<NAME>, J.

1. This is an appeal under Section 116A of the Representation of People Act, 1951, (hereinafter called the Act) against the judgment of <ORG>, Nowgong. The appellant <NAME> (hereinafter called the appellant), a voter of Silchar West Constituency stood as a candidate for the election for <ORG> from Lumding constituency as the nominee of <ORG>. The respondent No. 1--Ram <NAME> (hereinafter called the respondent) was a candidate nominated by <ORG> to contest for the aforesaid constituency.

The respondent is also the Chairman of <ORG> and the other respondents were also the candidates for the said constituency. <NAME> contested as an independent candidate and the other respondents represented various other parties. Lumding constituency is also included as a part in the Loksabha constituency of the district of Nowgong and Sri <NAME> was the congress candidate for the Loksabha seat. In the Lumding constituency the total number of votes polled was 21,738.

The appellant polled 4063 votes and the respondent polled 11,259 votes. <NAME> got 2,089 votes. It is not necessary to. give the number of votes received by the other respondents. The polling took place on the 6th of March, 1957 and the counting was done on the 7th March. The respondent was declared duly elected on the same day. The appellant challenged the election of the respondent by means of a petition, inter alia, on the grounds that the respondent committed corrupt practice through his party men.

Allegations of bribery, undue influence and procuring and obtaining assistance of government servants and using government property for the furtherance of the respondent's election and also for submitting false return by suppressing expenses incurred by him have also been made. The <ORG> held against the appellant on all the points and in the present appeal the points taken by the appellant before the <ORG> have been reiterated.

The first ground on which the validity of the election has been challenged is set out in para 8(1) of the petition and it is as follows :--

"The respondent No. 1--Ram <NAME> and his agents carried on a virulent campaign throughout the length and breadth of the constituency in the line that any voter belonging to the minority communities of Muslims and Hindu Refugees of Pakistan not casting his or her vote in favour of the respondent No. 1, would be driven out of <ORG> to Pakistan. On the 18th of February, 1957 <NAME> the President of <ORG> held two election meetings at Lanka and Odalani in support of the respondent No. 1. In these meetings the said <NAME> in course of his speeches warned the voters of the minority communities that if they voted against the <ORG> party candidate in the election, they would be driven out of Assam and <ORG> and sent to Pakistan. The respondent being a very influential man engaged the Gaoburas, Mouzadars of different Mouzas and other <ORG> officers and began to interfere with the free exercise of the electoral right of the voters belonging to the minority communities".

In this paragraph, it is further set out that on the 25th February, 1957 some persons belonging to the minority community including 12 village headmen and the election agents of the respondent widely circulated a leaflet throughout the Lumding constituency under their signatures, in which it was given out that a meeting had been held on the 23rd of February, 1957 at village Islamnagar of the Influential Muslims and in that meeting it had been declared that not voting for the congress would mean high treason against the <ORG>.

The main ground, therefore, set out in the aforesaid paragraph is one of corrupt practice by exercising undue influence on the voters. There are three material facts on which the corrupt practice of undue influence has been pleaded. Firstly, it is said that the respondent held two meetings--one at Lanka and the other at Odalani in which threat was given to the minority communities.

Secondly it is said that the publication of the leaflet containing the resolution passed in the ear lier meeting of the representatives of the minority communities constitutes corrupt practice, and third ly that undue influence was exercised by the Gaonburas and Mouzadars of different villages. The allegations in this paragraph have been denied by the respondent, in his written statement in the fol lowing terms :--

"It is true that Sri <NAME> held election meetings at Lanka and Odalani mouzas in support of this respondent but it is absolutely false to say that he (<NAME>) in course of his speeches in any of the meetings warned the voters of the minority communities that if they voted against the <ORG> party candidate they would be driven out of Assam and Union of India and sent to Pakistan."

2. The questions which therefore arise in connection with this point are (1) whether the petitioner has succeeded in proving the alleged version of the speech made by Sri <NAME> and the other speakers in the two meetings held at Lanka and Odalani and (2) if, the speeches were actually made will constitute undue influence as defined in Section 123(2) of the Act. Section 123(2) of the Act provides as follows :--

"(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person, with the free exercise of any electoral right :--

Provided that-

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-

(i) threatens any candidate, or any elector, or any person in whom a candidate or an elector is interested, with injury of any land including social ostracism and excommunication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause.

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause."

(To prove the actual speeches made at the meeting of Odalani, the petitioner has produced witnesses. After analysing the depositions of the witnesses, his Lordship concluded :) We have considered the evidence of these witnesses and we have no reason to differ from the estimate of their testimony by the <ORG>. The appellant, therefore failed to establish that at the two meetings held at Odalani and Lanka bazar <NAME> who admittedly worked for the respondent made any speech in which he threatened the Muslim minorities or the refugees that their annual pattas will be cancelled in case they failed to vote for the congress. That he delivered a speech at the meeting is not denied but as the appellant has failed to prove the contents ot the speech, it cannot be held that any corrupt practice was committed by the respondent in this respect.

3. The next allegation is that in a leaflet under the signatures of a number of persons which is marked as Ex. 10, a resolution passed by the members of the minority community was published and the contents of that leaflet amounts to a corrupt practice as defined in Section 123(2) of the Act. On the 23rd February, 1957 at village Islamnagar a meeting of the prominent people of the minority community was held in which it was decided to support the congress candidate, and in pursuance of the resolution of that meeting the leaflet Ex. 10 was published. The material portion of the pamphlet is as follows -

"So to the Muslim community and as a matter of that to all minority communities it is the humble appeal that in the ensuring general election all should try utmost for the success of the congress and that gentlemen assembled there emphatically declared that not to vote for congress would amount to high treason."

4. There is some mistake in the translation. The correct translation will be as follows:--as not to vote for <ORG> will be like committing betrayal of the country'. No objection has been taken to the earlier part of this document. <ORG> is admitted that the language used in the major part of this publication is dignified and proper. The objection is taken only to the insinuation at the end that failure to vote for the <ORG> will amount to betrayal of the country.

Apart from the fact that the signatories to this pamphlet were not proved to be the workers of the respondent and thus the publication of the leaflet cannot be regarded as the work of the agents of the respondent, we do not think that the publication of this pamphlet by itself will constitute undue influence within the meaning of Section 123(2) of the Act. We have already referred to the contents of the document and in our opinion it contains only an expression of opinion.

The language of the publication is not such as is likely to interfere with the free exercise of the right of voting. It only states that the failure to vote for the <ORG> will be like an act of betrayal of the country. Even if it is said that the failure to vote for a particular candidate will be like committing an offence, that by itself will not constitute any threat or interference with the exercise of free right of voting.

It was contended by the learned counsel for me appellant that in the modern society, there cannot be a greater accusation than saying that an act will amount to high treason. We do not think that the document even goes to the extent of suggesting that any person by not voting for <ORG> candidate would be committing an offence of high treason so as to give the remotest apprehension of conviction for any offence under the Indian Penal Code and consequent punishment.

It is only an expression of opinion of the signatories to the document. In this view of the matter, even if it is held that the signatories to tins document were the workers of the respondent, the respondent cannot be held guilty of corrupt practice. The respondent had denied that any of the signatories were his election agents. It is admitted that some of the signatories were later appointed polling agents of the respondent, but it is denied that the pamphlet was issued by him or any of the agents of the respondent.

5. Coming to the evidence about the printing of the leaflet, three thousand copies were printed in <ORG> of Nowgong. P. W. 5-<NAME> is the Manager and proprietor of <ORG> in which the pamphlet was printed. He states that he printed three thousand copies of the leaflet from the manuscript Ex. 11 on the 25th February, 1957. He however says that he did not know the man who brought the manuscript. The man brought a pencil written paper from which Ex. 11 was transcribed and the pencil copy was taken away by the man.

It was signed as <NAME> by that man. But his name at his instance was cut out from Ex. 10. There is no evidence to prove that this document was published and printed at the instance of the respondent or anyone of his agents. In the absence of any such evidence the mere fact that later on some of the signatories acted as his polling agents is not by itself enough to establish the consent of the respondent to the act of publication. We do not therefore think that there is any substance in the contention of the appellant that the publication of this leaflet constitutes a corrupt practice. (About the distribution of this leaflet his Lordship considered evidence and concluded:) On a careful consideration, therefore, of the evidence of these witnesses we are constrained to hold that neither the publication of the leaflet with the consent, implied or expressed of the respondent, has been established, nor has its distribution been established. The contents of the leaflet also do not amount to any threat so as to constitute undue influence within the meaning of Section 123(2) of the Act.

6. The next contention is that the respondent committed corrupt practices by obtaining or procuring the assistance of persons in the service of the <ORG>. Section 123(7) provides as follows:

"The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or. by any other person, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely:--

(a) gazetted officers;

(b) stipendiary judges and magistrates;

(c) members of the armed forces of the Union; (d) members of the police forces;

(e) excise officers;

(f) revenue officers including village accountant such as patwaris, lekhpals, talatis, karnams and the like but excluding other village officers; and

(g) such other class of persons in the service of the Government as may be prescribed."

7. On the 4th March, 1957 <NAME>, the then Chief Minister of the State of Assam in company of the respondent and <NAME>, Assistant Traffic Superintendent, <ORG>, Lumding, a Police Officer, the Sub-divisional Officer, <NAME> the Personal Assistant to the Chief Minister, travelled from Lanka to Lumding in a Railway trolley with the main purpose of addressing an election meeting.

