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Shankaragouda Vs. Sirur Veerabhadrappa - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberMisc. Appeal No. 163 of 1959
Judge
Reported inAIR1963Mys81; ILR1960KAR766
ActsRepresentation of the People Act, 1951 - Sections 77, 101, 116A(2), 123, 123(3), 123(4) and 123(6); Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 22; States Re-organisation Act, 1956 - Sections 119, 120 and 121; Hyderabad Legislative Assembly (Prevention of Disqualification) Act, 1955; Constitution of India - Article 191
AppellantShankaragouda
RespondentSirur Veerabhadrappa
Appellant AdvocateV. Krishna Murthy, Adv.
Respondent AdvocateS.V. Patil, Adv.
Excerpt:
- karnataka advocates welfare fund act, 1983[k.a. no. 2/1985]. section 27 (2)(a): [a.s. bopanna, j] obligation of the state government to constitute karnataka registered clerks welfare fund grant is to be made by the state government sub-clause (b) of sub-section (2) of section 27 donation or contribution to the fund to be made by different bodies like bar council, bar association and advocates or any other person held, when the state government constitutes the welfare fund and notifies the same, at the first instance, what is required to be provided is the grant to be made by the government. it would not be appropriate for the state government to insist on the bar council to indicate the manner in which it would fund the scheme that is to be formulated. that apart, even insofar as.....m. sadasivayya, j.1. this is an appeal under section 116a of the representation of the people act, 1951 (hereinafter referred to as the act), against the order dated 14-11-1959 by the election tribunal, raichur (hereinafter referred to as the tribunal), in election petition no. 258 of 1957 on its file. shirur veerabhadrappa veerappa as a candidate on behalf of the lok sevak sangha and shankaragouda basan gouda as a candidate on behalf of the congress party, contested for a seat in the mysore legislative assembly from the yelburga constituency of raichur district, mysore state, in the last general election of 1957. shirur veerabhadrappa veerappa having polled only 14,500 votes, shankargouda basan gouda was declared duly elected, he having polled 20,541 votes.thereupon, shirur.....
Judgment:

M. Sadasivayya, J.

1. This is an appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as the Act), against the order dated 14-11-1959 by the Election Tribunal, Raichur (hereinafter referred to as the Tribunal), in Election Petition No. 258 of 1957 on its file. Shirur Veerabhadrappa Veerappa as a candidate on behalf of the Lok Sevak Sangha and Shankaragouda Basan Gouda as a candidate on behalf of the Congress Party, contested for a seat in the Mysore Legislative Assembly from the Yelburga Constituency of Raichur District, Mysore State, in the last general election of 1957. Shirur Veerabhadrappa Veerappa having polled only 14,500 votes, Shankargouda Basan Gouda was declared duly elected, he having polled 20,541 votes.

Thereupon, Shirur Veerabhadrappa Veerappa filed an election petition under Section 80 of the Act alleging that because of the various corrupt practices committed by the respondent, his agent and persons interested in the respondent with his consent, the election of the respondent was void; Shirur Veerabhadrappa Veerappa had also further claimed that he should be declared to be duly elected. All these allegations were denied by Shankara Gouda. The Tribunal framed issues in respect of the matters in controversy and each side examined a number of witnesses.

After trial, the Tribunal found that practically every one of the corrupt practices alleged had been committed and allowed the petition declaring the election of Shankaragouda as void and further declared that Shirur Veerabhadrappa Veerappa had been duly elected. It is against this order of the Tribunal, that Shankara Gouda has filed the present appeal. For the sake of convenience, Shirur Veerabhadrappa Veerappa, who was the petitioner before the Tribunal, will be referred to by us also, as the petitioner; Shankaragouda, who was the respondent before the Tribunal and who is the appellant before us, will be referred to, as the appellant.

2. Practically every corrupt practice covered by Section 123 of the Act had been alleged by the Petitioner. Amongst other contentions, the petitioner had alleged in para 11 (4) of his petition that as the appellant is the pattedar Mali Patel of Halwagli in Koppal Taluk, he was holding an office of profit under the State Government and that as the same had not been declared by the Legislature of the State not to disqualify its holder, the appellant was, under Article 191 of the Constitution, disqualified for being chosen as a member of the Mysore Legislative Assembly. This contention had been covered by the first issue framed by the Tribunal. The Tribunal treated this as a preliminary issue and by its order dated 22-11-1958 held that though the appellant held office of profit he was by reason of the provisions of the Hyderabad Legislative Assembly (Prevention of Disqualification) Act, XVIII of 1955, not disqualified for being chosen as a member of the Mysore Legislative Assembly. It will be more convenient to deal with the contentions of the learned Advocates in regard to the Tribunal's finding on this issue, after dealing with the contentions in regard to the other issues.

3. I will proceed to consider the arguments of the learned Advocates in respect of each of the corrupt practices alleged and the findings of the Tribunals thereon. The first corrupt practice alleged is bribery. The main allegation is in Para 3 (a) of the petition; the details are mentioned in the first part of para 5 of the petition and para 1 of the schedule; the names of the appellant's agents and workers who were parties to the corrupt practices are mentioned in the petitioner's rejoinder statement. This bribery or gratification, as alleged, was in the following four forms;

(i) Offering food and clothes

(ii) Paying money

(iii) Providing free entertainments, and

(iv) Promises to construct wells, tanks, buildings, group as and Schools.

