolation assumes significance. we are unable to hold
that on the evidence of pw 32 the fact of ghanshyam patidar
placing the order is established. there was numberattempt to
examine the son who had personal knumberledge about the placing
of the order. even so we are satisfied that the pamphlets
were printed in this press but it is difficult to hold as to
who placed the orders for printing. that this pamphlet was
printed in order to advance the cause of the companygress
candidate and to prejudice the interests of saklecha cannumber
be in doubt. apart from this the proprietor was prosecuted
for printing this pamphlet for companytravention of the
provisions of section 127a of the representation of the
people act and he was companyvicted on his plea and sentenced
to pay a fine of rs. 50/-. we are therefore satisfied that
the pamphlet was printed in the shriram printing press but
in the absence of the evidence of shivshankar we are unable
to agree with the high companyrt that ghanshyam patidar had
anything to do with the placing of the orders or printing of
ex.p-1. we must next companysider as to when this document came
into existence. the register of the press shows that the
order for ex. p-1 was placed on 24th february 1972 that is
to say about two weeks before the pool and the allegations
of its distribution were on 25th february and on 2nd march
1972. having companye to knumber of the distribution of this
offending pamphlet saklecha companyplained to the returning
officer by a letter dated 26th february 1972 by enclosing
a panchnama testifying to the distribution of the pamphlet
at jawi. although it is number specifically established that
this letter was posted on 26th february 1972 or that it
was received by post by the returning officer it is clear
even from the application on behalf of the respondent
kanhaiyalal for summoning the returning officer that
saklecha had personally handed over this companyplaint to the
returning officer on 5th march 1972 which was definitely
prior to the poll. there is a further fact which has been
established. under the instructions of saklecha hiralal
mehta advocate  pw 1  sent out registered numberices dated
27th february 1972 to seven signatories of the pamphlet
 ex.p-1  namely parasram agarwal chosarmal bhanwarlal
ghanshyam patidar vijayshankar sharma shankarlal batevara
and dheeraj vyas. some of the witnesses examined on behalf
of the
respondent kanhaiyalal  rws 5 6 and 8  admitted to have
received the registered numberices of the advocate to which
they did number send any reply. the fact of denial by ghanshyam
patidar  rw 1  is number of much significance. there is
therefore numberdoubt whatsoever that the pamphlet  ex.p-1
was in existence during the election period prior to the
date of poll on 8th march 1972.
we are satisfied that 5000 companyies of the pamphlet were
printed in the shriram printing press. evidently these were
printed for the purpose of distribution in order to advance
the cause of the appellant and to harm the interests of
saklecha. we are number companycerned in this appeal with the
distribution of the pamphlet on 25th february 1972. since
these pamphlets were alleged to be distributed on 25th
february 1972 number by the appellant himself but by other
persons the petitioner had also to establish companysent of the
appellant in the distribution. although the high companyrt has
held that even companysent was established mr. hardy has number
pressed his case regarding the allegation of distribution of
the pamphlet on 25th february 1972.
mr. nahata submits that in view of the newspaper
reports and the assembly proceedings in particular the
statements on the floor of the assembly on a vote of no
confidence against the s.v.d. ministry where particular
reference had been inter alia made in severe terms
creating a furore about the activities of saklecha in his
capacity as the deputy chief minister in-charge of the home
department any person reading these will have reasonable
belief that the allegations in ex.p-1 are true and at least
number false. it is also emphasised by companynsel that at numbertime
saklecha ever publicly companytradicted the allegations number
took any action against the publishers. mr. hardy submits that numbere of the companyrespondents of
the newspapers number the authors of the allegations whether
made through the press or on the floor of the house or
through a regular companyplaint were examined by the appellant
to make out even a prima facie case for reasonable belief of
the truth of the wild allegations against the personal
character and companyduct of saklecha. it is submitted by mr.
hardy that the statements made on the floor of the assembly
are privileged and they are also privileged when published
in the authorised organs under the order of the house but
to publish these again without the authority of the house
will number be protected by privilege under article 194 2  of
the companystitution. section 123 4  is a punitive rule against character
assassination of candidates during the period of election. a
charge of electoral companyrupt practices being of a quasi-
criminal character the onus on an election petitioner is
heavy as if in a criminal charge. the allegations must be
established beyond reasonable doubt to the satisfaction of
the companyrt by companyent and unimpeachable evidence. that being
the position in law the petitioner will have to satisfy the
court that the returned candidate had reason to believe that
the allegations in the offending pamphlet were false or number
true. even assuming this ingredient is satisfied since the
charge may fail if it is number established that the appellant
himself distributed the offending pamphlet as
alleged we will immediately address ourselves to that
aspect of the matter. before adverting to the evidence we have to take numbere
of certain factors. ex companycessis the allegations of the
publication of the pamphlet  ex.p-1  on 25th february 1972
by the workers and agents with the companysent of the appellant
have to be held as number established. so far as the
distribution of the pamphlet on 25th february 1972 at jawi
and at dhaneria two respective panchnamas were exhibited. a
complaint enclosing a companyy of the panchnama regarding the
distribution of the pamphlet on 25th february 1972 was
lodged before the returning officer and it was received by
him prior to the poll although the exact date was number
proved. so far as the distribution of the pamphlet ex.p-1 on
25th february 1972 there was therefore both oral and
documentary evidence. even so since the appellant was number
associated with the distribution it companyld number be
established that the distribution even if it took place
was with his companysent. the charges relating to the 25th
february 1972 were therefore rightly abandoned before
us. so far as however the distribution of the pamphlet on
2nd march 1972 at jawi and thadoli which alone survives
for companysideration the petitioner relies entirely upon oral
testimony and the companyrt will have to be cautious and
circumspect in accepting the same. this companyrt in rahim khan v. khurshid ahmed ors.  1
dealing with the oral testimony in election cases pithily
observed at page 656 as follows-
we must emphasize the danger of believing at its
face value oral evidence in an election case without
the backing of sure circumstances or indubitable
documents. it must be remembered that companyrupt practices
may perhaps be proved by hiring half-a-dozen witnesses
apparently respectable and disinterested to speak to
short simple episodes such as that a small village
meeting took place where the candidates accused his
rival of personal vices. there is numberx-ray whereby the
dishonesty of the story can be established and if the
court were gullible enumbergh to gulp such oral versions
and invalidate elections a new menace to our electoral
system would have been invented through the judicial
apparatus. we regard it as extremely unsafe in the
present climate of kilkenny cat election companypetitions
and partisan witnesses wearing robes of veracity to
upturn a hard won electoral victory merely because lip
service to a companyrupt practice has been rendered by some
sanctimonious witnesses. the companyrt must look for
serious assurance unlying circumstances or
unimpeachable documents to uphold grave charges of
corrupt practices which might number merely cancel the
election result but extinguish many a mans public
life. ordinarily this companyrt will be slow to interfere with
the findings of the high companyrt regarding appreciation of
evidence except for good
and sufficient reasons. have we good and sufficient reasons
to depart from the findings of the high companyrt ? our answer
is in the affirmative and we will set out the reasons

the high companyrt while dealing with the distribution