The meeting was addressed by the Chief Minister and the respondent at Lumding at about 6-30 p.m. This act constitutes a corrupt practice as defined under Section 123(7) of the Act. This allegation is to be found in para 8(iii)(a) of the petition. In para 16 of the written statement filed by the respondent, the allegations contained in para 8(iii)(a) have been denied.

It is asserted that the Chief Minister went on official duty after purchasing 1st class ticket from Lanka to Lumding and never utilised the Government property in furtherance of the election propaganda of the respondent. That the Chief Minister travelled on a railway trolley from Lanka to Lumding is not contested. It is also not disputed that the respondent also travelled on that date on the same trolley.

8. Three questions therefore have got to be considered before the petitioner can get the election set aside on this ground. It is first to be seen if the respondent obtained or procured or attempted to obtain or procure any assistance from any person in the service of the Government and that secondly the assistance was for the furtherance of the prospects of the candidate's election. It is further to be considered whether the assistance, if at all, procured through the Chief Minister can be said to be an assistance procured through the agent? of the respondent.

The appellant's contention is that Sri <NAME> who brought the trolley for the use of the Chief Minister is a Gazetted Officer and the Chief Minister took the assistance of the said Gazetted Officer inasmuch as he procured the use of the trolley and that he addressed a meeting organised in connection with the election of the respondent; the assistance was thus procured in furtherance of the prospects of the respondent's election.

It was also urged in this connection that under the railway rules, even the Chief Minister and at any rate the respondent was not entiled to use the railway trolley and therefore when <NAME> permitted the respondent to travel with the Chief Minister on that trolley, he assisted the respondent in furtherance of his election prospects. The assistance of <NAME> was thus obtained by the respondent himself.

The appellant has examined Sri <NAME>, the Station Master of Lumding who is P. W. 1 and has stated that on the 4th March, 1957 a trolley was brought from Lanka to Lumding to cany the Chief Minister with his party consisting of the Superintendent of Police, the Sub-divisional Officer, <NAME> and the Assistant Superintendent --Sri <NAME> who is a gazetted officer. Under the railway rules all the persons executed life bonds separately and their fares were realized.

According to him under the railway rules, there is no provision even to allow the Railway Minister of the Union to use the trolley, but it can be used by some official such as by a Magistrate, a Police Officer and medical officers in the case of emergency. He further states that the respondent also travelled by the same trolley with the Chief Minister and purchased the tickets for all.

He was however not in a position to state whether the fare was paid by the respondent from his own pocket or he collected the same from all the passengers and paid it to the Station Master. The other two witnesses on this point are P. W. 2--Sunir Dutta Roy and P. W. 3--Sri <NAME>. They have stated that on the 4th March, 1957, the Chief Minister went in a trolley from Lanka to Lumding. It is also to be noted that the appellant moved the <ORG> to examine the Chief Minister on commission; but as the fact that he travelled on that date on a trolley was not denied, the <ORG> rejected the prayer.

In order to prove that the Chief Minister went on that date to Lumding in furtherance of the prospects of the respondent's election, the petitioner has relied upon a notice--Ex. 21 announcing a <ORG> meeting on that date in the afternoon.

In the notice, it was mentioned that a huge election meeting will be held where the Chief Minister will speak and <NAME> would also address the gathering.

P. W. 24-<NAME> states that he is a press reporter of <ORG> and <ORG> and in the meeting held at Lumding on 4-3-57 after 4-30 p.m. the witness took the photograph when the Chief Minister along with the respondent arrived in a trolley at the Lumding railway station platform with a borrowed camera. After arrival the Chief Minister, according to this witness, left in a jeep for the meeting and delivered a speech there. In his speech, the Chief Minister explained the <ORG> policy and criticised the Communists.

He admits that a welcome address was given to the Chief Minister and that he is a supporter of <ORG>. The contention of the respondent is that it was only a public meeting and the Chief Minister went there on his official duty and his visit therefore was not in furtherance of the election prospects of the respondent and no corrupt practice was committed thereby. It is also contended that the evidence does not establish that the assistance was procured by the respondent of the Government officer.

9. The words obtaining or procuring or abetting or attempting to obtain or procure any assistance necessarily implies some efforts on the part of the candidate or his agent. Mere passive receipt of assistance is not contemplated by the section. The Assistant Traffic Superintendent <NAME> has not been produced and there is thus no evidence to show that the respondent made any efforts to obtain the assistance of Sri <NAME> by getting the trolley from him.

The only fact which has been established is that on that date the respondent travelled along with the Chief Minister on the trolley. But that by itself does not establish that the respondent procured assistance of the Government servant. Reference may be made in this connection to the case of <CITATION> , AIR 1958 All 794. Similar view was taken in this case that the word 'obtain' in Section 123 has been used in the sense ok the meaning which connotes purpose or effort behind the action of the candidate.

The word in the sub-section has not been used in the sense of a mere passive receipt of assistance. Section 123(7) no doubt contempla.es the procuring of assistance by the candidate, his agent or by any other person. But it is not contended that the assistance even procured by the Chief Minister will amount to assistance procured by any other person and thus the respondent would be liable for corrupt practice. There would have been two objections to this contention.

Firstly that the petitioner has not established that the Chief Minister procured the assistance of the Government employee and secondly that the assistance procured by a third person may constitute a corrupt practice, but before the election can be set aside on the ground under Section 100 of the Act, the assistance has to be procured with the consent of the candidate.

10. The next ground is that the assistance was taken from Gaoburas and Mouzadars which also constitutes a corrupt practice within the meaning of Section 123(7) . So far as the contention that Gaoburas helped the respondent and carried out the propaganda on his behalf, it is sufficient to point out that Gaoburas are not the class of Government officers enumerated in Sub-section (7) of Section 123 .

Clause (f) of Section 123(7) enumerates the revenue officers including the village officers which are expressly mentioned therein and the other village officers have been expressly excluded from the perview of that sub-section. The next point urged is that Mouzadars helped the respondent. The allegation on this point is contained in paragraph 8(1) of the petition in the following terms:

"The respondent No. 1 being a very influential man, engaged the Gaoburas and Mouzadars of different mouzas and other revenue officers and began to interfere with the free exercise of the electoral right of the voters."

Further in paragraph 8(3)(b) it is asserted that the Lumding constituency is composed of five mouzas and each of these mouzas is in charge of a mouzadar.

<NAME>, mouzadar of Hojai, actively canvassed the electorate of the Lumding constituency for voting in favour of the respondent No. 1 and was the Joint Secretary of <ORG>. The mouzadar of Lanka mouza--<NAME> was a member of <ORG> formed at Lanka to conduct the election of the respondent. The mouzadar <NAME> of Kaki mouza and <NAME> assisted the respondent.

In reply to these allegations the respondent in para 16 of his written statement has denied these allegations and has asserted that <NAME>, Mouzadar of Hojai town never canvassed the electorate of Lumding constituency in favour of the respondent and further denied that <NAME>, Mouzadar of Lumding Mouza actively assisted the respondent in furtherance of his election prospects. The assertion about the assistance by Sri <NAME>, mouzadar of Kaki mouza and Sri <NAME> of Lanka is also denied.

The <ORG> on consideration of the evidence has come to the conclusion that the appellant failed to prove that these <NAME> canvassed for the respondent and the finding has been assailed in appeal. It was also contended that even if the appellant failed to prove that <NAME> actually canvassed for the respondent, they were members of <ORG> and the very fact that they were the members of the election committee amounts to giving assistance to the respondent.

11. We have been taken through the evidence of the P. Ws. on this point and we are satisfied that the decision of the <ORG> on this point is correct that the appellant has failed to prove that <NAME>, <NAME>, <NAME> and <NAME>, Mouzadars canvassed for the respondent. None of the witnesses have deposed in what manner they saw these mouzadars actively canvassing for the respondent The evidence only goes to the extent of stating that these mouzadars were seen in some of the meetings held by the respondents and on occasions moving with the respondents, but that by itself will not establish the fact that they actively canvassed for the respondent. <NAME>,' P. W. 14 has in his cross-examination admitted that he did not see the other P. Ws canvassing, but only saw them going in a jeep with the respondent.

None of the witnesses have stated that they saw any of these mouzadars canvassing for votes in their presence for the respondent. As regards the fact that some of these mouzadars were members of <ORG>, the fact has only been stated by the petitioner-appellant in his deposition and has been denied by the respondent. The fact therefore has not been satisfactorily established by the evidence on the record. In view of this finding, it is not necessary to examine the question whether the mouzadars can be regarded as Revenue Officers in the service of the <ORG> or not.

12. The most important point which has been urged by the appellant is that the respondent committed corrupt practice inasmuch as he incurred an expenditure in contravention of Section 77 of the Act. Section 123(6) lays down that the incurring or authorising of expenditure in contravention of Section 77 is a corrupt practice. Section 77 of the Act lays down that every candidate at an election shall either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive.

Clause (2) of the said section then provides that the account shall contain such particulars as may bo prescribed and Clause (3) provides that the total of the said expenditure shall not exceed such amount as may be prescribed. Rule 131 of the Rules of the Election Petition 1956 lays down the particulars of account of election expenses to be maintained and Rule 135 provides the maximum expense permissible under Sub-section (3) of Section 77 in each state.