3(a) So far as offering of food is concerned, the allegation is that on the polling day, i.e., 10-3-1957, tea and eatables are alleged to have been offered to voters by the appellants canvassing agents and workers at the following places:

1. Mandalgeri

2. Dyampur,

3. Talkal,

4. Bhanapur,

5. Masatha Hanchinal.

6. Tondihal.

7. Mudhol.

8. Yelburga.

9. Mangalur.

10. Mataldinni.

11. Hire Orikalkunti.

12. Hire Hanchinal.

13. Gaddageri.

The appellant is stated to have promised sarees and cholies to female voters at Yelburga on the polling day; as part of the bargain, sarees and cholies were offered soon after the election. One such sari is stated to have been offered to the wife of one Kalliah of Yelburga. The Tribunal held that the offer of tea and eatables as an inducement to the voters, had been made out in respect of the following places, namely, Mandalgeri, Dyampur, Talkal, Bhanapur, Yelburga, Hire Hanchinal, Mangalur and Mudhol. The Tribunal also held that at Rajoor, aerated water was given to the voters. In regard to the other places, it found that there was no evidence. As regards the alleged gratification by the giving of clothes, the Tribunal held that the giving of a sari and a Kana to P. W. 21 Gangamma, wife of P. W. 20 Kallaiah, as an inducement for Gangamma voting for the appellant, had been established; it also held that about 8 or 10 days before the polling, the appellant had distributed some clothes at Kukkanur. The tribunal further held that the giving of a sari and a Kana to one Rajawa Master had been made out, though that instance had not been mentioned in the petition.

3(b). The next form of bribery alleged is the payments of actual cash to persons, with a view to induce them to vote for the Congress candidates including the appellant. The details which can be gathered from the allegations at para 5 of the petition and at para 1 of the schedule are as follows : That a sum of Rs. 300/- was paid at Tondihal by one Gadigeppa Desai of Mudhol to one hundred voters of Bandihal, at Rs. 3/- per voter; that at Hosalli, Police Patil Sekharagouda was paid Rs. 50/- for the purchase of votes of himself and all those whom he could influence; that a sum of Rs. 35/- was paid at Dammur to Shiviah Hiremath, Fakirappa Mandli and Basappa Mandli and that in consequence the said persons took Dammur voters to Hagedal Polling Stations in carts, in consideration of the money received from the appellants; two other instances are the payment of a sum of Rs. 10/- at Gaddageri to one Shivannagouda for securing his votes as well as the votes of those over whom he had influence, and the payment of a sum of Rs. 5/- by the appellant to one Nalakappa of Yelburga. The Tribunal was inclined to accept the evidence in regard to only one of the above mentioned instances; that is, in regard to the alleged payment of Rs. 300/-by Gadigeppa Desai.

3(c). In regard to bribery in the form of providing free entertainments, it had been alleged that the respondent had arranged for the staging of a drama called 'Dattuputra', to which electors from a number of places had been brought and entertained. The Tribunal took the view that there was no evidence in support of the allegation that the admission was free. The Tribunal, however, found that there was evidence to show that a 'Gee Gee Mela' party on behalf of the appellant had been touring the villages in the Constituency.

3 (d). As regards the alleged bribery by way of making promises for the construction of wells, buildings, towers, etc., the Tribunal was inclined to the view that there was not sufficient evidence to establish the same.

4. It has been contended on behalf of the appellant that the Tribunal while appreciating the evidence in the case has failed to keep in mind that charges of corrupt practices are quasi criminal in character and that the standard of proof that is required to establish any corrupt practice alleged, is practically the same as required in a criminal case. Several instances have also been pointed out in which the Tribunal has not taken into consideration the evidence which has been adduced on the side of the appellant to repel the charge of a particular corrupt practice. In the case of Harish Chandra v. Triloki Singh reported in : [1957]1SCR370 , his Lordship Venkatarama Aiyar has pointed out at p. 456 that charges of corrupt practices are quasi criminal in character and that the allegations relating thereto must be sufficiently clear and precise to bring home the charges to the candidates. But this does not mean that every detail must be disclosed in the allegations. As regards the standard of proof that is required to establish a charge of corrupt practice, the Andhra High Court has held in the case of Narasimha Reddy v. Bhoomaji in : AIR1959AP111 that it is the same as pertains to the proof in criminal cases.

A similar view has been taken by the Orissa High Court in the case of Gokulananda Praharaj v. Jogeshchandra reported in : AIR1959Ori47 . In the recently decided case of Anjaneya Reddy v. Gangi Reddy, in M. A. No. 60 of 1958, the High Court of Mysore has proceeded on the basis that the proof required for establishing a corrupt practice is the same as is required to establish a criminal offence. This principle has to be kept in view while examining the correctness of the Tribunal's findings with reference to the evidence which has been adduced in respect of each of the corrupt practices alleged. The Supreme Court has pointed out in Baru Ram v. Smt. Prasanni, : [1959]1SCR1403 , that the High Courts should normally attach importance to the findings of facts recorded by the Tribunal when such findings rest solely on the appreciation of oral evidence. But, when the Tribunal has lost sight of the standard of proof that is required to establish a corrupt practice or has reached a conclusion on any point wholly ignoring the evidence of a material witness, on that point, the Court of appeal will have to re-assess the evidence and the probabilities in order to ascertain as to whether the conclusion reached by the trial Court is correct. (After discussing evidence relating to the alleged corrupt practices under Section 123(1) of the Act, the judgment concluded):

In view of the above discussion, I hold that the alleged corrupt practices under Sub-section (1) of Section 123 of the Act, to which issue No. 2 relates, have not been established. The finding of the Tribunal on this issue is set aside.

5. The next set of corrupt practices alleged were those falling under Sub-section (2) of Section 123 of the Act. These consist, firstly, of certain acts of intimidation of the electors; secondly, undue influence by misrepresentation; and lastly, they consist of acts calculated to appeal to the religious sentiments of the voters and to create an impression in the minds of the voters that if they did not vote for the Congress Candidates, they would become objects of divine displeasure. These were all covered by issue No. 3. The Tribunal did not consider the evidence in regard to the second category but held that the other corrupt practices had been established. (After the evidence relating to those alleged practices the judgment concluded) :

I find that the corrupt practice of undue influence under Sub-section (2) of Section 123 of the Act has not been established.

