JUDGMENT <NAME>, J.

1. This appeal with certificate is directed against a judgment dated 26/27 July 1965 of <ORG> of <ORG> by which the appellant's appeal from a judgment of a Single Judge of that High Court had been dismissed. The short facts of the case are as follows:

The appellant is the sole proprietor of a firm by the name of <ORG> and carries on business of importing plantation and agricultural machinery, implements, accessories and spare parts of such machinery. The appellant is also the sole selling agent of a German firm called "<ORG>". In October, 1956, on the strength of two import licences dated 9 February 1956 and 16 March 1956, the appellant imported from his principals the aforesaid firm of <ORG>, certain parts of agricultural machinery known as Express Battery Sprayers. The relevant invoice is dated 28 October 1956 and the Bill of Lading is dated 10th November, 1956. The appellant filed his Bill of Entry before the <ORG> authorities on 3 January 1957. When the goods arrived at the Bombay Port in January, 1957 the <ORG> authorities, after examining certain samples, gave clearance in respect of the goods on 10 January 1957. The goods consisted on 28 crates and contained, according to the appellant, 220 pieces of spare parts for power driven agricultural machinery. The value declared was Rupees 37,943. Subsequently, it appears, the <ORG> authorities had some doubts as to whether the goods correctly answered the description of goods for which the appellant had been given an import licence and with the help of search warrants searched the appellant's business premises and seized 10 cases of Express Battery Sprayers, certain ball bearings and certain hose clips. By a memorandum dated 28 December 1957 the appellant was asked to show cause why penal action should not be taken against the appellant under Section 167, Clause (8) of the Sea <ORG> Act, 1878 read with Section 3(2) of the Imports and Exports (Control) Act, 1947. Under the same memorandum the appellant was also asked to show cause why penal action should not be taken against him under Section 167(39) of the Sea <ORG> Act, 1878 for taking out certain goods without making a due "entry" for them. The memorandum, therefore, contained two charges. We are in this appeal concerned mainly with the charge under Section 167(8) of the Sea <ORG> Act 1878. The appellant, in due course showed cause against the said notice and asked for a personal hearing. He was given a personal hearing by the Assistant Collector of <ORG> on 21 July 1968.

2. It is better at this stage to set out what are the respective contentions of the appellant and the <ORG> authorities in this matter. The import licence that was granted to the appellant described the things covered by the licence as "spare parts in power-driven agricultural machinery (parts of sprayers)". Admittedly the import licence is one which relates to Item 74 (vi) of Part V of Schedule I to the Imports (Control) Order (1955) made under the Imports and Exports (Control) Act, 1947, The Schedule will hereafter be briefly referred to as the I.T.C Schedule. Item 74 (vi) of Part V of that Schedule reads as follows:

(vi) Parts of Power-driven agricultural machinery.

The goods that the appellant actually brought were certain liquid containers which were parts of sprayers. According to the appellant, the abovementioned Item 74(vi) permits all kinds of spare parts of power-driven agricultural machinery. "Spare parts" in this case were intended to be parts of certain sprayers fabricated by <NAME> and generally described as Express Battery Sprayers. These sprayers, according to the appellant, function normally with the help of Power-driven pumps. Functionally, therefore, what the appellant imported were according to him, correctly described in the import licence. In other words, the appellant contends that the imports were in terms of the import licence. The <ORG> authorities on the other hand, say that the Sprayers built by <NAME> are hand-operated sprayers and, therefore, fall within Item 74(x) of Part V of the I.T.C. Schedule which item relates to "sprayers (other than power-driven) and parts". As both Items 74(vi) and 74(x) with which we are concerned belong to Part V of the I.T.C. Schedule, we shall, for the sake of convenience, refrain hereafter from mentioning either the Schedule or the relevant part. According to the <ORG> authorities, though the appellant's import licence was one in respect of goods covered by Item 74(vi), he had, in fact, brought goods falling under Item 74(x) so that, in effect, the goods that the appellant had imported were not covered by any valid import licence.

3. The appellant, we are told, gave various demonstrations before the <ORG> authorities to show how the liquid containers in question fitted into the <ORG> sprayers and how those sprayers were operated with power. The appellant admits that the spraying machines in question could also be operated by hand though, he says, the efficiency of the machines in that case would be reduced to a very great extent. Finally, on or about 25 May, 1960, one <NAME> who, incidentally, was not the Collector who heard the appellant, passed an order by which he held that the appellant's firm had deliberately cleared "<ORG>" battery sprayers in an unauthorised manner that is to say without a valid licence to cover their imports. <NAME> also found that the appellant had taken out certain goods valued at Rupees 8,163/- without proper declaration or without filing an appropriate Bill of Entry and also without production of a valid licence. On these grounds the Collector found the appellant guilty under Section 167(8) of the Sea <ORG> Act and imposed a personal penalty of Rupees 80,000. The Collector, however, did not confiscate the goods. The appellant asked for a rehearing but no rehearing was given. Thereupon, instead of following the usual remedies under the Sea <ORG> Act the appellant filed a petition under Article 226 of the Constitution before <ORG>. The petition was heard and dismissed by a Single Judge of that High Court and, on appeal, the order of the Single Judge was confirmed by <ORG>. The present appeal is directed against the order of <ORG>.

4. There is very little controversy between the parties regarding the facts of this case. Both parties admit that the sprayers in question can be operated with the use of power as well as mechanically. <NAME>, Collector of <ORG> has recorded the following findings regarding the nature of the imports in his order of 25 May, 1960:

The Express Battery Sprayers (Containers) have no self-contained pumps- by which they could be charged. They can be charged by a hand filling or by a power pump. They are not specially designed for exclusive use with power pumps and hence cannot be classified under Section No. 74(vi) of the Schedule as parts of power-driven agricultural machinery. They are sprayers which would require an I.T.C. Licence under Section No. 74(x) Part V of the I.T.C. Schedule.

5. Mr. <NAME> who appeared for the appellant before us admitted frankly that unless the Collector's decision is found to be perverse, neither the High <ORG> nor this <ORG> could interfere with that decision. He contended, however, that if in interpreting the I.T.C. Schedule for the purpose of finding out which was the proper item of the Schedule under which the imported goods would fall, the Collector is found to have made any mistake that would be open to correction by the High <ORG> as well as by this <ORG> He also argued that while the Collector's finding on facts about the results of the demonstration before him Cannot be legally questioned by the appellant, it is permissible for him to dispute the correctness of the statements made by the Collector in the last two sentences of the paragraph which we have set out above from the Collector's order.

6. On the assumption that the Collector's finding on fact cannot be assailed in a writ petition we must start from the proposition that the imports were of spare parts of spraying machines which were capable of being used both as a power-driven machinery as well as a hand-operated machinery. According to the <ORG> authorities since the machines in question are not specially designed for exclusive use of power pumps they cannot be described as power-driven agricultural machinery and therefore, the spare parts in question could not be classified under Item 74(vi). The only question that arises in these circumstances, can, in our opinion, be framed in the following manner. Does the fact that certain machinery which can be power-driven also admits of an alternative method of operation by mechanical force completely divests that machinery of its character qua 'power-driven machinery'? If a machinery is suitable for two alternative uses, is it wrong to describe the machinery as capable of only one of these alternative uses?

7. Mr. <NAME> argued that if we have any doubts in our minds as to the answer to this question, in other words, if two alternative interpretations are possible of the exact scope and effect of the description of the items in the I.T.C. Schedule, we should favour that interpretation which would be beneficial to the subject. He relies for this purpose on an unreported decision given by two Judges of this Court in <CITATION> . Appeal No. 801 of 1964, D/- 10-1-1967 (<ORG>), where it was held:

Assuming that there is a doubt in the construction of the licence, the appellant against whom the penal provisions of Section 167(8) of the Sea Customs Act, 1878 are sought to be enforced, is entitled to the benefit of the doubt.

8. Mr. <NAME> appearing for the respondents, however, drew our attention to decisions of two larger Benches of this <ORG>, according to which, if the view taken by the <ORG> authorities as to the scope and applicability of the different I.T.C Schedules be a reasonable view there should be no interference with the decision of the <ORG> authorities. Thus in the <CITATION> AIR 1963 SC 319 the question arose whether certain goods described as "feed-oats" for feeding race-horses were goods that fell under Item 42 of Part IV of the Import Trade Control Schedule which permitted the import without licence of "fodder..." or under Item 32 which did not allow the import of grains without a licence. The <ORG> authorities held that the goods were 'grains' within the meaning of Item 32 and confiscated the goods and imposed a penalty on the importer in lieu of confiscation. The importer succeeded In <ORG> in a writ petition for prohibiting the authorities from recovering the penalty imposed. This <ORG> in a Bench consisting of five Judges considered this matter and held that <ORG> had no jurisdiction to interfere with the decision of the <ORG> authorities. <NAME>, J who delivered the judgment of the <ORG> found that the decision of the Assistant Collector of <ORG> and of the Collector of <ORG> on appeal holding the oats in question to be 'grains' could not be characterised as perverse or mala fide. On these grounds his Lordship held that the learned Judges of <ORG> had erred in interfering with the order of the Collector of <ORG>. <NAME>, J. referring to an earlier decision of this <ORG> in <NAME> v. <NAME> observed as follows:

This <ORG> proceeded on the basis that it is primarily for the Import Control authorities to determine the head of entry under which any particular commodity fell; but that if in doing so these authorities adopted a construction which no reasonable person could adopt i.e., if the construction was perverse then it was a case in which the <ORG> was competent to interfere. In other words if there were two constructions which an entry could reasonably bear, and one of them which was in favour of <ORG> was adopted, the <ORG> has no jurisdiction to Interfere merely because the other interpretation favourable to the subject appeals to the <ORG> as the better one to adopt.