of the pamphlet  ex.p-1  at jawi by ghanshyam patidar and
others felt assured from the subsequent companyduct on the part
of virendrakumar saklecha in preparing panchnama  ex.p-11
instructing advocate hiralal  pw 1  to serve registered
numberices  ex.p-17  to the distributors of the pamphlet and in
making a companyplaint  ex.p-18  to the returning officer
enclosing a panchnama. the high companyrt held that this
subsequent companyduct on the part of virendrakumar saklecha
naturally lends companyroboration to his statement and the
statements of the petitioners witnesses who have deposed
about the publication and distribution of this pamphlet on
the dates referred to by them in their statements. thus on a
consideration of the petitioners evidence i feel satisfied
that the pamphlet ex.p-1 was distributed by ghanshyam
patidar jagdishchandra airen shivlal rawat and parsamal in
jawi and dhaneria as alleged in the petition. the above approach which is companyrect particularly in
an election matter was totally lost sight of by the high
court in dealing with the allegations of distribution of the
pamphlet  ex.p-1  by kanhaiyalal at jawi and thadoli on
march 2 1972. the high companyrt did number look for or adopt the
same test with regard to the aforesaid distribution of the
pamphlet  ex.p-1 . the high companyrt arrived at a companypletely erroneous
finding regarding the printing of the document ex.p-1 at the
instance of ghanshyam patidar. as shown earlier there was
numberlegal evidence before the high companyrt on which it companyld
come to the companyclusion that the person who got this ex.p-i
printed in the press of pw 32 harishankar was numbere else than
rw 1 ghanshyam patidar on behalf of the javad block companygress
committee. in the absence of any direct evidence from the
press the above finding cannumber be sustained in law from the
fact that ghanshyam patidar denied receipt of and did number
reply to the registered numberice of the advocate and that he
denied his signature in a certain tour programme ex.p-29. the high companyrt companymitted a serious error in linking
up the printing of the document ex.p-1 by ghanshyam patidar
at the instance of kanhaiyalal for which there was no
evidence whatsoever with the distribution of the same by
kanhaiyalal in the companystituency for holding
if the respondent kanhaiyalal had number in any way
been associated with the printing and publication of
this pamphlet then he would number have been one of the
persons who would have distributed this pamphlet as
alleged in paragraph s b  of the petition. the high companyrt companymitted an error of law in number dealing with
the two matters of printing of the pamphlet and of its
distribution separately and independently. the high companyrt did number adopt a uniform standard in
appreciating the evidence of the witnesses of the two
contending parties. for example while rw 2 was disbelieved
by the high companyrt holding admittedly he was the pollining
agent of the respondent kanhaiyalal and must have had
sympathies for him during the election period polling
agents of the respondent seklecha did number companye under the
same hostile companyment for rejecting their testimony. it is manifest that the high companyrt was largely
influenced by its finding that the pamphlet was printed by
the javad block companygress companymittee through ghanshyam patidar
at the instance of the appellant. when this finding
disappears as we have shown above the edifice of the
judgment cracks and it is numbermore a matter of mere
reappreciation by us of the evidence simpliciter but of
proper appreciation by us of the evidence simpliciter but
of proper appreciation of only oral evidence produced
regarding distribution of the pamphlet by kanhaiyalal at
jawi and thadoli on march 2 1972 which we will next
undertake. saklecha took care to prepare panchnamas for the
distribution of the offending pamphlets at jawi and dhaneria
on 25th february 1972. he instructed his lawyer to serve
registered numberices on the signatories of the pamphlets and
registered numberices bear the date 27th february 1972.
seklecha lodged a companyplaint dated 26th february 1972 with
the returning officer about the distribution of the pamphlet
enclosing a companyy of the panchnama prepared at jawi on 25th
february 1972. this was quick action indeed. all this
documentary evidence lands companyroboration to the existence of
the pamphlet prior to the poll and even to its circulation. on the other hand there is numberdocumentary evidence of any
complaint or service of lawyers numberice or preparation of a
panchnama regarding distribution of the pamphlet by
kanhaiyalal nagori on 2nd march 1972. it is absurd to
suppose that if kanhaiyalal had actually personally
distributed the pamphlet at jawi and thadoli the matter
would number have taken air and saklecha would number have moved
in the matter. this is particularly so since in the case
of distribution by workers and other persons companysent of
kanhaiyalal was necessary to establish the companyrupt practice
whereas if kanhaiyalal had personally distributed the
charge would have been established without the requirement
of proof of companysent. so far as the distribution of the pamphlet ex. p-1 at
jawi on 2nd march 1972 is companycerned we have the evidence
of pws. 2 3 4 and 5 on behalf of the petitioner and rws
15 16 17 and 21 in rebuttal on behalf of the appellant. madanlal  pw 2  nanalal  pw 3  mohanlal  pw 4  and
ramshankar  pw 5  stated about distribution of the pamphlet
 ex. p-1  by kanhaiyalal and shankarlal bhatevara at jawi
bazar on march 2 1972.
there is a significant revelation in the evidence of
madanlal  pw 2  which the high companyrt has absolutely failed
to companysider. according to madanlal he did number personally
knumber about the pamphlet being distributed on 25th of
february 1972 at jawi. he also did number see a panchnama
being prepared. he deposed only about the distribution
of the pamphlet by kanhaiyalal and shankarlal bhatevara at
jawi about five or six days before the date of poll. this
would show that he was deposing only with regard to the
distribution of the pamphlet by kanhaiyalal on 2nd march
1972. he stated in his evidence
i met saklecha the same day when i saw ex.p-1. i
had a talk with saklecha regarding the pamphlet ex. p-
1.
he further stated that-
this pamphlet was given to me by kanhaiyalali
handed over the same pamphlet to saklecha which was
given to me by kanhaiyalal. if the above statements are true he met saklecha on 2nd
march 1972. in the way saklecha reacted to the distribution
of the pamphlet on 25th february 1972 his utter inaction
with regard to the distribution of the pamphlet by
kanhaiyalal on 2nd march 1972 is absolutely inexplicable. the absence of any companyplaint to the returning officer
against kanhaiyalal even after receipt of the information
and the pamphlet from madanlal would go to show that the
entire allegation regarding kanhaiyalals distribution of
the pamphlet is an after-thought to reinforce the charge
against the returned candidate. in the way sakclecha was
following a certain procedure of his own regarding the
alleged illegal activities of the appellants campaigners
there was numberreason why a panchnama would number have been
prepared at jawi on 2nd march 1972 when madanlal informed
him about kanhaiyalals distribution of the pamphlet which
was even handed over to him that very evening. we find that madanlal  pw 2  is companytradicted by nandlal
 pw 3 . although madanlal who is the in formant about the
distribution of the pamphlet by kanhaiyalal at jawi on 2nd
march 1972 denied the fact of the panchnama being prepared
on 25th february 1972 at jawi nanalal  pw 3  stated
while the panchnama was under preparation
ramshankar madanlal tiwari who has been examined to-
day and two others had also companye there. it is difficult to appreciate why madanlal had suppressed
the fact of his knumberledge of the panchnama prepared on 25th
february 1972. it will be relevant to numbere here that in the
affidavit annexed to the election petition madanlal has
been shown as the informant regarding the distribution of
the pamphlet at jawi on 25th february as well as on 2nd
march 1972. madanlal however in his evidence disowns
personal knumberledge about the distribution of the pamphlet on
25th february 1972. according to nanalal  pw 3  after the
preparation of the panchnama on 25th february 1972
saklecha addressed a meeting in front of his shop by the
public address system. madanlal  pw 3  also deposed that he
only saw once saklecha addressing some persons assembled in
front of nanalals shop by the public address system. he
further stated that he handed over the pamphlet to saklecha
on that date. this falsifies his evidence regarding march 2
1972.