The first contention of the appellant is that in the account kept by the respondent, certain expenses incurred by the respondent in connection with the election have not been shown. In the account submitted to the Returning Officer, these expenses have not been shown either and thus there has been a contravention of Clause (1) of Section 77 .

In this connection, it is further urged that even though these expenses may not have been actually incurred by the candidate himself, they will be deemed to have been authorised by him inasmuch as they have been spent by the persons who were the agents of the respondent as defined under Section 123(7) explanation and the failure to maintain a correct account in authorising of expenditure in contravention of Section 77 and this amounts to corrupt practice.

The next contention is that if the expenses which are not shown in the account submitted before the Returning Officer are regarded as authorised expenses, the total amount will exceed the maximum limit prescribed under Section 77(3) and thus there was a contravention of Section 77(3) and Section 123(6) is attracted. Two other sections which may be relevant are the Sections 99(2) which provides that in this section and under Section 100 expression 'agent' has the same meaning as under Section 123 .

The explanation to Section 123(7) which defines an agent is in the following terms:

"In this section the expression 'agent' includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate."

Section 100(1)(b) provides that if the <ORG> is of opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the election will be declared void.

Reading all these sections together, it is clear that if the corrupt practice is committed by any other person, it is to be with the consent of the returned candidate. The corrupt practice if committed by an agent as defined in explanation to Section 123 will not be sufficient for setting aside the election unless it is done with the consent of the returned candidate. The obligation to maintain the proper account under Section 77 is on the candidate or his election agent and therefore if any other person fails to maintain the account, it will not constitute a corrupt practice within the meaning of Section 123(6) .

The third class of cases where an election can be set aside clearly on the corrupt practice being done by any person with the consent of the returned candidate will not be applicable in a case of corrupt practice of this nature. The appellant has therefore argued that the failure to keep a record of the accounts incurred by the others who were the agents of the respondents amounts to a failure to keep a correct record of the accounts authorised by the candidate and it is a contravention of Section 77 by the candidate himself and thus Section 100(2) Part II is attracted.

13. It is also contended by the counsel for the appellant that the respondent was bound under Section 77 of the Act to mention in his accounts the reasonable approximate hire charge of the vehicles used by him and given to him by his friends. Before we deal with the evidence produced in this connection by the parties, <ORG> is necessary to dispose of certain legal aspects of the matter. Section 77 of the Act only enjoins upon the candidate or- his agent to keep an account of the expenses incurred or authorised by him. An expenditure not made by him need not be mentioned in the account.

One cannot be said to incur an expense unless he actually spends the money. The expenditure also cannot be said to have been authorised unless any pecuniary liability is incurred by a person. Any vehicle therefore lent gratuitously to a candidate by his friends does not involve incurring of any pecuniary liability by the candidate. In cases, therefore, where the vehicles are lent by friends gratuitously, it cannot be said that any expenditure was incurred or authorised by the candidate. It was argued that if such an interpretation is put on the language or Section 77 , candidates, who have friends and relations would have unfair advantage over a poor rival.

But the language of the statute being plain, these reasons will not alter the meaning of the words. As observed by <ORG> in the case of <CITATION> , AIR 1954 SC 749, "the spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act and tie rules made thereunder. If all that can be said of these statutory provisions is that construed according to the ordinary, grammatical and natural meaning of their language they work injustice by placing the poorer candidates at a disadvantage the appeal must be to <ORG> and not to this <ORG>."

14. The view which we are taking of Section 77 is also supported by a decision of <ORG> in the case of <CITATION> , AIR 1958 Raj 324. In our judgment therefore, it was not necessary for the respondent to show in his account the reasonable rent of the vehicles lent to him by his friends without charging from him. It is not necessary to refer to decisions of certain Tribunals cited by the counsel on this point.

15. The next point which is to be considered is whether Section 123(6) of the Act makes the failure to keep a correct account itself a corrupt practice or it only contempltates the cases where the expenses incurred exceed the maximum limit authorised under Section 77(3) of the Act. It is no doubt that Section 77 makes it obligatory on the candidate to keep a correct account and failure to do so may amount to contravention of Section 77(1) ; but from the language of Section 123(6) , it is clear that every contravention of Section 77 has not been made a corrupt practice.

Section 123(6) which we have already quoted only makes the incurring or authorising of expenses in contravention of Section 77 a corrupt practice. The failure to keep a correct account cannot be said to be incurring or authorising of arty expenditure and thus all that Section 123(6) contemplates is the incurring of expenditure exceeding the limit prescribed under Section 77(3) . If the intention of the <ORG> was to make every contravention of Section 77 a corrupt practice, it could have used a clearer word.

Before the amendment of the Act by the amend ing Act of 1956, Section 124(4) provided the making of any return which was false in any material particulars a minor corrupt practice. This provision has since been deleted. The contravention therefore in our opinion of Section 77 (1) and (2) does not come within the definition of a corrupt practice. This view has also been taken by <ORG> in the case referred to above.

It was observed in that case with which we are in complete agreement as follows:

"Under Section 123(6) , it is only the incurring or authorising of expenditure in contravention of Section 77 of the Act which amounts to a corrupt practice. The non-maintenance of true accounts has not been laid down as a corrupt practice. An entry is made in the account book only after an expenditure is incurred or authorised. The corrupt practice consists of incurring or authorising of expenditure in contravention of Section 77 . As only Sub-section (3) of Section 77 deals with the incurring or authorising of expenditure, it is only when the total expenditure exceeds this prescribed amount that it can be said that it has been incurred or authorised in contravention of Section 77 ."

To the same effect is the decision of <ORG> in the case of <CITATION> AIR 1958 All 663, wherein it was held that "under Section 123(6) of the Representation of the People Act, the corrupt practice consists in incurring or authorising expenditure in contravention of Section 77 which can only happen if a candidate incurs or authorises expenditure an excess of the maximum amount allowable under the rules framed under Section 77(3) . Where there was no suggestion at all. that the expenditure, which was incurred by the returned candidate exceeded the prescribed limit, mere statement to the effect that he did not comply with the requirements of Section 77 and the'Rules made thereunder and that the return which he had filed did not show the correct account of the expenditure incurred and authorised by him as it contained fictitious and concocted entries cannot be held to amount to a corrupt practice under Section 123(6) ."

The evidence therefore is to be examined in the light of these observations. The allegations with regard to this aspect of the matter are contained in para 8(iv) of the petition.

16. In the petition it is stated that the return of the election expenses submitted by the respondent shews an expense of Rs. 3468/4/3; but the respondent spent much larger amount and if the correct amount is shown, the maximum of RS. 5000/-will be exceeded. The maximum for the State of Assam for a single member constituency is however Rs. 6000/-. In the return, the respondent has shown having hired only one jeep car No. ASN-3694 for Rs. 200/-; but from the petrol account, it will appear that he used a number of other vehicles whose numbers are mentioned in paragraph 8(iv)(a) of the petition.

According to the appellant, the hire of these vehicles will amount to Rs. 1500/-. According to the appellant, the respondent further suppressed the fact of using vehicle No. ASN-937 and ASJ-2590 and has further suppressed the use of the vehicle No. ASN-2247 and ASN-724. These vehicles were not hired by the respondent. They were, according to the respondent, lent to him by his friends. The contention however of the appellant is that the reasonable hire of these vehicles should have been shown in the return.

The <ORG> has accepted the contention of the appellant that the respondent should have shown in his return, the reasonable hire of the vehicles used by him, though lent by his friends; but it has held that the estimated hire will not exceed Rs. 200/-and therefore even if that is added to the expenses shown in the return, the total will not exceed the maximum. As we have already discussed above, in our opinion, under the present law, it is not incumbent on the candidate to show in his election expenses return, the amount of reasonable hire of the vehicles given to him gratuitously by his friends.

We are also however of opinion that the appellant has not succeeded in establishing the fact that the amount of hire will be more than Rs. 200/-. As regards the use of <ORG> Car No. ASN-937, the respondent has produced <NAME> --R.W. No. 3 Vice-Chairman of <ORG> and <NAME>, the surveyor of the Nowgong local board who have stated that these vehicles used in the Lumding area during the election time for the work of the <ORG>. The appellant therefore has failed to prove that the other vehicles were used by the respondent and that he used <ORG> vehicle for the purpose of the furtherance of the election.

17. The next item of expense which the respondent is said to have omitted is mentioned in para 8(iv)(b) of the petititon. The appellant states that the respondent in his return has shown an expense of Rs. 395/12/- for petrol and mobile oil whereas he has consumed about 600 gallons of petrol and mobile oil worth Rs. 1700/-. For this he relied upon the accounts cf various shops dealing in petrol and mobile oil.

No evidence has been produced by the appellant to show that the accounts of various petrol dealers actually related to the petrol consumed during the election by the respondent. The mere fact that there is some petrol account of the respondent with various shops will not establish the fact that the petrol worth more than the amount actually shown in the return was consumed by the respondent in furtherance of his election. Moreover, the actual amount not having been shown and even if the estimate of 1300 is accepted, the total will not exceed the maximum of Rs. 6000/-.

18. The next item is the sewing charges of the volunteers" uniform. In the account, the respondent has shown the price of the cloth purchased by him for making caps and uniforms, but in the return he has not shown the sewing charges. The respondent has denied that sewing charges were paid by him. The appellant's contention is that even if the expenses were incurred by <ORG>, they should have been shown in the account submitted by the respondent.

