PETITIONER: <ORG>. Vs. RESPONDENT: <ORG> AND OTHERS. DATE OF JUDGMENT: 16/03/1953 BENCH: <NAME>, <NAME>: <NAME>, <NAME>, MEHR CHAND CITATION: 1953 AIR 241 1953 SCR 789 CITATOR INFO : R 1955 SC 258 (13) R 1957 SC 1 (7) RF 1957 SC 82 (19) RF 1957 SC 194 (3,5,6) R 1957 SC 326 (7) R 1958 SC 79 (22) R 1958 SC 761 (4) R 1959 SC 230 (20) RF 1959 SC 389 (16) R 1960 SC 160 (26) RF 1963 SC 677 (17) RF 1978 SC 995 (6,10) ACT: U.P. Industrial Disputes Act, 1947 ss. 3, 8--U. P. Government Notification No. 781 (L)/XVIII of March 10, 1948, cls. 4, 7, 23 Dismissal of workmen with permission of Regional Conciliation Officer-Jurisdiction of Board to hear the dispute whether dispute ceases to be an industrial dispute-Award of Board-Absence of one member during hearing- Validity of award. HEADNOTE: Under the provisions of clauses 4 and 7 (3) of Notification No. 781 (L)/XVIII issued by <ORG> on March 10, 1948, the absence of one of the members of <ORG> on the last date of hearing and his nonparticipation in the making and signing of the award would not render the award void or inoperative. The dismissal of workmen and their non-employment would not cease to be An industrial dispute merely because the Regional Conciliation Officer had given written permission to the employer to dismiss them under clause 23 of the U.P. Government Notification of March 10, 1948. Such permission does not validate the dismissal but only removes the ban on the right of the employer, his agent or manager to dismiss the workmen concerned during the pendency of proceedings relating to an industrial dispute. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8 of 1953. Appeal by special leave from the decision dated 16th August, 1951, of <ORG>, Calcutta, in Appeal No. 43 of 1951 (Cal.).

<NAME>, Solicitor-General for India, (<NAME>, with him) for the appellant. <NAME> for the respondent.

1953. March 16. The Judgment of the Court was delivered by <ORG> is an appeal by special leave from a decision of <ORG>, Calcutta, confirming an award made by <ORG>), Kanpur, in an industrial dispute between the appellants and the respondents.

The respondents 2, 3 and 4 were employees of the appellants, respondent 2 was employed in the clerical cadre while respondents 3 and 4 were employed as wrapping boy and piecer respectively and their service conditions were governed-by the standing orders of <ORG>, Kanpur, of which association the' appellants were members.

There was a theft in the canteen within the mill premises between the night of January 6 and 7, 1950, and some money belonging to the appellants invested in the canteen account was stolen from the safe. A report of the theft was made to the police authorities and an investigation was made by the police, as well as the appellants in the matter with no result. The management of the appellants thereafter took action against one <NAME>, who was in charge of the canteen in connection with the losses of money from the account of the canteen and after the completion of the enquiries terminated his services. An industrial dispute in respect of the non-employment of the said <NAME> arose between the parties which dispute was at the material time taken in appeal before <ORG>), Kanpur. During the pendency of those proceedings, some time in August, 1950, the respondent 4 made a confession in regard to the said theft implicating the respondents 2 and 3 also therein. On the 29th August, 1950, the management of the appellants presented to the respondents 2,3 and 4 charge-sheets in respect of the said theft and suspended them on the 30th August, 1950, from their service. They also made an application on the 2nd September, 1950, to the Additional Regional Conciliation Officer, Kanpur, asking for permission to dismiss the respondents 2, 3 and 4. The Additional Regional Conciliation Officer, Kanpur, instituted an enquiry, heard the respondents 2,3 and 4, considered the evidence which was led before him by the appellants as well as the respondents 2,3 and 4 and made an order on the 12th October, 1950, according to the appellants permission for the dismissal of the respondents 2, 3 and 4. The respondents 2, 3 and 4 were accordingly dismissed from their employ by the appellants with effect from the 13th October, 1950.

An industrial dispute thereupon arose between the appellants and respondents 2, 3 and 4 in respect of the

-non-employment of respondents 2,3 and 4 and respondent 1, a registered trade union, of Which the respondents 2, 3 and 4 were members, ultimately moved <ORG>), Kanpur, on the 1st November, 1950, challenging the propriety and bona fides of the appellants in terminating the services of respondents 2, 3 and 4.

The appellants filed their written statement on the 25th November, 1950, contending inter alia that the dismissal was fully justified, regular and proper, having' been made in accordance with the permission accorded by the Additional Regional Conciliation Officer. The only issue which was canvassed before <ORG> was whether any or all of the three workmen named in the application dated the 1st November, 1950, has/have been wrongfully dismissed and if so, to what relief is he/they entitled. The <ORG> consisted of three members, <NAME>, Chairman, and <NAME> and <NAME>, Members. <NAME> was not present on the last date of the hearing and the award was therefore signed on the 20th April, 1951, by <NAME> and <NAME>. Under the terms of the award the <ORG> held that the dismissal was wrongful and that the respondents 2, 3 and 4 were entitled to reinstatement as also to the full wages, including dearness allowance from the date of their suspension to the date they were taken back on duty. The appellants preferred an appeal to <ORG>, Calcutta. The appeal was heard on the 16th August, 1951, and <ORG> dismissed the appeal of the appellants. The appellants obtained special leave from this <ORG> and filed the present appeal.

Two contentions were urged by <NAME> who appeared for the appellants before us-(1) that the award was void and inoperative as it was made by only two members of the <ORG>, the third, member, <NAME> not having- been present at the last hearing and-not having signed the same and (2) that the Additional Regional Conciliation Officer having given the written permission for dismissal of respondents 2, 3 and 4 no industrial dispute could arise by reason of the -non-employment of respondents 2, 3 and 4 and the Regional Conciliation <ORG> had therefore no jurisdiction to entertain the application made before it by respondent 1 on behalf of the respondents 2, 3 and 4 and the award of the Regional Conciliation <ORG> ordering the reinstatement of respondents 2, 3 and 4 was therefore without jurisdiction, void and inoperative and <ORG> was in error in confirming the same. In support of his first contention <NAME> relied upon clause 4 and clause 7, sub-clause (3) of the G. N. No. 781 (L)/XVIII, dated 10th March, 1948, issued by <ORG> regarding the constitution of Regional Conciliation <ORG>s and <ORG> for the settlement of industrial disputes within the State. Clause 4-" No business may be transacted at any meeting of any <ORG> unless all the three members are present Clause 7 (3)-" Where no amicable settlement can be reached on one or more issues the <ORG>, if all the members thereof agree or if they do not so agree, the majority of,the members -agreeing or if no two members agree, the Chairman alone, shall record an award and the reasons for such award, on the issues -on which the parties were unable to reach an amicable settlement."

<NAME> therefore urged that <NAME> not having been present at the last meeting of the Board and not having signed the award the award could not be lawfully made by the Chairman and the other member who were present and who signed the award and the award was therefore void and inoperative. <NAME> who represented the respondent before us however drew tour attention to the Government Order No. 388(11)/ XVIII/37 (LL)-/50 dated 2nd March, 1951, which amended the above clauses 4 and 7(3).

Clause 4 as amended provides:-

" (1) Notice of every meeting of the <ORG> shall be given to the members by the Chairman in advance. ( 2) If apart from the Chairman either or both the other members fail to attend any meeting of the <ORG> of which notice has been given to them, the Chairman may transact the business' of the <ORG> without the presence of the absent member or members ; and no such business or proceedings, of the <ORG> shall be held invalid merely by reason of the fact that either one or both of the members were not present at the meeting."

