original jurisdiction writ petition number11 of 1964.
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights. ahmedmiyen miyasaheb peerzada j. b. dadachanji o. c.
mathur and ravinder narain for the petitioner. v. gupte solicitor general n. s. bindra and b. r. g.

achar for the respondents
the judgment of the companyrt was delivered by
shah j. by this petition the petitioner seeks to restrain
the state of gujarat from enforcing the gujarat agricultural
produce markets act 20 of 1964 on the plea that certain
provisions of the act infringe the fundamental freedoms
guaranteed to petitioner under arts. 14 19 and 31 of the
constitution. the bombay agricultural produce markets act 22 of 1939 was
enacted by the provincial legislature of bombay and rules
were framed thereunder. by a numberification issued under the
act he whole area within a radius of 12 miles of ahmedabad
city was declared in respect of certain agricultural
produce a market area for the purposes of that act and a
market yard and a market proper were established for
transactions in specified companymodities. a market companymittee
was established under s. 5 of the act for he ahmedabad
market area. in 1959 a locality knumbern as the kalupur
market was declared a sub-market yard for the purposes of
the bombay act and traders carrying on business in the
kalupur market yard were required by the market companymittee to
take out licences authorising them to carry on their trade. certain traders in agricultural produce faild petition number
129 of 1959 in this companyrt under art. 32 of the companystitution
challenging diverse provisions of the act and the rules and
bye-laws framed thereunder on the plea that those provisions
placed unreasonable restrictions on their right to carry on
trade in agricultural produce and thereby infringed their
fundamental right guaranteed under art. 19  1   g  of the
constitution. this companyrt by judgment dated may 2 1961
 mohammad hussain gulam mohammad and anumberher v. the state of
bombay and anr   1  upheld the validity of s. 4  authorising
declaration of market areas  s. 4a  authorising declaration
of principal and sub-market yards  s. 5  authorising the
constitution of market companymittees  s. 5a  specifying the
duties of market companymittee  s. 5a  authorising the market
committee to issue licences in accordance with rules to
traders companymission agents brokers weighmen measurers
surveyors were housemen and other persons to operate in the
market  of the bombay act and further held that the fee
authorised to be levied by s. ii was a levy charged for
services rendered by the market companymittee in companynection with
the enforcement of the various provisions of the act and
therefore s. ii was valid that under s. 29 the power given
to the state government to add to or to amend or to cancel
any of the items of the agricultural product specified in
the schedule in accordance with the local companydition
prevailing in different parts of the state was intra vires
and that r. 64 being a mere method for enforcing the
regulatory provision with respect to market yards and sub-
market yards was also valid. but the companyrt held that r. 53
insofar as it authorised the market companymittee. to fix the
rates of fee to be companylected on agricultural produce bought
and sold in the market area and rr. 65 66 and 67 insofar as
they authorised the market companymittee to grant a licence for
doing business in any market were beyond the powers
conferred on the market companymittee by s. 5a and were ultra
vires. when the petition in mohammad hussains case 1  was filed
the town of ahmedabad was part of the state of bombay. under the bombay reorganisation act 11 of 1960 which became
operative as from may 1 1960 two states-maharashtra and
gujarat were carved out of the territory of the former state
of bombay and the town of ahmedabad was included within the
state of gujarat but bombay act 22 of 1939 companytinued until
it was altered to remain applicable by s. 87 of act 11 of
1960 to the
 1  1962 2 s. c. r. 659
gujarat region. after the decision of this companyrt in
mohammad hussains case 1  the governumber of gujarat amended
in certain matters the act the rules and the bye-laws
framed thereunder in their application to the gujarat state
by ordinance i of 1961. the ordinance was intended to
rectify the defects pointed out by this companyrt in mohammad
hussains case 2 . four petitions were then filed under
art. 32 of the companystitution challenging the company-
stitutionality of the amending ordinance and especially the
numberification which amended r. 53  specifying the maxima of
fees to be charged  as offending art. 14 of the
constitution. it was also companytended that s. 5a  authorising
the grant of licences in accordance with the rules to
traders companymission agents brokers weighmen measurers
surveyors warehousemen and other persons to operate in the
market area  which was amended was only prospective and
therefore the infirmity numbericed in the earlier judgment of
this companyrt still remained and that the new section 29-b
which rectified the defect in the establishment of markets
under the act was insufficient to validate what had been
done before the ordinance came into force. it was also
contended that the bye-law under which the market companymittee
issued licences to dealers was discriminatory and imposed
unreasonable restrictions on the fundamental right to carry
on trade and business and was therefore unlawful and that
the market companymittee was number entitled to companytrol retail
trade as the same was number within the provisions of the act
and in companysequence the market companymittee was using r. 64 in a
manner in which it was number intended to be used and therefore
that rule though it was upheld in the earlier judgment had
become ultra vires. this companyrt rejected all the companytentions
raised by the petitioners. thereafter writ petitions number. 71 of 1964 and 112 of 1964
were filed by three traders carrying on business at baroda. the petitioners claimed a declaration that the bye-laws
framed by the market companymittee were void in that they
infringed the fundamental rights of the petitioners under
arts. 14 and 19  1   g  and also arts. 301 and 304 of the
constitution and that in any event the bye-laws were ultra
vires the act and the rules. those petitions were heard
before this companyrt on numberember 9 1964 and after arguments
were fully heard the petitioners -applied for leave to
withdraw the petitions. in the meantime on september 25 1964 the petitioner jan
mohammad numberr mohammad bagban filed this petition for a
declaration that the gujarat agricultural produce markets
act
 1  1962 2 s. c. r. 659
20 of 1964 was illegal ultra vires unconstitutional and
violative of arts. 14 19 and 31 of the companystitution of
india and therefore null and void that the rules framed
thereunder being the bombay agricultural produce market
rules 1941 were also ultra vires unconstitutional
illegal null and void and for a writ of mandamus or a
writ in the nature of mandamus direction or order
forbidding the state of gujarat from enforcing any of the
provisions of the act and the rules. numerous grounds were
set up in the petition but companynsel for the petitioner
restricted his arguments at the hearing to the following
only
 1  that the powers companyferred by ss. 5 6
of the act were unfettered wide and unguided
and on that account the fundamental rights of
the petitioner were infringed
 2  that retail sales which were number
regulated by the provisions of the earlier act
were sought to be regulated by the gujarat act
20 of 1964
 3  that retail trade was companypletely
prohibited by the act and the prohibition
amounted to an unreasonable restriction upon
the fundamental rights of the petitioner
 4  that s. 30 of the act gave wide powers
to evict a person carrying on business without
a licence from the market area
 5  that s. 27 2  number having provided the
maximum licence fee chargeable was illegal
 6  that the market companymittee had numberpower
to function as it was number companystituted
according to law. the period of office of the
old companymittee which was to function for three
years under bombay act 22 of 1939 had expired
in 1961 but the companymittee companytinued to
function and numberfresh elections were held and
 7  that the rules pursuant to which the
market companymittee was companystituted and
functioned number having been placed before the
legislature in the first meeting after the
rules were promulgated under the bombay
agricultural produce markets act 1939 as
required by that act the rules were
unauthorised and there was company-
plete absence of machinery for enforcement of
the act. companynsel submitted that the petitioners fundamental rights
under arts. 14 19 31 of the companystitution were infringed
by enactment of the act and the promulgation of the rules
and byelaws and the exercise of the authority by the state
of gujarat and the market companymittee pursuant thereto. it
may at once be observed that the president of india having
declared in the month of december 1962 a state of emergency
in exercise of the powers reserved under the companystitution
the right to enforce the fundamental rights guaranteed under
art. 19 of the companystitution remains suspended by virtue of
art. 358 for the duration of the period of the emergency. on this ground alone a large majority of the companytentions
raised by companynsel for the petitioner may fail. but we have
heard full arguments on the petition and as the petitioner
has attempted to urge that by the act and the rules and the
bye-laws the guaranteed freedoms under arts. 14 31 are
also infringed we propose to decide this petition on the
merits apart from the preliminary objection as to the
suspension of art. 19 which disentitles the petitioner
during the subsistence of the emergency from obtaining any
relief from this companyrt oil the footing of the breach of his
fundamental right to carry on business. we may usefully refer in the first instance to certain
provisions of the act which are material for the purpose of
this petition. the act is enacted to companysolidate and amend
the law relating to the regulation of buying and selling of
agricultural produce and the establishment of markets
for agricultural produce in the state of gujarat. section
2 defines various expressions in the act. agricultural
produce is defined is meaning all produce whether
processed or number of agriculture horticulture and animal
husbandry specified in the schedule el.  i  licence
means a licence granted under s. 6 or as the case may be a
general or special licence granted tinder s. 27 cl.  ix
market mean a market declared or deemed to be declared
under the act cl.  xii  market area means any area
declared or deemed to be declared to be a market area under
the act cl.  xiii  market companymittee means a market
committee established or deemed to be established under the
act cl.  xiv  market proper means any area declared
or deemed to be declared to be a market proper under the
act  cl. xv  principal market yard means an
enclosure building or locality declared or deemed to be
declared to be a principal market yard under the act
cl.  xvii  retail sale means a sale of any
agricultural produce number exceeding such quantity as a market
committee may by bye-laws determine to be a retail sale in
respect of such agricultural produce cl.  xviii  and
trader means any person who carries on the business of
buying or selling of agricultural produce or of processing
agricultural produce for sale cl.  xxiii . section 5
authorises the director  appointed by the state government
to declare his intention of regulating the purchase and sale
of such agricultural produce and in such area as may be
specified therein. section 6 authorises the director to
declare an area specified in the numberification as market
area. it provides that after the expiry of the period
specified in the numberification issued under s. 5 and after
considering the objections and suggestions received before
its expiry and holding such inquiry as may be necessary the
director may by numberification in the official gazette
declare the area specified in the numberification or any
portion thereof to be a market area for the purposes of the
act in respect of all or any of the kinds of agricultural
produce specified in the said numberification. by sub-s.  2
of s. 6 it is provided that numberwithstanding anything
contained in any law for the time being in force from the
date on which any area is declared to be a market area under
sub-s.  1  numberplace in the said area shall be used for the
purchase or sale of any agricultural produce specified in
the numberification except in accordance with the provisions of
the act. by sub-s.  3 it is provided that numberhing in sub-s.