The appellant has examined three witnesses P.Ws.21, 22 and 23 to prove that seme amount was spent towards the making of caps and uniforms. On perusal of these statements, it is not clear that the respondent paid the sewing charges: The next item is the small item of Rs. 2/13/-, the amount which the respondent spent as his fare and stamp duty on life bond while travelling in the railway trolley from Lanka to Lurnding.

The respondent has contended that he did not go to Lumding in furtherance of his election, but even if that is not accepted, the addition of this amount will not. make any substantial difference and the total will not exceed the maximum. There are a number of other items mentioned in the petition, but no evidence has been laid to substantiate the allegation that these expenses were incurred or authorised by the respondent and that the amount if added to the expenses already shown, the total will exceed the maximum.

The main item is one of the expenses incurred on account of cost for papers and printing charges of the letter-heads and the voters' slips and other posters printed by the respondent. An expense of Rs. 150/- has only been shown in the return towards the pasting of some of these posters and the amount If calculated properly will exceed, according to the appellant, Rs. 1000/-. The respondent has denied that the printing charges of these posters were paid by him or these expenses were authoriseo by him.

It is not alleged that he paid all these amounts from his own pocket. The appellant has however argued that <ORG> who issued these posters and got the voters' slip printed were the agents of the respondent and any expense incurred by them should be regarded as having been authorised by the respondent and thus should have been shown in the return. P. W.-17, <NAME>--the Secretary of <ORG> has deposed that he published Exs. 14, 15, 22 and 13.

That a number of leaflets and posters were printed and distributed in the different parts of the constituency is not denied. But as we have already discharged, the question of contravention of Section 77 which has been made a corrupt practice will only arise if the expense has been authorised by the candidate himself.

Though having regard to the explanation to Section 123(7) , the meaning of the word 'agent' may be wider in the election law, but as we have already pointed out before the election of the returned candidate can be set aside under Section 100 , it has got to be established that the corrupt practice was committed by the consent of the returned candidate, in cases where the corrupt practice has been done through a third party.

The account has to be kept by the candidate himself or by his election agent and the corrupt practice if any arising by failure to keep proper accounts cannot be done by a third party. The main argument therefore which has to be examined is how far it can be said that because the respondent was set up by the <ORG>, the expenses incurred by the <ORG> Committee will be deemed to be an expense authorised by the respondent.

We do not think that the proposition so broadly stated can be accepted. From the circumstances of the present case therefore, it cannot be said that because the respondent was set up bv <ORG>, expenses for every poster and leaflets printed and published by <ORG> relating to the respondent will be regarded as an expense authorised by him. Moreover, it has not been established that the total of the expenses will exceed Rs. 6000/- if the expenses towards printing are to be taken into account.

<NAME>--p. W. 29 has stated that <ORG> has not yet settled up the account of all the expenses they incurred. The appellant therefore, in our opinion, has failed to prove that even if the printing expenses are added to the accounts submitted by the respondent, the total will exceed Rs, 6000/-. The appellant therefore has failed to substantiate his contention and the election cannot be set aside on that ground.

19. The other ground on which the election is ought to be set aside is the corrupt practice of bribery as defined under Section 123 of the Act. In the petition, it is stated that the respondent in his position as the Chairman of <ORG>, on the eve of the election sanctioned the construction of wells and tube-wells and granted financial helps to the primary schools. In village Formabeel In Lanka Mouza, a tube-well was constructed in March, 1957.

In village Kapilpar, near the house of <NAME>, a tube-well was set up immediately after the election, but the assurance of which was given earlier. In the same village, a sum of Rs. 600/-was granted for the construction of a primary school. A tank was also sanctioned for the same village, the excavation of which was started on the eve of the polling date. In Kachari Basti in the village Puran-alusinga, 15 days before the polling, a well was dug. In Nepali Basti in the village Rangmahala also a well was dug.

In <NAME>, in a meeting, the respondent promised a sum of Rs. 200/- for the focal school and on the eve of the election, the respondent further started settling the <ORG> huts for the year 1957-58 with the people who could influence the voters in favour of him. These allegations are denied by the respondent. His assertion is that they were all acts done in performance of his duty as the Chairman of the District <ORG> with the consent of the members and for the benefit of the general public; the sanctions were granted properly and within the scope of his authority, they cannot therefore be regarded as illegal gratifications within the meaning of Section 123 of the Act.

The appellant has examined <NAME> who says about the construction of a tank in the vicinity of a mosque. His testimony also cannot be relied upon. <NAME> says that the respondent promised a sum of Rs. 1200/- tor a tank to the Mosque, but the work was started before the election and was completed subsequently. He has however admitted that he canvassed for <NAME>.

P.W. 51-<NAME>, the Surveyor of <ORG> says that in village Kapilpar a sum of Rs. 1000/- was granted for digging a tank near a mosque, but the sanction was made on the recommendation of <ORG> and passed by the <ORG> on 30-3-1957. <NAME> and P. W. 41--Nripendra Chandra Deb both stated that at Kapilpar, 7 or 10 days before the election, the respondent promised two wells to secure votes. P. W. 51-<NAME>, whose evidence we have already referred to stated that between February and March no tube-well was dug.

The first well at Kapilpar was unsuccessful and it was again dug in 1957. It was again unsuccessful. The <ORG> has dug another well in Rong Mahala in Nepali Basti between February and March, 1957. He has however admitted that the sites were selected by the public workers* sub-committee and were approved by <ORG>. From this evidence, it appears that in the normal course of the business of the <ORG>, the <ORG> sanctioned the construction of these wells and the public workers' sub-committee made the selection of the sites and it cannot, therefore, be said that there was any illegal gratification offered by the respondent to the voters so as to constitute an offence of bribery. The appellant has totally failed to substantiate his case on this point.

20. After having given our careful consideration to the points raised by the appellant's counsel in our opinion, there is no substance in any of the points. We accordingly see no force in this appeal and it is dismissed with costs : hearing fee Rs. 300/-

<NAME>, J.

21..I agree.


CASE NO.: Appeal (civil) 4406-4410 of 1996 Appeal (civil) 4759-4761 of 1998 Appeal (civil) 4395-4402 of 1996 Appeal (civil) 497-499 of 2000 Appeal (civil) 5772 of 2000 PETITIONER: THE ASSISTANT COMMISSIONER OF INCOME TAX, <ORG>. Vs. RESPONDENT: <ORG>. DATE OF JUDGMENT: 31/01/2001 BENCH: <NAME>, <NAME> & <NAME> JUDGMENT:

Bharucha, J.

L...I...T.......T.......T.......T.......T.......T.......T..J One S.K. <NAME> founded a daily newspaper called <ORG> in 1942. On 1st March, 1954 he created a trust called <ORG>. The property that he settled upon trust was the business of the said newspaper as a going concern. The objects of the Trust were to establish the said newspaper as an organ of educated public opinion for the Tamil reading public and to disseminate news and to ventilate opinion upon all matters of public interest through it. On 9th July, 1957 <NAME> executed a supplementary deed of trust that declared that the Trust was irrevocable. On 28th July, 1961 <NAME> executed another supplementary deed of trust. Thereby he directed that the surplus income of the Trust, after defraying all expenses, should be devoted to the following purposes :

- establishing and running a school or college for the teaching of journalism;

- establishing and/or running or helping to run schools, colleges or other educational institutions for teaching arts and science;

- establishing of scholarships for students of journalism, arts and science;

- establishing and/or running or helping to run hostels for students;

- establishing and/or running or helping to run orphanages; and

- other educational purposes.

On 6th November, 1961 the Income Tax Officer proposed to disallow the claim of the <ORG> for exemption under Section 4(3)(i) of the Income Tax Act, 1922 for the Assessment Years 1955-56 to 1961-62. The <ORG> challenged the correctness of the tentative decision by filing a writ petition in <ORG> at Madras. On 25th June, 1961 the trustees of the <ORG> took out an originating summons in <ORG> and therein, on 2nd March, 1962, <ORG> upheld the validity of the supplementary deed of trust and held that the trustees of the <ORG> were bound to devote the surplus income of the <ORG> to the purposes mentioned therein. On 4th October, 1963 <ORG> allowed the writ petition filed by the <ORG> and quashed the <ORG> tentative decision (52 I.T.R. 453). The claim for exemption made by the <ORG> under Section 4(3)(i) of the 1922 Act for the Assessment Years 1955-56 to 1961-62 was thereafter allowed.

For the Assessment Years 1962-63 the claim made by the <ORG> for exemption under Section 11 of the Income Tax Act, 1961 (the Act) was allowed on 28th February, 1969. The <ORG> then impounded the books of accounts of the <ORG> relevant to the Assessment Years 1965-66 to 1967-68 and he demanded the production of books of account relevant to the Assessment Years 1962-63 to 1964-65. This was the subject matter of challenge in a writ petition filed by the <ORG>. On 23rd March, 1969 the <ORG> was issued three notices under Section 148 of the Act to reopen its assessments for the Assessment Years 1965-66 to 1967-68. These notices were challenged in a writ petition filed by the <ORG>. Notices were, thereafter, issued to the <ORG> to reopen its assessment for the Assessment Years 1956-57 to 1961-62 and these were the subject matter of a writ petition filed by the <ORG>. On 21st December, 1972 <ORG> of <ORG> quashed the notices for reopening the assessments for the Assessment Years 1956-57, 1958-59, 1960-61 and 1961-62. It upheld the notices that related to the Assessment Years 1957-58, 1959-60, 1965-66, 1966-67 and 1967-68 (91 I.T.R. 261).