9. In another decision namely <CITATION> of this Court consisting of four Judges was called upon to decide whether the Collector of <ORG> had made a wrong decision in the matter of construing the scope of Entry 22 of Part I of the Import Trade Control Handbook and held that a court dealing with a petition under Article 226 does not sit in appeal over the decision of the <ORG> authorities and the correctness of the conclusion reached by those authorities on the application of the several items in the Handbook or in the Indian Tariff Act, is not a matter which falls within the writ jurisdiction of <ORG>.

10. In view of these two decisions of this Court which are binding on us, we have no manner of doubt that <ORG> was quite right in accepting the conclusions and findings of the <ORG> authorities about the proper scope of Item 74(vi) of the I.T.C. Schedule. In our opinion, there is nothing in the decision of the Collector which can warrant its condemnation as perverse or unreasonable. Even if it be assumed that because of the language used in the two items viz Items 74(vi) and 74(x) of the I.T.C Schedule, there is some room for confusion, it would not be competent for <ORG> to interfere in a writ petition with the conclusion or finding-of the Collector of <ORG> regarding the scope and ambit of those items.

11. In the result this appeal fails. We dismiss the appeal and confirm the decision of <ORG>. In the peculiar facts and circumstances of this case, however, we make no order as to costs.


JUDGMENT

1. The plaintiff had preferred a claim under Section 278 of the Civil Procedure Code and his claim was disallowed under Section 281 of the Civil Procedure Code. Within a year of the order disallowing the present plaintiff's claim, the judgment-debt was satisfied otherwise than by the sale of the attached property. The present suit is now brought to establish the plaintiff's right to the properties as usufructuary mortgagee and for recovery of possession from the defendants. It has been held that the suit is barred under Article 11 of schedule II of the Limitation Act.

2. Mr. <NAME>, appearing for the plaintiff who is the appellant before us, contends that the order under Section 283 enures in favour of or against the decree-holder or the claimant and not the judgment-debtor, The judgment-debtor, according to this contention, is not a party within the meaning of Section 283 and this contention would seem to be supported by the decisions in <NAME> v. <NAME> (1888) I.L.R. 15 Calc. 574 and <NAME> v. <NAME> (1905) 3 C.L.J. 381 where the proposition is laid down that, in proceedings under Section 278, the real question for decision is not whether the title to the property belongs to the judgment-debtor or the claimant but whether the property should be released from attachment or not. We may also point out that the observations of their Lordships of <ORG> in <NAME> v. <NAME> (1888) I.L.R. 15 Calc. 521 at p. 525 would indicate that, besides the claimant, the only other party within the meaning of Section 280 is the judgment-creditor. <CITATION> (1906) I.L.R. 29 Mad. 225 and <CITATION> (1902) I.L.R. 25 Mad. 721 proceed upon the view that if the judgment-debtor be made a party to the proceedings and there has been an adjudication between him and the claimant, the suit of the claimant would be barred as against him if not brought within a year. Even supposing that to be the correct interpretation of the section of the Code in question--and we do not think that the respondent can properly put her case any higher--we find that in the present case the respondent, who was judgment-debtor in the claim proceedings, neither appeared nor was there adjudication of the claim as between her and the present plaintiff. We may point out that the decision in <CITATION> (1869) M.H.C.R. 472 proceeds upon the Code of 1857 where the language employed is different from that of the code of 1882.

3. We therefore hold that the view taken by the lower <ORG> on the question of application of Article 11 of the ' Limitation Act is wrong. The decree of lower <ORG> will be set aside and the case will be remanded to it for disposal on the other issues. Costs will abide the result.


JUDGMENT <NAME>, C.J.

1. This group of 19 writ petition has been filed by cold storage owners. The facts and the points of law raised in each are the same. We shall take the facts from Civil Miscellaneous Writ No. 450 of 1976. In this case, the petitioner installed and assembled the cold storage plant in 1965. Part of the plant consisted of erecting locally what an; called cooling coils and condensers. Generally cooling coils and containers contain a very long length of pipes made in a particular shape. The petitioner, however bought pipes of various lengths, erected them one after the other and joined one with the other with an 'U' shape bend. These bends were welded. The result was that the various pipes constituted an unit in designing the plant. This part of the plant was necessary in order to pass the cooling gas through it and thereby cool the chambers of the storage. The petitioner bought the pipes and the bends from the market and got them placed at the factory site and got them welded himself.

2. The petitioner received a notice dated April 22, 1970, from the Superintendent, <ORG> stating that the petitioner had manufactured parts of refrigerating and airconditioning machinery and appliances covered by Item No. 29A (3) of the First Schedule to the <ORG>s and Salt Act , 1944, namely, condensers and cooling coils. On the estimated value of these coils and condensers a duty in the, sum of Rs. 32,000/- was payable which the petitioner was required to pay or to' show cause.

3. The petitioner filed objections which were dismissed by the Assistant Collector of <ORG> by an order dated June 22, 1973. The petitioner filed an appeal. The Appellate Collector of <ORG> and Customs dismissed the appeal on June 29, 1976. The petitioner then filed a revision before <ORG>. The same was pending when the present writ petition was filed.

4. Similar was the case with other petitioners. They also went up in appeal and then in revision. In some of those cases the revision was decided by the .Govt. of India. It was held that the conglomeration of pipes manufactured by-the petitioner constitutes manufacture of a cooling coil as used in refrigeration technology. The arrangement of coils in the manner done by the petitioner answered the term "Cooling coils and condensers" adequately. It was also held that it was not necessary that for a person to be licenced he should be in the trade or profession of manufacture of component parts of regrigerating machinery. The petitioner did manufacture these parts, to carry on the business of cold storage. It was also found that the plea based upon the tariff advice relating to the entire refrigeration plant being assembled at site was not maintainable. Tariff advice was not applicable to components or parts of such refrigeration unit. The parts namely, the cooling coils and condensers erected by the petitioner in his own cold storage were liable to duty under Item No. 29A (3) of the Central Excise and Salt Act , 1944. The judgment of <ORG> relied upon by the petitioner was held distinguishable. On these findings the revision dismissed.

5. We are not disposed to decide the petition on a technical plea of alternative remedy because we now know the views of <ORG>. They have decided revisions in, marry cases. It will hence not be rightto ask such of the petitioners who have filed.revisions to await the decision.

6. All the authorities below have concurrently found that the things erected or installed by the petitioner by laying pipes and joining them by welded bends was manufacture of cooling coils and condensers as known to refrigeration technology. This is a finding on facts and we have not been pursuaded that the findings suffers from any manifest error or law. The basic method of erection of these pipes and the purpose of their use was nothing else than that of cooling coils and condensers as they are technically called. We shall hence proceed on the basis that the petitioner while erecting or installing the cold storage plant did manufacture cooling coils and condensers which are parts of refrigeration plant or unit. The authorities below have held that these installations were within the purview of Entry 29A (3) of the Act. This entry runs as follows :

Refrigeration and Air Conditioning Appliances :

Refrigerating and Air Conditioning Appliances and machinery, All Sorts, and parts thereof :-

(1) Refrigerator and other refrigerating appliances wnich are ordinarily sold or offered for sale as ready assembled units, such as ice makers, bottle coolers, display cabinets and water coolers.

...75% ad valorem.

(2) Air Conditioners and other air conditioning appliances, which are ordinarily sold or offered for sale as ready assembled units, including package type airconditioners and evaporative type of coolers ... 100% ad valorem (3) Parts of refrigerating and airconditioning appliances and machinery, all sorts.

...125% ad valorem.

This entry finds place in the Schedule which is part of the Act. It has as much statutory force as the provisions of the Act itself.

Under Entry 29A, refrigerating or airconditioning appliances are covered. The sub-heading, which is equally important refers to refrigerating and airconditioning appliances and machinery all sorts, and parts thereof. These things are elaborated in the sub-items (1), (2) and (3). It is apparent that refrigerating and airconditioning appliances which answer the description given in subentries (1) aed (2) alone are liable to duty.

The heading is general but the ambit of that heading has been restricted by the elaboration made in the sub-items (1) and (2), Under both the sub-items, refrigerating and air-conditioning appliances which are ordinarily' sold or offered for sale as ready assembled units are liable to duty. This is a restrictive condition with the result that refrigerator and other refrigerating applicances mentioned in item (1) or air-conditioners or other air-conditioning appliances mentioned in item (2) are not liable to duty unless it is furthsr established that they are ordinarily sold or offered for sale as ready assembled units. If a person erects a refrigerating plant from his own indigenous efforts and creates a refrigerating machinery or refrigerating unit, it will not be within the entry and hence will not be liable to duty because the duty is leviable only on such of the mentioned appliances as are ready assembled units and are sold and offered for sale as such. Disputes arose in respect of this under the Customs Act . <ORG> issued a clariricatory tariff ruling. It states that "in view of the wordings of the sub-items (1) and (2) of Item 29 of Central Excise Tariff, duty appears to bs attached only on refrigerators, refrigerating appliances, air-conditioners and air-conditioning appliances which are ordinarily sold or offered for sale as ready assembled units. The phrase 'ready assembled units' mentioned in Item 29-A supports this. Air-conditioning plants, cold storage plants and icemaking plants, etc. consist of series of machines and other equipments which are situated at different places and connected with each other to form the complete equipment. Such plant may be sold completely but are not ordinarily sold or offered for sale as ready assembled units. These are erected at site and many of the equipments would have to be tailored to individual requirements Such plants would not, therefore, be classified under sub-items (1) and (2) of Item 29-A of the Central Excise Tariff. Further the aforesaid interpretation of the tariff items was not considered and if refrigerating and airconditioning plants are also taken as covered by the sub-items (1) and (2), then the expression "which are ordinarily sold or offered for sale as ready assembled units" occurring in the sub-item would be redundant. This, therefore, would not be a proper interpretation.

7. Subitem (3) of Item 29-A refers to parts of machinery and appliances. Complete plants cannot be considered as 'parts of machinery' and so would not be classifiable under sub-item (3) to Item /9-A also.