Clause 7 (3) as amended provides:-

"Where no amicable settlement can be reached on one or more issues, if all the members present agree the <ORG> or if they do not so agree the majority of the members agreeing 'or if no two members present agree or if only the Chairman is present, he alone, shall record an award and the reasons for such award on the issues on which the parties were unable to reach an amicable settlement."

These amendments in the clauses 4 and 7 (3) are enough in our opinion to repel the contention of <NAME> that the absence of <NAME> from the last meeting and also his non-participation in the making and signing of the award rendered.the award void and inoperative. The Board was empowered under the amended clauses 4 and 7(3) to act in the absence of <NAME> and the award as it was made and signed by the two remaining members, viz., <NAME> and <NAME>, was lawful and binding on the parties.

In support of his second contention <NAME> relied upon clauses 23 and 24 of the Government Notification dated the 10th March, 1948, above referred to. Clause 23 :-" Save with the written Permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned irrespective of the fact whether an enquiry is pending before <ORG>-or <ORG> or an appeal has been filed before <ORG>, no employer, his agent or manager, shall discharge or dismiss any workmen during the continuance of an enquiry or appeal and pending the issue of the orders of <ORG> upon the findings of the said Court...........

Clause 24:-"(1) Except as hereinbefore provided every order made or direction issued under the provisions of this Order shall be final and conclusive and shall not be questioned by any party thereto in any proceeding........... <NAME> contended that the order made by the Additional Regional Conciliation Officer on the 12th October' 1950, giving the appellants permission to dismiss respondents 2, 3 and 4 was final and conclusive in regard to the appellants' right to dismiss them from their employ and their dismissal accordingly by the appellants could not be the foundation of any industrial dispute which could be referred to <ORG> at the instance of respondent 1. He further contended that if no industrial dispute could thus arise <ORG> had no jurisdiction to entertain the same and the award made by the <ORG> was therefore without jurisdiction, -void and inoperative and could not also be confirmed by <ORG>.

We are unable to accept this contention. The Government Notification dated 10th March, 1948, was issued by the Governor of the United Provinces in exercise of the powers conferred by clauses (b), (c),

(d) and (g) of section 3 and section 8 of the ,United Provinces Industrial Disputes Act, 1947. It provided for the constitution by <ORG> of such number of <ORG> as might be deemed necessary for the settlement of industrial disputes consisting of three members of which one was to be the Conciliation Officer for the area, one was to be representative of the employers and one was to be the representative of workmen, the Conciliation Officer for the area being the Chairman of the <ORG>. The order provided for the mode in which industrial disputes may be referred to the <ORG> for enquiry and the manner in which the enquiry was to be conducted. It also provided for the constitution by <ORG> of such number of <ORG> as it might be necessary consisting of a President assisted by such equal number of assessors as the President might determine representing employers and employees. Provision was made for appeals to such <ORG> from the awards of the <ORG> and also for the hearing of the said appeals. After making further provision for the procedure to be adopted before the <ORG>s as well as the <ORG>, the Order by clause 23 above mentioned imposed a' ban on the discharge or dismissal of any workman by the employer, his agent or manager during the pendency of an enquiry before the Regional Conciliation <ORG> or the Provincial Conciliation <ORG> or of an appeal before <ORG> except with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and by clause 24 made every order or direction issued under the provisions of the said Government Order final and conclusive except as thereinbefore provided.

It is clear that clause 23 imposed a ban on the discharge or dismissal of any workman pending the enquiry of an industrial dispute before the <ORG> or an appeal before <ORG> and the employer, his agent or manager could only discharge or dismiss the workman with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned. Even if such) written permission was forthcoming the employer, his I agent or manager might or might not discharge or, dismiss the workman and the only effect of such written permission would be to remove the ban against the discharge or dismissal of the workman during the pendency of those proceedings. The Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned would institute an enquiry and come to the conclusion whether there was a prima facie case made out for the discharge or dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. But he was not entrusted, as the <ORG> or <ORG> would be, with the duty of coming to the conclusion whether the discharge or dismissal of the workman during the pendency of the proceedings was within the rights of the employer, his agent or manager. The enquiry to be conducted by the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned was not an enquiry into an industrial dispute as to the non-employment of the workman who was sought to be discharged or dismissed, which industrial dispute would only arise after an employer, his agent or manager discharged or dismissed the workman in accordance with the written permission obtained from the officer concerned. This was the only scope of the enquiry before the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and the effect of the written permission was not to validate the discharge or dismissal but merely to remove the ban on the powers of the 'employer, his agent or manager to discharge or dismiss the workman during the pendency of the proceedings. Once such written permission was granted by him that  ,order made or direction issued by him was to be final land conclusive and was not to be questioned by any party thereto in any proceedings. The only effect of )clause 24(1) was to prevent any party to the pending proceedings from challenging the written permission thus granted by the officer concerned Such written permission could not be made the subject-matter of any appeal at the instance of either party and both the parties would be bound by the order made or direction issued by the officer concerned so far as it gave or refused the permission to the employer, his agent or manager in the matter of the proposed discharge or dismissal of the workman.

This was the only scope of the provisions of clauses 23 and 24 (1) above. mentioned. '-Once the written permission was granted by the officer concerned, the ban against the discharge or dismissal of the workman would be removed and the employer, his agent or manager could in the exercise of his discretion discharge or dismiss the workman but in that event an industrial dispute within the meaning of its definition contained in section 2(k) of the Industrial Disputes Act, 1947, would arise and the workmen who had been discharged or dismissed would be entitled to have that industrial dispute referred to <ORG> for enquiry into the Same. That right of the workman to raise an industrial dispute could not be taken away in the manner suggested by <NAME> by having resort to the provisions of clauses 23 and 24(1) aforesaid. That right was given to the workman by the terms of the Industrial Disputes Act , 1947, and the U.P. Industrial Disputes Act, XXVIII of 1947, and would remain unaffected by any of the provisions hereinbefore referred to. We are therefore, of the opinion that this contention of <NAME> also fails.

We may before concluding advert to one circumstance and that is that even though <ORG> rightly confined its jurisdiction to determining substantial questions of law involved in the appeal, it nevertheless observed that even on the) facts the conclusions of the <ORG> were perfectly justified and there was no substance in the appeal on merits as well. The appellants were not heard at all on merits; and it was hardly legitimate for the <ORG>, Appellate Tribunal suo motu to consider the merits of the appeal and arrive at a finding in regard to the same.' If at all <ORG> bad any jurisdiction in regard to the merits it was incumbent upon it to have heard the appellants in regard to the merits before arriving at a conclusion in regard to the same.

The result is that this appeal fails and must be dismissed with costs.

Appeal dismissed.

Agent for the appellant : <NAME>.


JUDGMENT <NAME>, J.

1. This appeal is by special leave granted by this Court from an appellate judgment and order of <ORG> staying a suit filed by <ORG> for a declaration that <ORG> was not entitled to recover Rs. 35,210-21 from the plaintiff or its partners and for a decree for Rs. 10.000/-against <ORG> for balance of price of ice supplied by the plaintiff etc.