On 29th January, 1981 <ORG> of <ORG> dismissed references under the Act in respect of the assessment of the Trust for the Assessment Years 1968-69 and 1969-70 (137 I.T.R. 735). <ORG> held :

The founder of the trust clearly evinced an intention to create public charitable trust as seen from the preamble and clause 3(k) of the original trust deed and the charitable objects referred to in the schedule to the decree in C.S. 90 of 1961 have to be fulfilled from and out of the income from the business which is directed to be held under trust or other legal obligation. Those charitable objects fall within the first 2 categories referred to in Section 2(15) viz. Relief of the poor and education. It is to carry out and fulfill those objects the business is carried on. Thus, the primary purpose is to carry out the charitable objects and the business is carried on as a means in the course of the actual carrying out of that primary purpose and not as an end in itself. While the predominant object of the trust is the carrying out of the charitable objects referred to in two of the three categories of charitable purposes referred to in Section 2(15) , the carrying on of the business which is actually the property held under trust or other legal obligation is incidental and the profit resulting from the business can be taken to be a by-product.

The <ORG> preferred a petition for special leave to appeal against the judgment of <ORG> on the said references. In so far as it related to the eligibility of the <ORG> to claim the exemption under Section 11 of the Act, leave was declined.

Having set out the background, we now come to the first of the three controversies before us. It relates to Section 13(1)(bb) , which was introduced into the Act with effect from 1st April, 1977 and remained on the statute book until omitted with effect from 1st April, 1984. The relevant portions of Section 11 and Section 13(1)(bb) then read as follows :

Section 11 Income from property held for charitable or religious purpose.

(1) Subject to the provisions of sections 60 to 63 , the following income shall not be included in the total income of the previous year of the person in receipt of the income.

Section 11(4) For the purposes of this section property held under trust includes a business undertaking so held, Section 13(1)(bb) Nothing contained in section 11 or section 12 shall operate so as to exclude from the total income of the previous year of the person in receipt thereof In the case of a charitable trust or institution for the relief of the poor, education or medical relief, which carries on any business, any income derived from such business, unless the business is carried on in the course of the actual carrying out of a primary purpose of the trust or institution.

The claim of the <ORG> for exemption for the Assessment Years 1979- 80 to 1983-84 was rejected, having regard to the provisions of Section 13(1)(bb) . The rejection was challenged in a writ petition filed by the <ORG> in <ORG>. <ORG> upheld the contention of the <ORG> (213 I.T.R. 626). This is the first decision of <ORG> that is under appeal by the <ORG>.

<ORG> relied upon its earlier decision in the case of the <ORG>, reported in 137 I.T.R. 735, which had become final and binding on the <ORG>, namely, that the primary purpose of the <ORG> was to carry out its charitable objects and that the business is carried on only as a means in the course of the actual carrying on purpose of the <ORG>. It said that it had, therefore, no hesitation in holding that the requirement of the last portion of Section 13(1)(bb) namely unless the business is carried on in the course of the actual carrying out of a primary purpose of the trust or institution is satisfied We must also point out here that though the decision in <CITATION>  137 I.T.R. 735 (Mad) was rendered by <ORG> with regard to the assessment years 1968-69 and 1969-70 and Section 13(1)(bb) of the Act was introduced with effect from April 1, 1977, inasmuch as the finding rendered by <ORG> in the said decision is in express language of Section 13(1)(bb) of the Act, it is not open to the <ORG> to contend that the decision in <CITATION>  137 I.T.R. 735 (Mad) will not be applicable to the petitioners case in respect of the assessment years in question, after the introduction of Section 13(1)(bb) of the Act.

Section 11(4A) was introduced into the Act with effect from 1st April, 1984. So far as it is relevant, Section 11 then read thus :

(1) Subject to the provisions of sections 60 to 63 the following income shall not be included in the total income of the previous year of the person in receipt of the income.

(a) income derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in India; .

(4) For the purposes of this section property held under trust includes a business undertaking so held and where a claim is made that the income of any such undertaking shall not be included in the total income of the persons in receipt thereof, the income tax Officer shall have power to determine the income of such undertaking in accordance with the provisions of this Act relating to assessment and where any income so determined is in excess of the income as shown in the accounts of the undertaking, such excess shall be deemed to be applied to purposes other than charitable or religious purposes.

(4A) Sub-Section (1) or sub-section (2) or sub-section (3) or sub-section (3A) shall not apply in relation to any income, being profits and gains of business, unless

(a) the business is carried on by a trust wholly for public religious purposes and the business consists of printing and publication of books or is of a kind notified by <ORG> in this behalf in the Official Gazette; or

(b) the business is carried on by an institution wholly for charitable purposes and the work in connection with the business is mainly carried on by the beneficiaries of the institution;

and separate books of accounts are maintained by the trust or institution in respect of such business.

The <ORG> claimed the benefit of the exemption under Section 11 in respect of the Assessment Years 1984-85 to 1991-92. The <ORG> rejected the claim. The <ORG> filed writ petitions challenging the rejection. <ORG> upheld the claim of the <ORG> (213 I.T.R. 639). It held that inasmuch as the business that was carried on by the <ORG> was itself held under trust for public charitable purposes and it was carried on only for the purposes of carrying out the charitable objects of the <ORG>, as had been found in the earlier judgment, the provisions of Section 11(4A) had no application. This is the second decision of <ORG> under appeal by the <ORG>.

Section 11(4A) was substituted with effect from 1st April, 1992 and it now read thus :@@ JJJJJJJJJJJJJJJ Section 11(4A) Sub-Section (1) or sub-section (2) or sub-section (3) or sub-section (3A) shall not apply in relation to any income of a trust of an institution, being profits and gains of business, unless the business is incidental to the attainment of the objectives of the trust or, as the case may be, institution and separate books of accounts are maintained by such trust or institution in respect of such business.

The <ORG> rejected the claim of the <ORG> for exemption under the amended Section 11(4A) . A writ petition was filed in <ORG>, and, relying upon the earlier decision, <ORG> quashed the orders of assessment for the Assessment Years 1992-93, 1995-96 and 1996-97 (238 I.T.R.

635). This is the third decision under appeal by the <ORG>.

In so far as Section 13(1)(bb) is concerned, the learned Solicitor General appearing for the <ORG>, submitted that a business, to be excepted from the clutches of Section 13(1)(bb) , must be one carried on in the course of the actual carrying out of a primary purpose of a public charitable trust. In other words, it must be a business carried on in the course of actually carrying out the work of relief of the poor, education and medical relief. Any business carried on for generating revenue, which revenue is used for furthering the charitable purpose for which the trust was established, is not an activity in the course of the primary purpose of the trust and does not fall within this exception.

Dr. <NAME>, learned counsel for the <ORG>, drew a distinction between a business that was held under trust and a business that was carried on by a trust. He submitted that there was a difference between income derived from a business that was a property or part of the corpus of a public charitable trust and income derived from a business which was carried on by such a trust but which was not held under trust; in other words, there was a legal obligation to use the income for the public charitable purpose of the trust in the first case and not in the latter. This Court had noted the distinction in <CITATION> (121 I.T.R. 1), <CITATION> (53 I.T.R.

176), <CITATION> . (109 I.T.R. 527). The provisions of Section 13(1)(bb) applied only to a public charitable trust which carried on a business that it did not hold in trust. They did not apply to a public charitable trust, such as the <ORG>, which held the business in trust.

No judgment of this Court has been pointed out to us in which the provisions of Section 13(1)(bb) have been interpreted. Only passing references thereto are to be found in some of the judgments aforementioned.

A public charitable trust may hold a business as part of its corpus. It may carry on a business which it does not hold as a part of its corpus. But it seems to us that the distinction has no consequence insofar as Section 13(1)(bb) is concerned. Section 13(1)(bb) provides, so far as is relevant to this case, that the provisions of Section 11 shall not operate so as to include in the total income of the previous year of a public charitable trust for the relief of the poor, education or medical relief which carries on any business, any income derived from such business unless the business is carried on in the course of the actual carrying out of a primary purpose of the trust. Section 13(1)(bb) , therefore, will apply to a public charitable trust for the relief of the poor, education or medical relief that carries on a business, regardless of whether or not that business is held by the trust in trust, that is, as a part of its corpus. Even a business that is held by such a trust as a part of its corpus is carried on by the trust and, therefore, Section 13(1)(bb) will apply to such trust.

A judgment of this Court which comes closest to putting a meaning to Section 13(1)(bb) is the concurring judgment of <NAME>, J. (as he then was) in <CITATION> (1980) 121 ITR 1. He said, When it was found that judicial decisions had held the restrictive clause (not involving the carrying on of any activity for profit) in Section 2(15) to control the fourth head (the advancement of any other object of general public utility) only, and not also the first three heads (relief of the poor, education and medical relief) in the definition, <ORG> attempted to secure its original intent by enacting section 13(1)(bb) . The two provisions represent the mode of funding finance for working out the purpose of the trust or institution, by deriving income from the corpus of the trust property and also from an activity carried on in the course of actual carrying out of the purpose of the trust or institution. The learned Judge did not, it will be seen, analyse Section 13(1)(bb) , nor, in the context of the case before him, was he required to. Upon analysis, it appears to us that the words used in Section 13(1)(bb) are wide enough to control not only the profit from an activity carried on in the course of the actual carrying out of the purpose of the trust or institution but also income from the corpus of the trust property if the corpus of the trust includes a business. This is for the reason that a trust or institution carries on the business that is part of its corpus just as much as a trust or institution carries on a business that is not a part of its corpus, and Section 13(1)(bb) operates in respect of a charitable trust or institution for the relief of the poor, education or medical relief which carries on any business. (Emphasis supplied).