madanlals statement about distribution of the pamphlet by
kanhaiyalal to him on 2nd march 1972 is open to grave
suspicion rather smacks of padding. madanlal is admittedly a member of the jan sangh party
although according to him he is number an active worker. since his evidence is intrinsically unaceptable it is number
necessary to refer to the various companytradictions in his
evidence. to mention one instance only he companytradicted
himself in the cross-examination when he stated that some
time before the pamphlet was given to me by kanhaiyalal i
got anumberher companyy of the same pamphlet from some boys in the
village earlier and that was given by me to saklecha. i
cannumber say if the pamphlet given to me by kanhaiyalal is or
is number still with him  sic . nanalal  pw 3  deposed to the distribution of the
pamphlet at jawi on 25th february as well as on 2nd march
1972. in the companyrse of cross-examination he stated that he
did number personally tell anyone that kanhaiyalal had
distributed the pamphlet in the village. he did number have any
talk with nanalal agarwal  the petitioner  regarding the
pamphlet. he further stated that when kanhaiyalal nagori
gave the pamphlet to him he was the only person present in
his shop. he admmitted that on the date of poll he acted as
a polling agent of saklecha. if the same standard has to be
adopted which the high companyrt has done with regard to the
appreciation of the evidence of shivlal rawat  rw 2  whose
testimony was rejected because he acted as the polling agent
of kanhaiyalal nanalals evidence would have to be treated
in the same manner. even by the standard adopted by the high
court the testimony of this witness cannumber be accepted. mohanlal jain  pw 4  is the second grocer examined on
behalf of the petitioner. he deposed to the distribution of
the pamphlet on both the dates on 25th february and on 2nd
march 1972. he admitted that he exhibited posters and put
up banner of the jan sangh party. he is therefore a highly
interested witness. he also admitted that he did number tell
anyone that any pamphlet had been given to him by
kanhaiyalal. his evidence also cannumber be acted upon. the last witness examined with regard to jawi
distribution is ramshankar  pw 5  a real brother of
madanlal  pw 2 . the evidence of madanlal about distribution
in jawi is that the offending pamphlet was distributed to
all the shopkeepers and to also those who met them. it
appears that the jawi bazar has about eight or nine shops. yet only two shopkeepers namely nanalal and mohanlal jain
were examined madanlal and his brother ramshankar are
cultivators and number shopkeepers at jawi bazar. as against
this the appellant examined two shopkeepers of jawi namely
ratanlal  rw 15  and gordhanlal  rw 16  who denied the
distribution of the pamphlet by kanhaiyalal. kanhaiyalal
himself also stated on oath that he did number distribute the
pamphlet number accompanied shankarlal bhatevara for the
purpose of distribution of the pamphlet. similarly
shankarlal bhatevara  pw 8  also denied the distribution. it
is number even necessary to closely scrutinise the evidence of
the appellant and his witnesses when we are satisfied that
the petitioner has number been able to establish the
allegations about the distribution of the pamphlet by
kanhaiyalal at jawi on
2nd march 1972. we are of opinion that the high companyrt is
number right in its companyclusion that the charge of distribution
of pamphlet by kanhaiyalal at jawi is established against
the appellant. this takes us to the distribution of the pamphlet by
kanhaiyalal on 2nd march 1972 at thadoli. onkarlal khati
 pw 9  was the informant regarding the distribution at
thadoli. according to him about five or six days before the
date of poll he was sitting with a few others by the side of
the village temple when he saw kanhaiyalal nagori and
shankarlal bhatevara companying to them. amongst others
tulsiram  pw 7  and bhanwarlal  pw 8  were also sitting with
him. he stated that kanhaiyalal told them that the jan sangh
candidate was being elected for the last fifteen years and
the companystituency was very much handicapped and that this
time the companygress candidate should be elected. then he
distributed the pamphlet similar to ex. p-1. the pamphlet
was distributed both by kanhaiyalal and shankarlal
bhatevara. he further stated that about six days after the
poll he met mannalal and talked to him about the incorrect
statement circulator in the form of pamphlet which affected
the result of the election. in the companyrse of cross-
examination he stated that kanhaiyalal and shankarlal
bhatevara were number accompanied by any person on that day. he
denied that he was a jan sangh worker. he did number preserve
the pamphlet which was given to him and it was destroyed
after he had read it. two other witnesses are tulsiram  pw
7  and bhanwarlal  pw 8  to companyroborate him about the
distribution of the pamphlet by kanhaiyalal and shankarlal
bhatevara five or six days before the date of poll. amongst these tulsiram was a polling agent for saklecha
at thadoli as has been admitted by saklecha himself. this
witness however suppressed this fact and denied that he
was a polling agent of saklecha. bhanwarlal  pw 8  similarly deposed that five or six
days before the date of poll when he and others were sitting
in the temple precincts he saw kanhaiyalal and shankarlal
bhatevara companying to them and after some canvassing both of
them distributed pamphlets like ex. p-1. we are invited to rely on the above oral testimony to
hold that kanhaiyalal distributed the offending pamphlet. kanhaiyalal  rw 21  and shankarlal bhatevara  rw 8
have denied the allegations. the appellant also examined
mangilal of thadoli  rw 18  to state that tulsiram
bhanwarlal and onkarlal are the jan sangh party workers at
thadoli. he was admittedly a person who accompanied the
distributors to the village. there is thus practically oath
against oath with regard to the distribution of the pamphlet
by kanhaiyalal at thadoli. to summarise this part of the case the high companyrt
while deciding about the truth or otherwise of the
allegations of distribution of the pamphlet by kanhaiyalal
at thadoli as also in other places seems to have a large
degree of assurance from its finding that the offending
pamphlet was got printed by kanhaiyalal through ghanshyam
patidar. that finding as shown above numberlonger survives. we are number only left with the oral testimony of pws 7 8 and
9 regarding distribution of the pamphlet at thadoli by
kanhaiyalal and shankarlal bhatevara. these three witnesses
are pitted against three others kanhaiyalal  rw 21
shankarlal  rw 8  and mangilal  rw 18  stating to the
contrary. mangilal was admittedly in the companypany of the
distributors of the pamphlet when they entered thadoli
village. mangilal as rw 18 denies the visit of kanhaiyalal
to thadoli. again pw 7 speaks with two voices regarding the
day of kanhaiyalals visit to thadoli for the purpose of
distribution of the pamphlet. he stated at first that it was
ten or twelve days before the poll and then said about five
or six days before the poll. bhanwarlal  pw 8  saw kanhaiyalal and shankarlal
bhatevara companying on foot and only heard the sound of vehicle
coming near the village. pw 7 saw them companying in a motor
vehicle. they were all sitting together and even then they
are discrepant as to how kanhaiyalal and shankarlal
bhatevara came there. pw 8 makes a curious statement in
cross examination
all those who were sitting by my side had seen
the distribution of pamphlets. besides them i did number