6. The Tribunal has next considered the use of the photo of Mahatma Gandhi and national symbols and the distribution of hand-bills, pamphlets, etc., containing an appeal to the religious sentiments of the electors. These are matters of corrupt practice falling under Sub-section (3) of Section 123 of the Act. The use of the photo of Mahatma Gandhi in processions conducted for election propaganda, has been spoken to by P. Ws. 4 and 52; the use of Mahatma Gandhi's bust on the stage of the drama 'Dattuputra', in such a way as to make it appear that Mahatma Gandhi was asking that votes should be given to the Congress candidates, has been spoken to by P. Ws. 6 and 69. The use of hand-bills containing amongst other things the photograph of Mahatma Gandhi has been spoken to by P. Ws. 27, 32, 38 and 46. The alleged use of Mahatma Gandhi's bust on the stage of the drama 'Dattuputra' has been denied by R. W. 12.

The evidence pertaining to the alleged use of Mahatma Gandhi's photo or statuette or bust, will be relevant for the purpose of Sub-section (3) of Section 123 of the Act, only if it is shown that they are national symbols. The Tribunal, in para 81 of its order, noticed the fact that though in Desai Basawaraj v. Dasankop Hasansab, 4 Ele LR 380, it had been held that Mahatma Gandhi's photo was a national symbol, more recent decisions had taken the view that it was not a national symbol. But, the Tribunal did not reach any definite conclusion on the question as to whether the photo and the bust were national symbols. The Tribunal contented itself merely with the observation that Mahatma Gandhi's photo had been made use of in a very subtle way and that such use was objectionable; it has now been contended on behalf of the appellant that Mahatma Gandhi's photo and the bust alleged to have been used for election propaganda purposes, are not national symbols and that their use, even if true, would not be a corrupt practice.

In support of his contention, the learned Advocate for the appellant has relied on two decisions of the Allahabad High Court; one of them is reported in : AIR1959All427 , Karan Singh v. Jamuna Singh and the other is reported in : AIR1959All264 , Ghayar All Khan v. Keshav Gupta. His Lordship Bhargava J. who delivered the judgment of the Court in : AIR1959All427 , has given elaborate reasons for taking the view that a portrait of Mahatma Gandhi cannot be considered to be a national symbol. At p. 430, this is what his Lordship says :

'There is also another significant aspect which needs to be examined. The question is as to how a symbol becomes a national symbol. Learned counsel for the parties, when called upon to address us on this point, could only draw our attention to the proceedings of the Constituent Assembly which, by a resolution dated the 22nd of July, 1949, adopted the national flag. The national flag became a national symbol by a resolution of the Constituent Assembly which had the supreme power to lay down the Constitution of India.'

In the same page, a little earlier, this is what his Lordship has stated :

'The national flag is thus a national symbol because, wherever it exists, it at once gives an idea that, in some form or the other, the Indian Nation is also present or represented there. The same cannot be said with regard to a portrait of Mahatma Gandhi. People may keep his portrait because they revere him or have a great regard for him and treat him as the father of the Nation who alone brought independence of this country. By keeping his portrait, however, it cannot be said that there is any intention to signify that the Indian Nation as such is present or represented where the portrait happens to be. It appears to us, therefore, that it is not possible to hold that a portrait of Mahatma Gandhi is a national symbol in the sense that it represents the Indian Nation .................................'

In the subsequent decision in : AIR1959All264 , the Allahabad High Court noticed the decision of the Election Tribunal in 4 Ele LR 380, but followed the view that had been taken in : AIR1959All427 . With very great respect, I find myself in agreement with the reasonings given by the Allahabad High Court in : AIR1959All427 and in my view, the portrait or the bust of Mahatma Gandhi cannot be considered to be a national symbol, for the purposes of Sub-section (3) of Section 123 of the Act. In this view of the matter, a discussion of the evidence in regard to the use of the photo and the bust becomes unnecessary as no corrupt practice will have been committed, even if the photo or bust had been used. (After discussing the evidence relating to the alleged use of national flag, the judgment proceeded :)

The learned Advocate for the petitioner pointed oat that the two pictures which are found in the two pamphlets Exs. P-8 and P-9 contain the words 'Vande Mataram' in Devanagari letters and that the use of the said words in this manner, amounts to the use of the national symbol. I do not find any force in this contention. In Venkataramiah v. Narayana Gowda reported in 37 Mys LJ 952, it has been held at pp. 955-956, that the singing of the National Anthem is not the same as the use of national symbol. The use of the words 'Vande Mataram' cannot have the effect of converting the two pictures in Exs. P-8 and P-9, into national symbols.

From what is stated by the Tribunal at para 87 of its order, it was inclined to the view that amongst other things, the appellant and his agents had committed the corrupt practice of the use of or appeal to religious symbols. It is strenuously contended on behalf of the appellant that the Tribunal was not justified in taking such a view when no allegation had been made at all, in the petition, about any use of or appeal to any religious symbol. It would appear that, what induced the Tribunal to take the view that there was use of or appeal to religious symbols, is the evidence adduced on behalf of the petitioner pertaining to the interpretation given by one Channappa Gouda Master, during his lectures, of the blocks printed in Exs. P-8 and P-9 (which are two pamphlets called 'Congress Mahatme' and 'Congress Padyavali').