The requirement of Section 13(1)(bb) is that the exemption under Section 11 will not be available to such a trust that carries on any business unless the business is carried on in the course of the actual carrying out of the primary purpose of the trust, that is to say, unless the business is carried on in the course of actually accomplishing a primary purpose of the trust; the business must, therefore, be carried on in the course of the actual accomplishment of relief of the poor, education or medical relief. As an example, a public charitable trust for the relief of the poor, education and medical relief that carries on the business of weaving cloth and stitching clothing by employing indigent women carries on the business in the course of actually accomplishing its primary object of affording relief to the poor and it would qualify for the exemption under Section 11 .

The business that the <ORG> carries on is that of running a newspaper. That business, though it is held by the <ORG> as a part of its corpus, and, therefore, in trust, does not directly accomplish, wholly or in part, the <ORG>s objects of relief of the poor and education. Its income only feeds such activity. It cannot be held to be carried on in the course of the actual accomplishment of the <ORG>s objects of education and relief of the poor. It is, therefore, not possible to accept the argument on behalf of the <ORG> that it is entitled to the exemption under Section

11. <ORG>, in the first judgment under appeal, held that it was not open to the <ORG> to contend that the earlier decision (in 137 ITR 735) would not apply to the case of the <ORG> for the assessment years in question after the introduction of Section 13(1)(bb) of the Act because the finding rendered in that decision was in the express language of Section 13(1)(bb) . We are unable to agree. The earlier decision was not rendered in the context of Section 13(1)(bb) . That provision was not on the statute book at that time. That the provision employs language akin to that employed in the earlier decision cannot mean that in a proceeding directly related to that provision the <ORG> is barred by reason of the principles of res judicata from contending that the income of the <ORG> is not exempt under that provision.

This brings us to the second controversy, relevant to the Assessment Years 1984-85 to 1991-92 during which period of time sub-section (4A) of Section 11 , as originally enacted, was in operation. It was contended by the learned Solicitor General that by reason of sub-section (4A) the income derived from a business held under trust wholly for charitable or religious purposes would not be included in the total income of the previous year in the case only of

(a) a trust for public religious purposes, if the business was of printing and publishing books or of a notified kind; or (b) an institution wholly for charitable purposes, if the work in connection with the business was mainly carried on by the beneficiaries of the institution, provided that separate books of accounts had been maintained in respect of such business.

Learned counsel for the <ORG> laid emphasis on the fact that in the Bill to introduce sub-section (4A) into Section 11 , sub-section (4) thereof had been proposed to be deleted, but it had been retained when the Bill was passed. A business held under trust had, therefore, not been intended to be excluded from the benefit of Section 11 by reason of the enactment of sub- section (4A). This was also evident from the fact that sub-section (4A) did not mention in its non obstante clause sub-section (4).

Sub-section (4) of Section 11 remains on the statute book, and it defines property held under trust for the purposes of that section to include a business so held. It then states how such income is to be determined. In other words, if such income is not to be included in the income of the trust, its quantum is to be determined in the manner set out in sub-section (4).

Sub-section (1)(a) of Section 11 says that income derived from property held under trust only for charitable or religious purposes, to the extent it is used in the manner indicated therein, shall not be included in the total income of the previous year of the trust. Sub-section (4) defines the words property held under trust for the purposes of Section 11 to include a business held under trust. Sub-section (4A) restricts the benefit under Section 11 so that it is not available for income derived from business unless (a) the business is carried on by a trust only for public religious purposes and it is of printing and publishing books or any other notified kind or (b) it is carried on by an institution wholly for charitable purposes and the work in connection with the business is mainly carried on by the beneficiaries of the institution, provided, in both cases, that separate books of account are maintained by the trust or the institution in respect of such business. <ORG>s and institutions are separately dealt with in the Act ( Section 11 itself and Sections 12 , 12A and 13 , for example). The expressions refer to entities differently constituted. It is thus clear that the newspaper business that is carried on by the <ORG> does not fall within sub-section (4A). The <ORG> is not only for public religious purposes so it does not fall within clause

(a). It is a trust not an institution, so it does not fall within clause (b). It must, therefore, be held that for the assessment years in question the <ORG> was not entitled to the exemption contained in Section 11 in respect of the income of its newspaper.

We now address the third controversy, which relates to sub-section (4A) of Section 11 as substituted with effect from 1st April, 1992. The learned Solicitor General submitted that while the substituted sub-section (4A) gave trusts and institutions a wider latitude than the earlier sub-section (4A), it had still to be construed to mean that a trust or institution would not get the benefit of Section 11 unless the business it carried on was carried on in the course of the actual carrying out of a primary purpose of the trust or institution. Dr. <NAME>, on the other hand, submitted that the substituted sub- section (4A) was couched in wide language and a trust was entitled to the benefit of Section 11 if it utilized the income of its business for the purposes of achieving its objects.

The substituted sub-section(4A) states that the income derived from a business held under trust wholly for charitable or religious purposes shall not be included in the total income of the previous year of the trust or institution if the business is incidental to the attainment of the objective of the trust or, as the case may be, institution and separate books of account are maintained in respect of such business. Clearly, the scope of sub-section (4A) is more beneficial to a trust or institution than was the scope of sub- section (4A) as originally enacted. In fact, it seems to us that the substituted sub-section (4A) gives a trust or institution a greater benefit than was given by Section 13(1)(bb) . If the object of <ORG> was to give trusts and institutions no more benefit than that given by Section 13(1)(bb) , the language of Section 13(1)(bb) would have been employed in the substituted sub-section (4A). As it stands, all that it requires for the business income of a trust or institution to be exempt is that the business should be incidental to the attainment of the objectives of the trust or institution. A business whose income is utilized by the trust or the institution for the purposes of achieving the objectives of the trust or the institution is, surely, a business which is incidental to the attainment of the objectives of the trust. In any event, if there be any ambiguity in the language employed, the provision must be construed in a manner that benefits the assessee. The <ORG>, therefore, is entitled to the benefit of Section 11 for the Assessment Year 1992-93 and thereafter. It is, we should add, not in dispute that the income of its newspaper business has been employed to achieve its objectives of education and relief to the poor and that it has maintained separate books of account in respect thereof.

Accordingly, Civil Appeals 4406-4410 of 1996, 4395-4402 of 1996, 4759-4761 of 1998 and 5772 of 2000 are allowed in as much as they relate to the Assessment Years 1979-80 to 1991-92 and the two judgments of <ORG> relating thereto (reported in 213 I.T.R. 626 and 213 I.T.R.

639) are set aside. Civil Appeals 497-499 of 2000 are dismissed. There shall be no order as to costs.