2. The dispute between the parties arose out of a contract for supply of ice by the appellant to <ORG> and the latter made a claim against the plaintiff for failure to supply the ice in terms of the contract and damages suffered as a result thereof. There was a reference to arbitration Under Section 20 of the Arbitration Act in terms of an arbitration clause contained in the contract. The award which followed was challenged by the appellant and was set aside by a single Judge of <ORG>. The appellant then instituted the suit referred to above. A single Judge of <ORG> rejected an application Under Section 34 of the Act preferred by the respondent but this order was set aside by the appellate Bench-

3. It appears that no proper steps were taken in the prosecution of appeal to this Court by special leave and on his own application one Mr. <NAME> was allowed to be impleaded as appellant No. 2 At the hearing of the appeal on August 25, 1969 the claim of <ORG> for Rs. 35,210-21 as also that of the appellant for Rs. 10,000/-were by agreement of parties referred to the sole arbitration of Mr. <NAME>, an advocate of this Court. After hearing the parties at some length, the arbitrator made his award whereby he found that the defendant was not liable for any amount exceeding Rs. 17,110-32 and the plaintiff was entitled to recover Rs. 970/-as refund to the security deposit and Rs. 2,256-79 as price of ice supplied by <ORG> during the month of June, 1958 i.e. a total of Rs. 3,226-79.

4. It appears that the partner of the appellant Mr. <NAME> who had been taking all steps in the appeal before the impleading of Mr. <NAME> died during the pendency of the arbitration proceedings. But the attention of the learned arbitrator was not drawn to it and the parties proceeded as if nothing had happened. On behalf of <NAME> it is now contended before us that the arbitration proceedings becomes incompetent in the absence of the heirs and legal representatives of Manoharlal on the record. We do not think that this contention can be accepted in view of the provisions of order 30 Rule 4 of the Civil Procedure. The appeal is therefore disposed of in terms of the award. The respondent is also entitled to the cost of the appeal.


JUDGMENT <NAME>, J.

1. This litigation arises out of the sale of an estate which was held tinder Act XI of 1859 in consequence of the default of the proprietors of the twelve-annas share to pay the <ORG> revenue due from that share.

2. It appears that a separate account has been opened for the 4-annas share and that the residuary 12-annas share stands in the names of plaintiffs Nos. 1 to 20; plaintiffs Nos. 7 to 16 and Nos. 17 to 20 are respeatively owners of 9 annas and 3 annas therein; plaintiffs Nos. 1 to 6 claim to be assignees as to portions of the above 3 annas share, while the defendant <NAME> holds an usufructory mortgage over the same and was the auction-purchaser at the sale.

3. The plaintiffs brought the suit in <ORG> to set aside the auction sale, on the ground that the defendant No. 1 had fraudulently withheld payment of the Government demand, and they claimed that the defendant should convey the property to the plaintiffs and give possession with mesne profits. An alter' native claim for damages was also made, bat it was withdrawn with liberty to being a fresh suit thereon.

4. The Subordinate Judge dismissed the suit with costs.

5. On appeal to <ORG> it was decreed that the sale was invalid and that upon the plaintiffs paying into Court the purchase money with interest from the date of the sale, the defendant should through his guardian convey the property to the plaintiffs by a proper deed of sale.

6. On appeal to <ORG> this decree was modified and their Lordships were of opinion that the declaration in the decree, that the sale and purchase ware invalid, was misconceived as a description of the legal position, and that in its place should be substituted a declaration that the property purchased must be held for the benefit of the plaintiffs and the 1st defendant-, according to their several interests, and that subject to the repayment of Rs. 425 with interest there should be a direction for a conveyance as decreed by <ORG> on payment of that amount on or before a date to be fixed by the Subordinate Judge. With this variation the decree of <ORG> was affirmed in all respects.

7. The plaintiffs then applied on the 7th of September 1918 for the execution of the above decree. The judgment debtor, defendant No. 1, filed an objection on the 21st November 1918. On the 28th April 1919 the Subordinate Judge of <ORG> dismissed the objection and held that execution must proceed. The present appeal is directed against this order of dismissal.

8. The first point urged before us is that there can be no delivery of possession in this execution proceeding.

9. It is contended that their Lordships of <ORG> only directed the execution of a conveyance and that as the decree is silent as to delivery of possession, the plaintiffs must bring a separate suit on the completed contract.

10. Now it is admitted that in a suit for specific performance of a contract for sale of land, it is open to the plaintiff to join with his prayer for specific performance a claim for delivery of possession, unless the contract expressly disentitles him to such relief. A contrary view has sometimes been taken, but I think it is now settled that a cause of action for delivery of possession may arise both upon the contract and the completed conveyance. [ <CITATION> 6 Ind. Cas. 205 : 37 C. 57 : 14 C.W.N. 527 and <NAME> V. Gaja Prosad Singh 11 Ind. Cas. 228 : 14 C.L.J. 159.] Forms Nos. 47 and 43 given in Appendix A in the First Schedule to the Civil Procedure Code also support this view.

11. Ordinarily the plaintiff would be entitled to ask for both reliefs and a subsequent suit for delivery of possession would, I think, be barred under the provisions of Order II, rule 2, Civil Procedure Code, which in its application to oases of contract merely asserts the principle that the <ORG> will not direct the performance of a part of the contract where the whole can be enforced. is an exception to this rule, the <ORG> will decree a claim for a conveyance only in oases where it embodies the substantial part of the agreement and where the <ORG> can direct its execution without regard to the question whether or not its provisions can be specifically enforced.

12. Where the tight to possession springs out of the contract for sale, delivery of possession would, in my opinion, be included in relief by specific performance. Generally the right arises coincidently with the right to the execution of the conveyance, and if their Lordships of <ORG> in <CITATION> 23 Ind. Cas. 912 : 38 M. 698 : 15 M.L.T. 103 : (1914) M.W.N. 200 : 1 L.W. 147 intended to lay down a contrary view I would respectfully venture to differ.

13. The plaintiffs before us did in fact ask that the sale should be set aside and delivery of possession given after the execution of a conveyance, and in my opinion their Lordships of <ORG> as well as their Lordships of <ORG> intended that the relief as to possession, being ancillary, should be included in the relief as to execution of the necessary document. Therefore, although their Lordships of <ORG> have not expressly made an order for delivery of possession, that relief follows immediately from the order for the execution of the conveyance.

14. It has been contended by the learned <NAME> for the appellant that other equities may arise and it has been hinted that a decree for delivery of joint possession is in the nature of a declaratory decree and cannot be executed, Such a view has sometimes been taken, but the weight of authority, in my opinion, shows that delivery of joint possession can be made among co proprietors.

15. Then it is said that the 3 annas share is under <ORG> mortgage and that for this reason and for the reason that assignments have been freely made by the recorded co-sharers, a decree for possession could not be worked out in the execution department. The <NAME>, however, merely requires that the vendor shall make to the vendee such delivery of possession as the nature of the property admits of, and in this case I see no difficulty in giving to the plaintiffs that possession which they had at the time of the sale. There is no reason why the plaintiffs should be relegated to a separate suit for obtaining a relief which can without difficulty be given in the execution department, and I cannot conceive that it is the intention of their Lordships of <ORG> that litigation should be multiplied for this purpose.

16. It is contended that if a suit for possession lies upon the executed conveyance, then delivery of possession should not be made in execution. I do not think Section 47, Civil Procedure Code, is any bar. That section says that if the decree gives a certain relief, a separate suit for obtaining that relief will not lie during the pendency of execution proceedings founded on that decree. In the view that I take of the meaning of the decree, delivery of possession can and should be made.

17. I think, therefore, that the first objection must fail and upon the officer of the <ORG> executing the document on behalf of the judgment-debtor, if he refuses to execute it, a right to possession vests in the decree-holder which can be enforced by the execution <ORG>.

18. The next point urged on behalf of the appellant is that the decree of "their Lordships of <ORG> is a nullity, inasmuch as the heirs of one of the respondents who had died before the decree were not brought upon the record. It is contended that so far as the interest of the deceased plaintiff respondent is concerned, the suit has abated and as the cause of action has not survived to the remaining plaintiffs respondents, they cannot execute the decree.