Reference to Ex. P-8 was made, for the first time, by the petitioner, only when the amendment was made as per the order of the Tribunal dated 2-9-1957, by the addition of para 3 (b) to the petition schedule. It is alleged therein that the printed cover page of Ex. P-8 bears a picture showing the portraits of Gandhi, Nehru and Vallabhbhai Patel, they being described as 'Brahma', 'Vishnu' and 'Rudra' respectively; that, all these are inserted in the letter 'Om'. It was alleged that in this printed block, there was also the picture of 'Bharata Mata' with the words 'Vande Mataram' with the Sun flag in the one hand and Star and Crescent in the other hand. On the top of the picture of 'Bharata Mata', Lord Shiva's third eye was drawn over 'Tripundra'. It is also alleged therein that the 'Lavani' of Ex. P-8 was sung by one Phakeerappa and his group, at all the meetings. It is stressed by the learned Advocate for the appellant that in spite of this detailed description of the printed block on the cover page of Ex. P-8, it had nowhere been specifically alleged that it was a religious symbol.

It is on this ground that it has been urged on behalf of the appellant that when there was no specific allegation of the use of or appeal to religious symbols, the Tribunal committed a serious error in finding that such a corrupt practice had been committed by the use of Exs. P-8 and P-9. P. Ws. 27, 32, 38, and 52 are the persons that have given evidence in respect of Exs. P-8 and P-9. The evidence of P. W. 27 was to the effect that about a week before the polling day, there was a meeting at Mudhol, at which copies of Exs. P-8 and P-9 were distributed and that Channappa Gowda Master explained the significance of the printed picture block found in Exs. P-8 and P-9; the witness admitted during his cross-examination that he did not attend the meeting; but, he stated that he was sitting on the pial of his house and that he heard the songs which were sung by Channaganappagowda Master.

This witness was a clerk in the office of the petitioner and I have already stated in the previous para, for the reasons given therein, that it would be unsafe to place reliance on the evidence of this witness; for the very same reasons, I am not satisfied either that this meeting at Mudhol took place or that Channappa Gowda Master interpreted the printed picture blocks in Exs. P-8 and P-9, in the manner spoken to by this witness. That this witness could not really have listened to any speech made by Channappa Gowda Master in regard to the interpretation of the said printed block, is also clear from one other circumstance. The 'Urigannu' or the scorching eye, according to Hindu belief, is located in the forehead of Lord Shiva, who according to Hindu Mythology is the Destroyer. Vishnu is the Preserver.

It is not anybody's case that Channappagouda Master had ever interpreted the 'Urigannu' depicted in Exs. P-8 and P-9, as having been that of Vishnu. But, this witness who claims to have listened to the speech of Channappagouda Master, states that the 'Urigannu' is that of Vishnu; this is one more circumstance which throws considerable doubt about his having listened to any speech of Channappagouda Master in regard to the interpretation of this printed picture block. P. W. 32 who has a printing press at Gadag and who is the printer of Ex. P-8, has explained the significance of this picture. He has stated that the interpretation given by him of this picture, is based upon the interpretation given by Channappa Master at a meeting in Gadag.

It is not disputed that Gadag is not in the Constituency from which the petitioner and the appellant had stood for election. The evidence of P. W. 32 does not establish the interpretation of this block in that manner, by Channappagouda Master to the electors of the constituency from which the present parties had stood for election. The evidence of P. W. 38 is to the effect that four copies of Ex. P-8 were given to four persons. He has admitted in the course of his cross-examination that after reading one page in Ex. P-8 he gave up, as he could not understand. As contended on behalf of the appellant, the evidence of this witness does not establish appeal to any religious symbol. The evidence of P. W. 52 is to the effect that he has read Ex. P-8 and similar pamphlets and hand-bills.

I am not satisfied that his evidence is such as to establish appeal to religious symbols. There is also one other aspect which requires to be considered. Not only has there not been any allegation in the petition or the schedule that the printed picture blocks in Exs. P-8 and P-g were religious symbols, but it has also not been shown that they actually represent any religious symbol. It has not been made out that any religion or the followers of any religion have a religious symbol just like the picture printed in Exs. P-8 and P-9. It was pointed out that a Crescent and a Star were visible in this picture and that the Crescent and Star are the symbols of the Muslim Religion. But, it has to be pointed out that the Crescent and the Star are not shown separately, by themselves; they are shown in a particular setting. The Crescent and the Star as seen in the picture, have got to be taken together with the other items which form their background in the picture. When the 'Tripundra' and the 'Urigannu' also form part of the background, it cannot be said that the Crescent and the Star, in that setting, could properly represent the religious symbols of the Muslims. Similarly, the 'Urigannu' which is shown not as being in the forehead of Eswara but in an entirely different setting, cannot be said to represent any religious symbol of the Hindus. It has not been shown that the picture of the 'Bharata Mata' is the symbol of any religion.

The pictures of Mahatma Gandhi, Pandit Jawaharlal Nehru and Vallabhbhai Patel, though described as Brahma, Vishnu and Rudra, do not constitute any religious symbol. When this printed block is taken into consideration as a whole, it does not represent any religious symbol; nor does any component part thereof, when viewed in the setting in which it is, be considered to be a religious symbol. On a consideration of all these aspects, I am satisfied that by the mere user of these pictures in Exs. P-8 and P-9, no appeal to or the use of any religious symbols, has been established.

It is contended on behalf of the appellant, that before concluding that the corrupt practice under Sub-section (3) of Section 123 of the Act had been committed, the Tribunal had not carefully scrutinised the evidence to find out whether it had been established that there had been a systematic appeal to vote or to refrain from voting on grounds of caste, race, community or religion. The handbills which have been referred to by the learned Advocates, in this connection are Exs. P-25, P-26, P-27, P-29, P-3I and P-32. Of these, Exs. P-25, P-26 and P-27 are appeals addressed specially to Muslim voters. Ex. P-29 is an appeal by the President of the Hyderabad Pradesh Congress Committee and sets out the achievements and objects of the Congress. Ex. P-3T has been published at Hubli by one Govardhan Rao, the Secretary of the Karnataka Pradesh Congress Election Committee. Ex. P-32 is an appeal by the appellant and the Parliamentary Congress Candidate Agadi Sanganna to the electors of Yelburga. It is not disputed before us that so far as Exs. P-29 and P-32 are concerned, they contain no appeal on grounds of caste, race, community or religion. So far as Ex. P-31 is concerned, it is essentially a glorification of bullocks, the yoked bullocks being the symbol of the Congress.