The <ORG> accordingly considered that complete refrigerating and air- conditioning plants which are not ordinarily sold as ready assembled units but have to be erected at site would be outside the purview of Item 29-A and that no countervailing duty would be leviable on them. This is in accord with the interpretation that has appealed to us that the central idea underlying Entry 29-A is that the dutiable article must be an assembled unit which is ordinarily sold or offered for sale. If a person erects a unit with his own ingenuity, that is not liable to duty. It is further clear that component parts erected at the site are equally outside the purview of Entry 29-A as they are not assem- bled units. It is thus clear that erection of a complete plant at the site is outside the purview of sub-entries (1), (2) as well as (3).

8. The question then arises whether assembly or erection of a part of the refrigerating unit, namely, the erection of cooling coils and condensers at the site of the factory would be within the purview of Entry 29-A. It is obvious that it is outside the purview of sub-items (1) and (2). The heading of Entry 29-A makes it clear that only parts of such refrigerating and air-conditioning applian-ces and machinery as are covered by sub-entries (1) and (2) alone are liable to duty. In other words, the parts in question should be such as are ordinarily sold or offered for sale as ready assembled units. On any other interpretation the word 'thereof occurring in the heading 29-A will be redundant. An inte- pretation which makes any part of a statute redundant has to be discarded.

9. Mr. <NAME> appearing for the department submitted that the duty leviable under the Excise Act is on the event of manufacture. The purposed the' object of manufacture is irrelevant. It is immaterial whether the article is manufactured for the purpose of sale or consumption. It may even be destroyed. Yet the event of manufacture attracts the levy of excise duty. There is no quarrel with this proposition which is generally true under the Excise Act . But when an entry in the schedule specifically refers to and restricts the applicability of d,uty to goods which are assembled units and which are generally offered for sale, the concept .of sale is necessarily brought in. As already seen, subentry (3) takes its colour from sub entries (1) and (2) because of the specific directive of the heading by using the words 'parts thereof, we are hence unable to agree with the authorities below that the tariff advice in relation to the refrigeration plants which are assembled at site was not relevant for determining the issue with regard to the parts which are assembled at site. In our opinion, these parts, though they may be called cooling coils and condensers, were not liable to excise duty within the meaning of Item 29-A (3) of the Tariff Schedule.

10. In the result, the petitions succeed and are allowed. The order passed by the authorities below are quashed and the demand notice issued to the petitioners are set aside. The petitioners will be entitled to costs.


PETITIONER: OM PRABHA JAIN Vs. RESPONDENT: <NAME> & ANR DATE OF JUDGMENT10/04/1975 BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V. CITATION: 1975 AIR 1417 1975 SCR 107 1975 SCC (4) 849 CITATOR INFO : R 1975 SC2299 (414) R 1978 SC 351 (5) ACT: Representation of the People Act  Ss. 77, 116-A and 123(6)--Corrupt Practice-Standard of proof. Practice and Procedure-Finging by <ORG> in election disputes-Interference by <ORG>. HEADNOTE: Section 77 of the Representation of the People Act, 1951, provides that every candidate at an election shall keep an account of expenditure incurred in connection with the election and that the total expenditure shall not exceed the amount prescribed. The appellant and the first respondent contested the election to <ORG> and the first respondent was successful. The appellant challenged the election on the ground, inter alia, that the first respondent was guilty of ,corrupt practice having incurred or authorised expenditure in contravention of s. 77 . The election petition was dismissed by the <ORG>. In appeal to this Court, it was contended that there was evidence to show that the expenditure incurred by D, in connection with the use of two jeeps during election was authorised by the first respondent and if that expenditure was added to the amount shown by the first respondent as his expenditure, the total expenditure would exceed the prescribed limit of Rs. 9000. During the pendency of the appeal. s. 77 was amended by inserting two Explanations in the section. Explanation 1 provides that the expenditure incurred or authorised in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual other than the candidate or his election agent, shall not be deemed to be expenditure in connection with the election, incurred or authorised by the candidate or his election agent. Dismissing the appeal, HELD : (Per curiam) The allegation of corrupt practice against the respondent has not been proved beyond reasonable doubt. [109H & 123F] (Per <NAME>, J.)-If a charge of a corrupt practice is held to have been established against a candidate, it may have grave repercussions on his reputation and political future; and, therefore, prudence requires that the stricter standard of proof of a criminal charge should be applied. [109F] The <ORG> has held that as the precise connection of D with the first respondent was not satisfactorily established, the charge of corrupt practice against the first respondent must fail. This Court will not, without a ,better reason than merely that another inference on the evidence is possible, disturb such a finding even on a statutory first appeal on facts. There is, if a bare balance of probabilities could decide the case, sufficient circumstantial evidence to connect the expenditure incurred by D with the respondent who did not even produce any account books, though the law requiem him to maintain satisfactory accounts to support his return of expenses; yet, if the rules of circumstantial evidence were applied with the strictness with which they axe applicable in criminal cases it must be held that the case against the first respondent has not been proved beyond reasonable doubt. [109D-E-F-G-H] 108 (Per <NAME> and <NAME>, JJ.) : (1) The appeal has to be decided in the light of the Explanation added to s. 77 . (2)The findings of fact recorded by the <ORG> should not be disturbed in an appeal under s. 116-A , unless there was some serious error in the findings. In the present case, the Judge who tried the petition, had recorded his impression about the demeanour of the witnesses whenever he thought necessary. The findings based solely on the demeanour of the witnesses cannot be reversed in appeal, but the conclusions of fact recorded upon a consideration of the probabilities can be tested to see if they contain any serious error [121H 122A] (3)A charge of corrupt practice is quasi-criminal in nature and must be proved beyond reasonable doubt. [122D] (4)Before the <ORG> the parties proceeded on the footing that the question raised related to both allegations, namely, that the respondent incurred or authorised the expenditure incurred on the two jeeps, and, therefore, the scope of the inquiry in appeal cannot be limited only to the question whether the respondent himself incurred the expenditure. [121A] (5) There is no evidence of the respondent incurring or any direct evidence of his authorising the expenditure incurred for the jeeps. [121D] (6) From the fact that the respondent used the jeeps once or twice, it could not be inferred that he paid for their hire, because, it is well known that candidates at an election very often use their supporters' vehicles. [121D-E] (7)There is also no reliable circumstantial evidence to connect the respondent with the expenditure incurred by D. [121H] (8)The respondent did not produce his account of election expenses-his case being that he had destroyed the papers after preparing his return of election expenses. From the fact of non-production of accounts no adverse inference can be drawn against the respondent that the expenditure was really incurred by the respondent himself. D who made the payments gave evidence, and he denied that the respondent authorised him to make the payments and this evidence was accepted by the <ORG>. [121 <CITATION> .  1 S.C.R. 9, distinguished. (9)The circumstances proved in the case are: (a) that D worked for the respondent; (b) that D hired the two jeeps and used them for the respondent's election campaign; and (c) that he sometimes operated from the respondent's election office. But these circumstances do not justify the inference that the respondent put D in charge of his transport arrangements. [122F-H] (10)As regards the money spent by D it is not believable that he spent his own money. But the only alternative inference is not that it was the respondent's money that was spent and that the respondent authorised D to spend it, especially when there is evidence to show that the respondent's election campaign received financial assistance from other sources, such as <ORG>. [123B-C] (11)A note book put in evidence by the appellant seems to suggest that a part of the money paid for the 2 jeeps was taken from the respondent. But, the note book was not kept in the regular course of business, it was not a reliable document and there was no independent evidence proving the correctness of the entries therein. Therefore, it is not possible to rely on the entries in the note book and it must be left out of consideration. [120E-121C-122H-123A] (12)It may be difficult to get hold of evidence in an election dispute to prove such a corrupt practice, but the law requires proof beyond reasonable doubt. [123E-F] 109 JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1551 of 1973.

From the judgment and order dated 31st August 1973 of <ORG> in Election Petition No. 42 of 1972.

<N<NAME>ME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, and <NAME>, for the appellant. <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for respondent No. 1. The Judgment of the Court was delivered by <NAME>, J.-I would like to point out that <ORG>, in the judgment under appeal, recorded the finding, after a very comprehensive and detailed discussion of the whole evidence "that the two jeeps in question actually worked in support of the respondent's election campaign right from February 18, 1972 to March 11, 1972 under the charge and direction of <NAME>". Nevertheless, <ORG> finally held that, as the precise connection of <NAME> with the contesting respondent was not satisfactorily established, the charge of corrupt practice against the respondent must fail. It is the well established practice of this Court (see e.g. <CIT<NAME>TION> .) (1) that it will not, without a better reason than merely that another inference, on evidence on record, is possible, disturb such findings even on a statutory first appeal which is not confined to questions of law. We cannot forget that, if a charge or a corrupt practice, as an electoral offence, is held to have been established against a candidate, it may have grave repercussions on his reputation and political future. Therefore, prudence requires that we should apply the stricter standard of proof of a criminal charge in such a case and not decide the case on a bare balance of probabilities.

It appears to me that, although there is, if a bare balance of probabilities could decide the case, sufficient circumstantial evidence to connect the expenditure incurred by <NAME> with the respondent, who did not even produce any account books though the law requires him to maintain satisfactory accounts to support his return of election expenses, yet, if we are to apply the rules of cir- cumstantial evidence with the strictness with which they are applicable in criminal cases, it may be held here that the case against the contesting respondent is not proved beyond reasonable doubt despite all the circumstances appearing against him. There are other circumstances which suggest another possible inference. Hence, we are left in doubt on the question whether he or the <ORG> party, from which he broke away after his election, had incurred these expenses through <NAME>. 1, therefore, though not without some hesitation, agree with the conclusion reached by my learned brethren that this appeal must be dismissed. I also agree that, in the circumstances of this case, the parties should bear their own costs.

(1) A.I.R. S.C. 405.