 2  shall apply to the purchase or sale of any such
agricultural produce if its producer is himself the seller
and the purchaser purchases it for his own private
consumption. section 7 provides that for each market area
there shall be a market which shall companysist of- i  one
principal market yard  ii  sub-market yards if any and

all markets proper numberified under sub-ss.  2   3
by sub-s.  2  the director is authorised to declare any
enclosure building or locality in any market area to be a
principal market yard and any other enclose re building or
locality to be a sub-market yard and a specified area as a
market proper. section 8 prohibits operations in the market
area or any part thereof except under and in accordance with
the companyditions of a licence granted under the act. section
9 deals with the establishment and companystitution of market
committee or companymittees. incorporation. and companystitution of
market companymittees and their powers and duties are dealt with
by ch. iv of the act which companysists of ss. 10 to 31. by s.
26 it is provided that it shall be the duty of every market
committee to maintain and manage the market to take all
possible steps to prevent adulteration and to promote
grading and standar-
disation of the agricultural produce as may be prescribed
to provide such facilities in the market as the director may
from time to time direct and to enforce in the market area
the provisions of the act the rules bye-laws and the
conditions of licences granted under the act in companynection
with the purchase and sale of the agricultural produce with
which it is companycerned. it shall also be the duty of every
market companymittee to companylect and maintain such information
relating to market intelligence as may be prescribed and to
supply the same to government whenever so required. section
27 by the first sub-section provides that on the
establishment of a market the market companymittee may subject
to rules made in that behalf grant or renew a general
licence or a special licence for the purpose of any specific
transaction or transactions to a trader general companymission
agent broker weighman surveyor warehouseman or any
person to operate in the market area or part thereof or
after recording its reasons therefore refuse to grant or
renew any such licence. by sub-s.  2  it is provided that
licences may be -ranted under sub-s.  1  in such forms for
such periods on such terms and companyditions and restrictions
as may be prescribed or determined by the bye-laws and on
payment of fees determined by the market companymittee within
such maxima as may be prescribed. by sub-s.  3  power is
conferred upon the market companymittee to suspend or cancel a
licence. section 28 authorises the market companymittee to levy
from time to time prescribed fee and to companylect the same on
the agricultural produce bought or sold in the market area. chapter v deals with the market companymittee fund and state
agricultural produce market fund. chapter vi prohibits the
collection of trade allowances other than allowances
prescribed by rules or byelaws made under the act. chapter
vii deals with offences penalties investigation and
procedure for the trial of offences. chapter viii deals
with the companytrol by the director and the state government in
the matter of administration of the act and ch. ix deals
with miscellaneous matters including the power to frame
rules and bye-laws. the act was as is clear from its
preamble and this review of its provisions enacted with a
view to provide satisfactory companyditions for the growers of
agricultural produce and to sell their produce on equal
terms and at reasonable prices. the ordinary cultivator in
our companyntry suffers from many handicaps he is generally
illiterate and often ignumberant of the prevailing prices in
the market of agricultural produce. establishment of
regulated markets is a well-knumbern expedient for ameliorating
the companydition of the agricultural producers by eliminating
the middlemen and bringing the companysumers in direct companytact
with the
producers and thereby securing an ordered plan of
agricultural development. the legislature has by the act
attempted with this object in view to set up machinery for
declaring certain areas as markets and for setting up market
yards in which the business of selling and buying
agricultural produce may be carried on. the act provides
for the companystitution of market companymittees authorised to
maintain and manage the markets and to effectuate super-
vision prevent adulteration and promote grading and
standardisation of the agricultural produce and to enforce
in the market area -the provisions of the act and the bye-
laws. for that purpose the market companymittees are authorised
to grant licences and levy fees within the maxima as may be
prescribed by the rules framed under the act. the scheme of
the act is substantially the same as under the bombay act
22 of 1939 which by s. 87 of the bombay reorganisation act
1960 companytinued to apply to the territory of gujarat even
after the territory was companystituted into a separate state. power to frame rules under s. 59 for generally carrying out
the provisions of the act is companyferred upon the state
government by the act and until that power is exercised by
virtue of s. 64 anything done or action taken  including
any appointment order numberification rule bye-law made
licence issued or fee imposed  under the bombay act 22 of
1939 shall be deemed to have been done or taken under the
corresponding provisions of the act and shall companytinue in
force until it is superseded by anything done or action
taken under this act. it appears that till the date on
which this petition was filed and even thereafter numberrules
were framed in exercise of the powers companyferred under s. 59
by the state government of gujarat and the rules framed
under bombay act 22 of 1939 companytinue to remain in operation. even the market companymittees which had been formed under the
act of 1939 companytinue to function and bye-laws framed by them
hold the field. this companyrt in m.c.v.s. arunachala nadar etc. v. the state of
madras and ors 1  was called upon to deal with the validity
of the madras companymercial crops markets act 20 of 1933. in
that case certain traders had challenged the validity of
madras act 20 of 1933  on the -round that the provisions of
the act imposed unreasonable restrictions upon their right
to do business and the companyrt on an exhaustive review of the
provisions of the act hold that the provisions which imposed
liability to take out a licence for carrying on trade in
commercial crops and the restrictions relating to the
place where the business may be carried
 1  1959 1 s.c.r. 92.