The bullocks are praised as hardworking animals which are essential for the prosperity of the cultivator. It is not disputed on behalf of the petitioner that but for one sentence in it, Ex. P-31 does not contain any appeal on grounds of caste, race, community or religion. It is pointed out on behalf of the petitioner that the sentence ^^bnq f'kou uafn clo..k nsoj ckgu fo rs A** (original in Kan-nada -- Ed.) in Ex. P-31, is really an appeal to vote in favour of the Congress candidate, on grounds of caste or religion. It is pointed out that in a constituency where about 33 per cent of the voters were Shaivites and hold Nandi in reverence, this would amount to an appeal on grounds of caste or religion. On the other hand, it is contended on behalf of the appellant that when Ex. P-31 is viewed as a whole, this one sentence would not amount to an appeal on the ground of caste or religion. It is also farther contended on behalf of the appellant that, in any event, the evidence does not establish systematic appeal on the ground of caste, race, community or religion. It appears to me, that this one sentence in Ex. P-3T, does amount to an appeal on the ground of caste or religion.

But, at the same time, I find that there is considerable force in the contention on behalf of the appellant that the evidence in the case does not establish that there was systematic appeal through Ex. P-31, on grounds of caste, race, community or religion. Ex. P-31 was printed at Hubli; on the face of it, it does not show that it was intended to be used for this constituency. Ex. P-31. had not been produced along with the petition; but it was only on 12-12-1957 that this was produced. The petitioner has admitted in the course of his evidence, that he got Ex. P-31 only after the elections. P. W. 3 who states that he saw Guriah, Neelakantappa and others distributing Ex. P-31 at Dyampur, was the agent for the Lok Sevak Sangha candidates, at Dyampur Polling Station. His evidence cannot be viewed as that of a disinterested person. He is unable to mention the number of houses at which this pamphlet was delivered. Guriah who has been examined as R. W. 9 and Neelakantappa who has been examined as R. W. 15, have not been confronted with Ex. P-31, during their cross-examination.

The appellant has stated in the course of his evidence, that ho had not seen Ex. P-31 during election time and that he came to see it only after it was produced before the Tribunal. No body to whom Ex. P-31 was distributed, has been examined. Apart from the interested and meagre evidence of P. W. 3 about the distribution at Dyampur, there is no evidence of Ex. P-31 having been distributed elsewhere in the Constituency. Under these circumstances, the evidence of P. W. 3 is not such as to establish that there was such wide distribution of Ex. P-31 as would justify an inference of systematic appeal to caste or religion, through Ex. P-31.

So far as the appeal to Muslim voters are concerned, the Tribunal has placed reliance on the evidence of P. Ws. 14 and 17 for reaching the conclusion that at a meeting convened by the appellant's agents, Muslim voters were made to take oath on the Koran to the effect that they would vote for the appellant. P. W. 14 is a resident of Adur; his evidence about the Muslim voters having been made to take such oath, is clearly hearsay. He states that one Peer Sab told him that a meeting had been convened at which the Muslim voters had to take oath on the holy Koran that they would vote for the Congress. This Peer Sab has not been examined and as rightly contended on behalf of the appellant, the Tribunal ought not to have attached any importance to the hearsay evidence of P. W. 14, P. W. 17 who is a resident of Yelburga has, no doubt, stated that he was one of the persons who had been made to touch the Koran and promise that votes would be given for the Congress candidates.

It is seen from the note made by the Tribunal towards the end of the depositions of P. Ws. 14 and 17, that objection had been taken on behalf of the appellant to the effect that the incident of giving promise by touching the Koran had not been mentioned anywhere in the petition. It is not disputed before us by the petitioner's learned Advocate, that it is not alleged either in the petition or in the petition schedule that Muslim voters had been made to take oath on the Koran. When there was no such allegation at all, the Tribunal was clearly in error in having placed any reliance on the evidence of P. Ws. 14 and 17. Under these circumstances, the evidence of P. Ws. 14 and 17 in regard to this matter, is not entitled to acceptance.

So far as Exs. P-25, P-26 and P-27 are concerned, they are no doubt appeals to Muslim electors. Ex. P-25 is an appeal by a number of Muslims, consequent on a meeting under the Presidentship of one Imam Saheb Nabi Saheb Bannikatti. But there is nothing in Ex. P-25 which can be said to be an appeal on grounds of caste, race, community or religion. Ex. P-26 is an appeal by Moulana Hifizur Rahman of the Jameyat-ul-Ulema Hind. This is an appeal on the ground of the policy pursued by Sri Pandit Jawaharlal Nehru; it is also an appeal in the cause of service to the nation. Again, there is nothing in Ex. P-26 which can be stated to be an appeal on the ground of caste, race, community or religion. Similarly in the case of Ex. P-27 which we got translated and read out to us; this is really an appeal in the name of the nation. The mere circumstance that an appeal may happen to be by Muslims or that it may happen to be addressed to Muslims, does not by itself make it an appeal on grounds of caste, race, community or religion.

After giving a careful thought to the matter, I am satisfied that the alleged corrupt practices under Sub-section (3) of Section 123 of the Act, have not been established.