<NAME> is an appeal under Section 116A of the Repre- sentation of the People Act , 1951 (hereinafter referred to as "the Act") from an order passed by <ORG> at Chandigarh dismissing the election petition filed by the appellant calling in question the election of the first respondent to <ORG> from the Kaithal Assembly Constituency in 1972. Poll was taken on March 11, 1972. The first respondent who secured 26095 votes was elected defeating the nine other candidates who contested the election. Appellant <NAME> who polled 22673 votes secured the next position in the contest. In her election petition the appellant hereinafter also referred to as the petitioner, alleged various corrupt practices against the returned candidate seeking his election to be declared void under sec. 100 of the Act and also prayed for an order under sec. 99 naming him guilty of corrupt practice so that he might be disqualified under sec. 8 A of the Act . In this appeal the challenge is confined to the allegations of corrupt practice under sub-sec.(6) of sec. 123-"incurring or authorising of expenditure in contravention of Section 77 ". Sec. 77 as it stood when the election petition was presented was in these terms:

"77. Account of election expenses and maximum thereof.-(1) 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 authorized 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. (2)The account shall contain such particulars as may be prescribed.

(3)The total of the said expenditure shall not exceed such amount as may be prescribed."

For the State of Haryana the prescribed limit on election expenses was Rs. 9000.

During the pendency of the appeal in this Court an Ordinance, namely, the Representation of the People (Amendment) Ordinance, 1974 was promulgated amending sec. 77 of the Act by inserting two explanations to sub-sec. (1) thereof. The explanations read as follows : -

Explanation 1.-Notwithstanding any judgment, order or decision of any court to the contrary, any expenditure incurred or authorized in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual (other than the candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorized by the candidate or by his election agent for the purposes of this sub-section :

Provided that nothing contained in this Explanation shall affect-

(a) any judgment, order or decision of <ORG> whereby the election of a candidate to <ORG> or to <ORG> has been declared void or set aside before the commencement of the Representation' of the People (Amendment) Ordinance, 1974;

(b) any judgment, order or decision of <ORG> whereby the election of any such candidate has been declared void or set aside before the commencement of the said Ordinance if no appeal has been preferred to <ORG> against such judgment, order or decision of <ORG> before such commencement and the period of limitation for filing such appeal has expired before such commencement. Explanation 2.-For the purposes of Explanation 1, political party" shall have the same meaning as in the Election Symbols (Reservation and Allotment) Order, 1968, as for the time being in force.'.

The Representation of the People (Amendment) Ordinance, 1974 was subsequently repealed and replaced by the Representation of the People (Amendment) Act , 1974 (Act 58 of 1974) inserting the aforesaid explanations in sec. 77 of the Act. The appeal before us does not attract the proviso to Explanation 1 and sec. 77 with the explanations added will govern this case.

The particulars of the charge that the returned candidate incurred ,or authorized expenditure above the prescribed limit are set out in clauses (a) to (1) of paragraph 14 of the election petition. Dr. <NAME>, learned counsel for the appellant, confined his submissions to the expenditure incurred in connection with the use of two jeeps bearing Nos. 6424 and 1116 mentioned along with several other vehicles in clause (e) of paragraph 14. It is alleged in that paragraph that though the first respondent showed in his return his total expenditure as Rs. 5844/24 p., his expenses exceeded in any case the prescribed limit of Rs. 9000/-. The contents of paragraph 14 of the election petition are denied in paragraph 14 of the written statement of the first respondent wherein he has stated that he never used most of the vehicles mentioned in the election petition including the jeeps 6424 and 1 1 16.

Of the Issues framed, only Issues Nos. 14, 15 and 16 are relevant for the purpose of this appeal. These Issues are as follows:-

"(14) Whether respondent No 1 incurred or authorised expenditure on the various items enumerated in subparagraph (a) to (1) of paragraph 14 of the election petition. (15) If any of the items of expenditure referred to in the preceding issue is proved to have been incurred by the returned candidate, does the addition of that extra amount to the amount of expenses shown by the returned candidate to have been incurred by him in the return of election expenses take the total amount spent by him above the statutory limit of Rs. 9,000/- ?

(16) If the preceding issue is proved, has the returned candidate not committed the corrupt practice defined in section 123(6) read with section 77 of the Act ?"

Before we turn to the evidence bearing on these issues it would be appropriate to state here certain facts in the background which must be kept in mind in considering the evidence. The appellant contested the election as a candidate of <ORG>.The first respondent had filed several nomination papers, two of them as a candidate of <ORG> and two as indepen- dent. He had signed the pledge of <ORG>, but ultimately be contested the election as an independent candidate. He had been a member of <ORG> on <ORG> ticket and was elected its President in April, 1971 as a nominee of that party. Some time after the election in question in the present appeal was over, the first respondent was served with a charge- sheet by <ORG>, Haryana State, alleging that he had betrayed the <ORG> by failing to join <ORG> Legislature <ORG> which, it was said, he had promised to do as soon as the result of the election was declared; finally he was expelled from the <ORG>. These facts are not in dispute.

The first witness examined by the petitioner to prove that the two jeeps in question were hired for the first respondent is P.W. 3 Jagjit Singh, a taxi driver of Delhi. He proves the letter Ext. P.W. 3/1, said to have been given to him by <NAME>, a neighbour, who asked him to send four or five jeeps to respondent <NAME> at Kaithal. Ext. P.W. 3/1 is a letter dated February 20, 1972 addressed to <NAME> by one <NAME>. The letter translated into English from the original Urdu reads as follows "Kaithal 20-2-72.

<NAME>.

It is requested that I had taken from you two Nos. jeeps on dated 18-2-1972 bearing No. 1116 and 6424 for the election of Shri <NAME>, for which I had paid you the amount of Rupees two thousands in Advance. Now I require five Nos. jeeps more. If you can manage then in-

form at once so that may send the advance through somebody. Inform at once, hire charges are no consideration, the work should be done.

Sd/- <NAME>, Kaithal.

C/o <NAME>, <ORG> Kaithal."

Two things are to be noted in this letter, that <NAME> claims that he had paid Rs. 2000 in advance for the two jeeps bearing numbers 1116 and 6424, and that he gives his address, care of <ORG> election office, Kaithal. The evidence of P.W. 3 is that he could secure only two jeeps from a place called Abohar which he sent to <ORG>. The next witness who speaks about these two jeeps is P.W. 5 <NAME>. He is a shopkeeper in District Shri Ganga Nagar in Rajasthan. HE claims that he was the owner of jeep numbered 6424 and his cousin <NAME> owned the other jeep, 1116. His evidence is that he and <NAME> left Shri Ganga Nagar on February 13, 1972 with the two jeeps reaching Delhi the next day where they contacted <NAME>, a commission agent, for getting their "vehicles hired out". On February 17, <NAME> came to <NAME> seeking to hire two jeeps. <NAME> settled the terms of hire which were that <NAME> would pay Rs. 130/- per day for each jeep from February 18 to March 11, 1972 besides Rs. 51per day to the driver of each jeep and also pay for the petrol. The witness says that <NAME>' and he were each paid Rs. 1000 in advance 6y <NAME>. On March 4, <NAME> paid him Rs. 3500./- at Kaithal towards the hire of both the jeeps and got a receipt from him which is Ext. P.W. 511; the balance, Rs. 740//-, was collected later by the drivers of the jeeps.

P.W. 6 <NAME> and P.W. 7 <NAME> are the drivers of jeeps Nos. 1116 and 6424 respectively. P-W. 6 claims that respondent <NAME> used to go about in his jeep and the respondent's own car "used to remain parked in those days". The witness states further that the respondent never went in the jeep driven by <NAME>. The statement that the respondent's car' was Dot used during the election days is not consistent with what appears from paragraph 14 (b) and

(c) of the election petition where the petitioner states that the respondent used his car in connection with election campaign but has not shown the expenses incurred on that car.

P.W. 7 <NAME>'s evidence is that on arriving at Kaithal with the jeep the witness was deputed by <NAME> to work at village Cheeka. This witness claims that the first respondent travelled in his jeep on two occasions, first on the 18th of February and on Another day, thus contradicting P.W. 6 who had said that the respondent never used the jeep driven by P.W. 7.

From the evidence of P.W. 3, P.W. 5, P.W. 6 and P.W. 7 it would appear that <NAME> hired the two jeeps in question to help the election campaign of the respondent. <NAME>, also known as <NAME>, was examined as a Court Witness. His evidence is that he and six or seven other persons had formed a party to work against the <ORG> candidates in the Kaithal and Pehowa constituencies. This party, however, was not given a name nor did it hold any meeting or issue any poster. He says that each member of this party contributed Rs. 1000/- to carry on the election propaganda. He admits having written the letter Ext. P.W. 3/1, and that he had hired the two jeeps in question through <ORG> to work against the <ORG> candidates in the aforesaid two constituencies. According to him the members of this party went round in those jeeps to canvass support for respondent <NAME> as they considered the respondent to be the best of the candidates. Asked about the reason why in the letter Ext. P.W. 3/1 he had given his address as "care of <NAME>' election office, Kaithal", he says that this was done "to facilitate <ORG>'s man to find me for collecting the balance of the hire money......... the man could have inquired the address of my shot) from the election office of <NAME>". The witness denies that he had given that address because he was "incharge of the election work of the respondent relating to employment of motor vehicles". The witness adds that he and his friends who worked for first respondent at the election did not maintain any record containing particulars of how the jeeps were employed by them during those days. In answer to a question put to him in cross-examination regarding a note-book which figures prominently in this case, <NAME> admits that tic not book, Ext. P.W. 8/5, is partly in his handwriting. This note-book which we will consider in due course was also written partly by <NAME> who like <NAME> was examined as a Court Witness. He claims to be one of the group of seven or eight persons spoken of by <NAME> who were helping the first respondent.