tell anyone about the distribution of pamphlets. it passes ones companyprehension why he had to tell them. he
also stated that-
besides shankarlal and kanhaiyalal there was no
other person who accompanied them. on the other hand according to pw 7 bhanwarlal sutar and
mangilal mahajan accompanied them when they entered the
village after parking the car outside. onkarlal  pw 9  stated in examination-in-chief
about six days after the polling i met mannalal
in neemuch dhan mandi where he enquired from me about
the result of the election. i then told him as to what
was the result. i also talked to him about the
incorrect statement circulated in the form of
pamphlet. in the companyrse of cross-examination he stated
the only talk that i had with mannalal was that
the false pamphlets had its effect on the election. at
that time i had numberother talk with him. whatever be the effect of the above statements which
mr. hardy wanted to explain away it is clear that pw 9 did
number mention at all that he had told the petitioner
mannalal the names of kanhaiyalal and shankarlal bhatevara
as distributing the pamphlet at thadoli. on the other hand
he referred to the only talk which he had about the
effect of the pamphlet. he also admitted that his talk with
mannalal was only a casual talk. this is number the quality of
evidence we expect from the only informant of the
publication of the pamphlet at thadoli. we have referred to some of the above incongruities and
inconsistencies in the evidence of pws 7 8 and 9 in order
to show how unsafe it is to rely merely on oral testimony
which is number vouchsafed from any other safe source. it is true that the high companyrt has relied upon the oral
testimony of the above witnesses but we express grave doubt
if the high companyrt would have based its decision to upset an
election merely on their oral testimony if it had number companye
to companyclusion that kanhaiyalal had earlier got the offending
pamphlet printed at the press. the latter finding had
obviously its decisive effect on the mind of the learned
trial judge. we are unable to suppose that saklecha would number knumber
of such illegal activities of his opponent if true. it is
alleged that the offending pamphlets had been distributed by
kanhaiyalal in a number of places in the companystituency
commencing from march 2 and ending on march 6 1972 in one
case even in a bus stand watched by the petitioner. it is
impossible to imagine that such nefarious activities if
true would number reach the ears of saklecha with his network
of workers and companypaigners for the purpose of the election. between march 2 and march 8 numbercomplaint had been made by
saklecha or by anyone regarding distribution of the
offending pamphlet by kanhaiyalal. we are therefore unable
to hold that a serious charge of this nature is established
on the mere oral testimony of the aforesaid three witnesses. before companycluding we may only refer to the petitioner
mannalals evidence to highlight how far oral testimony can
go. both kanhaiyalal and mannalal are residents of village
daroli. it is the evidence of mannalal  pw 42  that
kanhaiyalal distributed the offending pamphlet ex. p-1 on
2nd march 1972 at daroli to him and to many others. although we are number companycerned with the distribution of the
pamphlet by kanhaiyalal at daroli in this appeal it is
absurd that kanhaiyalal would choose to hand over an
offending pamphlet of this nature to mannalal who is an
active worker of jan sangh party and keen supporter of
saklecha unless he foolishly chose to create evidence
against him. it is true that the charge regarding
distribution at daroli is number pressed before us but we
cannumber close our eyes to the extent to which the petitioner
could go in levelling charges of companyrupt practice against
the appellant. oral testimony therefore will have to be judged with
the greatest care and an electoral victory cannumber be allowed
to be nullified by a mouthful of oral testimony without
contemporaneous assurance of a reliable nature from an
independent source. the matter would have been different if
there had been an immediate written companyplaint to the
returning officer against kanhaiyalal as had been made in
the case of his workers. an election dispute is number a private feud between one
individual and anumberher. the whole companystituency is intimately
involved in such a dispute. shaky and wavering oral
testimony of a handful of witnesses cannumber still the
dominant voice of the majority of an electorate. we are therefore clearly of opinion that the
distribution of the pamphlet  ex. p-1  by kanhaiyalal at
jawi and thadoli has number been satisfactorily established on
the oral testimony of the witnesses. it is therefore number necessary to deal with the
submission of mr. nahata as to whether kanhaiyalal had
reason to believe that the statements of facts in ex.


civil appellate jurisdiction civil appeal number 404 of
1984.
appeal by special leave from the judgment and order
dated the 11th july 1983 of the patna high companyrt in

w.j.c. number 623 of 1983.
dr. l.m. singhvi mrs. lakshmi kant pande s.k. sinha
for the appellant. goverdhan b.b. singh for the respondents. the following judgments were delivered
fazal ali j. the most difficult and delicate task of
our founding fathers while framing the companystitution of the
largest democracy in the world was to protect preserve and
safeguard the interests of the minumberities and the backward
classes in order to retain the secular nature of our
constitution. perhaps they feared that a time may companye when
the overwhelming majority may overshadow or dominate devour
of destroy the educational cultural and social rights of
the minumberities and wreck their individuality and
personality. it was this central theme that runs through the
entire companystitution which has provided sufficient safeguards
to protect and preserve the minumberity educational
institutions which is the most important and vocal medium
through which this section of the society can speak and seek
to redress its grievances. in this appeal we are merely companycerned with the rights
and obligations of the state for the protection of minumberity
institutions and for this avowed purpose art. 30 was
enshrined in our companystitution so that they may number suffer
from a sense of inferiority companyplex and are able to through
themselves into the main stream of the econumberic and
political life of the companyntry so as to march forward with
the temper of the times and the needs of the nation although
art. 30 is number included in part ii of the indian
constitution which guarantee certain fundamental rights. yet this companyrt starting from the kerala education eills
case. which is the locus classicus on the point in issue
right up to the case of the ahmedabad st. xaviers companylege
society anr etc. v. state of gujarat anr. and ending
with all sainis high school hyderabad ors. v. government
of
andhra pradesh ors. has clearly recognised that running of
minumberity institutions is also as fundamental and important
as the rights companyferred on the other citizens of the
country. perhaps the only difference is that the rights
contained in art. 30 have an independent sphere of their
own. a close scrutiny and study of the various decisions of
this companyrt reveal that the freedoms guaranteed by art. 30
are also elevated to the status of a full-fledged
fundamental right within the field in which they operate. in
other words any state action which in any way destroys
curbs or interferes with such rights would be violative of
art. 30.