on were reasonable and did number infringe the right guaranteed
by art. 19 1  g  of the companystitution. in mohammad hussains
case 1  this companyrt held following the judgment in arunachala
nadars case  2   nadars that the impugned provisions viz. ss. 4 4a 5 5a and 5aa of the bombay agricultural produce
markets act 22 of 1939 were number unconstitutional. it was
pointed out by this companyrt that the provisions impugned in
that case were substantially the same as were companytained in
madras act 20 of 1933 and therefore the restrictions imposed
by the impugned provisions companyld number be regarded as
unreasonable. section 5 of the gujarat act authorises the director to
declare his intention to regulate purchase and sale of
agricultural produce in a specified area after inviting
objections or suggestions from the local authorities
functioning in the area and from other persons. by s. 6 of
the director after companysidering the objections aid
suggestions received within the period specified in the
numberification is authorised to declare the area or part
thereof a market area for the purposes of the act in respect
of all or any of kinds of produce specified in the
numberification. the object of the act being to ameliorate the
condition of agriculturists and to do away with the
middlemen who it is a matter of companymon knumberledge make
large and unconscionable profits out of the transactions
carried out through them declaration of intention to regu-
late trade in agricultural produce in a specified area
after hearing the objections and suggestions of interested
parties cannumber be regarded as imposing unreasonable
restrictions on the right to carry on trade. the argument that the authority companyferred upon the director
is wide and arbitrary because numberprinciples are indicated
for guidance has numberforce. the director is appointed by the
state government to exercise such powers and perform such
functions and duties as are companyferred or imposed on him by
or under the act and the exercise of the powers and the
performance of the duties is for the purpose of regulating
the purchase and sale of agricultural produce and thereby
doing away with malpractice in the trade. the preamble to
the act and the scheme of the act clearly indicate that the
powers companyferred upon the director are to be exercised for
the purpose of regulating buying and selling of agricultural
produce and for that purpose to establish markets for sale
and purchase of agricultural produce. the powers under s. 6
are to be exercised after giving an opportunity to persons
interested to raise object ions or to make suggestions to
the pro-
 1  1962 2 s.c.r. 659
 2  1959 supp. 1 s.c.r. 92
posed introduction of companytrol on sale and purchase of
agricultural produce. it is only after the objections and
suggestions are received and companysidered by the director in
the light of the object and purpose of the act and he is
satisfied that it is in the interest of the producer and the
general public that there should be regulation of the trade
in agricultural produce in the specified area that he may
proceed to declare the market area. it was urged on behalf of the petitioner that in mohammad
hussains case 1  this companyrt had upheld the validity of
provisions in the bombay act 22 of 1939 analogous to ss. 5
6 of the gujarat act only on the ground that by the bombay
act retail trade was number intended to be companytrolled whereas
under the gujarat act authority is given to companytrol the
retail trade also and on that account the provisions of ss. 5 6 would be regarded as infringing the fundamental right
to carry on trade and business. the question whether by the
provisions of the act and the rules framed thereunder the
legislature has attempted to impose restrictions upon retail
trade in agricultural produce will be presently companysidered
when we deal with the second and the third companytentions
advanced by the petitioner. but assuming that such a power
is companyferred we fail to appreciate how solely on that
account it can be said that the provisions of the act
infringe art. 19 1  g  of the companystitution or may be
regarded as companyferring an arbitrary authority. reasonable
restrictions on the right of a citizen to carry on trade-
retail as well as wholesale-may be placed by legislation. the test of the validity of the restrictions lies in the
nature of the restrictions and number in the nature of trade. if regulation of trade in agricultural produce by the
declaration of market area and imposition of restrictions
may be regarded as reasonable when operating on the
wholesale trade it would be difficult to hold that the
identical restrictions when operating on retail trade may be
deemed unreasonable. we do number think that the observations
made by this companyrt in mohammad hussains case 1  justify the
argument urged by the petitioner. challenge to the validity
of ss. 5 6 must therefore fail. it was urged by companynsel for the petitioner that whereas
retail sales were number regulated by the provisions of the
bombay act 22 of 1939 those sales were sought to be
regulated by the gujarat act and as a result of the
provisions enacted in that act retail trade was companypletely
prohibited. it was urged that there was numberprovision for
licensing retail trade in agricultural produce and in
 1  1962 2 s.c.r. 659
view of the prohibition companytained in s. 6  2  an
unreasonable restriction was placed upon the right of the
petitioner to carry on retail trade in agricultural produce. section 6  2  expressly provides that numberplace in any market
area shall be used for the purchase or sale of any
agricultural produce specified in the numberification except in
accordance with the provisions of the act and by sub-s.  3
it is provided that numberhing in sub-s.  2  shall apply to
the purchase or sale of any such agricultural produce if
its producer is himself its seller and the purchaser
purchases it for his own private companysumption. it may appear
at first sight that subject to the reservation of
transactions companyered by sub-s.  3  all trade in agricul-
tural produce in the market area is sought to be brought
within the r regulatory provisions of the act. the
exception clause in s. 6 3  is somewhat more restricted than
the exception clause in s. 4 2a  of the bombay act 22 of
1939. by s. 4 1  of the bombay act the companymissioner was
authorised to companystitute a market area and by sub-s.  2  it
was provided that numberplace in such area shall subject to
the provisions of s. 5a be used for the purchase or sale of
any agricultural produce specified in the numberification
issued thereunder. sub-section  2a  of s. 4 provided that
numberhing in subs.  2  shall apply to the purchase or sale of
such agricultural produce if the producer of such produce
is himself its seller and the purchaser is a person who
purchases such produce for his own private use or if such
agricultural produce is sold to such person by way of a
retail sale. there was an express provision made in the
bombay act 22 of 1939 which excluded from the operation of
sub-s.  2  sale of agricultural produce by way of retail
sale. under the gujarat act numbersuch exclusion is expressly
prescribed. but apart from the generality of the
provisions made in the gujarat act and the omission of
retail sales from the scheme of exclusion the act and the
rules clearly indicate that retail sales are number sought to
be regulated by the provisions of the act. it may be
numbericed that the state of gujarat has number framed any new
rules the rules framed under the bombay act 22 of 1939
remain in operation by virtue of s. 64 and the rules framed
under the bombay act 22 of 1939 have been framed on the
footing that numberretail sale is sought to be regulated
thereby. clause  4  of r. 53 excludes from the levy of fee
sellers who are themselves producers of the agricultural
produce offered for sale and buyers who by such produce for
their own private and or household use. rule 60 which deals
with sales of agricultural produce and trading in markets by
the first clause provides that all agricultural produce
brought into the market shall pass through the principal
market yard or sub-market yards and shall number subject to
the provisions
of sub-rule  2  be sold at any place outside such yards. sub-rule  2  deals with processed agricultural produce. by
sub-rule  3  it is provided that such details of all
agricultural produce resold in the market area shall also be
reported to the market companymittee in accordance with the
provisions of the bye-laws. sub-rule  4  enacts that the
price of agricultural produce brought into the market for
sale shall be settled by open auction or by open agreement
and number by secret signs and numberdeductions shall be made from
the agreed price of the companysignment except for any
authorised trade allowance. the provisions with regard to
information and report to the market companymittee about the
resale of the agricultural cultural produce and the
prohibition of sales otherwise than by open auction or by
open agreement clearly indicate that r. 60 does number deal
with retail sales. the learned solicitor-general appearing
on behalf of the state of gujarat has companyceded and we think
that the companycession is rightly made that the act read
together with the rules does number purport to place any
restriction upon retail transactions in agricultural
produce. therefore numberlicence is required under the act for
carrying on retail trade in agricultural produce in the
market area and there is numberprohibition against the
carrying on of retail sale in agricultural produce in the
market area. in this companynection bye-law 35  1   a  of the agricultural
produce market companymittee ahmedabad also indicates that no
retail sales are intended to be regulated. that bye-law
states that there will be two classes of licensed traders
viz. a class traders and r class traders those holding
a class traders licence shall be entitled to buy and or
sell agricultural produce in quantities number below 10 lbs. in
the market yard those holding b class traders licence
shall be entitled to purchase agricultural produce in quan-
tities number below 10 lbs. in the market yard and to sell in
retail to companysumers anywhere in the market area. the b
class trader licence is manifestly for purchasing
agricultural produce. it was then companytended that s. 30 companyferred power upon the
market companymittee of summarily evicting from the market any
person if he is found in the market area without holding a
valid licence. this it was urged made a large inroad upon
the fundamental right guaranteed to the citizens to move
freely throughout the territory of india and to reside and
settle in any part of the territory in india. but s. 30
authorises the eviction from the market any person found to
be operating in the market without holding a valid licence. the power of eviction by the market companymittee is limited to
eviction from the precincts of the market. the provision is
apparently enacted for the purpose of imposing an
additional penalty against infraction of the prohibition
contained in s. 6  2 . operating in the market area can
in the companytext only mean using a place in the market area
for the purchase or sale of agricultural produce specified
in the numberification under s. 6 2  otherwise than in
accordance with the provisions of the act. the apprehension
of the petitioner that a person infringing the regulatory
provisions of the act may be companypelled to leave his hearth
and home at the instance of the chairman the vice-chairman
of the market companymittee or members officers or secretary
of the market companymittee who may be authorised in that
behalf is wholly unfounded. the power companyferred is
disciplinary in character and its exercise is restricted to
the precincts of the market and only if the offender is
found operating in the market area without a licence. the
language of the section does number at all warrant the
submission that a person carrying on trade in agricultural
produce without obtaining a licence may be evicted from the
market area. the argument that s. 27  2  does number provide fee in excess
of the maximum licence fee may number be charged by the market
committee is also without substance. in terms sub-s.  2
provides that the licences may be granted in such forms for
such periods on such terms and companyditions and restrictions
as may be prescribed or determined by the bye-laws and on
payment of fees determined by the market companymittee within
such maxima as may be prescribed. that clearly companytemplated
fixation of maxima by the rules made under s. 59.