PETITIONER: GANPAT LADHA Vs. RESPONDENT: SASHIKANT VISHNU SHINDE DATE OF JUDGMENT21/02/1978 BENCH: BEG, M. HAMEEDULLAH (CJ) BENCH: BEG, M. HAMEEDULLAH (CJ) BHAGWATI, P.N. SINGH, JASWANT CITATION: 1978 AIR 955 1978 SCR (3) 198 1978 SCC (2) 573 CITATOR INFO : R 1980 SC 954 (9,10,11,14) R 1980 SC1605 (12) O 1985 SC 796 (1,3,20,33,35) O 1987 SC 117 (51) R 1987 SC1939 (27) ACT: Constitution of India--Articles 226-227--Power of High <ORG> to interfere with exercise of discretion by <ORG>s below--Bombay Rent Act 1947--Sec. 5(11)c, 12(3)a & 12(3)b--Whether definition of tenant includes a member of a family of a deceased tenant residing with him at the time of his death in case of business premises--Object of rent restriction act--If conditions of 12(3)b are complied with whether <ORG> can exercise discretion in favour of a tenant--Whether conditions laid down by Sec. 12(3)b are to be strictly complied with by tenant. HEADNOTE: The respondent tenant made an application in 1956 for fixation of standard rent under section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In February, 1960, in the said proceedings, the contractual rent of Rs. 80/- per month was reduced to Rs. 54.25 per month in respect of the shop in dispute. The rent remained in arrears from 1956 to 1960. In June and July, 1960, the appellant landlord issued a notice to quit to the res- pondent. Nearly 5 months after the fixation of standard rent the respondent filed a Revision Application under section 115 of the Civil Procedure Code which was summarily dismissed by the High <ORG>. In November, 1960, the appellant filed present suit for eviction. On 30-8-1962, issues were framed and therefore that was the first date of hearing. In June, 1963 the Trial <ORG> held that since the dispute about the standard rent was pending when the suit was filed the provisions of section 12(3)(a) were not attracted. However, the appellant was entitled to a decree, under section 12(3) (b) since the respondent had not paid the rent regularly in accordance with the provisions of section 12(3)(b). The Appellate <ORG> held that the case was governed by section 12(3)(a) and, therefore, the appellant was entitled to a decree of eviction. The Appellate <ORG> further held that even if the case was governed by section 12(3)(b), since the respondent had not complied with its provisions the suit was bound to be decreed in accordance with the decision of this <ORG> in the case of <NAME>. The Appellate <ORG> also held that even if any discretion was vested in. the <ORG> under section 12(3)(b) of the Act that discretion had been properly exercised by the Trial <ORG>. The respondent filed a Writ Petition under Article 227 of the Constitution against the judgment of the Appellate <ORG>. The Writ Petition succeeded before the High <ORG> because the High <ORG> thought that the view expressed by this <ORG> in <NAME>'s case still left room for the application of what was laid down by <NAME> in <NAME> case. The original tenant of the shop in question having died during the course of litigation, the present respondent, who is the son of the original tenant was impleaded in the petition. Section 5(11)(c) of the Act defines a tenant as including any member of the tenant's family residing with him at the time of his death. The High <ORG> took the view that section 5(11)(c) applies not only to residential premises but also to business premises and that, therefore, on the death of a tenant of business premises any member of the tenant's family residing with him at the time of his death would become a tenant. Al lowing the appeal, HELD : (1) It is difficult to see how in case of business premises the need for showing residence with the original tenant at the time of his death would be relevant. It is obvious from the language of section 5(11)(c) that the intention of the <ORG> in giving protection to a member of the family of the tenant residing with him at the time of his death was to secure that on 199 the death of the tenant the member of his family residing with him at the time of his death is not thrown out. This protection would be necessary only in case of residential premises. When a tenant is in occupation of business pre- mises there would be no question of protecting against dispossession a member of his family. The tenant may be carrying on a business in which the member of his family residing with him may not have any interest at all and yet on the construction adopted by the High <ORG>, such member of the family would become a tenant in respect of the business premises. Such a result could not have been intended to be brought about by the legislature. The basic postulate of the protection under the Rent Act is that the person who is sought to be protected must be in possession of the premises and his possession is protected by the legislation. But in case of business premises a member of the family of the tenant residing with him at the time of his death may not be in the possession of the business premises and yet, on the view taken by the High <ORG>, he would become tenant in respect of the business premises with which he has no connection. [203A- <CITATION> ,  5 Gujarat L.R. 563 approved. <CITATION> ,  12 Gujarat L.R. 272, over-ruled. (2) The Act interferes with the landlord's right to property and freedom of contract only for the limited purpose of protecting tenants against exercise of the landlord's power to evict them in these days of scarcity of accommodation by asserting superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf. Thus, section 12(3)(a) makes it obligatory for the court to pass a decree when its conditions are satisfied. [205B- <CITATION> ., A.I.R. 1968 Gujarat p. 172. approved. If there is statutory default or neglect on the part of the tenant whatever may be its cause the landlord acquires a right under section 12(3)(a) to get a decree for eviction but where the conditions of section 12(3)(a) are not satisfied there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in section 12(3)(b) and defeat the landlord's claim for eviction. If, however, he does not fulfil those conditions he cannot claim protection of section 12(3)(b) and in that event there being no other protection available to him a decree for eviction would have to go against him. It is difficult to see how by any judi- cial velour discretion exercisable in favour of the tenant can be found in section 12(3)(b) even where the conditions laid down by, it are not satisfied. [205-C-E] <NAME> v. <NAME>, 60 Bombay L.R. 1359 overruled. Section 12(3)(b) does not create any discretionary jurisdiction in the <ORG>. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of this section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of the <ORG>. 1205-F-G] (3) The High <ORG> committed a gross error in interfering with what was a just and proper exercise of discretion by the <ORG> of small Causes, in exercise of its power under Article 227 of the Constitution. The High <ORG> without even considering or setting aside the findings of the <ORG> in regard to the circumstances calling for the exercise of a discretion in favour of the appellant allowed the application under Article 227. This was quite unwarranted. [205GH. 206A] 200 <CITATION> ., A.I.R. 1975 S.C. 1297, relied on. A finding as to whether circumstances justified the exercise of discretion or not, unless clearly perverse and patently unreasonable, is, after all, a finding of fact only and it cannot be interfered with either under Article 226 or 227 of the Constitution [206 C-D] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1717 of 1975.

(Appeal by Special Leave from the Judgment and Order dated 29-8-1975 of <ORG> in S.C.A. No. 334 of 1970).

<NAME>, <NAME> and Miss <NAME> for the Appellant.

<NAME> and <NAME> for the Respondent. <NAME>, for the Intervener.

The Judgment of the <ORG> was delivered by <NAME>, <NAME> If the quest for certainty in law is often baffled, as it is according to Judge <NAME> in "Law and the Modern Mind", the reasons are mainly two : firstly, the lack of precise formulation of even statutory law so as to leave lacunas and loopholes in it giving scope to much avoidable disputation; and, secondly, the unpredictability of the judicial rendering of the law after every conceivable as well as inconceivable aspect of it has been explored and subjected to forensic debate. Even the staunchest exponents of legal realism, who are apt to treat the quest for certainty in the administration of justice in accordance with law, in an uncertain world of imperfect human beings, to be practically always futile and doomed to failure, will not deny the. desirability and the beneficial effects of such certainty in law as may be possible. Unfortunately, there are not infrequent instances where what should have been clear and certain, by applying well established canons of statutory construction becomes befogged by the vagaries, if one may use a possibly strong word without disrespect, of judicial exposition divorced from these canons. The case before us is an instance of the artificial uncertainty created by such a fog after the law found in Section 12 (3) of the Bombay Rents, Hotel and Lodging House Rates Control Act No. LVII of 1947 (hereinafter referred to as 'the Act') had been laid down with sufficient clarity by this <ORG> in <CITATION> .(1) and correctly understood and applied by a Bench of the <ORG> of Small Causes at Bombay. It is a cardinal tenet of sound administration of justice that the judicial function must not stray, so far as possible, into the domain of legislation wearing a veil, whether thin or thick, of "interpretation". We are impelled to make these remarks because we find that a case of the commonest type between a landlord and tenant, in the city of Bombay, the decision of which the Act before us was presumably designed to facilitate and expedite, consistently with justice to the landlord as well as the tenant, has dragged on for years, owing to the kind of difficulties we have referred to, so that justice delayed has veritably become justice denied. (1)  3 S.C.R. 347.

The history of the litigation before us goes back to 3rd September, 1956, when the predecessor-in-interest of the defendant-respondent filed an application for fixation of standard rent under Section 1  1 of the Act. On 17th February, 1960 as a consequence, the contractual rent of Rs. 80/- per month was reduced and the standard rent was fixed at Rs. 54.25 per month of a shop in Santa Cruz, Bombay. Nevertheless, the tenant, predecessor-in-interest of the respondent, did not pay rent. The payments remained in arrears from 1956 to 1960. Therefore, the landlord was compelled to send a registered notice to quit with a claim for arrears of rent for four years @ Rs. 54.25 per month. On 30th June, 1960, he repeated this notice to quit by a letter sent under certificate of posting. On 1st July, 1960, the registered ' notice came back with the word "refused" endorsed on it. On 15th July, 1960, a notice to quit was tendered personally to the respondent but refused. The notice was then said to have been affixed to the premises. On 18th July, 1960, nearly five months after fixation of standard rent, the tenant filed a Revision application under Section 115 of the Code of Civil Procedure which was dismissed summarily on 1st September, 1960, by <ORG>.

On 6th November, 1960 the appellant-landlord filed a suit for eviction which is now before us. On 30th August, 1962, the first date of hearing, the issues were framed. On 18th June, 1963, <ORG> decreed the suit on the following findings : the notice, to quit was valid and duly served; the arrears of rent were properly demanded under section 12 (2) of the Act; the demand was not complied with in accordance with law by the tenant within a month of the demand; the case was governed by the provisions of section 12(3) (b) and not by the provisions of section 12(3) (a) because a dispute about the fixation of standard rent was still pending when the notice demanding standard rent was given; nevertheless, the tenant was not entitled to the protection of section 12(3) (b), since he had not paid the rent regularly in accordance with the conditions under which the protection of section 12 (3) (b) could be given to him. On 12th August, 1963, the tenant filed an appeal in <ORG> challenging the validity of the notice on the ground that the "notice to quit must be for 30 days'. On 19th April, 1968, this appeal was allowed. On, 11th April, 1969, <ORG> set aside the finding of <ORG> on the notice to quit which was held to be valid and properly served and sent back the case to the appellate court for decision of other questions. On 8th December, 1969, the special leave petition against the order of remand was dismissed by this Court. On 22nd January, 1970, <ORG> of <ORG> passed a decree for ejectment holding that a valid notice had been served; the case was governed by the provisions of section 12 (3) (a) and not section 12(3) (b); even if the case was governed by section 12 (3) (b), its provisions not having been complied with, the suit was bound to be decreed in accordance with what was clearly held by this Court in <NAME> case (supra), where it was laid down "To be within the protection of that provision ( section 12 (3) (b) ) the tenant must thereafter continue to pay or 14-211SCI/78 tender in Court regularly the rent and permitted increases till the suit is finally decided".

it also held that even if any discretion was vested in the, <ORG> under section 12(3) (b) of the Act, that discretion had been properly exercised by the Trial <ORG>. Against the last mentioned judgment the tenant filed on 8th February, 1970 an application under article 227 of the Constitution which, rather unexpectedly, succeeded before a Division Bench of the Bombay High <ORG> because the learned Judges thought that the view expressed by this <ORG> in <NAME> case (supra), still left room for the application of what was laid down by <NAME>, in <NAME>). The learned Judges of the High <ORG> did not, we find, address themselves to the argument that, even if, on the view taken by <NAME>, <NAME>, in <NAME> case (supra), a discretion was left to the <ORG> to deviate, in special circumstances, from the obligation to pass a decree, it was not proper for the High <ORG>, in the exercise of its jurisdiction under Article 227 of the Constitution, to interfere with what the appellate <ORG> had found to be a just and proper exercise of discretion to pass the degree. As the High <ORG> allowed the application under article 227 on 29th August, 1975 without even considering or setting aside the appellate <ORG>'s finding on the correct exercise of discretion by the Trial <ORG>, the landlord brought the case before us by grant of special leave to appeal.