The petitioner herself deposing as P.W. 30 has narrated how she came to know of the said two jeeps being employed by respondent <NAME>. According to her fifteen to twenty jeeps were used by him for his election work. She noted the numbers of these vehicles in a diary; this record is based on her personal observation and also on information received from her workers. In answer to a question put by the <ORG> she read out the numbers of the jeeps noted in her diary in the following order: "5948, 6055, 6009, 2574, 1710, 9997, 6424, 1116, 6675, HRJ-5324, HIM-4147, 6170 and 8363." The note-book, Ext. P.W. 8/5, seems to be the most important documentary evidence produced on behalf of the petitioner to prove that the two jeeps in question had been employed by respondent <NAME>. On some pages of this note-book are recorded in an extremely haphazard manner the numbers of several vehicles with certain dates and figures seeming to indicate when some of the vehicles first reported for duty and how they were deployed. The note-book also mentions different sums of money stating or hinting at the sources' wherefrom these amounts were collected and includes certain entries suggesting payments made for the use of these vehicles. The two jeeps, 6424 and 1116 are among the vehicles mentioned in the note- book. The petitioner states in her evidence that <NAME> brought the note-book to her at her residence in Kaithal in the last week of September, 1972. <NAME>, whose deposition was recorded on October 5, 1972, states that the note-book was given to him "last week" by <NAME>, Joint Secretary of <ORG>. According to the witness, <NAME> told him that <ORG> had expelled <NAME> from the <ORG> and that the note-book would be of help to the petitioner in her election petition. The witness adds that <NAME> knew that the witness was a supporter of the petitioner.

In this note-book the name of <NAME>, a son of the first respondent, appears to be written at two places. Admittedly, <NAME> was a B.A. student in <ORG>, Kaithal, and one of his subjects was Civics. Pages 3 to 8 of the note-book contain certain notes on Civics. According to <NAME> and the petitioner there were three loose sheets of paper inside the notebook. These loose sheets of paper which have also been produced with the note-book are: (1) a Hindi manuscript containing instruc- tions for the polling agents (Ext. C.W. 2/1), (2) bill of a loudspeaker dealer in the name of <NAME> for Rs. 101/50p. (Ext. P.W. 24/1), and (3) a receipt in Hindi dated March 6, 1972 for Rs. 41/50p. for hire of loudspeakers, signed by one <NAME>, a worker of <ORG>.

As stated already, it is difficult to find any order or method in the entries recorded in this note book though the fact that it belonged to the respondent's son might appear to lend some authenticity to the document. Respondent <NAME> (<NAME>) and his election agent <NAME> (<NAME>) both however deny that any such notebook was maintained by them or that they bad asked <NAME> or <NAME> to make the entries therein. It is also not clear, how the notebook found its way lo the petitioner. <NAME>, Joint Secretary of <ORG> of <ORG>, who is said to have handed over the note-book to <NAME> was examined by the respondent (<NAME>). <NAME> denies having made over any note-book to <NAME> whom he says he did not know. His evidence is that he saw the note-book for the first time in <ORG>.

<NAME> admits that lie worked for the first respondent at the election on behalf of his <ORG>. The witness proves a document (Ext.R.W.13/1) containing a statement signed by <NAME> that he had "got prepared" 470 small flags and 1000 stencils for the total cost of Rs. 38.80p. This document contains the signature of <NAME> who appears to have verified the correctness of its contents. In his deposition <NAME> explains that <ORG> "had got the flags and the election symbol of respondent No. 1 prepared as the party was supporting respondent No. 1". The witness adds that <ORG> spent a total amount of Rs. 400/- or Rs. 500/on the election of the first respondent. This part of <NAME>'s evidence is relevant to the other aspect of the case, namely, who really paid for the two jeeps if it was found that they had been employed for the respondent's election campaign.

<NAME> who claims to have made some of the entries in the note-book was examined as a Court Witness. His evidence is that <NAME> who was his friend and a member of <ORG> had asked him to make certain entries in the note-book. He says that the first column of page 260 and the whole of page 261 of the notebook were in his handwriting. The two jeeps, 1116 and 6424, are mentioned in the first column of page 260 with the word 'Delhi' in Urdu written against them. According to <NAME> pages were blank when the note-book was brought to him by <NAME>. <NAME> says that lie did not know why <NAME> wanted him to write in the note-book and that he obliged his friend without asking any questions. The writings on pages 260 and 261 appear to be in opposite directions, which is one example of the lack of order and method in maintaining the note-book. <NAME>'s explanation is that after he had finished what he was asked to write on page 260 and closed the note-book, <NAME> thought of getting some more entries made by him and opened the note-book at page 261 upside down, and <NAME> copied on the page as he found it whatever <NAME> dictated to him.

<NAME> who claims to be a worker of <ORG> was also examined as a <ORG> witness. According to him <NAME>, Joint Secretary of <ORG> at Panipat, came to see him towards the end of March, 1972 and left with him the note-book (Ext. PW. 8/5) and a <ORG> containing certain figures in English and wanted him to get these figures which were all numerals, copied into the note-book. The witness did not ask him why, and as a worker of <ORG> proceeded to "obey his orders". He says that he and <NAME> had "blind faith" in each other, and at his request <NAME> copied the figures from the <NAME> on pages 260 and 261 of the note-book. These pages however contain certain names of places and persons and also other words; according to <NAME> these also were in his handwriting, but <NAME> maintains that the <NAME> from which <NAME> had copied did not contain any such names or words. <NAME>'s evidence is that later <NAME> collected the note-book from him.

At the conclusion of <NAME> deposition, the learned Judge appears to have recorded a note of his impression that "throughout his statement, this witness has been displaying nervousness, and prevaricating and avoiding to give straightforward answers to the questions put to him".

<NAME> version is that what he had- written in the notebook was at the instance of <NAME>, President of <ORG>, <ORG>. <NAME> says that <NAME> expressed displeasure at the respondent failing to honour his promise to join the <ORG> legislature party, if elected, and enquired of <NAME> if he could produce any evidence which would go against the respondent in the election dispute, then pending in <ORG>. <NAME> made over to <NAME> the receipt, Ext. P.W.5/1, given by <NAME> for Rs. 3500/- paid towards the hire of the jeeps 1116 and 6424. Five or six days thereafter, <NAME> again came to see <NAME> with a diary and a note-book. <NAME> evidence is that he copied on the different pages of the note-book ,whatever <NAME> read out from the diary. This was about a month after the election. <NAME> says that when thenote-book was brought to him, it contained all the other writings thatare now there. <NAME> evidence is that he did not question<NAME> in what way the note-book would be used against theresponde nt but wrote to his dictation on such pages of the note-book and in such order as he was told. According to <NAME>, <NAME> took away the diary and the note-book after the writing was done.

Certain entries in the note-book apparently corroborate the oral evidence as to some payments made towards the hire of the two jeeps but it does not record all the payments claimed to have been made. For instance, <NAME>, driver of jeep No. 1116, stated that he had signed in a note book on March 12, in acknowledgement of the receipt of Rs. 740/-, being the balance of the amount due on account of the two jeeps. There is however nothing in the note-book to support this statement. Assuming <NAME> evidence to be true, one would have expected to find his signature in the notebook.

<NAME>, Provincial Secretary, <ORG>, was the first witness to be examined on behalf of the petitioner. He disclaims all knowledge of the <NAME> or the note-book which, according to him, he saw for the first time in court. His evidence adds to the mystery surrounding the note-book. The witness states that the first respondent was in fact a <ORG> candidate but was allowed to contest as an independent as a matter of election strategy. He adds that he went to Kaithal on March 14, 1972 and requested the respondent to declare that he would join the <ORG> legislature party.

The respondent is said to have replied that he would think over the matter and then inform the witness. The respondent, it is alleged, was thereafter asked on the telephone on March 16, to attend the <ORG> meeting of <ORG> at Karnal to be held the next day. Though the respondents reply on the telephone was that he would attend the meeting, he did not ultimately do so. About two days after the meeting, the witness went again to the respondent for an answer but still the respondent did not give any definite reply. The witness also states that 4 or 5 days after the result of the election was declared, the respondent came to <ORG> office to have the return of election expenses prepared in consultation with the witness and the President of <ORG> <ORG>. The witness proves the notice. Ex. P.W. 1/3, issued on March 25, 1972 asking the first respondent to show cause within one week of the receipt of the notice why he should not be expelled from the party because of his failure to join the <ORG> legislature party in breach of his previous assurance. <NAME> goes on to say that in the course of his visits to Kaithal to supervise the election campaign in support of the respondent, he used to find <NAME> sitting in the respondent's election office and balloting duties to the different vehicles and also making payments in that connection. it is also the evidence of this witness that though the first respondent was really a <ORG> candidate, the <ORG> did not incur any expenditure on his election. According to him even the expenses of the public meeting arranged by <ORG> in support of the respondent at Kaithal on March 4, 1972 were met by the respondent himself.

The evidence of <NAME> does not seem to be altogether consistent and some of his statements also appear to contradict what certain other witnesses have said. <NAME> has stated that 4 or 5 days after the result of the election was declared he met the respondent when the latter came to the <ORG> office to have his return of election expenses prepared. The result of election was de- clared on March 13, 1972. On March 14, the witness claims to have seen the respondent at Kaithal to request him to declare that he would join the <ORG> legislature party. On March 16, be requested the respondent on telephone to attend the meeting of the <ORG> to be held the next day. On March 17, the meeting was held but the respondent did not attend. On March 19, the witness again went to Kaithal to have a discussion with the respondent and on March 25, the show-cause notice was issued. From the above list of dates which appear from <NAME>'s own evidence it is difficult to reconcile his other statement that about 4 or 5 day after the respondent was declared elected, the respondent came to the <ORG>-office to have the return of election expenses prepared in consultation with the witness and the President of the Jan Singh <ORG>. <NAME> had also stated that there was no telephone in the office of the <ORG> <ORG> at Kaithal. This is contradicted by <NAME>, Accounts Officer, <ORG> South Division, Ambala. His evidence based on his office record is that the Secretary, Bhartiya <ORG>, Kaithal, was the subscriber of <ORG> from February 16, 1972 to March 15, 1972. This was, <NAME> added, a casual connection and was installed in the house of <NAME>. <NAME> further stated that at the time of installation of the telephone Rs. 180 were charged as advance rent, Rs. 30 as installation charges and Rs. 1000 as adjustable security, and that after adjusting the outstanding bills against the security deposit of Rs. 1000, the balance was refunded to the subscriber. The total expenses incurred by the subscriber of this telephone came to Rs. 385. The original application dated February 4, 1972 for installation of this casual telephone connection was also produced in <ORG>, an English trans- lation of (Ext.<NAME>/3) reads as follows: "Bhartiya <ORG>, Kaithal Mandal.