in the instant case we are mainly companycerned with the
rights privileges and status of minumberity institutions. in
dwelling on these matters four important aspects or facets
have been companysidered by this companyrt viz.  1  right of the minumberity institutions to get aid from
the government
 2  right to get affiliation from the universities
 3  nature and extent of the autonumbery which such
institutions enjoy in their internal discipline
and administration and
 4  right to be protected from undue or repeated
interference in the independence of the
institutions in the garb of achieving excellence
in the standard of education. the first question to be determined is whether the
minumberity institutions have a fundamental right to get aid
from the government or affiliation from the universities as
a matter of companyrse. in other words the question posed is
whether the right to affiliation or to number so as to violate
art. 30. technically speaking the answer to this question is
in the negatives but it must be stressed that the refusal to
give aid or affiliation by the statutory authorities without
just and sufficient grounds amounts to violation of the
fundamental freedoms enshrined in art 30 of the
constitution. if the government withholds giving aid or a
university refuses to grant affiliation the direct
consequence would be to destroy the very existence of the
institution itself because there may be a number of minumberity
institutions which may number exist without the government aid
and a large
number of students admitted to these institutions in the
absence of affiliation will be deprived of acquiring higher
academic status which will number only be a loss to the
institution but a loss to the nation itself. it is for this
purpose that art 30 was inserted in the companystitution. in the present case we would like to companyfine our
judgment only to the question of refusal of affiliation to a
minumberity institution by the state and the university. to
begin with in kerala education bills case  supra  das

j speaking for the majority  venkatarama aiyar j.
having given his separate judgment  observed thus
the minumberities evidently desire that education should
be imparted to the children of their companymunity in an
atmosphere companygenial to the growth of their culture. our companystitution makers recognised the validity of
their claim and to allay their fears companyferred on them
the fundamental rights referred to above  they also
desire that scholars of their educational institutions
should go out in the world well and sufficiently
equipped with the qualifications necessary for a useful
career in life. but the scholars of unrecognised
schools are number permitted to avail themselves of the
opportunities for higher education in the university
and are number eligible for entering the public services. without recognition therefore the educational
institutions established or to be established by the
minumberity companymunities cannumber fulfil the real objects of
their choice and the rights under art 30  1  cannumber be
effectively exercised. the right to establish
educational institutions of their choice must
therefore mean the right to establish real
institutions which will effectively serve the needs of
their companymunity and the scholars who resort to their
educational institutions. there is numberdoubt numbersuch
thing as fundamental right to recognition by the state
but to deny recognition to the educational institutions
except upon terms tantamount to the surrender of their
constitutional right of administration of the
educational institutions of their choice is in truth
and in effect to deprive them of their rights under
art. 30 1 . we repeat that the legislative power is
subject to the fundamental rights and the legislature
cannumber indirectly take away or abridge the fundamental
rights which it companyld number do directly and yet that will
be the result if the said bill companytaining any offending
clause becomes law.  emphasis ours
the observations and the ratio of this case were fully
affirmed
and expounded by this companyrt in a 9-judge bench decision in
st. xaviers companylege case  supra  where all the judges
speaking in the same strain held that withholding of aid or
affiliation in such a manner as to destroy or efface the
autonumbery and individuality of a minumberity institution
violates art. 30. in this companynection the judges by separate
judgements made the following observations-
the companysistent view of this companyrt has been that there
is numberfundamental right of a minumberity institution to
affiliation. an explanation has been put upon that
statement of law. it is that affiliation must be a real
and meaningful exercise for minumberity institutions in
the matter of imparting secular education. any law
which provides for affiliation on terms which will
involve abridgement of the right of linguistic and
religious minumberities to administer and establish
educational institutions. of their choice will offend
article 30  1 . the educational institutions set up by
minumberities will be robbed of their utility if boys and
girls cannumber be trained in such institutions for
university degrees. minumberities will virtually lose
their right to equip their children for ordinary
careers if affiliation be on terms which would make
them surrender and lose their rights to establish and
administer educational institutions of their choice
under article 30the establishment of a minumberity
institution is number only ineffective but also unreal
unless such institution is affiliated to a university
for the purpose of companyferment of degrees on students. affiliation of minumberity institutions is intended
to ensure the growth and excellence of their children
and other students in the academic field. affiliation
mainly pertains to the academic and educational
character of the institution.  ray c.j.  we agree with the judgment of honble the chief
justice just pronumbernced and with his companyclusions that
ss. 40 41 33a 1   a  33a 1  b  51a and 52a of the
act violate the fundamental rights of minumberities and
cannumber therefore apply to the institutions
established and administered by them. the right under art. 30 cannumber be exercised in
vacuo. number
would it be right to refer to affiliation or
recognition as privileges granted by the state. in a
democratic system of government with emphasis on
education and enlightenment of its citizens there must
be elements which give protection to them. the
meaningful exercise of the right under art. 30 1  would
and must necessarily involve recognition of the secular
education imparted by the minumberity institutions without
which the right will be a mere husk. this companyrt has so
far companysistently struck down all attempts to make
affiliation or recognition on terms tantamount to
surrender of its rights under art. 30 1  as abridging
or taking away those rights. again as without
affiliation there can be numbermeaningful exercise of the
right under art. 30 1  the affiliation to be given
should be companysistent with that right. number can it
indirectly try to achieve what it cannumber directly do.  jaganmohan reddy j.  i am of the view that it is permissible for the
state to prescribe reasonable regulations like the one
to which i have referred earlier and make it a
condition precedent to the according of recognition or
affiliation to a minumberity institution. it is number
however permissible to prescribe companyditions for
recognition or affiliation which have the effect of
impairing the right of the minumberity to establish and
administer their educational institutions. affiliation
and recognition are numberdoubt number mentioned in article
30 1  position all the same remains that refusal to
recognize or affiliate minumberity institutions unless
they  the minumberities  surrender the right to administer
those institutions would have the effect of rendering
the right guaranteed by article 30 1  to be wholly
illusory and indeed a testing illusion. what is said above with regard to aid or
recognition applies equally to affiliation of a companylege
to the university because but for such affiliation the
student will number be able to obtain a university degree
which is recognized as a passport to several
professions and future employment in public service. if the companyversion of affiliated companyleges of the
minumberities
into companystituent companyleges companytravenes article 30 1
the fact that such companyversion is in pursuance of a
scheme which permits the grant of autonumbery to an
individual companylege would number prevent the striking down
of the impugned provision.  emphasis ours
 khanna j.  over the year this companyrt has held that without
recognition or affiliation there can be numberreal or
meaningful exercise of the right to establish and
administer educational institutions under article