Before deciding the main question we may refer to, another question which would also be sufficient for the decision of this appeal. That arises out of an event which is to be expected when the course of litigation is so long drawn out as the one before us. Smt. <NAME>, the original tenant of the shop in question died on 9th December, 1973, during the course of litigation, and the respondent, her son, was impleaded as the claimant to her alleged tenancy rights under Section 5 (1 1) (c) of the Act which lays down "5 (1 1) : 'tenant means any person by whom or on whose account rent is payable for any premises and includes-

(a) x x x x (b) x x x x (e) any member of the tenant's family

residing with him at the time of his death as may be decided in default of agreement by the <ORG>.

In these circumstances, the question arose for decision whether the present respondent, whose residence is given in the special leave petition as "Agakhan Building, Haines Road, Bombay", could possibly claim to be a tenant in respect of the shop which admittedly constitutes business premises by reason of Section 5 (11) (c) of the Act. <ORG> took the view that section 5 (11) (c) applies not only to resi-

(1) 60 Bombay L.R. 1359.

dential premises but also to business premises and therefore, on the death of a tenant of business premises, any member of tenant's family residing with him at the time of his death would become a tenant. We do not think this view taken by the high Court is correct. It is difficult to see how in case of business premises, the need for showing residence with the original tenant at the time of his death would be relevant. It is obvious from the language of section 5(11)(c) that the intention of the legislature in giving protection to a member of the family of the tenant residing with him at the time of his death was to secure that on the death of the tenant, the member of his family residing with him at the time of his death is not thrown out and this protection would be necessarily only in case of residential premises. When a tenant is in occupation of business premises, there would be no question of protecting against dispossession a member of the tenant's family residing with him at the time of death. The tenant may be carrying on a business in which the member of his family residing with him may not have any interest at all and yet on the construction adopted by <ORG>, such member of the family would become a tenant in respect of the business premises. Such a result could not have been intended to be brought about by the legislature. It is difficult to discern any public policy which might 'seem to require it. The principle behind section 5 (1 1) (c) seems to be that when a tenant is in occupation of premises, the tenancy is taken by him not only for his own benefit, but also for the benefit of the members of the family residing with him and, therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs inter alia the tenancy was originally taken by the tenant. This principle underlying the enactment of Section 5 (II) (c) also goes to indicate that it is in respect of residential premises that the protection of that section is intended to be given. We can appreciate a provision being made in respect of business premises that on the death of a tenant in respect of such premises, any member of the tenant's family carrying on business with the tenant in such premises at the time of Ms death shall be a tenant and the protection of the Rent Act shall be available to him. But we fail to see the purpose the legislature could have had in view in according protection in respect of business premises to a, member of the tenant's family residing with him at the time of his death. The basic 'postulate of the protection under the Rent Act is that the person who is sought to be protected must be in possession of the premises and his possession is protected by the legislation. But in case of business premises, a member of the family of the tenant residing with him at the time of his death may not be in possession of the business.premises; he may be in service or be may be carrying on any other business. And yet on the view taken by <ORG>, he would become tenant in respect of the business premises with which he has no connection. We are, therefore, in agreement with the view taken by one of us (<NAME>) in <ORG> about the correct meaning of Section 5 (11) (c) in <CITATION> (1), in preference to the view adopted in the sub- (1) (1964) 5 Gujarat L.R. 563.

sequent decision of <ORG> in Heirs of deceased <CITATION> (1) which decision was followed by <ORG> in the judgment impugned in the present appeals before us. It is significant to note that after the decision of Gujarat High <ORG> in <CITATION> (supra) the Gujarat legislature amended the Rent Act by substituting the following provision for section 5 (1 1) (c) "5 (11) (c) (i) in relation to premises let for residence, any member of the tenant's family residing with the tenant' at the time of. or within three months immediately preceding, the death of the tenant as may be decided in default of agreement by the <ORG>, and

(ii) in relation to premises let for business, trade or storage, any member of the tenant's family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as, may continue, after his death, to carry on the business, trade or storage, as the case may be, in the said premises and as may be decided in de-fault or agreement by the <ORG>."

This amendment was of course necessitated by the decision in <CITATION> (supra) and it cannot, therefore, be relied upon for the purpose of supporting the view taken in that decision. But what is of significance is that when the legislature enacted a provision in regard to business premises in clause (ii) of Section 5 (11) (c), the legislature made it clear that the protection in respect of business premises was intended to be given, not to any member of the tenant's family residing with him at the time of his death, but to a member of the tenant's family carrying business with him in such premises at the time of his death. The legislative intent, therefore, never was to confer protection in respect of business premises on a member of the tenant's family residing with him at the time of his death. This is also a circumstance which supports the view taken by <ORG> in the earlier decision in <CITATION> and shows that the view taken in the subsequent decision in Heirs of deceased <CITATION> is not correct. Of course, the amendment made in Rent Act in the State of Gujarat cannot assist us in interpreting Section 5 (11) (c) of the Rent Act in the Act of Maharashtra, but it is not wholly irrelevant, since the judgment of <ORG> in appeal before us relies heavily on the decision of <ORG> 'in Heirs of deceased <CITATION> (supra) and if that decision is incorrect, the judgment in appeal before us must also likewise be held to suffer from same infirmity. We must, therefore, hold that Section 5 (11) (c) applies only in respect of residential premises and since the premise%, in question before us were admittedly business premises in the respondent, who was son of the original tenant, could not claim to be a tenant under section 5 (11) (c).

(1) (1971) 12 Gujarat L.R. 272.

2 05 Coming now to the first question to which we referred earlier, we think that the problem of interpretation and application of section 12 (3 ) (b) need not trouble us after the decision of this Court in <NAME> case (supra) followed by the more recent decision in <CITATION> lal(1) which completely covers the case before us.

It is clear to us that the, Act interferes with the landlord's right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too, high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law 'in that behalf. Thus, section 12 (3) (a) of the Act makes it obligatory for the <ORG> to pass a decree when its conditions are satisfied as was pointed out by one of us (<NAME>, J) in <CITATION> .(2). If there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlord acquires a right under section 12 (3)

(a) to get a decree. for eviction. But where the conditions of Section 12 (3) (a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12 (3) (b) and defeat the landlord's claim for eviction. If, however, he does not fulfil those conditions, he can not claim the protection of section 12(3) (b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any judicial valour discretion exercisable in favour of the tenant can be found hi section 12(3) (b) even where the conditions laid down by it are not satisfied. We think that <NAME>, C.J., was doing nothing less than legislating in <NAME> case (supra), in converting the provisions of section 12 (3) (b) into a sort of discretionary jurisdiction of the <ORG> to relieve tenants from hardship. The decisions of this <ORG> referred to above, in any case, make the position quite clear. Section 12 (3) (b) does not create any discretionary jurisdiction in the <ORG>. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. 'It is not in the hands of <ORG>s. Lastly we think that the High <ORG> committed a gross error in interfering, upon an application under. article 227 of the Constitution with what was a just and proper exercise of its discretion by the <ORG> of Small Causes in Bombay even on the erroneous view that the <ORG> had a discretion in the matter. The High <ORG>, without even considering or setting aside the findings of the <ORG> in regard to the circum- (1)  3 S.C.R. 629.

(2) A.I.R. 1968 Gujarat p. 172.

stances calling for the, exercise of a discretion in favour of the appellant. Allowed the application under article 227 of the Constitution. This, we think, was quite unwarranted. We feel certain that <ORG> would not have fallen into such an error if its attention was drawn to the law as laid down by this <ORG> in <CITATION> .(1). There, this <ORG>, in an appeal by special leave from a judgment of the Bombay High <ORG> observed (at p. 1297) :

"It is a litigation between landlord and tenant and as is usual with this type of litigation, it has been fought to a bitter end. Much-of the agony to, which the tenant has been subjected in this litigation would have been spared if only <ORG> had kept itself within the limits of its supervisory jurisdiction and not ventured into fields impermissible to it under article 226 or 227 of the Constitution"

A finding as to whether circumstances justify the exercise of a discretion or not, unless clearly perverse and patently unreasonable is, after all, a finding. of fact only, which could not be interfered with either under article 226 or under article 227 of the Constitution. In <NAME> case (supra) this <ORG> also said (at p. 1302) "It would, therefore, be seen that the High <ORG> cannot, while exercising jurisdiction under Art. 227 , interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority." Even that certainty and predictability in the administration of justice in accordance with law which is possible only if lawyers and <ORG>s care to scrupulously apply the law clearly declared by this <ORG>, would not be attainable if this elementary duty is overlooked.

For the reasons given above, we allow this appeal, set aside the judgment and decree of <ORG> and restore that passed by the appellate Bench of <ORG> on 22nd January, 1970. The respondent will pay the costs of the appellants.

P.H.P. Appeal allowed. (1) A.I.R. 1975 S.C. 1297. 2 07