7. The next corrupt practice is the one falling under Sub-section (4) of Section 123 of the Act. This has been dealt with by the Tribunal in paras 88, 89, and 90 of its order. According to the allegations in the petition, a number of false statements had been made either by the candidate or by his agents; but, it is not necessary to consider all of them, as the Tribunal was inclined to the view that it is only the article Ex. P-2 (b) in the paper 'Tungabhadra' dated 7-2-57, that a false statement falling under Sub-section (4) has been made against the petitioner. Ex. P-2 (b) is an editorial under the heading ^^dkaXusl fojksf/kxy o`Fkkyki** (Original in Kannada -- Ed.) and is signed by the editor Bangarasetty. The Tribunal was of the view that Bangarasetty was the appellant's agent. The contention now advanced on behalf of the appellant is that Ex. P-2 (b) is really not a statement as would fall under Sub-section (4) of Section 123 of the Act, and also that the Tribunal's view that Bangarasetty was the agent of the appellant is due to an incorrect reading of the evidence.

It is argued that the editorial as per Ex. P-2(b) is really an attack against Political parties that were rivals to the Congress party and that as it does not contain any statement in relation to the personal character or conduct of the petitioner, Ex. P-2 (b) does not come within the mischief of Sub-section (4). The name of the petitioner does not appear in Ex. P-2 (b); this circumstance has been noticed by the Tribunal also, at para 89 of its order. But the view taken by the Tribunal is that there is indirectly an imputation against the petitioner, as it is stated in the article that the members of the Lok Sevak Sangha are devoid of all virtue and that they are only after money. I do not think that this view of the Tribunal is correct; merely because a rival political party is attacked, it does not mean that it is the same as an attack against the personal character or conduct of each member of that party. In Lord Simonds edition of Halsbury's Laws of England, it is stated at page 227 of Volume 14, that it is essential that the statement should relate to the personal rather than the political character or conduct of the candidate. In the case of Gangi Reddy v. Anjaneya Reddy, Civil Appeal No, 412 of 1959 (SC), the Supreme Court has stated with reference to Sub-section (4) of Section 123 of the Act, as follows:-

'The words 'personal character or conduct' are so clear that they do not require further elucidation or definition. The character of a person may ordinarily be equated with his mental or moral nature. Conduct connotes a person's actions or behaviour.'

Though Ex. P-2 (b) contains an attack on the ethics of the Lok Sevak Sangha party, there is no statement therein explicitly or directly relating to the personal character or conduct of the petitioner. Having regard to the very serious consequences which ensue, it appears to me that the wording of Sub-section (4) ought to be strictly construed; therefore, it cannot be accepted that an involved indirect implication would satisfy the requirements of Sub-section (4). I am not satisfied that, for purposes of this Sub-section, Ex. P-2 (b) contains any statement in relation to the personal character or conduct of the petitioner. In consequence of this view, it becomes immaterial as to whether Bangarasetty was or was not an agent of the appellant in respect of Ex. P-2 (b). It must, however, be pointed out that the Tribunal was wrong in its impression that the appellant had admitted that Bangarasetty was his polling agent; on the other hand, the appellant has, in the course of his evidence, clearly denied that Bangarasetty was his polling agent. For the reasons above stated, I find that by the publication of Ex. P-2 (b), no corrupt practice falling under Sub-section (4) of Section 123 of the Act has been committed.

8. The next corrupt practice that has been dealt with by the Tribunal is that of the conveyance of voters and falling under Sub-section (5) of Section 123 of the Act. (After discussing the evidence the judgment proceeded:)

For the reasons above stated, I find that no corrupt practice falling under Sub-section (5) of Section 123 of the Act, has been established.

9. The next corrupt practice that has been dealt with by the Tribunal is the alleged obtaining or procuring of the assistance of Revenue Officers, for furtherance of the prospects of the appellant's election. This corrupt practice falls under Clause (f) of Sub-section (7) of Section 123 of the Act. (After discussing the evidence the judgment proceeded:)

I find that the alleged corrupt practice under Clause (f) of Sub-section (7) of Section 123 of the Act, has not been established.

10. The next matter dealt with by the Tribunal is the corrupt practice falling under Sub-section (6) of Section 123 of the Act, namely, the incurring or authorising of expenditure in contravention of Section 77. The appellant had filed a return of the expenses incurred for his election, in which he had shown a sum of Rs. 3625-10-0 as the total expenditure incurred. The Tribunal found that the total expenditure was nearly Rs. 8000/- and that it, therefore, exceeded the maximum of Rs. 6000/- prescribed under the Act. It is contended on behalf of the appellant that when legally the burden was on the petitioner to establish that the total expenditure exceeded the prescribed amount, the Tribunal proceeded under the erroneous impression that the burden of proof was on the appellant to show that there was no contravention of Section 77.

It has been argued that this finding of the Tribunal is based on surmises and assumptions. Neither in his petition nor in his evidence had the petitioner stated the approximate amount by which, according to him, the total expenditure exceeded the prescribed amount; yet, on the basis of about half a dozen items of expenditure which had not been alleged by the petitioner, the Tribunal concluded that the total expenditure incurred by the appellant exceeded the prescribed amount. It is pointed out that the particulars of accounts of election expenses had been maintained in accordance with Rule 131 and that the account of election expenses had been lodged by the appellant with the Returning Officer, within the prescribed period and that under Rule 133, the petitioner had ample opportunity to inspect the said account. It is urged that, under these circumstances, the Tribunal had no justification to take into consideration the items of expenditure which had not even been alleged by the petitioner.