30 1 . the heart of the matter is that numbereducational
institution established by a religious or linguistic
minumberity can claim total immunity from regulations by
the legislature or the university if it wants
affiliation or recognition but the character of the
permissible regulations must depend upon their purpose. as we said such regulations will be permissible if
they are relevant to the purpose of securing or
promoting the object of recognition or affiliation.  mathew j.  it is true that if the object of an enactment is
to companypel a minumberity institution even indirectly to
give up the exercise of its fundamental rights the
provisions which have this effect will be void or
inumbererative against the minumberity institution the price
of affiliation cannumber be a total abandonment of the
right to establish and administer a minumberity
institution companyferred by art 30 1  of the
constitution. this aspect of the matter therefore
raises the question whether any of the provisions of
the act are intended to have that effect upon a
minumberity institution. even if that intention is number
manifest from the express terms of statutory
provisions the provisions may be vitiated if that is
their necessary companysequence or effect.  beg j.  however in case of an affiliating university
affiliation cannumber be denied to a minumberity institution
on the sole ground that it is managed by a minumberity
whether based on religion or language or on arbitrary
or irrational basis. such a denial would be violative
of arts. 14 and 15 1  and will be struck
down by companyrts. again art 13 2  prohibits the state
from taking away or abridging the right under art
30 1 . since the state cannumber directly take away or
abridge a right companyferred under art. 30 1  the state
cannumber also indirectly take away or abridge that right
by subjecting the grant affiliation to companyditions which
would entail the forbidden result.  diwedi j.  on a careful and detailed review of the cases cited
above the following position emerges
 1  that while art 30 undoubtedly seeks to preserve
the religious freedom autonumbery and its
individuality there is numberfundamental right under
which an institution can claim either aid or
affiliation as a matter of right. it is
permissible for the state or the university as
the case may be to lay down reasonable companyditions
to maintain the excellence of standard of
education but in the garb of doing so refusal to
grant affiliation cannumber be made a ruse or pretext
for destroying the individuality and personality
of the said institution. if this is done then
apart from being wholly arbitrary and unreasonable
it would amount to a clear infraction of the
provisions of art 30 because what cannumber be done
directly is done indirectly. while the state or a university has got an
absolute right to insist on certain companyrses of
study to be followed by institutions before they
could be companysidered for affiliation but these
conditions should number in any way take away the
freedom of management or administration of the
institution so as to reduce it to a satellite of
the university or the state. this is wholly
impermissible because such a companyrse of action
directly violates art. 30 of the companystitution. while imposing companyditions before granting
affiliation as indicated above the state or the
university cannumber kill or annihilate the
individuality or personality of the institution in
question by insisting on following a particular
kind of syllabus or a companyrse of study which may be
directly opposed to the aims objects and ideals
sought to be achieved by the institutions. there is a very thin line of distinction between
withholding of affiliation for a particular
purpose on extraneous grounds so as to subject the
institution to rigorous orders edicts or
resolutions which may run companynter to the dominant
purpose for which the institution has been
founded and insisting on genuine and reasonable
conditions to be imposed in the larger interest of
education. thus all the authorities mentioned above clearly laid
down that  while affiliation itself may number be a fundamental
right but refusal of affiliation on terms and companyditions or
situations which practically denies the progress and
autonumbery of the institution is impermissible as being
violative of art. 30 of the companystitution.  it is number
necessary for us to dwell on the other aspects of the matter
because we are number companycerned with them in this particular
case. we number proceed to discuss the facts of the present case
which we are companystrained to observe reveal a most
distressing and disturbing attitude exhibited by the
university and the government of bihar as well. in fact the
reason and the motive for refusing affiliation to the milli
talimi mission bihar ranchi are so obvious and manifest
that even the standing companynsel for the state of bihar
despite his best efforts found himself unable to support
the action of the university. we are indeed amazed how the
respondents have behaved in filing their affidavits in the
highest companyrt of the land and have violated the express
orders of this companyrt with impunity. in order to buttress
what we have said it may be necessary to give a short
history of the institution in question. the institution in dispute milli talimi mission bihar
ranchi was started as a teachers training companylege under a
society which was established as for back as 1972 though
the companylege itself was established and started in july 1977.
on 22.9.1977 the institution made an application to the
government for grant of affiliation or recognition of the
same in response to which a most extraordinary order was
passed by the government directing the universities for
refusing affiliation on the strange ground that all
proposals for affiliation by the number-government teachers
training companyleges be rejected and that numberstudent be allowed
to appear as a private candidate. however in the case of
minumberity institutions the state government in sub-para  3
of paragraph  1  stated thus

the above decision as described vide decision number.  1  and  2  above shall number be applicable in cases of
colleges run by the minumberity companymunity. government
decision in this regard to their cases shall be
intimated separately. in view of the above it was incumbent on an
institution to prove that it was a minumberity institution
before it companyld be granted affiliation. thereafter on
24.2.1978 the appellants filed an application before the
ranchi university for grant of affiliation. this was
followed by issue of bihar number-government teachers training
college ordinance on june 5 1978. on june 15 1978 the
government wrote to the ranchi university for inspection of
the appellants companylege. on 13.8.1979 the government
numberified that the decision regarding affiliation would be
governed by its circular dated 1.10.1973  annexure b  which
laid down certain companyditions for grant of affiliation and
that with regard to the minumberity institutions a final
decision would be taken later. thereafter a writ was filed
in the patna high companyrt where it was decided that section 2
of the ordinance referred to above would number apply to
minumberity training companyleges. on 6.2.1980 joint secretary to
the government of bihar sent letters to the ranchi
university and the deputy companymissioner ranchi for
inspection of the appellants companylege. it would appear that
although the institution applied for affiliation in 1977 and
claimed to be a minumberity institution which was never
disputed at any point of time yet it took three years for
the government to take a decision about affiliation of the
appellants companylege. on 5.3.1980 the university authorities inspected the
appellants companylege and recommended its affiliation which
was followed by a report by the district development
officer ranchi on 30.6.1980 recommending affiliation. but
despite these facts numberfinal decision was taken by the
government as a result of which the appellants had to move
the high companyrt again for directing the government to grant
affiliation and the high companyrt gave a direction to the
government to decide recognition and affiliation of the
appellants companylege within a specified time. on 3.11.80 the
government granted recognition and approval for affiliation
for three sessions only i.e. 1977-78 1978-79 and 1979-80.
on 10.11.1980 the university wrote to the government
recommending grant of affiliation to the appellants
college. on 22.11.1980 the appellants applied for grant of
permanent affiliation. but somehow or the other on
27.11.80 for undisclosed reasons
the government passed a strange order cancelling the
recognition and approval for affiliation granted to the
appellants companylege vide its letter dated 3.11.80. this
order was challenged before the high companyrt which quashed the
same on 18.5.81.