19. Now apart from the question of fact as to whether or not <NAME>, the deceased respondent, bad died before their Lordships of <ORG> heard the appeal, I am unable to accede to the proposition that any <ORG> in India can regard the order of the Sovereign as a nullity. It has been held in <NAME> v. <NAME> (1889) 20 N.S.W.R. 337 that where, pending the hearing of the appeal, the respondent died and <ORG> heard the appeal in ignorance of the death, and the appellant was ordered to pay" costs, the <ORG> below should refuse to ignore a decree of the Sovereign in Council. The provisions of Will. IV, C. 41, Section 23, seem to furnish express statutory authority for this view. Indeed it would be a curious result if the defendant appellant should now be permitted to take advantage of his own negligence or wilful omission. It was his duty to substitute parties in <ORG> and it is certain that if he had succeeded in his appeal, he would have strenuously resisted the plea that the decree was a nullity. I think, therefore, that the contention, that the only decree which it was possible to the Subordinate Judge to execute was the decree of the High <ORG>, is untenable and must fail.

20. But there is a more substantial ground upon which the appellant's contention must fail. The learned Subordinate Judge has found that <NAME> did not die in 1916, as has been alleged by the appellant, and that he was alive at the time that their Lordships heard the appeal. One witness, a karpardaz, has given evidence on behalf of the appellant that <NAME> died in 1916. On the other hand the respondents have produced one of their co-sharers named <NAME>, who says that <NAME> died in 1917. The learned Subordinate Judge, having taken the oral evidence of both sides into consideration, has some to the conclusion that the judgment debtor has failed to discharge the onus that, lay upon him. The appellant also, produced a report from an officer of the Collector's office at Monghyr, stating that in a certain death register kept in the <ORG> for the year 1919 the name of <NAME> is shown as having died on the 29th March of that year. The report was signed on the 3rd January 1919 and the register in question was destroyed on the 15th March of that year. The original register was, therefore, not available to the respondents in <ORG> on the 26th April, when the hearing of the execution case began. It is clearly impossible to place any reliance upon a report of this kind. The respondents had no opportunity of (sailing for the original register or even obtaining copies of the relevant entries therein with a view to eliciting what was the nature of the register, who was the person who gave the information of the death of <NAME> and what was his official status.

21. It is very pertinently observed by the learned Subordinate Judge that in the execution petition filed by the judgment-debtor on the 21st November 1918 no particulars were given showing that the judgment-debtor would contend that <NAME> died on the 29th March 1916, and that the date of his death was not disclosed till the 18th of March 1919, that is to say, 3 days after the destruction of the register. The appellants have also filed two reports from the office of the Collector, Exhibits 2 and 2A, to the effect that in the death register for 1917 there is no entry of <NAME>'s death. The learned Subordinate Judge observes that <NAME> may have died in a village other than the village to which the register relates.

22. We agree with the learned Subordinate Judge that in this state of the evidence, both documentary and oral, it would be impossible to hold that the onus cast upon the appellant has been discharged.

23. These are the only two points which have been argued before us and on both the appellant must fail, The appeal is, therefore, dismissed with costs.

<NAME>, <NAME>

24. I agree.


JUDGMENT Sen, J.

1. This is an appeal under Section 39(1)(vi) of the Arbitration Act, 1940, preferred by M/s. Dilip Construction Co. from an order of the District Judge, <NAME> at Rajnandgaon, setting aside an award of the umpire in its favour, directing the payment of a sum of Rs. 8,65,000/- by <ORG>

2. The material facts, shortly stated, are these. By a contract dated 26th February, 1960, the appellant was employed by the respondent for winning and raising 45,00,000 Cft. of BF grade lime-stone ore from its <ORG>, and for transporting and loading the same into wagons at the railway siding of the mines. The deed of contract contained an arbitration clause, and it reads thus:

"61. If at any time any question, dispute or difference whatsoever shall arise between the Employer and the Contractor upon or in relation to or in connection with the contract either party forthwith give to the other notice in writing of the existence of such question, dispute or difference and the sama shall be referred to the arbitration of two persons, one to be nominated by the Employer and the other by the Contractor or failing agreement between these two to an <ORG> appointed by them. Such submission shall be deemed to be a submission to arbitration within the meaning of the Indian Arbitration Act , 1940 or any statutory modification thereof. The award of the Arbitrators or <ORG> shall be final and binding upon the parties upon every or any such reference, the costs of and incidental to the reference and to the award respectively shall, subject to the condition that the amount of such costs to be awarded to either party shall not, in respect of a monetary claim exceed the percentage set out below of any such award, irrespective of the actual fees, costs and expenses incurred by either party, be in the discretion of the arbitrators or umpire who shall determine the amount thereof, as between party and party and direct by whom and to whom and in what manner the same shall be borne and paid. Work under the contract shall, if reasonably possible, continue during the arbitration proceedings, and no payments due or payable by the Employer shall be withheld on account of such proceedings. Provided, that in matter of claims where the amount involved does not exceed Rs. 25,000/- the decision of the Engineer shall be final and binding on the contractor and such items shall not be open to arbitration.

Except that no issues on which the final settlement is otherwise provided for in this contract shall be referred to <ORG>."

3. The period stipulated in the contract for the completion of the work was of 12 months w.e. f. 29th December, 1959, but that period was extended from time to time upto 15th December, 1961. During the period in question, the appellant could perform the contract to the extent of 31,52,132.32 Cft. of lime stone, and received payments for the work done against running bills. Upon termination of the contract, the respondent prepared a final bill for Rupees 21,000/-. This was not accepted by the appellant and it instead submitted its own bill dated 5th May, 1965, raising a demand for payment of Rs. 16,77,197.28 P. That was followed by a letter dated 28th May, 1965, addressed by the appellant to the respondent, by which it requested a final settlement of accounts within 15 days. On 21st June, 1965, the appellant served the respondent with a lawyer's notice of submission to arbitration, stating that it had named one <NAME> to be its arbitrator and requesting the respondent to nominate its arbitrator within 10 days, failing which the arbitrator named by it was to become the sole arbitrator and was to proceed with the reference. In response to the same, the respondent sent a reply dated 2nd July, 1965 to the following effect:

"In the contract under reference between your clients and <ORG>, Bhilai Plant, no dispute as contemplated under the Arbitration agreement has arisen, which would entitle your clients to refer the matter to arbitration.

This is specifically so, in view of the fact that your client's claims are under examination by <ORG> and if in the course of finalisation of the claims any difference comes out, then only there will be any question of reference to arbitration.

It may also be mentioned that some of the claims mentioned by your client are even outside the purview of the agreement referred to by our clients.

Without prejudice to our above contentions, and reserving our right to take such action as may be deemed necessary in respect of the unmaintainability of the claims, We hereby nominate <NAME>, Sr. D. G. M., <ORG> as our arbitrator."

From the reply sent by the respondent it is quite clear that the existence of a dispute giving rise to arbitration was itself denied. However, as a matter of abundant caution, the respondent named its own arbitrator. In View of the threat in the notice sent by the appellant that in case of its failure to designate an arbitrator, the said <NAME> was to become the sole arbitrator, that was done without prejudice to the objection already raised.

4. The arbitrators named by the parties appear to have entered upon the refer-

ence despite the protest of the respondent. They could not arrive at an agreement and appointed one <NAME> to be the umpire. That is how the matter reached the umpire. By an award dated 10th April, 1967, the umpire directed the respondent to pay to the appellant a sum of Rs. 8,65,000/- in full and final settlement of its claim. On 1st May, 1967 the appellant presented an application under Section 14(2) of the Arbitration Act, for the filing of the award and to have the award made a rule of the <ORG>. The learned District Judge directed the umpire to file the award. On the award being filed, the respondent made an application under Sections 30 and 33 of the Act for setting aside the award on the grounds that, the award had ignored the terms of the contract and was as such bad on the face of it; that not being based on evidence, it was a nullity and was, therefore, liable to be set aside in its entirety.