What amounts to a corrupt practice falling within Sub-section (6) of Section 123 of the Act is really the contravention of Clause (3) of Section 77, by the expenditure incurred exceeding the prescribed amount. The reasons for taking such a view have been set out and explained in Narasimhan v. Natesa Chettiar, : AIR1959Mad514 and 37 Mys LJ 952. I am in respectful agreement with the view which has been taken in these two cases. For reaching the conclusion that the total expenditure incurred by the appellant had exceeded the prescribed limit of Rs. 6000/-, the Tribunal has taken into consideration certain items which had not been alleged in the petition and which have also been denied by the appellant in the course of his evidence. I will mention a few instances.

The appellant, in his evidence, had denied having incurred any expenditure on account of his having appointed polling agents; but, the Tribunal observed that it was difficult to believe this statement of the appellant and held that he must have spent at least Rs. 3/- or Rs. 4/- for each of the persons whom he had appointed as agents and also observed that the appellant must have incurred an expenditure of at least Rs. 300/-, on this account. In regard to other workers also, who had helped the appellant, the Tribunal observed that he must have incurred at least Rs. 500/- by way of expenditure; the basis on which the Tribunal arrived at this figure of Rs. 500/- is not clear from its order. Again, the Tribunal disbelieved the appellant's statement that no expenditure had been incurred by him for maintaining offices in his Constituency; it observed that at least Rs. 100/-must have been incurred for that purpose. The appellant had shown a sum of Rs. 58/- as the expenditure incurred by him on account of the bicycles employed during his election. The petitioner had not categorically alleged that any larger amount had been incurred as expenditure for this purpose.

But, the Tribunal thought that this was a very small amount in view of the evidence that 15 to 20 cycles had been used for propaganda and that one Papiah Razaker was also moving on a motor bicycle for propaganda purposes; it held that at least Rs. 50/- per day must have been spent and that the total expenditure on this account must have been about Rs. 300/- to Rs. 400/-. The appellant had denied having incurred any expenditure in connection with the visit of one Kallannanavaru for propaganda; the Tribunal observed that, perhaps, only the travelling expenses and food charge of Kallannanavaru had to be paid by the appellant and held that the appellant must have incurred an expenditure of about Rs. 100/- on account of the visit of Kallannanavaru, Though the respondent had denied that he had incurred any expenditure for the visits of Nellur Shivappa and Kadambari Bai in connection with the election propaganda, the Tribunal held that the appellant might have incurred an expenditure of about Rs. 300/- on account of the said two persons.

Similarly, it held that the appellant might have incurred an expenditure of about Rs. 100/-in connection with the visits of Vali Channappa and Sri Nijalingappa, though the appellant had denied having incurred any expenditure in this connection. The total of these items comes to Rs. 1700/-. It is argued by the learned advocate for the appellant that when these items of expenditure had not even been alleged by the petitioner, there was no justification for the Tribunal to have made out a special case for the petitioner on the basis of mere conjectures in regard to the expenditure that might have been incurred by the appellant on account of these items, particularly when the appellant had stated on oath that he had not incurred any expenses on account of these items. This contention on behalf of the appellant is well founded and in this connection, the following observations made by Chief Justice Rajamannar in the case of Muthaih Chettiar v. Ganesan, : AIR1960Mad85 are very apposite:

'Learned counsel for the respondent contended that an election cannot be set aside on charges not made in the election petition, and particulars not furnished, by the petitioner and on evidence not adduced ................................' No particulars were given in the petition and no evidence adduced as to the reasonable amount which may be so added to the amount already shown in the respondent's return of election expenses.

In more than one place the Tribunal specifically states that the petitioner did not lead any evidence on those matters. The conclusion of the Tribunal is, therefore, based on his conjecture but judicial conjecture cannot take the place of legal evidence. So his argument ran. We see considerable force in this argument. An election enquiry as has often been pointed out, is in the nature of a quasi criminal trial and the election petitioner is virtually in the position of a prosecutor.

It is an elementary rule of law that the prosecution should make out its case by positive proof and not by mere conjecture. Nor can the prosecution succeed on an alternative case not put forward. Learned counsel for the respondent also made an attempt to show that even assuming that a conjectural estimate can be made of the expenses which the respondent notionally should be deemed to have incurred in respect of the several items found by the Tribunal the total of such expenses would not exceed the prescribed maximum. But then we will be falling into the same error as the Tribunal did in basing our decision on conjecture.'

The amounts of the above mentioned items which have been arrived at by conjectures on the part of the Tribunal, should be left out of account. (After discussing the evidence relating to other items, the judgment proceeded:)

The corrupt practice falling under Sub-section (6) of Section 123 of the Act has not been established.

11. In holding that the corrupt practices above referred to had been committed by or on behalf of the appellant, the Tribunal had completely overlooked that the burden of proof lay entirely on the petitioner who had alleged these corrupt practices; it also did not keep in view the fact that the degree of proof required to establish a corrupt practice was the same as is required to establish a criminal offence. The Tribunal had, in many instances, failed to take into consideration the relevant evidence adduced on behalf of the appellant. The conclusions adverse to the appellant reached by the Tribunal are due to an erroneous appreciation of the evidence and are also largely based on conjectures and surmises. None of the corrupt practices alleged against the appellant, has been established.

There is one other error which has been committed by the Tribunal. It could not have declared the petitioner as having been duly elected without complying with the requirements of Section 101 of the Act. The Tribunal could have declared the petitioner as having been duly elected, if, as required by Section 101, the Tribunal was of the opinion either, that in fact the petitioner received a majority of valid votes or, that but for the votes obtained by the appellant by corrupt practices, the petitioner would have obtained a majority of the valid votes. Without recording any such opinion, the Tribunal has declared the petitioner as having been duly elected. This cannot be sustained, as it is not in accordance with the requirements of Section 101 of the Act. (In this connection, see : [1955]1SCR608 , Jamuna Prasad v. Lachhi Ram). In the absence of the recording of such opinion, the Tribunal should have only declared the election of the appellant to be void.