Kaithal, dated the 4th February, 1972.

To, The S.D.O.

Telephones, Karnal.

Subject :-New connection for the office of <ORG>.

It is submitted that a. telephone connection is required for the office of <ORG> at Kaithal for one and half month.

Kindly get the same installed.

Yours faithfully, Sd/- <NAME>, M.C.

<ORG>, Kaithal"

<NAME> assertion that <ORG> did not spend any money on the respondent's election is belied not only by <NAME> but also by another witness who deposed for the petitioner. It is <NAME>. He is an employee of a shop at Kaithal that lends loudspeakers on, hire. P.W. 24 states that one <NAME>, whom he described as a supporter of the <ORG>, came to his shop to hire loud- speakers on March 4, 1972 and he paid charges a few days thereafter. This witness proves the receipt, Ext. P.W.24/1, for Rs. 101/50p. given by him. The receipt appears to have been made out in the name of the respondent, <NAME>. The witness states that though the receipt was in the name of <NAME> he never came to the shop for the loudspeakers and the hiring charge was paid by <NAME>. P.W. 24 adds that he had written the name of <NAME> on the receipt at the instance of <NAME>.

The inconsistent statements of <NAME> and the contradictions between his evidence and that of <NAME> who also was a witness for the petitioner, to say nothing about the evidence of 10SC/75-9 <NAME>, though he too was a member of <ORG>, suggests that either <NAME> had no knowledge of at least some of the facts he was talking about or that some of his statements were deliberately false.

On the evidence discussed above the findings recorded by <ORG> may be summarised as follows

1.<NAME> went to Delhi on or about February 17, 1972 and hired the two jeeps in question at the rate of Rs. 130 per day for each jeep with effect from February 18, 1972. <NAME> had paid <NAME> Rs. 2000 towards the hire of the two jeeps and a further sum of Rs. 3500 to <NAME> (P.W. 5) on March 4, 1972 at Kaithal. Altogether <NAME> spent Rs. 6240 for the two jeeps. Both the jeeps were used in the respondent's election campaign from February 18 to March 11, 1972 under the charge and direction of <NAME>.

2.The note-book, Ext. P.W.8/5, belonged to the respondent's son <NAME> and the notes on Civics that this book contains were in his handwriting. The other entries in the note-book relating to matters concerning the election of the respondent were made partly by <NAME> and partly by <NAME>. The note-book is not a document maintained in the regular course of business and contains certain haphazard entries which cannot be used for foisting liability on any one without definite and clear proof of the genuineness and correctness of these entries. The, witnesses who proved some of the entries in the note-book, <NAME> and <NAME>, have both denied that the entries are genuine. However, their that the entries were fabricated about a month after the election and in the circumstances stated by them is not believable. The fact that the evidence of these two witnesses was false in this regard does not necessarily prove the correctness or genuineness of these entries. Another circumstance which makes the note-book suspect is the fact that the numbers of the various jeeps mentioned in the note-book are recorded therein in the same sequence in which they appear in the petitioner's diary. She claims to have noted in her diary the numbers of the jeeps working for the respondent several months before the note-book was made available to her. This is difficult to explain away as coincidental. Having found that the two jeeps had been hired by <NAME> to be used in the respondent's election campaign, and were in fact so used, the question that <ORG> set for itself to answer was, whether on these findings it could be said that the first respondent incurred or authorised the expenditure of Rs. 6240 spent on account of these two jeeps. There was some dispute before us as to whether the allegation of authorization could arise on the issue as framed. It was contended on behalf of the respondent that reading issue No. 14, which is the relevant issue, carefully in the light of the statements made in the various sub- paragraphs of paragraph 14 of the election petition, it would appear that it raised only the question whether the respondent himself incurred the expenditure. However, it seems to us that before <ORG> the parties proceeded on the footing that the issue covered both the allegations and the scope of the enquiry cannot be limited at this stage.

<ORG> answered the question in the negative on the following reasons. All the witnesses deposing for the petitioner said that the payments in respect of the jeeps were made by <NAME>. Of course there are entries in the note-book, Ext. P.W. 8/5, which suggest that part of the expenditure incurred on account of the two jeeps was paid by the respondent's brother <NAME>, and also that some amount was taken from the respondent himself. But <ORG> found that the note-book which does not appear to have been kept in the regular course of business was not a reliable document in the absence of independent evidence proving the correctness of the entries therein. <ORG> was further of the view that from the fact that the respondent used these jeeps once or twice, it did not necessarily follow that he paid for their hire, it being well-known that candidates at an election very often use their supporters' vehicles. There is no evidence of the respondent incurring or any direct evidence of his authorising the expenditure incurred for the jeeps. The respondent did not produce his account of election expenses, his case being that the papers containing the accounts were destroyed by him after the return of election expenses was prepared. It was argued on behalf of the petitioner, relying on the case of <CITATION> .,(1) that from the aforesaid fact an adverse inference should be drawn against the respondent and it must be held that the expenditure was really incurred by the respondent himself. <ORG> pointed out that in <NAME> case the worker of the returned candidate who was supposed to have incurred the expenditure in question in that case was not examined, and this circumstance considered along with the fact that the returned candidate bad not chosen to produce his accounts proved the case against him. In the instant case, however, <NAME> who made the payments was examined but be denied that the respondent authorised him to make these payments. This part of <NAME>'s evidence was accepted by <ORG> though he was not considered a straightforward witness and a substantial part of his evidence was disbelieved. The decision in <NAME> case (supra) indeed turns on facts somewhat different from the facts of this case. <ORG> has found that there is also no reliable circumstantial evidence in this case to connect the respondent with the expenditure incurred by <NAME>.

It now seems settled that the findings of fact recorded by <ORG> should not be disturbed in an appeal under section 116-A of the Act unless there was some serious error in these findings. It appears from the record of this case that the learned Judge of <ORG> recorded his impression about the demeanor of the witnesses whenever he thought necessary. The findings based solely on the demeanour of the witnesses cannot be reversed in appeal, but (1)  1 S.C.R. 9.

the conclusions of fact reached upon a consideration of the probabilities can be tested to see if they contain any serious error. We find no reason to disturb any of the findings of fact recorded by <ORG> summarized above. These findings appear to be justified on the evidence which we have discussed. We 'agree with <ORG>'s views on the credibility of the witnesses. We also agree that the note-book is not a reliable document in the absence of independent evidence to prove the genuineness of the entries therein. What we have to decide is, whether <ORG> was right in its conclusion from these findings that the first respondent did not authorise <NAME> to spend any amount on the hiring of the two jeeps in question. The allegation that <NAME> was in-charge of the transport arrangements for the respondent if true, would be a circumstance which, taken with other circumstances, might indicate that it was the respondent's money that <NAME> was authorised to spend. If the note-book is left out of consideration, as it must be, the other evidence on record does not appear to us to be sufficient to prove this allegation.

It is well established that a charge of corrupt practice is quasicriminal in nature and must be proved beyond reasonable doubt. There is no direct evidence that the respondent himself paid for the two jeeps. The question is whether it is possible to infer from the circumstances discussed above that <NAME> was authorised by the respondent to spent the said amount of Rs. 6240 for these vehicles. In the case of <CITATION> .(1) this Court held that the circumstantial evidence led to prove corrupt practice must exclude every hypothesis except that of guilt. What are the circumstances here from which one could infer that <NAME> was authorised by the respondent ? It is alleged that <NAME> was in-charge of the transport arrangement for the respondent's election. That <NAME> worked for the respondent at the election is proved. It has also been found that he hired the two jeeps and used them for the respondent's election campaign. It may also be said that the letter, Ext. P. W. 3/1, suggests that <NAME> used to operate at times from the respondent's election office. But from these circumstances only, would the inference be justified that the respondent put <NAME> incharge of his transport arrangements ? <ORG> has taken the view, which we endorse,- that at an election people work for a candidate prompted by various motives even if they are not employed by the candidate to work for him. The story that <NAME> along with six or seven other persons formed, a group to support the respondent has been disbelieved, and rightly. But, even then, it is difficult to say with certainly that it was the respondent who engaged <NAME> to be incharge of the vehicles used in his election campaign. There is no direct evidence that the respondent put <NAME> in funds and one hardly expects to find such evidence in a case like this. We have found that the note-book is not a reliable document. It is therefore (1)  3 S.C. R. 603 at 637.

not possible to rely on the entries in the note-book which seem to suggest that a part of the money paid for the two jeeps was taken from the respondent. <ORG> did not believe that the notebook was entirely fabricated but felt it was unwise to rely upon it. The mystery of the note-book has not been solved, but the unsolved mystery cannot be used as proof to bring home the charge against the respondent. Whose money it was then that <NAME> spent-? It is not believable that <NAME> spent his money, but the- only alternative is not that it was the respondent's money which he authorised <NAME> to spend. It has been found that <ORG> incurred some expenditure on the respondent's election campaign in spite of the denial of <NAME> that the <ORG> did not spend anything. We do not find it possible to accept the statement of <NAME>, Joint Secretary of <ORG> of <ORG> <ORG>, that the total amount spent by the <ORG> on the respondent's election was between Rs. 400 and Rs. 500. Apparently, <ORG> also did not rely on this part of <NAME>s evidence. It is not necessary however to investigate what amount exactly came from which source. It is clear that the respondent's election campaign received financial assistance from other sources, which makes it difficult to reach the conclusion that none but the first respondent himself spent the amount in question. We do not know what our conclusion would have been had the case fell to be decided on the probabilities only, but is no,. possible to say that it has been proved beyond reasonable doubt that <NAME> paid for the jeeps from the money he received from the respondent and the respondent authorised the expenditure. Counsel for the appellant said that it would be hardly possible ever to get hold of such evidence in an election dispute. That may be so, but this is how the law stands. We agree with <ORG> that the allegation of corrupt practice against the respondent has not been proved beyond reasonable doubt. The appeal is dismissed; considering all the circumstances of the case, we make no order as to costs.