5. The most crucial question on which the decision of the appeal must turn and which, the learned District Judge did not deem it worthy of mention, is, whether there was a submission proper of a dispute to arbitration. The question is one which touches the jurisdiction of the arbitrators and the umpire, and it has been debated before us at great length.

6. In support of his contention that the award of the umpire is a nullity, learned counsel for the respondent relied upon Clause 61 of the agreement, and contends that on a plain construction of its terms, it is clear that the pre-existence of a difference or dispute is a condition precedent to the invoking of the arbitration clause. Consequently, the jurisdiction of the arbitrators and for the matter of that of the umpire to enter upon and adjudicate on a submission depends on the factual existence of such difference or dispute. In this case, there was no such difference or dispute.

7. In an endeavour to overcome the difficulty, the learned counsel for the appellant has advanced a three-fold argument. Firstly, he urges that no such objection having been taken earlier, the objection cannot be permitted to be raised for the first time at this stage in appeal. Secondly, the submission is that the respondent, having participated in the proceedings before the arbitrators and the umpire, with a clear knowledge of the circumstances on which it might have founded an objection to their proceeding to make an award; and thereby submitted to the arbitration going on, and allowed the arbitrators and the umpire to deal with the case as it stood before them, taking its chance of the decision being more or less favourable to itself, was now precluded by conduct from raising the objection to the validity of the award. In support of the contention, reliance is placed on Halsbury's Laws of England, 3rd Edn. Vol. 2., p. 37; <NAME> v. <ORG>, 1925 AC 619; <CITATION> ., AIR 1954 Cal 245; Arbn. Juniter General Insce. <CITATION> , AIR 1956 Cal 470; <CITATION> , AIR 1960 Punj 182 and <CITATION> ., AIR 1965 Cal 42. Lastly the learned counsel urges that the respondent having failed to pay in full and settlement of the bill submitted by the appellant, there existed a dispute on the date of submission. At any event, he contends, that the respondent having joined issue on various items of claim in its counter-statement of acts filed before the arbitrators, there came into existence a difference or dispute between the parties as to the claim and, therefore, the arbitrators and the umpire had jurisdiction to deal with the matter. These contentions are wholly unfounded, and must, in our opinion, be rejected.

8. There was no jurisdiction either in the arbitrators, or the umpire to make an award in this case. The pre-existence of a difference or dispute is a condition precedent to the invoking of the arbitration clause. On a plain construction of its terms, the right to arbitration under Clause 61 of the agreement only arises, if a difference or dispute exists, at the time when a notice of submission is served by a party seeking to enforce the arbitration clause. In the present case, there was, in fact, no such difference or dispute. If there is no dispute, there can consequently be no right to demand arbitration. The <ORG> must, therefore, be satisfied that there was some real point of difference which had to be submitted to arbitration.

9. The law on the subject is lucidly stated in Russel on Arbitration, Seventeenth Edn. p. 28 :

"To constitute a submission proper, there must be a difference. If there is no difference there is nothing for an arbitrator to arbitrate about, and in the case of an agreement to refer future disputes to arbitration, the arbitrator's jurisdiction does not arise until a dispute has arisen. It might seem, therefore, that if the agreement between the parties is in effect an agreement to prevent disputes from arising and not an agreement as to how they are to be settled, then it is neither an agreement to refer to arbitration nor a submission to arbitration, and it is not within the Act"

10. The existence of a dispute is an essential condition for the jurisdiction of an arbitrator. If there is no dispute, there can be no right to demand arbitration at all. This was clearly laid down by <NAME>, J., as he then was, in <CITATION> 46 Cal 534 = (AIR 1920 Cal 143). A point as to which there is no dispute cannot be referred to arbitration. Failure to pay does not necessarily constitute a difference or dispute. A dispute implies an assertion of right by one party and repudiation thereof by another. In the instant case, there was merely an assertion of a claim made by the appellant for payment of Rupees 16,77,197.28 P., but there was no repudiation of that claim by the respondent and, therefore there could be no dispute which could be referred to arbitration. The jurisdiction of an arbitrator depends not upon the existence of a claim or the accrual of a cause of action, but upon the existence of a dispute. ( <CITATION> , 24 Cal WN 775 = (AIR 1920 Cal 808 (2)).

11. The leading case on the subject is <ORG> v. <ORG>, 1899 AC 79 (HL). In that case, Section 5 of an Act of <ORG> authorised the railway company to charge a reasonable sum, by way of addition to tonnage rate, for services rendered to a trader. The Act further provided that any differences between the parties arising under the said section was to be determined by an arbitrator to be appointed by <ORG>. The Railway company, in pursuance of the power so conferred on it, had given four days' time to traders to unload their wagons, and, after the said period was over, the traders were required to pay 6d. a day as demurrage for each wagon. The defendant took more than four days to unload his wagons. He knew of these conditions but all along had protested against the right of the company to levy the said demurrage. The railway company sued the defendant in <ORG> to recover a certain sum for such demurrage. The defence was that the suit could not go on, and that the company's claim could only be settled by an arbitrator to be appointed by <ORG>. The finding of <ORG> Judge was that no difference had arisen between the parties before the action had been commenced, either on the question as to whether the four free days were sufficient or not for unloading, or whether 6d. a day was a reasonable charge or not. The question before the <ORG> was not whether the action was to be stayed or not. The question was of wider scope, namely, whether the action was maintainable or not. In the said case, <ORG> reversed the decision of the <ORG> of Appeal. Lord <NAME>, L. C., stated:

"A condition precedent to the invocation of the arbitrator on whatever grounds is that a difference between the parties should have arisen; and I think that must mean a difference of opinion before the action is launched, either by formal plaint in <ORG> or by writ in the superior <ORG>. Any contention that the parties could, when they are sued for the price of the services, raise then for the first time, the question whether or not the charges were reasonable and that therefore they have a right to go to an arbitrator, seems to me to be absolutely untenable."

Lord <NAME> then drew an analogy from an arbitration out of Court. He said that before the arbitrator could enter upon the reference, it must be shown that a difference had arisen between the parties before the submission and, that the arbitrator would have jurisdiction only to adjudicate upon the particular difference which had arisen before the submission. If fresh differences arise after the arbitrator had entered upon the reference, the arbitrator cannot adjudicate upon them without a fresh submission. In the same case Lord <NAME> made the following observations- "One matter about which I do desire to say a word.........is this.........that this difference before action brought, and that it is too late.........afterwards to raise a difference which can be brought within the meaning of this section." The principle so formulated has been applied in India where the application was for stay or action under Section 34 of the Indian Arbitration Act. In Ladha Singh Bed! v. <NAME>, ILR (1939) 2 Cal 181 = (AIR 1940 Cal 105) <NAME>, J. dealing with this case pointed out as follows:

"The noble Lord then drew an analogy from an arbitration out of Court. He said that before the arbitrator could enter upon the reference, it must be shown that a difference had arisen between the parties before the submission and that the arbitrator would have jurisdiction only to adjudicate upon the particular difference which had arisen before the submission."

The same view has been taken by <NAME>, <NAME> and <NAME>, J. in <NAME> v. <NAME>, ILR (1950) 1 Cal 497.