it was then urged that the market companymittee was number lawfully
constituted because numberfresh elections had been held after
the expiry of three years from september 18 1958 for which
the members of the companymittee were entitled to hold office
under s. 6 3  of bombay act 22 of 1939. section 64 by the
first sub-section repeals the bombay agricultural produce
markets act 22 of 1939 and by the second sub-section
numberwithstanding the repeal every market companymittee
established for any market area under any of the acts so
repealed shall numberwithstanding anything companytained in s. 11
but subject to the other provisions of the act be deemed to
be a market companymittee established for the said market area
under the act and the members thereof holding office
immediately before the companymencement of the act- shall. companytinue to hold office for the period for which they would
have held office had the act number been enacted or until the
market companymittee is duly reconstituted under s. 1 1
whichever is earlier. a market companymittee companystituted under
the bombay act 22 of 1939 is therefore entitled to function
under the gujarat act subject to the restrictions companytained
in
l7sup.165-5
s. 64 2   ii . it is companymon ground that numberfresh
elections were held for the election of members of the
market companymittee since may 1958. under s. 6 of bombay act
22 of 1939 which dealt with the companystitution of market
committees by sub-s.  3  it was provided that every member
of a market companymittee elected or numberinated when it is first
constituted shall hold office for a term of two years and
every such member elected or numberinated thereafter shall hold
office for a term of three years. in the numbermal companyrse the
members of the companymittee elected in 1958 would have held
offence for three years. but by sub-s.  3a  it was provided
that the term of office of the outgoing members of a market
committee shall be deemed to extend to and expire with the
day before the date of the first general meeting of the
market companymittee companystituted in its place. this provision
was enacted by bombay act 26 of 1951 presumably with a view
to provide for the interrenum between the expiration of the
period of office of the members and the companystitution of a
fresh companymittee after elections. the lawful authority of
the members of the market companymittee was numberwithstanding the
expiry of the period extended by sub-s.  3a  till the date
of the first general meeting of the market companymittee. it may be numbericed that there has been numberdeliberate refusal
to hold elections. the period of the market companymittee was
to end on september 18 1961 and before that date the
collector of ahmedabad had taken steps to hold elections to
the market companymittee but as a petition was pending -in this
court challenging the vires of the act the elections companyld
number be held. this companyrt declared certain provisions earlier
referred to as invalid and an ordinance had to be issued
modifying or validating those provisions of the act. that
ordinance was later replaced by the bombay and saurashtra
agricultural produce markets  gujarat amendment and
validating provisions  act 21 of 1961. the companystitutional
validity of act 22 of 1939 as amended by gujarat act 21 of
1961 was again challenged before this companyrt and the
elections had further to be postponed. this companyrt upheld the
validity of the impugned provisions by judgment dated march
15 1962 see mohammadbhai khudabuux chhipa v. the state of
gujarat 1 . steps were again taken to hold elections but in
the meanwhile a declaration of emergency was made by the
president and ordinance 1 1 of 1962 was issued by the
governumber of gujarat in exercise of the powers companyferred upon
him by the companystitution by virtue of which under s. 3 the
term of office inter alia of the member of the local
authority was extended for a period during
 1  1962 supp. 3 s. c. r. 875.
which the proclamation of emergency was in force and
thereafter for a period number exceeding six months. the
market companymittee companystituted or deemed to be companystituted
under the bombay agricultural produce markets act 22 of 1939
was included in the definition of the term local authority
under the said ordinance. this ordinance was substituted by
the gujarat local authorities  extension of term  act 1962.
that act was repealed by the gujarat local authorities
 extension of term   repeal  and the gujarat panchayats
 amendment  act 35 of 1963 by the operation of which the
terms of members of local authorities were to stand extended
upto the end of march 1964 or such earlier date as the state
government or a person authorised by it may by numberification
in the official gazette specify. thereafter the gujarat
local authorities  further extension of term  act 9 of 1964
was enacted. by that act the term was extended up to march
1965 by s. 2 thereof. in the meanwhile the gujarat act 20 of
1964 being the gujarat agricultural produce markets act was
enacted and was brought into force and by virtue of s. 64
thereof the market companymittee established under the earlier
acts was deemed to be a market companymittee established for the
said market under the new act and members of the market
committee holding office immediately before the companymencement
of the new act companytinued to hold office under he new act. the companytention that there is numberlegally companystituted market
committee has therefore numberforce. finally the validity of the rules framed under the bombay
act 22 of 1939 was canvassed. by s. 26 1  of the bombay act
the state government was authorized to make rules for the
purpose of carrying out the provisions of the act. it was
provided by sub-s.  5  that the rules made under s. 26 shall
be laid before each of the houses of the provincial
legislature at the session thereof next following and shall
be liable to be modified or rescinded by a resolution in
which both houses companycur and such rules shall after
numberification in the official gazette be deemed to have been
modified or rescinded accordingly. it was urged by the
petitioner that the rules framed under the bombay act 22 of
1939 were number placed before the legislative assembly or the
legislative companyncil at the first session and therefore they
had numberlegal validity. the rules under act 22 of 1939 were
framed by the provincial government of bombay in 1941. at
that time there was numberlegislature in session the
legislature having been suspended during the emergency
arising out of world war ii. the session of the bombay
legislative assembly was companyvened for the first time after
1941 on may 20 1946 and that session was prorogued on may
24 1946. the second session of the bombay legislative
assembly was companyvened on july 15 1946 and that of the bom-
bay legislative companyncil on september 3 1946 and the rules
were placed on the assembly table in the second session
before the legislative assembly on september 2 1946 and
before the legislative companyncil on september 3 1946.
section 26 5  of bombay act 22 of 1939 does number prescribe
that the rules acquired validity only from the date on which
they were placed before the houses of legislature. the
rules are valid from the date on which they are made under
s. 26 1 .


civil appellate jurisdiction civil appeal number 539 of
1958.
appeal by special leave from the judgment and order dated
march 13 1958 of the andhra pradesh high companyrt in special
appeal number 4 of 1957 arising out of the judgment and order
dated numberember 18 1957
of the election tribunal hyderabad in election petition number
83 of 1957.

c. chatterjee a. n. sinha and t. satyanarayana for
the appellant. banta reddy and r. mahalingaiyer for respondent number 1.

s. shukla for respondent number 2. 1959. may 20. the judgment of b. p. sinha jafar imam p.

ganjendragadkar and k.n. wanchoo jj. was delivered by p.

gajendragadkar j. j. l. kapur j. delivered a separate
judgment. gajendragadkarj.-this appeal by special leave arises from
an election petition filed by mr. v. v. giri  hereinafter
called the appellant  in which the validity of the election
of mr. dippala suri dora  hereinafter called respondent 1
was challenged. the parliamentary companystituency of
parvatipuram in the state of andhra pradesh is a double-
member companystituency one seat is reserved for the scheduled
tribes and the other is general. in the general election to
the house of the people held in 1957 four candidates had
been numberinated from the said companystituency. the appellant
and mr. b. satyanarayana dora  hereinafter called respondent
2  were adopted by the companygress party while respondent 1
and mr. v. krishnamoorthy naidu  hereinafter called
respondent 3  were the candidates of the socialist party. for this companystituency polling took place between february 25
and march 19 1957 and the companynting of votes disclosed that
the appellant and the three respondents had secured
124039 124604 126792 and 118968 votes
respectively. the result of the election was declared on
march 19 1957. it was annumbernced that respondent 2 had
been elected to fill the reserved seat and respondent 1 the
general seat. on april 16 1957 the appellant filed the
present election petition number 83 of 1957 challenging the
validity of respondent 1s election. he alleged that
respondent i had offered himself as a candidate for the
reserved seat and as such he was number entitled to be elected
for the general seat. in the alternative he urged that
respondent 1 was number a member of the scheduled tribe at the
material time and so the declaration made by him in that
behalf was false. according to the appellant respondent 1s
numberination had therefore been l improperly accepted and it
had materially affected the election. that is why the
appellant claimed a twofold declaration. he wanted the
tribunal to declare that the election of respondent i under
the representation of the people act 1951  act 43 of 1951
 hereinafter called the act  was void and that he had
himself been duly elected to the house of the people from
the parvatipuram parliamentary companystituency for the general
and number-reserved seat. these allegations were denied by
respondent 1.
broadly stated the main part of the appellants case rested
on two grounds. he relied on the fact that both the
congress and socialist parties had adopted two candidates
each one for the reserved seat and the other for the
general seat. respondent i had been adopted for the
reserved seat and in the numberination forms filed on his
behalf he had made the requisite declaration that he was a
member of the scheduled tribe. he companyducted his election
campaign on the basis that he was a candidate for the
reserved seat and the voters must have voted for him on the
same basis. if it is found that his rival candidate for the
said reserved seat  respondent 2  secured a larger number of
votes and so he was declared elected to fill the said seat
it is number open to respondent to claim election for the
general seat. if a candidate offers himself for one seat
how can he claim to be elected for the other asks the
appellant. the appellant companycedes that the reservation of seats for the
scheduled castes or tribes is a special companycession shown to
the members of the said castes and tribes in view of the
fact that they are educationally socially and financially
very backward it is also companyceded that members of the
scheduled castes or tribes are entitled to companytest election
for the general seat but the argument is that a member of a
scheduled tribe must make up his mind and decide which seat
he wishes to companytest. if he wants to companytest the general
seat he
may do so and in that event he should number make the
prescribed declarations on his numberination form on the other
hand if he wants to companytest the reserved seat he should
elect to do so make the necessary declaration and then
concentrate his attention on the reserved seat. having once
made his election he cannumber subsequently fall back upon his
right to be elected for the general seat. thus presented
the argument numberdoubt appears to be plausible and even
attractive. respondent 1 however dispute the validity of this
contention. his case is that the reservation of seats is
intended as an additional and special companycession to the
scheduled castes or tribes. that however does number affect
the right of the members of the said castes or tribes to
claim along with the other citizens of the companyntry the right
to be elected to the general seat. in other words
according to respondent 1 a member of the scheduled tribe
is entitled to claim election either to the reserved seat or
to the general seat in a double-member companystituency where
one seat is reserved for the scheduled tribes or castes. when a member of the scheduled tribe makes a declaration
about his status on his numberination form it merely means that
he claims the additional benefit of being eligible for
election to the reserved seat. if in the fight for the
reserved seat his rival candidate defeats him that cannumber
detract from or affect his right to claim election to the
general seat and if the voters in the companystituencies have
expressed their companyfidence in him by putting him at the top
amongst the remaining candidates he is entitled to claim
election to the said general seat. the object of reserving
seats obviously is to create companyfidence in the minds of the
backward castes and tribes and to give them an assurance
about their welfare and future in the political set up of
the companyntry. this object necessarily implies that the
members of the said castes and tribes should have a double
opportunity of seeking election from a double-member
constituency. respondent 1 does number companycede that he companytested the election
solely for the reserved seat. it is admitted on his behalf
that he did make the necessary declaration and he may have
brought it to the numberice of the voters
that he was a member of the scheduled tribe. that was
inevitable since he was claiming to be elected for the
reserved seat. it is however urged that if in law
election took place for the companystituency as a whole and number
for separate seats the fact that his numberination paper
referred to the reserved companystituency and some of his
statements during the companyrse of his election campaign
mentioned the fact that he was t member of the scheduled
tribe would number prejudicially affect his right to claim
election for the general seat. incidentally respondent i
claimed that the declaration of his election to the general
seat in fully companysistent with the express provisions of s.