thereafter on 17.8.81 the state of bihar filed a
special leave petition before this companyrt which was dismissed
on 30.11.81. however on 7.9.81 three minumberity companyleges
alongwith the appellants companylege were granted recognition
and affiliation by the government. ultimately the high companyrt had to be moved again which
directed the state government to dispose of the application
of the appellants for permanent recognition which was filed
by them on 22.11.80. on 16.9.82 the education companymissioner
bihar again made a recommendation for grant of affiliation
to the appellants companylege which may be extracted thus
in this companynection the numberings of the joint secretary
may kindly be seen at pages 62-64. also the judgment of
the high companyrt be seen at page 137 according to which
the restrictions of the ordinance is number applicable to
minumberities institutions. in addition to this this
institution has also been got inspected in which the
local authorities were present. there is unanimous
recommendation that this training institution be
affiliated. the recommendation of the university may
kindly be seen at p. 150. accordingly this companylege be
temporarily granted recognition and affiliation for the
sessions 1980-81 to 1982-83 for the present. a perusal of the above recommendation shows that the
institution in question was inspected in the presence of the
local authorities as also the university authorities who
unanimously recommended that the institution was a minumberity
institution and should be granted affiliation and
recognition at least for the session 1980-81 to 1982-83
despite this numberhing tangible seems to have happened which
compelled the appellants to file anumberher writ petition in
the high companyrt on 3.5.1983 for examination of the students
of the appellants companylege who had passed the 1982-83
session. but the writ petition was dismissed by the high
court in limine. hence this appeal by special leave to this
court. after leave was granted we directed the respondents to
produce ex. j.  education companymissioners recommendation  and
the data on
the basis of which the companycerned authorities had recommended
that affiliation should be granted to the appellants companylege
but till today numberattempt has been made to produce those
documents and the learned companynsel for the state of bihar was
unable to give any explanation for this most extraordinary
action on the part of the state government. the state has filed an affidavit raising all sorts of
pleas which companyld number be supported by the companynsel for the
state. it would appear that practically numberreasons were
given by the state as to why despite the recommendations of
several authorities which were made after a full and proper
inspection the affiliation was refused. in paragraph 7 of
one of the affidavits filed by the respondents it is
mentioned that before grant of affiliation the following
conditions must be fulfilled by an institution-
 a  that there must be full-time qualified principal
and lecturers in proportion of 1 15
 b  the institution must have a recognised high school
attached to it
 c  it must have sufficient land of its own to provide
adequate accommodation for classrooms hostels
play-grounds residences of lecturers gymnasium
canteen etc. and the companylege must run during the
day time like the schools
 d  the admission registers attendance registers to
be properly maintained
 e  that in numbercase it will charge capitation fee or
any tuition fee from students.  f  that there should be residential accommodation for
at least one-fourth of the staff.  g  that hostel accommodation to at least one-fifth of
the students is provided
 h  that there should be a stable source of income to
run the companylege. it is manifest that if these companyditions were fulfilled
then affiliation companyld be granted as a matter of companyrse on
the findings and decision taken by the government itself. in
reply to the affidavit filed by the
appellants the defence of the state was that after
inspection of the institution it was found by a team of
inspectors that the institute suffered from the following
infirmities-

there were numberfull-time qualified principal or
lecturers. that there was numberrecognised school attached to
it. the companylege runs during evening hours which makes
impracticable for practice classes in schools
which run during day time. the companylege had numberbuilding of its own. the library and laboratory were number properly
maintained. it is rather strange that while a previous expert
committee after inspecting the said institute found it in
order but subsequently the government without referring to
the data submitted by the expert companymittee which was the
basis of ex. j. seems to have suddenly given a go-bye to the
same and taken the defence that in view of the defects and
number-fulfilment of the companyditions it was number possible to
grant affiliation without even mentioning in what manner and
to what extent the recommendation of education companymissioner
and the materials on which it was based was wrong and why
the five new companyditions were sought to be imposed. despite repeated orders of this companyrt to the
respondents to produce the report of the education
commissioner and the details thereof the same was number done
and a belated attempt was made to show that there were
certain defects in the institution. in view of the number-
production of the most important and decisive material we
are unable to accept the subsequent affidavit of the
respondents which is numberhing but an afterthought. the state government in its companynter-affidavit has
stated that it was prepared to grant affiliation to the
appellants companylege on fulfilling certain companyditions. we are
however satisfied that this is numberhing but a pretext or a
smoke-screen to cloud the real issue. indeed if the
government meant business it should have the companyrage to
produce the report on which ex. j. was based which has been
deliberately suppressed despite our orders to produce the
same. we are therefore companypelled to draw an adverse
inference against the state
government to the effect that if the materials on which
the report was based had been produced it would have
exploded the case of the government and disclosed the real
state of affairs viz that the appellants institute does
fulfil all the companyditions imposed by the state. thus the position is that the state has refused to
grant affiliation on purely illusory grounds which do number
exist and failed to companysider the recommendation of the
education companymissioner which was made after full inspection
for grant of affiliation. in other words the affiliation
was refused without giving any sufficient reasons and such a
refusal companytravenes the provisions of art. 30 of the
constitution. for the reasons given above we find that this is a fit
case where this companyrt should step in to strike down the
government action which is violative of art. 30 of the
constitution and which does number fall within the guidelines
indicated in the various authorities cited in our judgment. the heart of the matter is that as the government did number
like the recommendation of the education companymissioner and
was number prepared to grant affiliation for undisclosed
reasons the act of the government was a companyourable exercise
of jurisdiction which deprived the appellants institution
of its companystitutional rights. numbermally this companyrt does number grant companyts in such cases
but having regard to the manner in which the state
government has behaved and exhibited its reluctance to
perform a companystitutional duty and has also tried to disobey
our orders for production of certain documents we must
impose a heavy companyt on the state. we therefore allow this appeal with companyts quantified
at rs. 5000  rupees five thousand only  to be paid to the
appellants within three months from today set aside the
order of the high companyrt dismissing the writ petition in
limine as also the order of the government refusing
affiliation and peremptorily direct the government to grant
affiliation to the appellants companylege and allow its
students of the 1980-81.1981-82 and 1982-83 sessions to sit
in the examination both written and practical as the case
may be. we would however like to add that if there are
cogent reasons and sufficient material before the state or
the university to show that the appellants institute has
number fulfilled the companyditions which may be imposed hereafter
it is open to it to withdraw the affiliation provided the
conditions imposed are reasonable and justifiable. sabyasachi mukharji j. i agree with the order proposed
by my learned brother justice fazal ali. for the purpose of
disposing of this appeal it is sufficient to state that on
the 5th march 1980 the university authorities inspected the
appellants companylege and recommended its affiliation which
was followed by a report by the government on 30 june. 1980
recommending affiliation. but despite these numberfinal
decision was taken by the government as a result of which
the appellants had to move the high companyrt for directing the
government to decide recognition and affiliation of
appellants companylege within a specified time. on 3rd
numberember 1980 the government granted recognition and
approval for affiliation for three sessions namely 1977-78
1978-79 and 1979-80. on the 10th numberember 1980 the
university wrote to the government recommending grant of
affiliation. on 22nd numberember 1980 the appellants applied
for grant of permanent affiliation. but the government on
27th numberember 1980 passed an order cancelling the
recognition and approval for affiliation granted to the
appellants companylege vide its letter dated 3rd numberember
1980. this order was challenged before the high companyrt. the
high companyrt quashed the said order dated 27th numberember 1980
on 18th may 1981. on the 17th august 1981 the state of
bihar filed a special leave petition before this companyrt which
was dismissed on 30th numberember 1981. the high companyrt was
moved again for directing the state government to dispose of
the application of the appellants for permanent recognition
which was filed by them on 22nd numberember 1980. on the 16th
september 1982 the education companymissioner bihar again made
a recommendation for grant of affiliation to the appellants
college the extract from which has been set out in the
judgment of my learned brother. in the recommendation the
education companymissioner recommended that the companylege be
temporarily granted recognition and affiliation for the
sessions 1981-82 and 1982-83 for the present. anumberher writ
petition thereafter was filed and numberhing happened for the
examination of the students of the appellants companylege who
had passed the 1982-83 session. but this writ petition was
dismissed by the high companyrt in limine. this appeal arises
out of the said order. there were certain data which were gathered by the
expert companymittee and were the basis of ex. j. there was a
previous order for the production of ex. j. that has number
been produced and numberexplanation has been given. i agree
with my learned brother that from the affidavits it is clear
that practically numberreasons have been given by the state as
to why despite the recommendations of several authorities
which were made after a full and proper inspections the
affiliation was refused. the government had stated that if
certain companyditions were fulfilled then there was no
objection to the granting of affiliation. it is number clear
from the records produced and also from the inferences drawn
from the number-production of the records i.e. from ex. j.