12. The weight of authority is clearly in favour of the view that unless there is repudiation of a claim, there can be no dispute in respect thereof. <CITATION> , (1921) 33 Cal LJ 545 = (AIR 1921 Cal 342), the buyer wanted a variety of information from the sellers to enable him to judge whether the goods supplied were or Were not according to the contract. Amongst other things, he demanded production of shipment samples. The sellers declined to comply with the request. But there was at no stage an assertion by the buyer that the goods had not been supplied according to the contract and consequently there was not and could not be a repudiation by the sellers of any such assertion. It was held by <NAME> and <NAME>, JJ. that there was no "dispute" which could be and had been validly referred to arbitration. While repelling the contention similar to the one made before us, <NAME>, J. stated:

"It has been argued before us that this is an unduly narrow construction of the arbitration clause and that the terms 'difference' and 'defect' need not be restricted to 'difference' or 'defect' in. quantity or quality only. We are disposed to accede to this contention, but, even then, the appellant is not entitled to succeed, unless he proves that there was a dispute as to difference or a dispute as to defect. Now, a dispute implies an assertion of a right by one party and a repudiation thereof by another. In the case before us, the parties never reached that stage."

<CITATION> , AIR 1931 Bom 164 the plaintiff was the sub-partner of the defendant in a certain business. The deed of sub-partnership incor-ported all the articles, covenants, conditions and obligations contained in the principal partnership agreement between the defendant and his partner which were not inconsistent With the terms of the agreement. There was a clause in the deed of principal partnership which provided, inter alia, that any dispute or difference arising between partners with regard to the construction of any of the articles contained in the agreement or to any divisions of goods or things, related to the said Partnership or the affairs thereof, shall be referred to arbitration in the manner therein mentioned. The plaintiff called upon the defendant to make up the accounts and to pay him the amount found due at the foot thereof. The defendant did not pay and the plaintiff filed a suit praying that the defendant may be ordered to render a true and complete account of the profits earned by the partnership business and of the amount due to the plaintiff, and to pay the same to him. The defendant thereupon took out a summons for an order to stay further proceedings to enable the parties to refer to arbitration. It was held by <ORG>, that as there was no dispute between the parties but mere failure to pay, the suit was maintainable and could not be stayed. The principles deducible from these authorities are-

(i) The existence of a difference or dispute is an essential condition for the arbitrator's jurisdiction to act under an arbitration clause in an agreement;

(ii) The jurisdiction of an arbitrator depends not upon the existence of a claim or the accrual of a cause of action, but upon the existence of a dispute. A dispute implies an assertion of a right by one party and repudiation thereof by another;

(iii) A failure to pay is not a difference, and the mere fact that a party could not or would not pay does not in itself amount to a dispute unless the party who chooses not to pay raises a point of controversy regarding, for instance, the basis of payment or the time or manner of payment.

13. There is no merit in the contention of learned counsel for the appellant that the respondent not having taken any objection as to the jurisdiction of the arbitrators or the umpire to enter upon the reference earlier, it cannot now be permitted to raise such an objection at this stage. Throughout, the respondent has taken the stand that there was no difference or dispute existing at the time of reference and, therefore, the arbitration clause could not be invoked. In the first place, such an objection was expressly taken not only at the initial stage as soon as the lawyer's notice was served, but also thereafter before the arbitrators and in the <ORG> below. In its reply dated 2nd July, 1965, the respondent had clearly stated that "no dispute as contemplated in the arbitration agreement has arisen" as would entitle the appellant to refer the matter to arbitration. The respondent further stated that in view of the fact that the appellant's claim was "under examination by <ORG>", and if in the course of finalization of the claim "any difference comes out" then only there will be any question of reference to arbitration. Thereafter, in para 18 of the counter-statement of facts filed before the arbitrators, the respondent reiterated that the the reference to arbitration was premature. Once again, in, the <ORG> below, the respondent while applying under Section 30 of the Arbitration Act for setting aside the award, had specifically alleged in para 5 of the application that "there was no dispute or difference as contemplated by Clause 61 of the agreement" and that it had only nominated an arbitrator without prejudice to this contention, and in para 41 thereof stated that the arbitrators and the umpire had "acted without jurisdiction." In the face of such clear and explicit assertions by the respondent, at all relevant stages, we fail to appreciate how it can be urged that no such objection was taken earlier and, therefore, the objection cannot be raised at this stage.

14. It is well established by authority that once the parties appearing before the arbitrators object to the jurisdiction, they do not waive their rights by proceeding with the case before the arbitrators and defending themselves as best as they may. The law is succinctly stated in Russel on Arbitration, 17th Edn. p. 174 thus :

"In cases where an arbitrator enters into the consideration of matters which are not referred to him, or which he has no jurisdiction to try, 'the question is not one of waiver or estoppel, but of authority' and a party continuing to attend the reference after objection taken and protest made does not give the arbitrator authority to make an award."

"If a party to a reference objects that the arbitrators are entering upon the consideration of a matter not referred to them and protests against it, and the arbitrators nevertheless go into the question and receive evidence on it, and the party, still under protest, continues to attend before the arbitrators and cross-examines the witnesses on the point objected to, he does not thereby waive his objection, nor is he estopped from saying that the arbitrators have exceeded their authority by awarding on the matter."

"Continuing to take part in the proceedings after protest made does not amount to be a consent."

In particular, we would refer to the remarks of Lord <NAME>, L. C., in <NAME> v. <NAME>, (1880) 6 QBD 63 where he said:

"In arbitrations, where a protest is made against jurisdiction, the party protesting is not bound to retire; he may go through the whole case, subject to the protest he has made."

See also <NAME> v. <NAME>, (1864) 34 LJQB 8. The principles enunciated in these cases have throughout been followed in India. <CITATION> , AIR 1927 Bom 553; <CITATION> , AIR 1931 Bom 81; <CITATION> ., AIR 1931 Bom 343 and <NAME> v. <NAME>, (1961) 31 LJ Ch 420. Thus, the appearance of the respondent after objection taken and protest made did not give the arbitrators or the umpire authority to make an award, nor estopped it from urging that the umpire has exceeded his authority. In such a case, no question of estoppel, acquiescence or waiver, arises.

15. Learned counsel for the appellant relied upon the following passage in Halsbury's Laws of England, 3rd Edn. Vol. 2, p. 37:

"84. Party protesting that arbitrator is exceeding his authority.

A party who protests that the arbitrator is acting either without authority or beyond the scope of the agreement of reference, but nevertheless attends the reference, does not thereby waive his protest." but we fail to understand how that passage supports him,

16. The decisions relied upon by learned counsel for the appellant are distinguishable on facts. They rest on the principle of estoppel, waiver or acquiescence. They rest on the principle that if a party allowed an arbitrator to proceed without objecting to his jurisdiction or competence, he would not be subsequently heard to say that the award should be set aside, on the ground that the arbitrator was not competent to decide the dispute in question. Though the learned counsel has not referred to the leading cases on the subject, we may advert to them. That principle was enunciated by <ORG> in <NAME> v. Mt. Bibi Bechunnissa, (1876) 3 Ind App 209 p. 220 in the following words :

".........that the appellant, having a clear knowledge of the circumstances on which he might have founded an objection to the arbitrators proceedings to make their award, did submit to the arbitration going on, that he allowed the arbitrators to deal with the case as it stood before them, taking his chance of the decision being more or less favourable to himself; and that it is too late for him, after the award has been made, and on the application to file the award, to insist on his objection to the filing of the award."

Likewise, <ORG> in <NAME> and Co. v. <NAME>, AIR 1920 PC 123 was faced with the question as to the defective appointment of a sole arbitrator. Their Lordships were of the opinion that though the defect, i. e., the absence of notice under Section 9(b) , would have been fatal to the authority of the person appointed as sole arbitrator but for the fact that any objection on this head was waived by the party concerned, he having rested his case as to the validity of any arbitration in the place in which it was held, he could not be permitted to rely on a defect in procedure which could have been remedied at once if he had raised the point.