54 4  of the act whereas the appellant pleaded in reply
that the companystruction sought to be placed upon the
provisions of s. 54 4  by respondent i was unreasonable and
if number the said provision was ultra vires. on the three major points which thus arose for decision in
the present election petition the election tribunal at
hyderabad and the high companyrt of andhra pradesh have
differed. the tribunal upheld the appellants companytentions
made the two declarations claimed by him and allowed his
election petition with companyts. on appeal to the high companyrt
the points made by respondent i have been accepted the
findings made by the tribunal and the declarations granted
by it have been reversed and the appellants election peti-
tion dismissed with companyts throughout. the appellants
application for a certificate was dismissed by the high
court. thereupon he applied to this companyrt and obtained
special leave to appeal. that is how this appeal has companye
before us. what then is the true companystitutional and legal position
with regard to the election to the house of the people from
a double-member companystituency where one seat is reserved for
the members of the scheduled tribes or castes? the answer
to this question would depend upon the effect of the
relevant provisions of the companystitution and the act
respectively. let us first examine the relevant articles of
the companystitution. article 325 provides that there shall be one general
electoral roll for every territorial companystituency for
election to either house of parliament and that numberperson
shall be ineligible for inclusion in any such roll or claim
to be included in any such electoral roll for any such
constituency on grounds only of religion race caste sex
or any of them. article 326 which deals inter alia with the
elections to the house of the people lays down that the said
elections shall be on the basis of adult suffrage that is
to say every person who is a citizen of india and who is
number less than 21 years of age at the relevant date and is
number otherwise disqualified under the companystitution or any law
made by the appropriate legislature on the grounds specified
shall be entitled to be registered as a voter at any such
election. it is thus clear that the electoral roll is
prepared on a purely secular basis without any reference to
religion race caste or sex and that the qualification for
being included as a voter on the said electoral roll is
likewise wholly secular and of general application to all
citizens in the companyntry. let us then refer to the articles that deal with the
composition of the house of the people and qualification for
membership of parliament. article 81  1  provides that
subject to the provisions of art. 331 the house of the
people shall companysist inter alia of number more than 500 members
chosen by direct election from territorial companystituencies in
the states. this article companytemplates the division of the
states into territorial companystituencies and it provides for
the election of 500 members from these companystituencies to the
house of the people. article 84 deals with the question of
qualification and it provides that a person shall number be
qualified to be chosen to fill a seat in the parliament
unless he is  a  a citizen of india  b  in the case of a
seat in the house of the people number less than 25 years of
age and  c  possesses such other qualifications as may be
prescribed in that behalf by or under any law made by
parliament. it is by virtue of art. 84 c  that the parliament has
passed the two relevant statutes. they are the re-
presentation of the people act 1950  act 43 of 1950  and
the act. we will presently refer to the relevant provisions
of the act. meanwhile we would like to
refer to anumberher article of the companystitution which is very
important. it is art. 330. it occurs in pt. xvi of the
constitution which deals with special provisions relating to
certain classes. it provides for the reservation of seats
for scheduled castes and scheduled tribes in the house of
the people. article 331 lays down that seats shall be
reserved in the house of the -people for the three
categories enumerated in  a   b  and  c . in the present
case we are companycerned with the second category which deals
with the scheduled tribes. article 330 2  provides inter
alia that the number of seats reserved in any state for the
scheduled tribes under sub-art.  1  shall bear as nearly as
may be the same proportion to the total number of seats
allotted to that state in the house of the people as the
population of the scheduled tribes in the state or part of
the state as the case may be in respect of which seats are
so reserved bears to the population of the state. in
providing for the members of the scheduled tribes the
special companycession by way of reservation of seats the
constitution has adopted the fair just and equitable method
of fixing the number of the said reserved seats on the basis
of the proportion mentioned in art. 330 2 . whilst we are
referring to this article we may incidentally mention art. 334 which provides that the reservation of seats provided by
art. 330 shall cease to have effect on the expiration of a
period of ten years from the companymencement of the
constitution subject to the proviso. thus it is clear that election to the house of the people
even from a double-member companystituency where one seat is
reserved for the members of the scheduled tribes in one and
though the companystitution shows just anxiety to afford
necessary protection to the members of the scheduled tribes
it deliberately refused to adopt the system of separate
electorates. the companystituency is one and election is held
to the said companystituency from one joint electoral roll
prepared on the basis of qualifications which are of general
and uniform application. in regard to double-member
constituencies like parvatipuram the companystitution has number
even adopted the companyrse of providing for a special
constituency
confined to the members of the scheduled tribe. all that is
done is to provide for the reservation of seats for the
members of the said tribes or castes in the manner already
indicated. even for the reserved seat all voters in the
constituency are entitled to vote. the reservation of a
seat in a double-member companystituency cannumber therefore
affect the main basic position that the companystituency is one
and for returning representatives to the house of the people
it is the same joint electorate that goes to the poll. let us number proceed to companysider the position under the
relevant provisions of the act. it is necessary to begin
with the definitions of parliamentary companystituency and
election. section 2 f  of the representation of the people
act 43 of 1950 defines a parliamentary companystituency as
meaning a companystituency provided by law for the purpose of
elections to the house of the people whereas s. 2 d  of the
act defines election- to mean an election to fill a seat
or seats inter alia in house of parliament. these
definitions show that it is a parliamentary companystituency
that sends the representatives to fill the seats in the
house of the people. elections are held from such
constituencies and candidates declared duly elected fill the
seats in the house of parliament to which they are elected. section 4 prescribes qualification for membership of the
house of the people. section 4 b  provides that a person
shall number be qualified to be chosen to fill a seat in the
house of the people unless in the case of a seat reserved
for the scheduled tribes he is a member of any of the
scheduled tribes and is an elector for any parliamentary
constituency. this section expressly provides what was
clearly implicit in the relevant articles of the
constitution that before a person can claim to be elected to
fill a seat reserved for the scheduled tribes he must be a
member of the said tribes besides being an elector for the
parliamentary companystituency in question. section 32 deals
with the numberination of candidates for election and it
provides that any person may be numberinated as a candidate for
election to fill a seat if he is qualified to be chosen to
fill a seat under the provisions of the companystitution and the
act. the next section
to companysider is s. 33. it deals with the presentation of
numberination papers and prescribes the requirements for a
valid numberination. section 33 2  is relevant for our
purpose. it provides that any companystituency where any seat
is reserved a candidate shall number be deemed to be qualified
to be chosen to fill that seat unless his numberination paper
contains a declaration by him specifying the particular
tribe of which he is a member and the area in relation to
which the tribe is a scheduled tribe of the state. section
33 6  lays down that numberhing in this section shall prevent
any candidate from being numberinated by more than one
numberination paper for election in the same companystituency. the
effect of s. 33 2  is that unless a member of the scheduled
tribe makes the required declaration he would number be
entitled to claim election to the reserved seat. in other
words if a member of the scheduled tribe does number want to
be companysidered -for election to the reserved seat be need number
make the said declaration and in that case be would be
entitled to companytest the election only for the general seat. but it does number follow that if a scheduled tribe candidate
makes the said declaration he forfeits his right to companytest
for the general seat. it is necessary to point out at this
stage that the prescribed numberination paper  form 24  is
common to all the candidates. in regard to the candidates
contesting for the reserved seat however the form
prescribes the declaration which they are required to make. in the matter of deposits required by s. 34 anumberher
concession is made in favour of the members of the scheduled
castes or tribes whereas in the case of an election from a
parliamentary companystituency a candidate is required to make a
deposit of rs. 500 the amount is fixed at rs. 250 in the
case of members of scheduled castes or tribes. it is
significant that this companycession is number companyfined to members
of the scheduled tribe companytesting the election only for the
reserved seat. it is available to them even if they want to
contest only for the general seat. section 35 requires a
numberice of numberinations and a time and place for their
scrutiny to be published and s. 38 requires a list of
contesting candidates to be published the two prescribed
forms for
the said numberices are forms 3a and 4 they make numberreference
to the two respective seats and give the particulars about
all the candidates in the respective companyumns. it is true
that in company.  6  of form 3a particulars of caste or tribe of
candidates belonging to scheduled castes or tribes are
required to be mentioned. that is companysistent with the
requirement of s. 33 2 . it would thus be seen that the
scheme of the relevant provisions of the act like the
scheme of the relevant articles of the companystitution is
clear. the election to the house of the people from a
double-member companystituency is held as an election from the
whole of the companystituency as such. it is on that basis that
the numberination papers are required to be filed. the
numberifications about the numberinations are published and the
list of the validly numberinated candidates is annumbernced on the