Appeal dismissed.

V.P.S.


<NAME>, J.

1. The appellants/defendants' appeal by special leave arises against the judgment and decree of <ORG> in Regular Second Appeal No. 1822 of 1973 dated Sept. 21, 1982. The respondents filed a suit for declaration of title to and for possession of 53 kanals 12 marlas from the appellants. The trial court in File No. 40 dismissed the suit. The Addl. District Judge, Barnala reversed the decree of the trial court and decreed the suit in Civil Appeal No. 121 of 1965 by judgment and decree dated November 28, 1973. <ORG> confirmed the appellate decree. One <NAME> died surviving three sons <NAME>, <NAME> and <NAME> through his first wife, <NAME> son and <NAME> and <NAME> two minor daughters through his second wife. <NAME> had died on 5.11.1984 B.K. <NAME> is the 1st defendant and <NAME> died leaving behind her children defendant Nos. 2 to 5. From the evidence it would be clear that, after the death of <NAME>, there was a division of the properties by meets and bounds and 53 kanals 12 marlas were left in the possession of <NAME> and <NAME> for their enjoyment. The Mutation No. 1722 Ex. P-8 on 10.2.85 B.K. discloses that they shall remain in possession and enjoyment till their marriage or death whichever is earlier. Their marriage took place between 1990-91 to 1994-99 B.K. It is not in dispute that even thereafter for well over 30 years, the appellants continued to remain in possession and enjoyment as owners to the exclusion of the respondent <NAME> and other heirs asserted their title for the first time in 1963 by filing the suit for declaration that they are the owners of 135 kanals 6 marlas including 53 kanals 12 marlas, situated in Bihla village. We are concerned only with 53 kanals and 12 marlas in this appeal.

2. It is the case of the respondents that 53 kanals 12 marlas continued to remain in their possession and enjoyment. <NAME> and <NAME> were never in possession and enjoyment. For the first time they came across, after a suit filed by them in the court of the Sub-Collector against the tenants for recovery of the rents and decree thereon was passed in their favour, that they are asserting their rights as owners of the property. Therefore, the above suit initially was filed for declaration of the title to and for injunction and later converted -to relief of possession.

3. The trial court found that ever since the demise of <NAME> the appellants remained in possession and enjoyment. After the suit they became separated. They remained in possession as owners and they perfected their title by prescription, after their marriage for having been in possession for more than 30 years. The suit was also held to have been barred by limitation. Accordingly it dismissed the suit. The appellate court reversed the decree holding that the revenue entries disclose that the appellants remained in possession as owners along with their brothers and no specific share was given. Therefore, they did not acquire any separate right. The respondents claimed possession and proprietary right therein and entries in revenue records do not disclose having been lost their title for more than 12 years. Therefore, they became owners of the land and remained to be owners and possession being not adverse the appellants did not acquire title by prescription. <ORG> without adverting to the question of adverse possession, confirmed the appellate decree.

4. The sole question that emerges is whether the appellants have perfected their title by prescription. By Article 65 of the Schedule to the Limitation Act , 1963 for short ' The Act ' for possession of immovable property or any interest therein based on title, 12 years' period begins to run when the possession of the defendant becomes adverse to the plaintiff. As stated earlier, on the demise of <NAME>, mutation was effected and sanctioned by the authorities that <NAME> and <NAME>, daughters of <NAME> came into possession of 53 kanals 12 marlas of the suit property. They, being unmarried minor daughters, under law they are entitled to maintenance till they are married and in lieu thereof the property was given and remained in possession and enjoyment of the lands. They were married in 1991-92 and 1994-95 B.K. Thereafter the respondents, as per the entires in revenue records, had right to claim possession from the appellants but they did not do so. On the other hand the appellants remained in possession and enjoyment without any let or hindrance; the continuous entires in revenue records show them as owners. They are in enjoyment by leasing the lands to the tenants as evidenced by the judgment and the decree of <ORG> to the exclusion of the respondents. It would show their open assertion of their own right. There was no attempt to take possession _ of the land by the respondents. Even after consolidation also the lands remained to be in their possession and enjoyment and recorded as owners.

5. The appellants claimed adverse possession. The burden undoubtedly lies on them to plead and prove that they remained in possession in their own right adverse to the respondents. In fact, they have pleaded and succeeded and the trial court accepted with the findings thus, "The defendants 1 to 5 were accepted as owners to the extent of 1/ 3rd share in the estate of <NAME> and they continued to hold their shares as such owners till the present day. There is absolutely no material on record to show that the plaintiffs were the owners or shared with the ownership of defendants Nos. 1 to 5. The oral deposition of <NAME> carried little weight, evidence is contradicted by <NAME>, DW-1 who had an interest in the suit land to the same extent as the plaintiffs... Even if it be assumed that the ownership of the daughters of <NAME> was valid till their marriages and even then the ownerships of both <NAME> and <NAME> or her heirs continued till the present day and on their marriage the rights of the daughters, if were extinguished, they still continued to hold as owners of the suit land and after as many as 30 years they certainly have become full owners by prescription." "The entries Ex.P-3, P-4 is sufficient to show that the plaintiff were excluded from the right of ownership by the daughters and since no steps were laken for a number of years the right is time barred". The District Judge proceeded on the premise that the respondents continued as co-owners and that, therefore, they were not excluded. The possession of the appellants were not adverse to the right of the respondents. We find it difficult to accept the said finding. Female heirs in pre-existing law were not co-owners. Possession is prima facie evidence of title. Party claiming adverse possession must prove that his possession mast be "nee vi nee clam nee precario" i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner. When the appellants claimed title to the suit lands it is sufficient for them to show that their possession is overt and without any attempt at concealment so that the respondent against whom time is running, ought, if to exercise due vigilance to be aware of what is happening. The possession of the appellants was adverse to the respondents inasmuch as the respondents ever since the marriage of the first appellant and her sister <NAME> continued to remain in possession and enjoyment of the property in derogation of the right, title and interest hitherto held by the respondents. When they openly and to the knowledge of the respondents continuously remained in possession and enjoyment and the entries in the revenue records established that their possession and enjoyment is as owners, the consent of the respondents initially given to remain in possession till their marriage or death whichever is earlier does not prevent possession being adverse after their marriage. Without any let or hindrance they remained in possession and enjoyment excluding the respondents from sharing the usufruct from those lands. The test is whether the appellants are able to show that they held lands for themselves and if they did so the mere fact that there was acquiescence or consent at the inception on the part of the respondents make no difference. Since possession and enjoyment of the first appellant and her sister <NAME> was to the exclusion of the respondents' brothers, for well over 30 years it is proved that the appellants were in possession and enjoyment openly and continuously in assertion of their right as owners. The entries in the revenue recorded continuously for 30 years would corroborate their plea of adverse possession and militates against the claim of the title of the respondents. The plea that the appellants were never in-possession and enjoyment is belied by the entries in the revenue records. The suit was filed in 1963 asserting their rights as owners for the first time by which date the appellants have perfected their titles by prescription. <ORG> did not advert to this aspect of the matter. Therefore, we have no hesitation to hold that the appellants have perfected their title to the 53 kanals 12 marlas by prescription and the suit is barred by limitation under Article 65 of the Schedule to the Act. The appeal is accordingly allowed, the decree of <ORG> and that of the first appellate court are set aside and that of the trial court is restored No. costs.


PETITIONER: UNION OF INDIA & <ORG>. Vs. RESPONDENT: <NAME> & ORS. DATE OF JUDGMENT: 08/10/1996 BENCH: S.C. AGRAWAL, S.C. SEN ACT: HEADNOTE: JUDGMENT:

J U D G M E N T S. C. AGRAWAL, J. :

Special leave granted.

This appeal is directed against the judgment of <ORG>, <ORG>, New Delhi (hereinafter referred to as `the <ORG>'). It relates to empanelment and appointment on the post of Secretary to <ORG> or equivalent post. Respondent No. 1 (hereinafter referred to as the respondent') is a member of <ORG> (<ORG>) belonging to 1962 batch. In February 1990 he was promoted as Additional Secretary. In 1993 <ORG> consisting of the Cabinet Secretary, the Principal Secretary to the prime Minister and the Home Secretary prepared a panel of <ORG> officers of 1962 batch for appointment as Secretaries to <ORG> or equivalent post. The said panel was considered by <ORG> (for short`ACC') of <ORG> and appointments were made on the posts of Secretaries in March 1993. The respondent was not empanelled and hence he was not appointed as Secretary. Feeling aggrieved by the said nonconclusion in the panel, he filed a petition (O.A. No. 539 of 1994) before the <ORG> which has been allowed by the impugned judgment dated May 14, 1996. The <ORG> has declared that the action of the appellants in Omitting the name of the respondent from the panel prepared for appointment to the post of Secretary to <ORG> or equivalent post without proper consideration of his case is arbitrary, unsustainable and void and has directed the appellants to consider the suitability of the respondent for empanelment and appointment on the post of Secretary to <ORG> or equivalent post afresh as on the date on which respondents Nos. 2 to 10 herein were considered for empanelment after taking into account Annual Confidential Reports (ACRs) of the respondent for the relevant period and other relevant facts and materials in the light of the guidelines contained in paragraph 14 of the Central Staffing Scheme and, if on such consideration the respondent is found suitable, the <ORG> has directed the appellants to consider his appointment on one such post.