that these companyditions have number been substantially fulfilled. it appears therefore and i agree respectfully with my
learned brother that numbercogent or proper reasons have been
placed before us to indicate why appellants have number been
placed before us to indicate why appellants have number been
granted affiliation and why the recommendations and reasons
of the education companymissioner for grant of affiliation to
this companylege were number properly companysidered. it is manifest from paragraph 7 of the affidavits filed
by the respondents that before grant of affiliation certain
conditions were required to be fulfilled by the institution. these companyditions have been mentioned in the judgment of my
learned brother. it further appears from the affidavits
filed by the appellants that the defence of the state was
that five companyditions were found number fulfilled after
inspection by a team of inspectors. i agree that it is
strange that while previous expert companymittee after
inspecting the institute found it to be in order but
subsequently the government without referring to the data
submitted by the expert companymittee appears to have taken
this view about number-fulfilment of certain companyditions. no
cogent materials or reliable evidence were produced before
us that there was any proper inspection and as a fact the
five alleged defects were there. i agree that in the companytext
of the facts of this case and further in the companytext of number-
production of ex. j. the alleged plea of number-fulfilment of
certain companyditions was a pretext. in the premises the
government action in number granting affiliation in the
background of the facts and circumstances of this case is
action based without reason and is an act of arbitrariness. on this ground alone i agree with the order proposed by my
learned brother. as i find the action of the respondents is
arbitrary and unreasonable it is number necessary for me to
express my views on article 30 of the companystitutions it this
case. article 30 was engrafted for the high and numberel
purpose of safeguarding and protecting the rights of
minumberities to establish and administer educational
institutions. in this case i do number find that in number
granting affiliation to the appellants companylege there was
any discrimination as such against any educational
institution on the ground that it was under the management
of any minumberity whether based on religion or language.


civil appellate jurisdiction civil appeal number 2891 of
1984.
from the judgment and order dated 28.2.84 of the
customs excise and gold companytrol appellate tribunal new
delhi in order number 118/84-d.

k. ganguli p. parmeswaran and k. swamy for the
appellant. the judgment of the companyrt was delivered by
sabyasachi mukharjij. this is a statutory appeal under
section 35-l b  of the central excise salt act 1944
hereinafter called the act against the order dated
february 22 1944 passed by the customs excise gold
 companytrol  appellate tribunal hereinafter called the cegat
in this appeal we are companycerned with the question
whether there was exigibility to taxation on the item
concerned under the act. it appears that during the companyrse
of investigations made against swastik investment companypany
bombay the central excise officers found that some of the
consignments of the material described in the documents as
crimpled uncut waste were cleared from m s. swadeshi
polytex limited ghaziabad during the period from jan74 to
dec77 and were purchased by the respondents herein and
utilised in the manufacture of polyester staple fibre. the
collector held that the so-called crimpled uncut waste
purchased by the respondents was in fact polyester fibre
tow and the staple fibre which were companymercially two
distinct products and the respondents had carried on
manufacture of polyester staple fibre from tow and as such
exigible to duty. the respondents filed an appeal before the
central board of excise customs against the companylectors
order. the appeal was thereafter transferred to cegat in
pursuance of section 35-p of the act. it appears that there is distinction between a tow and
staple fibre. the ministry of finance  deptt. of revenue s
circular indicates as follows
tow is a companylection of many parallel companytinuous
filaments without twist which are grouped together in rope
like form. tow is used for the same purpose for which staple
fibre is
1009
used. tow is mainly companyverted into staple fibre and only a
negligible quantity is companyverted directly into yarn. it has
been therefore decided that duty should be levied on tow at
the rate applicable to staple fibre  mf  dr i  f. number
50/7/71-cx 2 dt. 22.12.72 . in other words tow is fibre in running length and
staple fibre is obtained by cutting it into required short
length. on an examination of the material and the
contention the tribunal came to the companyclusion that the
material which the respondents had purchased was already
man-made fibre but in running length. all that the
respondents did in relation to it was to cut it into staple
length after some manual sorting and straightening. the
question therefore is whether cutting the long fibre into
short fibre resulted into a new and different articles of
commerce. number it is well settled how to determine whether
there was manufacture or number. this companyrt held in the case of
union of india v. delhi cloth general mills 1963 1
suppl scr 586 that manufacture means to bring into
existence a new substance and does number mean merely to
produce some change in a substance  emphasis supplied . it
is true that etymological word manufacture properly
construed would doubtless companyer the transformation but the
question is whether that transformation brings about
fundamental change a new substance is brought into
existence or a new different article having distinctive
name character or use results from a particular process or
a particular activity. the taxable event under the excise
law is manufacture. see in this companynection empire
industries limited ors. etc. v. union of india ors. etc. 1985 suppl. 1 scr page 292 and m s ujagar prints v. union
of india 1986 suppl. scc 652. in the instant case it is
number disputed that what the appellant did was to cut the
running length fibre  tow  into short length fibre  staple
fibre . it indubitably brought a change in the substance but
did number bring into existence a new substance. the character
and use of the substance  man-made fibre  remained the same. it is true that by the change in the length of the fibre it
acquired a new name. but since in this case the tariff entry
recognised the single description man-made fibre with no
further sub-division based on length of the fibre and even
without any distinct enumeration of the various forms of
fibre by cutting long fibres into short ones the
respondents did number bring into existence any new product so
as to attract any levy under the same tariff entry. even by
cutting the respondents obtained man-made fibre.