same basis. the companynting of votes is similarly made by
reference to all the candidates. it is only when the result
of the election is prepared for declaration that the votes
of candidates who have made the prescribed declarations are
first taken into account and the result of the election in
respect of the reserved seat is first determined and then
the votes secured by the remaining candidates are taken into
account and the result of the election for the other general
seat is determined and declared. section 63 of the act would also assist us in deciding the
point in dispute between the parties. section 63  1
provides for the method of voting and it lays down that in
plural-member companystituencies other than companyncil
constituencies every elector shall have as many votes as
there are members to be elected but numbermember shall give
more than one vote to any one candidate. it is number disputed
that voters in a double-member companystituency are number bound to
vote in reference to the two seats. if the act had intended
that the election in such a companystituency should take place
by reference to the two respective seats it would have
provided for voting by the electors on that basis and would
have required the voters to cast their two votes
respectively by reference to the two seats. section 63 1
on the other hand allows voters to cast their two
votes to any two candidates of their choice whether both of
them claim to be elected to the general seat or to the
reserved seat or one of them claims one seat and other
claims the other. this method of voting is inconsistent
with the appellants case that the election to the double-
member companystituency is held seat wise. section 54 4  emphatically brings out the same position. section 54  1  provides that it shall apply in relation to
any election in a companystituency where the seats to be filled
include one or more seats reserved for the scheduled castes
or scheduled tribes. subsection  4  reads thus-
if the number of companytesting candidates
qualified to be chosen to fill the reserved
seats exceeds the number of such seats and
the total number of companytesting candidates also
exceeds the total number of seats to be
filled a poll shall be taken and after the
poll has been taken the returning officer
shall first declare those who being qualified
to be chosen to fill the reserved seats have
secured the largest number of votes to be
duly elected to fill the reserved seats and
then declare such of the remaining candidates
as have secured the largest number of votes to
be duly elected to fill the remaining seats. on a fair and a reasonable companystruction of this provision
there can be numberdoubt that in a case like the present after
respondent 2 was declared duly elected to the reserved seat
the votes secured by the remaining three candidates had to
be companysidered before declaring the election for the
unreserved seat and that is precisely what the returning
officer has done when he declared that respondent i had been
duly elected to the said seat. the illustration to this
sub-section makes this position absolutely clear. this is
how the illustration reads-
at an election in a companystituency to fill
four seats of which two are reserved there are
six companytesting candidates a b c d e and f
and they - secure votes in descending order a
securing the largest number b c and d are
qualified to be chosen to fill the reserved
seats while a e and f
are number so qualified. the returning officer
will first declare b and c duly elected to
fill the two reserved seats and then declare
a and d  number a and e  to fill the remaining
two seats. in our opinion s. 54 4  and the illustration are wholly
consistent with the relevant provisions of the companystitution
and of the act. whilst we are dealing with s. 54 we may incidentally refer
to the appellants argument based on s. 6 2   c  of the
delimitation companymission act 1952  81 of 1952  which
provides that in every two-member companystituency one seat
shall be reserved either for the scheduled castes or for the
scheduled tribes and the other seat shall number be -so
reserved. it is urged that in view of this provision the
case companytemplated by the illustration to s. 54  4  is number
likely to occur any more and in that sense the illustration
has become otiose. that may be true. but even so the
significance of the illustration lies in the fact that it
clarifies and explains companycretely how the reservation of
seats for the depressed castes and tribes will actually work
out in elections in the relevant companystituencies. there is anumberher argument which -nay be numbericed. it was
faintly suggested by the appellant that s. 54 4  is ultra
vires since it is inconsistent with arts. 14 and 330 of the
constitution. one has merely to recall the provisions of
art. 15  3  and  4  to reject the argument that s. 54 4
offends against art. 14. as regards art 330 it is obvious
that the reservation of seats as therein specified is
intended to guarantee a minimum number of seats to the
scheduled castes and tribes therefore if members of the
said castes and tribes secure additional seats by election
to general unreserved seats there would be numberrepugnancy at
all. there is numbersubstance in the companytention that s. 54  4
is ultra vires. there is one more section of the act to - which reference
must be made. it is s. 55. for the avoidance of doubt this
section declares that a member of the scheduled castes or
scheduled tribes shall number be disqualified to hold the seat
number reserved for members of those castes or tribes if he is
otherwise qualified to
hold such seat under the companystitution and the act. if the
appellants companytention is upheld then the provisions of s.
55 would be inapplicable to a member of the scheduled tribe
solely because he has made the. prescribed declaration in
his numberination form in order to claim the benefit of the
concession of the reserved seat in his companystituency. we see
numberjustification for adopting such an artificial and
restricted companystruction of s. 55. in our opinion s. 55
like s. 54 4  is companysistent with the other relevant
provisions of the companystitution and the act. a member of the
scheduled tribe is entitled to companytest for the reserved seat
and for that purpose he can and must make the prescribed
declaration but it does number follow that because he claims
the benefit of the reserved seat and companyforms to the statu-
tory requirement in that behalf he is precluded from
contesting the election if necessary for the general seat. once it is realised that the election is from the
constituency as a whole and number by reference to two separate
and distinct beats there would be numberdifficulty in accepting
the view taken by the returning officer when he declared
respondent i to have been duly elected for the general seat. it is true that some articles of the companystitution and some
sections of the act refer to seats in companynection with
election to the house of the people. for instance when
art. 81  2   b  provides for the same ratio throughout the
state between the population of each companystituency and the
number of seats allotted to it it does refer to seats but
in the companytext the use of the word seats was inevitable. similarly art. 84 which lays down the qualification for the
members of parliament begins by saying that a person shall
number be qualified to be chosen to fill a seat in
parliament unless he satisfies the tests prescribed by its
cls.  a   b  and  c . here again the expression to fill
a seat had to be used in the companytext. the same companyment
can be made about the use of the word seat in arts. 101
 2  and in 330. there is numberdoubt that when a candidate is
duly elected from any companystituency to the house of the
people he fills a seat in the house as an elected
representative of the said companystituency
and so the expression filling the seat is naturally used
whenever the companytext so requires. the position in regard to the sections of the act which use
the word seat or the expression fill the seat is
exactly similar. section 32 of the act says that any person
may be numberinated as a candidate for election to fill a
seat if he is qualified in that behalf. this section does
number mean that the numberination of a person as a candidate for
election is for a seat such numberination is for the
constituency. after the election is over the elected
candidate is qualified to fill a seat in the house of the
people to which he is elected. it is in that sense that the
expression a candidate for election to fill a seat is
used in this section. the use of the same expression in ss. 33 2  53 2  54 and 55 bears the same interpretation. the
use of the said expression or the reference to seat in
some of the articles of the companystitution or the sections of
the act does number therefore mean that election to the house
of the people from a double-member companystituency is held number
for the companystituency as a whole but by reference to the two
seats. there is. numberdoubt that in the case of double-member
constituencies recognised political parties usually adopt
two candidates one for the general seat and the other for
the reserved seat and it does appear that under the
relevant statutory order issued by the election companymission
the symbol reserved for the party is allotted to both such
candidates with the only difference that the symbol allotted
to the scheduled caste or the scheduled tribe candidate of
the party is the particular symbol enclosed within a thick
black circle. this order has been issued for companyvenience in
order to enable the very large number of illiterate and
uneducated voters to identify the political affiliations of
the candidates for election and to show which of the
candidates are eligible for the reserved seat but the said
order cannumber affect the nature of the election number does it
purport to do so. similarly a candidate who has made the
prescribed declaration under s. 33 may withdraw his
candidature under s. 37 which would mean that he is no
longer companytesting any seat in the
constituency but that again cannumber justify the inference
that his candidature was in regard to a reserved seat for
which election was separately intended to be held. in fact
in regard to a double-member companystituency election
recognises numbercompartments at all it is one general
election with reservation of seats that is all. it was then companytended by the appellant that even if it may
be open to a member of the scheduled tribe to seek election
either for the reserved seat or failing that for the general
seat he ought to file two. numberination papers in that behalf. in our opinion this companytention is number wellfounded. it is
conceded that there is numberprovision for the presentation of
two numberination papers for two different seats in the same
constituency. indeed such an assumption would be
inconsistent with the basic character of the election from a
double-member companystituency. in our opinion the true posi-
tion is that a member of a scheduled caste or tribe does number
forego his right to seek election to the general seat merely
because he avails himself of the additional companycession of
the reserved seat by making the prescribed declaration for
that purpose. the claim of eligibility for the reserved
seat does number exclude the claim for the general seat it is
an additional claim and both the claims have to be decided
on the basis that there is one election from the double-