17. We shall now deal with the decisions relied upon. In (1925) AC 619 <ORG> held that the claimant having allowed the point of insurable interest to be raised before the arbitrator without objection, it was not open to him to call in question the authority of the arbitrator to entertain it. In AIR 1956 Cal 470 (supra), the submission to arbitration was by a party under a statutory disability, and in spite of the disability, it had participated in the arbitration without protest and fully availed of the arbitration proceedings and then when it saw that the award had gone against it, it came forward to challenge the whole of the arbitration proceedings as without jurisdiction on the ground of a known disability of a party. That was also a case where a party having knowledge of its disability had withheld that fact and was thereby precluded by conduct from challenging the validity of the award. In AIR 1965 Cal 42 (supra), there was failure to object to the jurisdiction of the arbitrators and the umpire as to investigate a part of the claim, i. e., with respect to the hiring charges, at any stage of the proceedings, and it was held that such failure acts as an estoppel. In AIR 1960 Punj 182 (supra), there was a valid submission, and no objection was taken to the Superintending Engineer, for the time being, adjudicating upon the dispute. The party willingly and without protest took part in the proceedings before the arbitrator, and thereby took its chance of the decision going in his favour. In those circumstances, it was held that there was implied variance of the agreement to refer to a named arbitrator, by conduct, and that it was under the varied agreement that the arbitrator acted. There was, accordingly, no defect in the award.

18. We are here not concerned with any procedural irregularities, but initial lack of jurisdiction. <CITATION> ., AIR 1962 SC 1810, <ORG> has observed:

"But what confers jurisdiction on the arbitrators to hear and decide a dispute is an arbitration agreement as defined in Section 2(a) of the Arbitration Act, and where there is no such agreement, there is an initial want of jurisdiction which cannot be cured by acquiescence. It may also be mentioned that the decision in (1860) 30 LJ Bcy 10 has been understood as an authority for the position that when one of the parties to the submission is under a disability that will not be a ground on which the other party can dispute the award if he was aware of it. Vide Russel on Arbitration, 16th Edition, 320"

When the respondent was not willing to join in the submission, the remedy of the appellant lay by way of an application under Section 20 of the Arbitration Act. We are fortified in that view by the decision of <ORG> in <CITATION> , AIR 1955 SC 468. While dealing with the question, their Lordships of <ORG> observed:

"A reference requires the assent of 'both' sides. If one side is not prepared to submit a given matter to arbitration when there is an agreement between them that it should be referred, then recourse must be had to the <ORG>, under Section 20 of the Act and the recalcitrant party can then be compelled to submit the matter under Sub-section (4).

In the absence of either, agreement by 'both' sides about the terms of reference, or an order of the <ORG> under Section 20(4) , compelling a reference, the arbitrator is not vested with the necessary exclusive jurisdiction."

19. It is now well settled that an inherent lack of jurisdiction or want of jurisdiction renders the ultimate decision a nullity so that it can be challenged at any subsequent stage and even in collateral proceedings. Such a defect cannot be cured even by waiver or acquiescence of the party entitled to raise the objection. ( <CITATION> , AIR 1954 SC 340). By now the expression "jurisdiction" has acquired a much wider meaning. However, the expression "jurisdiction" even in its original sense when it was limited, included within its ambit the stage of commencement of a proceeding. We are concerned in this case with jurisdiction at the commencement of the proceeding and, therefore, even in the original sense of the term, when it was so limited, such a defect of jurisdiction was a nullity. This theory has now been modified by enlarging the scope of the expression "jurisdiction" so as to include in its ambit even those defects which may crop up later during the course of the proceeding. This modified meaning enlarging the scope of the expression "jurisdiction" is dealt with in <NAME> v. <ORG>, (1969) 1 All ER 208 by <ORG>, and the same has been followed with approval by their Lordships of <ORG> in <CITATION> ,  = (AIR 1971 SC 1558).

20. In the state of law as it is, there can be no manner of doubt that the defect of jurisdiction with which we are concerned in the present case, is such that in case it exists, the ultimate award would be a nullity and, that being so, such an objection can be validly raised for the first time even at this stage. For these reasons, we are of the view that the objection taken on behalf of the appellant to the tenability of this argument has no force.

21. Having regard to the view that we have taken on the question of jurisdiction, there is no need for us to go into other questions. We are satisfied that the umpire had no jurisdiction to deal with the matter and, therefore, the award was rightly set aside.

22. The result, therefore, is that the appeal fails and is dismissed with costs. The order of the learned District Judge setting aside the award of the <ORG> is affirmed, though of a different ground. Counsel's fee as per schedule or a certificate, whichever is less.


PETITIONER: <NAME> Vs. RESPONDENT: <NAME> AND OTHERS. DATE OF JUDGMENT: 29/09/1954 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> MAHAJAN, <NAME>, <NAME>, VIVIAN HASAN, GHULAM CITATION: 1954 AIR 749 1955 <NAME>R 671 CITATOR INFO : R 1971 <NAME> 267 (33) R 1971 <NAME>1295 (16,18,85) R 1975 <NAME> 308 (12,14) RF 1975 <NAME>2299 (117,492,495,501) D 1985 <NAME>1133 (6,11) F 1987 <NAME>1577 (19) R 1989 <NAME>1737 (11) ACT: Representation of the People act, 1951 (XLIII of 1951),ss. 77, 123(7), 124(4)-Gist of corrupt practice as defined in s. 123(7). HEADNOTE: Section 123(7) of the Representation of the People Act, 1951, shows clearly that in order to amount to a corrupt practice the excess expenditure must be incurred or authorised by a candidate or his agent and the employment. of extra persons must likewise be by a candidate or his agent. The charge against the appellant was, inter alia, that the Manager, Assistant Manager, 20 Ziladars of Amethi and their peons and orderlies had worked for the appellant in connection with the election. The view taken by <ORG> that though the estate belonged to the father of the appellant, nevertheless as the appellant was the heir apparent and actually looked after the estate on behalf of the old and infirm proprietor, these servants of the estate were "virtually" his "own" servants and could properly be regarded as having been employed for payment by the appellant, was untenable because though s. 77 of the Act uses the words <NAME> who may be employed for payment", without indicating by whom employed or paid, the gist of a corrupt practice as defined in B. 123 (7) of the Act is that the employment of extra persons and the incurring or authorising of extra expenditure must be by the candidate or his agent. The appellant accordingly, could not in the circumstances of the present case, be held to be guilty of any corrupt practice under s. 123(7) as alleged against him and therefore could not be held to have been guilty of any minor practice under s. 124(4) of the Act. , <NAME> and Another v. Sir <NAME> (6 O'Mally & Hardocastle's Report of Election Cases, p. 1), referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 73 of 1954.

Appeal by Special Leave against the Judgment and Order dated the 11th day of February, 1954, of <ORG>, Allahabad. in Election Petition No. 252 of 1952.