The Central staffing Scheme, as contained in the Office Memorandum dated July 15, 1992 issued by <ORG>, <ORG> (<ORG>), prescribes the procedure for selection for appointment of officers to Secretarial posts of and above the rank of Under Secretary to <ORG> and to certain important nonsecretarial posts. Paragraph 14 of the said Scheme relates to the posts of Additional secretary/Special Secretary/Secretary and reads as under:-

"14. Selection for inclusion on the panel of officers adjudged suitable for appointment to the posts of Additional Secretary or Special secretary/Secretary to <ORG> and Posts equivalent thereto, will be approved by the <ORG> on the basis of proposals submitted by the Cabinet Secretary. In this task, the Cabinet Secretary may be assisted by <ORG> for drawing up proposals for the consideration of <ORG>. As far as possible, panels of suitable officers will be drawn up on an annual basis considering all officers of a particular year of allotment from one service together as a group. Inclusion in such panels will be through the process of strict selection and evaluation of such qualities as merit, competence, leadership and a flair for participating in the policy- making process. Posts at these levels at the <ORG> filled according to <ORG> are not to be considered as posts for the betterment of promotion prospects of any service.

The needs of <ORG> would be the paramount consideration. While due regard would be given to seniority, filling up of any specific post would be based on merit, competence and the specific suitability of the officer for a particular vacancy in <ORG>."

Before the Tribunal the respondent assailed his non-

selection on the following grounds:-

(i) the Special committee has not been constituted in accordance with the provisions contained in the Central Staffing Scheme inasmuch as one of the members, namely, <NAME>, Principal Secretary to the prime Minister, being a retired secretary to <ORG>, could not be legally appointed as members of the Committee;

(ii) the selection made by <ORG> is vitiated because officers junior to respondent have been empanelled overlooking the seniority and merit of the respondent; and

(iii)as the respondent had been empanelled and appointed as Additional secretary the non- inclusion of the respondent in the panel amounts to a colourable exercise of power and was a result of taking into consideration matters which are extraneous and the selection is vitiated by legal mala fides.

None of these contentions found favour with the <ORG>. The <ORG> held that the principal Secretary to the prime Minister appointed by <ORG> is also a Secretary discharging governmental functions and there is nothing in the Central Staffing Scheme to show that a serving Secretary alone can function as a member of the special committee. The <ORG> also held that under the Central Staffing Scheme appointment to the posts of Additional secretary/Special Secretary and Secretary to <ORG> and equivalent post are filled on deputation basis on consideration of the various factors mentioned in the said Scheme and such appointment is not by way of promotion but by way of appointment after strict selection and evaluation of such qualifications as merit, competence, leadership and flair for participation in the policy making process and that the paramount consideration in making the selection is the need of <ORG> and that it is incorrect to say that the seniority must be the determining factor for empanelment and appointment to the post of Secretary to <ORG>. The <ORG> has further found that though respondent has alleged in his application that the proceedings were vitiated by mala fides, it has not been stated anywhere in the application that any one of the members of <ORG> or the <ORG> secretary or <ORG> of the <ORG> has any special reason to be prejudiced against him and that the allegation that some of the officers who had completed the tenure of their deputation were allowed to continue as Additional secretaries and have been appointed as secretaries to <ORG> on the basis of the panel does not amount to an allegation of mala fides since allowing any officer to continue beyond the period of tenure of deputation has nothing to do with the process of selection and empanelment. The tribunal has observed that even if the respondent had excellent service record throughout his career and even though he is senior to respondents Nos. 2 to 10, if the <ORG> Secretary with the assistance rendered to him by the Special committee of the Secretaries did not find the respondent suitable for inclusion in the panel and found respondents Nos.2 to 10 suitable for such inclusion, it is not possible to infer legal mala fides if the case of the respondent had been properly considered. The <ORG> was of the view that since there is no reason to assume that the preparation of the panel by the <ORG> Secretary assisted by <ORG> was not done properly, it could not accede to the prayer of the respondent to call for records of proceedings and the ACRs of the respondent as also of the officers who have been selected and empanelled and to make a comparative evaluation of merits. The <ORG>, however, perused the selection file and the ACRs of the respondent with a view to see whether the respondent has been duly considered for empanelment in accordance with the guidelines contained in paragraph 14 of the Central Staffing Scheme. On a perusal of the said ACRs the <ORG> has found that after his promotion on the post of Additional Secretary in 1990 the respondent had earned outstanding entries in the ACRs and excellent commendation from the Ministers concerned throughout. The <ORG> has also referred to the <ORG> of the meeting of the Special committee of the Secretaries held on December 22, 1992 for the purpose of drawing up of the panel for holding the post of Secretary and equivalent post and has pointed out that in the said <ORG> nothing is seen to be stated about the suitability or non-suitability of the respondent. According to the <ORG>, while empanelment is on the basis of strict selection though the reason for non-inclusion in the panel need not be intimated to the officer concerned, the selection proceedings should indicate as to how a senior member of the service did not deserve to be included in the panel. Since there is nothing to indicate in the <ORG> of the Special committee of secretaries or in the file relating to the empanelment anywhere that there has been an application of mind to the merits of the respondent and his suitability for being appointed to the post of Secretary to <ORG> or equivalent post, the decision was taken without application of mind and thus arbitrary. The <ORG>, therefore, gave the direction referred to above.

In the matter of judicial review of a selection for appointment on a particular post the law is well-settled by the decisions of this Court. <CITATION> , 1990 (1) SCC 305, it has been laid down :-

It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of <ORG> and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection committee which has the expertise on the subject. The court has no such expertise. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the <ORG> or its procedure vitiating the selection, or proved mala fides affecting the selection etc."

<CITATION> . 1971 (1) SCC 30, it was said :-

"So far as the question of suitability is concerned, the decision entirely rested with the <ORG>. In other words, the <ORG> is the sole judge to decide as to who is the most suitable candidate for being appointed as the director of <ORG>. for discharging that responsibility it was open to the <ORG> to seek the assistance of <ORG>.

In our judgment <ORG> was not justified in calling for the records of <ORG> and going through the notings made by various officers of the <ORG> as well as the correspondence that passed between the <ORG> fact that the Government sought the assistance of the commission and not that of <ORG> for finding out the most suitable candidate. In this case there was no complaint of mala fides either on the part of the Government or the <ORG>. That being so the interference of <ORG> in the matter of selection made by the Government was not [P. 32] <CITATION> , 1995 (3) SCC 383, it has been held that the principle that administrative orders affecting rights of the citizens should contain reasons therefor cannot be extended to matters of selection and unless the rules so require, <ORG> is not obliged to record reasons why are selecting a particular person, as the case may be [at p. 389].

The <ORG> was conscious of the limitations on its power and has observed :-

"Once a competent authority makes a selection for appointment or empanelment considering all those who are eligible in accordance with rules, instructions or guidelines then the <ORG> or <ORG> will not act as an appellate body and interfere on the ground of insufficiency of the material or incorrectness of the decision applying its own yard stick. If the decision making process is not vitiated the resultant decision cannot be interfered with by the tribunal on the ground that It if were the <ORG> which took the decision it would not have been the same. Even if on a perusal the file relating to the selection on a comparative assessment of the merits of the applicant viz-a-viz respondents 3-11, the <ORG> comes to a conclusion that the applicant was more meritorious than them, the <ORG> cannot interfere with the selection and empanelment."

"If it is seen that the <ORG> secretary assisted by a Special committee of Secretaries made a selection considering all the eligible officers in the light of the guidelines contained in <ORG>, then we are of the considered view that interference would not be justified even if a different view on the selection may possibly be taken."

The <ORG> looked into the minutes of the meeting of <ORG> held on December 22, 1992 to find out whether the name of the respondent was placed before the said Committee for consideration for the purpose of empanelment. The Minutes show, and this fact is not disputed, that the name of the respondent was amongst the 81 <ORG> officers of 1962 batch who were considered by <ORG>. In the said minutes it is recorded that the committee after screening the CR dossiders of all the officers and keeping in view their record and experience including the conceptual and leadership abilities, achievements and potential for general management positions, had recommended 19 officers of 1962 batch of <ORG> for inclusion in the panel for holding the post of Secretary and 7 officers for holding non-secretarial posts. The name of the respondent was not included in those lists.

This would hold show that the <ORG>, Keeping in view the record and experience including the conceptual and leadership abilities, and potential for general managements positions, had recommended 19 <ORG>.. officers for holding the post of Secretaries and 7 <ORG>. officers for holding a non-secretarial post. Merely because the minutes of the <ORG> do not contain the reason for no-selection of the respondent does not mean that there has been no proper consideration of the merits and suitability of the respondent and as result the selection is vitiated. From the minutes of the Special <ORG> it is evident that in the matter of empanelment of officers the Special <ORG> has taken into account the criteria that are laid down for holding such selection in paragraph 14 of the Central Staffing Scheme and, therefore, it cannot be said that the said selection is vitiated on account of non-inclusion of the name of the respondent in the panel.

<NAME>, the learned senior counsel appearing for the respondent, has laid emphasis on the remarks in ACRs about appraisal of the performance of the respondent subsequent to his promotion on the post of Additional Secretary to which reference has been made by the <ORG> in the impugned judgment. The learned counsel has submitted that since the performance has been rated as outstanding and excellent, the <ORG> was justified in holding that there is no proper consideration of the case of the respondent by the special <ORG>. We are unable to hold that since the performance of the respondent after his promotion as Additional Secretary had been found to be excellent and outstanding, the non-inclusion of his name from the panel by the Special <ORG> must lead to the inference that there was no proper consideration of the merit and suitability of the respondent for empanelment by the special <ORG>.

For the reasons aforementioned, the directions given by the <ORG> in the impugned judgment cannot be upheld and have to be set aside. The appeal is, therefore, allowed, the judgment of the <ORG> dated May 14, 1996 is set aside and O.A. No. 539 of 1994 filed by the respondent is dismissed. No order as to costs.