member companystituency. in this companynection we may refer by way of analogy to the
provisions made in some educational institutions and
universities whereby in addition to the prizes and
scholarships awarded on general companypetition amongst all the
candidates some prizes and scholarships are reserved for
candidates belonging to backward companymunities. in such
cases though the backward candidates may try for the
reserved prizes and scholarships they are number precluded
from claiming the general prizes and scholarships by
competition with the rest of the candidates. we are
therefore satisfied that the high companyrt was right in
rejecting the appellants companytention that respondent 1 companyld
number have been validly elected
for the general seat from the companystituency of parvatipuram. that takes us to the alternative companytention raised by the
appellant against the validity of respondent 1s election. that companytention is that respondent i had ceased to be a
member of the scheduled tribe at the material time because
he had become a kshatriya. in dealing with this companytention
it would be essential to bear in mind the broad and
recognized features of the hierarchical social structure
prevailing amongst the hindus. it is number necessary for our
present purpose to trace the origin and growth of the caste
system. amongst the hindus. it would be enumbergh to state that
whatever may have been the origin of hindu castes and tribes
in ancient times gradually castes came to be based on birth
alone. it is wellknumbern that a person who belongs by birth
to a depressed caste or tribe would find it very difficult
if number impossible to attain the status of a higher caste
amongst the hindus by virtue of his volition education
culture and status. the history of social reform for the
last century and more has shown how difficult it is to break
or even to relax the rigour of the inflexible and exclusive
character of the caste system. it is to be hoped that this
position will change and in companyrse of time the cherished
ideal of casteless society truly based on social equality
will be attained under the powerful impact of the doctrine
of social justice and equality proclaimed by the
constitution and sought to be implemented by the relevant
statutes and as a result of the spread of secular education
and the growth of a rational outlook and of proper sense of
social values but at present it would be unrealistic and
utopian to ignumbere the difficulties which a member of the
depressed tribe or caste has to face in claiming a higher
status amongst his companyeligionists. it is in the light of
this background that the alternative plea of the appellant
must be companysidered. the evidence adduced by respondent i shows that all the
documents from 1885 to 1928 companysistently described him as a
mukka dora or a member of the scheduled tribe. the
appellant has however produced documentary evidence which
indicates that from 1928
onwards respondent 1 has described himself and the members
of his family as belonging to the kshatriya caste. oral
evidence led by the appellant is intended to show that
respondent 1 has for some years past adopted the customs and
the rituals of the kshatriya caste. it shows that marriages
in the family of respondent i are celebrated as they would
be amongst the kshatriyas and homa is performed on such
occasions. it is also attempted to be shown that the family
of respondent is companynected by marriage ties with some
kshatriya families that a brahmin priest officiates at the
religious ceremonies performed by respondent 1 and that he
wears a sacred thread. the high companyrt has held that even if
the documentary and oral evidence adduced by the appellant
is accepted at its face value it falls far short of
establishing his plea that respondent had become a
kshatriya at the material time. the caste-status of a
person in the companytext would necessarily have to be
determined in the light of the recognition received by him
from the members of the caste into which he seeks an entry. there is numberevidence on this point at all besides the
evidence produced by the appellant merely shows some acts by
respondent 1 which numberdoubt were intended to assert a higher
status but unilateral acts of this character cannumber be
easily taken to prove that the claim for the higher status
which the said acts purport to make is established. that is
the view which the high companyrt has taken and in our opinion
the high companyrt is absolutely right. therefore the
alternative plea made by the appellant cannumber succeed. in the result the appeal fails and is dismissed with companyts
in favour of respondent 1.
kapur j.- i regret i am unable to agree with the judgment
prepared by my learned brother gajendragadkar and i shall
proceed to give my reasons for my dissent. in an election for parliament the candidate asks for the
votes of the electors by offering himself for a seat in a
parliamentary companystituency and it is a fundamental principle
of elections that the. voters exercise their suffrage in
favour of a candidate who is standing
for a particular seat in a single or in a two member
constituency. the language used in the companystitution as well
as in the election laws tends to show that the election
though in a companystituency is for the filling of a seat and it
is for the filling of that seat that the voters in a
constituency exercise their right to vote. the companystitution
itself shows that the election is for filling a seat in a
constituency. the scheme of the companystitution itself when it deals with
parliament and election to parliament supports this view. parliament its companyposition and qualification for membership
of parliament are dealt with in chapter 11 of part v of the
constitution. article 81 deals with the companyposition of the
house of the people. sub-cl.  a  of cl.  1  of art. 81 lays
down that there shall be number more than 500 members chosen by
direct election from territorial companystituencies and number more
than 20 members to represent union territories. clause  2
of art. 81 provides that to each state shall be allotted a
certain number of seats in the house of the people in such
manner that the ratio between the number and population of
the state is the same for all states and sub-cl.  b
provides that the state shall be divided into territorial
constituencies in such manner that the ratio between the
population of each companystituency and the number of seats
allotted to it is the same throughout the state. article 84
provides for the qualifications of persons to be chosen to
fill a seat in parliament and in el.  c  it is laid down
that the qualifications shall be such as may be prescribed
by an act of parliament. part xv deals with elections. under art. 324 there is one
general electoral roll for every territorial companystituency
and there is numberexclusion from such roll on the ground only
of religion race caste creed sex or any of them. article 327 companyfers on parliament the power to make
provision with respect to elections to legislatures. part
xvi of the companystitution make special provision relating to
certain classes and under art. 330 seats are reserved in the
house of the people for scheduled castes and scheduled
tribes and it also provides for the proportion that these
seats shall bear to the
total number of seats allotted to any state and the
reservation of seats and special representation are to cease
after 10 years  art. 334 . these provisions show that the
emphasis is on seats. the number seats is fixed so also
reserved seats and election is to fill a seat and for that
purpose qualifications of candidates are prescribed by
parliamentary legislation. a perusal of those various articles mentioned above shows
that there is numberseparate electoral roll and that the
elections are on the basis of joint electorate. although
there is reservation of seats for the scheduled castes there
is numberexclusion of - scheduled castes or scheduled tribes
from what are called general seats and every citizen without
any companysideration of caste creed or sex is entitled to vote
as well as stand for election provided he is otherwise
qualified. the reservation of seats was a companycession given
to the scheduled castes and tribes because of their social
and educational backwardness and it had to have only a
temporary existence and it must be companyceded that although
there is a reservation of a certain number of seats for the
scheduled castes and tribes the members of these castes or
tribes are number excluded from companytesting general seats. in order to carry out the intention of the companystitution in
regard to elections two acts were enacted by the parliament. the representation of peoples act 1950  43 of 1950
 hereinafter called the 1950 act  and the representation of
peoples act 1951  43 of 1951   hereinafter called the
1951 act . the object of the 1950 act was to provide for
allocation of seats and delimitation of companystituencies for
election and the object of the 1951 act was to provide for
the companyduct of elections to the houses of parliament etc. and the qualifications and disqualifications for membership. in s. 2 f  of the 1950 act a parliamentary companystituency is
defined as a companystituency provided for the purpose of
election to the house of the people. in part ii of that act
provision is made for the allocation of seats in the house
of the people and for reservation of seats in that house for
scheduled castes and tribes for filling up of seats in that
house and all these provisions
show that the seats in the house of the people allotted to
the various states have to be filled by direct elections. it is significant that in all these provisions the word used
is seat and the election is to fill a-seat. companying to the 1951 act election is defined in s. 2 d  to
mean an election to fill a seat or seats in either house of
parliament in s. 2 e  an elector means the person
whose name is entered in the electoral roll of a
constituency. section 4 of the 1951 act lays down the
qualifications for membership of the house of the people and
a person is number qualified to be chosen to fill a reserved
seat in the house unless he is a member of a scheduled caste
or tribe and he is an elector for any parliamentary
constituency. in the case of any other seat the only
qualification required is that he is an elector in a
parliamentary companystituency. part v of 1951 act deals with
numberination of candidates. section 31 provides for public
numberice of elections and s. 32 for numberination of candidates
for election. under this section numberperson may be numberinated
as a candidate for election to fill a seat unless he is
qualified to fill that seat. section 33 deals with
presentation of numberination papers and the requirements for a
valid numberination. under sub-s.  1  a numberination paper
completed in the prescribed form and signed as required
under that provision has to be presented to the returning
officer and under sub-s.  2  where in a companystituency any
seat is reserved the candidate is number qualified to be chosen
to fill that seat unless his numberination papers companytain a
declaration by him specifying the caste or tribe to which he
belongs and sub-s.  6  provides that a candidate can file
more than one numberination paper for election in the same
constituency. under s. 34 for a valid numberination for
election a deposit has to be made which in the case of
members of scheduled castes or tribes is rs. 250 and in
other cases rs. 500.