<NAME> and <NAME>, (<NAME> and <NAME>, with them) for the appellant. <NAME> (<NAME>, with him) for respondent No. 1. 1954. September 29. The Judgment of the Court was delivered by <NAME>, the appellant before us, is the son of <NAME> of Amethi. He was the successful candidate at an election to <ORG> from Amethi (Central) constituency the polling in respect of which took place on the 31st January, 1952, and the result whereof was announced on the 6th February, 1952, and finally published in <ORG> on the 26th February, 1952. The respondent, <NAME>, who was one of the unsuccessful candidates filed an election petition calling in question the election of the appellant. Three other unsuccessful candidates were also impleaded as respondents. The grounds on which the election was challenged were that the appellant himself, together with his own and his father's servants and other dependents and agents, committed various corrupt practices of bribery, exercise of undue influence, publication of false and defamatory statements and concealment of election expenses as per particulars set forth in the petition and the schedules thereto. He prayed that the election of the appellant be set aside and that he, the said respondent, be declared to have been duly elected. The appellant alone contested the petition. In his written statement he denied each and every one of the charges of corrupt practices levelled against him and he also filed a petition of recrimination challenging the conduct of the said respondent at the election. The said respondent denied the charges imputed to him. Altogether 15 issues were raised, namely, eight. on the election petition and 7 on the petition of

-recrimination. All the 7 issues arising out of the petition of recrimination were found by the tribunal constituted for hearing of the election petition against the appellant and the petition of recrimination was dismissed. The appellant has not contested the correctness of those findings before us and nothing further need be said about them. As regards the issues arising on the main election petition the election tribunal found in favour of the appellant on issues Nos. 1, 2, 4,5, 6 and 7 but decided issue No. 3 against the appellant. That issue was as follows:3 Did respondent No. I employ for election more persons than authorised by law?

Did respondent No. I incur the expenditure shown in the list as "Heads of other concealed expenditures?" Did he exceed the prescribed limit of expenditure for election ?"

The above issue related to charges made out in paragraph 6 of the election petition and the list of particulars set out in Part III of the schedule thereto. The particulars in that part were -grouped under two main heads, each containing several items. The first head referred to persons alleged to have been employed on payment far in excess of the prescribed number and not shown in the return of election expenses. The second bead of particulars contained other alleged concealed expenditures. The election tribunal held in favour of the appellant on all items of charges under both heads in Part III, except items

(ii) and (iii) of the first bead. Item (ii) charred that all the paid Ziladars of Amethi estate who were about 20 in number assisted by their peons and orderlies worked for the appellant and item No. (iii) complained that the Manager and the Assistant Manager of that estate also worked for him. The tribunal held that the number of all these persons coming within these two categories far exceeded the prescribed number of persons who could be employed in an election and their salary for the period they worked for the appellant in connection with the election, if added to the admitted election expenses, would exceed the maximum expenditure permissible for contesting a single-member constituency. The tribunal, therefore, held that the appellant was guilty, under both these heads, of corrupt practice as defined, in section 123(7) of the Representation of the People Act, 1951, and was consequently liable to be dealt with under section 100(2) (b) and section 145 of that Act.

These findings as to employment of extra persons on payment and the expenditure of money in excess of 7h the permissible maximum election expenses necessarily led to the further finding that inasmuch as these expenses had not been shown in the appellant's return of election expenses the appellant was also guilty of a minor corrupt practice as defined in section 124(4) of the Act and was liable to be dealt with under section 100(2) (a) and section 145 of the Act. In the result, the tribunal under the general issue No. 8 only declared the election of the appellant to be void. Hence this appeal filed by the unseated candidate with the special leave of this Court.

Section 77 of the Representation of the People Act, 1951, provides that the maximum scales of election expenses at elections and the numbers and descriptions of persons who may be employed for payment in connection with election shall be as may be prescribed. As regards the maximum expense, rule 117 lays down that no expense shall be incurred or authorised by a candidate or his election agent on account of or in respect of the conduct and management of an election in any one constituency in a State in excess of the maximum amount specified in respect of that constituency in Schedule V. The maximum amount specified in that schedule in respect of a singl emember constituency in the Uttar Pradesh is only Rs. 8,000. Rule 118 prescribes that no person other than or in addition to those specified in Schedule VI shall be employed for payment by a candidate or his election agent in connection with an election. Schedule VI allows I election agent, 1 counting agent, 1 clerk and 1 messenger at all elections. It also allows, in addition to these, 1 clerk and 1 messenger for every 75,000 electors and 1 polling agent and 2 relief agents for each polling booth and I messenger at each polling booth. The contravention of the provisions of section 77 , read with rules 117 and. 118 and Schedules V and VI, is made a corrupt -practice by section 123(7) Section 123(7) -clearly shows that in order

-to amount -to a corrupt- practice the excess expenditure - must be incurred or authorised by a candidate or his agent and the employment of extra persons must likewise be by a candidate or his agent.

The charge against the appellant was, inter alia, that the Manager, Assistant Manager, 20 Ziladars of Amethi estate and their peons and orderlies had worked for the appellant in connection with the election. The tribunal took the view-we think quite erroneously that although the estate belonged to the father of the appellant, nevertheless, as the appellant was the heir apparent and actually looked after the estate on behalf of the old and infirm proprietor, these servants of the estate were "virtually" his "own" servants and could properly be regarded as having been employed for payment by the appellant. The Learned advocate appear ing for the respondent frankly and properly conceded that he could not support this part of the finding of the tribunal. He, however, contended, relying on the language used in section 77 , that if the number of persons who worked for payment in connection with the election exceeded the maximum number specified in Schedule VI, the case fell within the mischief of the relevant sections and the rules, no matter who employed them or who made payments to them. It is true that section 77 uses the words "who may be employed for payment" without indicating by whom employed or paid but it must be borne in mind that the gist -of a corrupt practice as defined in section 123(7) is that the employment of extra persons and the incurring or authorising of excess expenditure -must be by the candidate or his agent. The provisions of rules 117 and 118 are to be read in the light of this definition of a corrupt practice. Indeed, these rules follow the language of section 123(7) in that they prohibit the employment of persons other than or in addition to those specified in Schedule VI, and the incurring or authorising of expenditure in excess of the amount. specified in Schedule V, and in both cases by a candidate or his agent. Section 77 must, therefore, be read in a manner consonant with section 123(7) and rule 117 and and 11 8. In this view of the matter the observation made by <NAME> in <NAME> and, Another v. Sir <NAME>), relied on by the appellant and referred to in the judgment of the tribunal are quite apposite. There can be no doubt that in the eye of the law these extra persons were in the employment of the father of the appellant and paid by the father and they were neither employed nor paid by the appellant. The case, therefore, does not fall within section 123(7) at all and if that be so, it cannot come within section 124(4) . It obviously was a case where a father assisted the son in the matter of the election. These persons were the employees of the father and paid by him for working in the estate. At the request of the father they assisted the son in connection with the election which strictly speaking they were not obliged to do. Was the position in law at all different from the position that the father had given these employees a holiday on full pay and they voluntarily rendered assistance to the appellant in connection with his election? We think not. It is clear to us that qua the appellant these persons were neither employed nor paid by him. So far as the appellant was concerned they were mere volunteers and the learned advocate for the respondent admits that employment of volunteers does not bring the candidate within the mischief of the definition of corrupt practice as given in in section 123(7) . The learned advocate, however, contended that such a construction would be against the spirit of the election laws in that candidates who have rich friends or relations would have an unfair advantage over a poor rival. 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 the rules made there under. 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 Court.

(1) 6 O'Mally and Hardcastle's Report of Election Cases, page I at page 6, On a consideration of the relevant provisions of the Act and the rules and the arguments advanced before us we are of opinion that the appellant cannot in the circumstances of this case be held to be guilty of any corrupt practice under section 123(7) as alleged against him. It follows from this that not having incurred any expenditure over and above what was shown by him in his return of election expenses he cannot be said to have concealed such expenditure and, therefore, he cannot be held to have been guilty of any minor corrupt practice under section 124(4) of the Act. In the view we have taken, namely, that these extra men were not employed or paid by the appellant, it is unnecessary, for the purpose of this appeal, to discuss the question whether, if one's own servants are also utilised or employed in the conduct of the election, their salary for the period they are so utilised or employed should be regarded as election expenses and shown in the return. On that we prefer not to express any opinion on this occasion. No other point having been raised we allow this appeal with costs.

Appeal allowed.