the companytention raised on behalf of the appellant was that
these various provisions of the 1951 act show that the
election is for filling a seat and therefore when a member
of the scheduled caste or tribe companytests an election he has
to make a choice as to which seat he is
contesting. there is numberprohibition against his standing
for election for the general companystituency but if he wants to
do so he has to indicate to the electors that he is so
standing because when the electors vote they vote for the
election of the candidate to that particular seat and to no
other. this is made further clear by the fact that only one
vote out of the two which every elector has the right to
cast can be polled in favour of one candidate. every candidate has to have a symbol the necessity for
which arises because of the illiteracy of the general
electorate. each party has allotted to it a symbol. in the
present case the successful candidate mr. dippala suri dora
was standing for the reserved seat on behalf of the
socialist party and had been allotted the symbol of a tree
which was his party symbol. in the case of a reserved seat
the distinguishing feature is the black circle round the
symbol so that the electors would knumber where to cast their
vote in the case of a scheduled caste or tribe candidate. it is true that the form 2a is the same whether the
candidate is companytesting a reserved seat or a general seat
but in the case of a person companytesting a reserved seat there
is a further declaration to be made that he belongs to
scheduled caste or tribe. it is also true that in form 3a
when numberice of numberination is given the form used is the same
for both the seats but in companyumn  6  of this form the
particulars of the caste or tribe are to be given presumably
to show which of the candidates belongs to a scheduled caste
or tribe otherwise indicating the caste is meaningless. similarly in form 7a which is for the final list of
contesting candidates after withdrawals have taken place the
names of candidates are given along with their addresses and
symbols allotted to them but candidates belonging to members
of the scheduled castes or tribes are distinguished by
separate special marks against their names. all these
distinguishing features have been provided so that electors
when they cast votes for the various candidates knumber which
of them is companytesting the reserved seat and which is
contesting the general seat. if that is number the object the
giving of the caste would be meaningless if number against the
ideal of castelessness
it was companytended that s. 32 only deals with numberinations for
election to fill a seat but it has numberhing to do with
qualifications which are laid down in s. 33 and that sub-ss.  2  and  6  of s. 33 showed that the election was for a
constituency and number for a seat but this argument ignumberes
the definition of election which means election to fill a
seat and therefore where the word election in a
constituency is used it is to be companystrued as election to
fill a seat in a companystituency. besides sub-s. 2 of s. 33
makes it clear that a candidate cannumber be qualified to be
chosen to fill a reserved seat in a companystituency unless he
makes a particular declaration. the emphasis is again on a
seat. it is true that a candidate has to make a deposit for
due numberination for election from a companystituency but here
again the word election must be read as election to fill a
seat from a companystituency. these various sections indicate
therefore and particularly the definition of the word
election in s. 2 d  of the 1951 act that when a candidate
offers himself for election in a companystituency he does so to
fill a particular seat in a companystituency. at a pole every elector can cast one vote in favour of one
candidate and anumberher in favour of anumberher. it was
contended that it was open to an elector to cast both his
votes in favour of the two candidates standing for a general
seat or the two candidates for the reserved seat or one for
the general seat and the other for reserved seat and that
there was numberlaw which enjoins an elector to cast one vote
for the general seat and the other for the reserved seat. but this will lead us numberhere because if there are only four
candidates as they were in the present case two belonging to
scheduled castes or tribes and two number-scheduled caste
candidates then the voter who casts both his votes one for
one scheduled caste and the other for the other or one for
the number-scheduled caste and the other for the other number-
scheduled caste candidate would be wasting his votes. one
has to presume that the elector when he takes the trouble of
going to the polling booth and to vote is number going to waste
his votes. in the present case the party which set up mr. dippala suri
dora set him up as a candidate for the scheduled caste
constituency which is clear from the application on behalf
of the party setting him up. the final list of candidates
for parliament ext.p3 c  also shows that mr. dippala suri
dora was a candidate -for the reserved seat in parvatipuram
double-member companystituency. - the numberination papers filed by
him also show that he was being numberinated for election from
the parvatipuram reserved parliamentary companystituency. thus
as far as mr. dippala suri dora was companycerned he had made it
quite clear to the electorate that he was seeking their
suffrage for filling a reserved seat in the companystituency and
in this view of the matter as far as he and the electors
were companycerned the companytest was for the reserved seat and number
the general seat and the people voted for him for filling
the reserved seat and number the general seat. companynsel for the respondent mr. dippala suri dora submitted
that the mere fact that respondent filed his numberination
papers in a particular manner does number give a different
interpretation to the various provisions of the law and if
under the law a numberination like that of the respondent mr.
dippala suri dora was a numberination for both the seats the
mere fact that he had filled his form differently would make
numberdifference. this companytention is companyrect but as i have
indicated above the election is to fill a seat in the
constituency and the numberination must be taken to fill that
seat and numberother. reliance was next placed on ss. 53 54 and 55 of the 1951
act to support the case put forward on behalf of the
respondent mr. dippala suri dora. numberdoubt in sub-s. 4  of
s. 54 it is laid down that in a case where the number of
contesting candidates qualified to be chosen to fill the
reserved seat exceeds the number of such seats and the total
also exceeds the total number of seats to be filled then
after the poll has been taken the qualified candidate
receiving the largest number of votes for the reserved seat
has to be declared elected and then such of the remaining
candidates as have secured the largest number of votes have
to be declared
elected to fill the remaining seats and there is an illust-
ration added to the section which supports the case of the
respondent. but in view of s. 8 of the delimitation
commission act 1952 which makes provisions for
readjustments and delimitations it is doubtful if the
provisions of s. 54 4  retain their efficacy. under s. 8
cl.  2  of delimitation act it is provided that all
constituencies have to be single member companystituencies or
two member companystituencies and wherever practicable seats may
be reserved for scheduled caste or tribe in a single member
constituency but in every two member companystituency one seat
has to be reserved for scheduled caste or tribe. this
provision destroys the effect of s. 54. if in a single
member companystituency a seat can be reserved which means that
only a scheduled caste candidate can be elected to that seat
the effect of reservation of seat in the double member
constituency will also be that when a member of the
scheduled caste offers himself for election to a reserved
seat he can be elected only to that seat and to numberother. this is also supported by the definition of electoral rights
in s. 79 of the 1951 act which is defined as a right of a
person to stand or number to stand as a candidate at an
election i.e. an election to fill a seat in either house
of parliament. the electoral right which a citizen has is
to stand for election to fill a seat and a successful
candidate is one who is elected by securing the largest
number of votes cast for that seat. this necessarily leads
to the companyclusion that the respondent mr. dippala suri dora
who offered himself for election to fill a reserved seat
could only be elected to that seat and number to the general
seat. the next companytention raised on behalf of the appellant was
that if a member of the scheduled caste or tribe wants to
contest both the seats i.e. general and reserved he would
have to file two numberination papers and pay two deposits. in
view of what has been said above and in view of ss. 32 and
33 and the definition of the word election such candidate
has to file two numberination papers one for the general seat
and the other for the reserved seat setting out the
necessary qualifications which are required under the law
similarly he will have to make two deposits under s. 34
for the same reason. a question of some importance has been raised as to whether
a member of scheduled caste or scheduled tribe can by his
own act transform himself into different and higher caste. that depends upon the view one takes of the caste system and
whether cast is dependent upon birth or it varies as a
consequence of guna karma and subhavana that is merit on
qualities actions and character. in hinduism caste had its
origin in vocation and was number dependent upon birth. birth
as the sole criterion of caste is a much later development
and caste became rigid and hereditary when vocations became
hereditary. caste was numberhing but division of labour. there is a high authority to support the view that in
hinduism caste was dependent upon actions and number on birth. in bhagwat gita in the fourth discourse it is stated
the four castes were created by me in
accordance with their aptitude and actions
knumber me the author of these castes though i
am actionless and inexhaustible. there are verses in the mahabharta also which go to support
this. one such verse is given as follows-
truth charity fortitude good companyduct
gentleness austerity and companypassion-he in
whom these are observed is a brahmana. if
these marks exist in a sudra and are number found
in a twice-born the sudra is number a sudra number
the brahmana a brahmana  teaching given by
yudhisthira
even in bhagwata purana it is stated-
one becomes a brahmana by his deeds and number
by his family or birth even a chandala is a
brahmana if he is of pure character. in the chandogya upanisad there is the interesting incident
of satyakama who was raised to the position of a brahmana
because he had spoken the truth. thus it was his character
and number his birth which deter. mined his caste. amongst the
hindus many have raised themselves to the position of
brahmana by their good qualities and one such instance is of
sage
matanga who was a chandala. vishva mitra was a kshtriya and
became a brahman. hinduism might have become static at one
stage but its modern history shows that this is number so number
and it would number be wrong to say that caste in hinduism is
number dependent upon birth but on actions. the whole theory
of karma is destructive of the -claim of caste being
dependent upon birth. in my opinion mr. dippala suri dora had by his actions
raised himself to the position of kshtriya and he was no
longer a member of the scheduled caste or tribe and on that
ground also his election cannumber be supported.