12. I will now proceed to deal with the finding of the Tribunal on the first issue, to which reference has already been made earlier. In its order dated 22-11-1958, the Tribunal took the view that though the appellant was holding an office of profit under the Government as the Pattedar Mali Patel of Halwagli, he was not disqualified for being chosen as a member of the Mysore Legislative Assembly, by reason of the provisions of the Hyderabad Legislative Assembly (Prevention of Disqualification) Act XVIII of 1955 (hereinafter referred to as the Hyderabad Act). The contention on behalf of the petitioner that the said Hyderabad Act had been impliedly repealed by the subsequent Mysore Act No. 4 of 1957, namely, the Mysore Legislature (Prevention of Disqualification) Act, 1956, (hereinafter referred to as the Mysore Act) was not accepted by the Tribunal.

Before us, it is now sought to be contended on behalf of the Petitioner that this view of the Tribunal is wrong and that as the appellant was holding an office of profit under the State Government, he was disqualified under Article 191 of the Constitution for being chosen as a member of the Mysore Legislative Assembly. Sri Krishna Murthy the learned Advocate for the appellant has taken objection to this contention being advanced on behalf of the petitioner. It is argued by Sri Krishna Murthy that there is no provision in the Act for a respondent supporting the decision of the Tribunal on a ground decided against him and that, in any event, a respondent who has not filed any cross-objections cannot avail himself of the right to support the decision of the Tribunal on a ground decided against him. In this connection, he cited two cases of the Supreme Court. One of them is the case of Vashist Narain Sharma v. Dev Chandra, reported in : [1955]1SCR509 and the other is of Baru Ram v. Smt. Prasanni, : [1959]1SCR1403 .

Both of these were appeals by special leave granted under Article 136 of the Constitution. In the first of these two cases, the Supreme Court held that Order 41 Rule 22 had no application to an appeal by special leave granted under Article 136. In the latter case, an attempt was made to induce the Supreme Court to take a view different from that taken in : [1955]1SCR509 ; but, the Supreme Court did not think it necessary to decide the point. These two decisions cannot be of any help to the appellant, as they deal with the question of the applicability of Order 41, Rule 22 of the Civil Procedure Code, to an appeal by special leave granted under Article 136 of the Constitution. Sub-section (2) of Section 116-A of the Act provides that subject to the provisions of the Act, the High Court shall have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal from the order of the Tribunal as if the appeal was one from an original decree passed by a Civil Court situated within the local limits of the High Court's Civil Appellate jurisdiction.

When this provision is read together with Rule 22 of Order 41 of the Civil Procedure Code it becomes quite clear that a respondent may support the decree on any of the grounds decided against him by the Tribunal. That by viruses of Section 116-A of the Act, the provisions of Order 41 Rule 22 of the Civil Procedure Code are attracted, has been accepted by the Assam High Court in the case of Tazuddin Ahmed v. Dhaniram Talukdar, reported in AIR 1959 Assam 128 and by the Madhya Pradesh High Court in Inayatullah Khan v. Diwanchand Mahajan, reported in : AIR1959MP58 . Having regard to the very wide scope of the wording in Sub-section (2) of Section 116-A of the Act, there is no reason why in an election appeal before the High Court, the I respondent should be prevented from availing himself of the provisions of Order 41 Rule 22 of the Civil Procedure Code. Rule 22 of Order 41 permits a respondent to support the decree on any of the grounds decided against him in the Court below; this right of a respondent is not dependent on his having filed any cross-objections.

The same right would be available to a respondent in an election appeal before the High Court. A similar view has been taken by the High Court of Orissa in the case of Akshya Narayan v. Maheswar Bag, reported in : AIR1958Ori207 , wherein one of the learned Judges Balakrishna Rao, J., has stated as follows:

'I must also remark that it is not necessary for the respondent in this case to file a memorandum of cross-objections. The provisions of the Code of Civil Procedure apply to these appeals. A memorandum of cross-objections is filed only when the respondent claims some relief disallowed by the trial Court or tribunal. He can support the order of the tribunal on any ground and the grounds to be urged need not be made the subject-matter of the memorandum of cross-objections.'

I am satisfied that it is open to the Petitioner to support the decision of the Tribunal even on this ground which has been decided against him by the Tribunal; in other words, the petitioner can show that the view taken by the Tribunal in regard to the first issue is wrong and that if the correct view had been taken by the Tribunal the consequence would have been the declaration to the effect that the appellant's election was void.

That the appellant was the Mali Patel of Halwagli and that on the 9th of January, 1957, the had executed a Mokhtiarnama by which he had appointed one Hanumanthagouda Lingangouda as Gumasta Patel and had reserved one-third of the Potgi for himself, has not been disputed before us. That the office of Patel is an office of profit under the State Government has also been not disputed; (See also the Supreme Court decision in Ramappa v. Sangappa, reported in : [1959]1SCR1167 nor can it be disputed, in view of the fact that it is one of the offices which have been specifically enumerated in the Hyderabad Act. The fact that the appellant had appointed a Gumasta Patel a short time before he stood as a candidate at the election, will not have the effect of divesting him of the office of Patel. If the disqualification was to be prevented, it could be only under the Hyderabad Act. The respective contentions of the learned Advocates may be stated as follows:

Sri Krishna Murthy for the appellant contends that by virtue of Section 119 of the States Reorganisation Act 1956, (hereinafter referred to as the S. R. Act) and the adaptation made by the State Government under Section 120 of the S. R. Act, the benefit of the prevention of disqualification under the Hyderabad Act was available and that, therefore, the appellant though he was holding the office of Mali Patel, was not disqualified from being chosen as a member of the Mysore Legislative Assembly. The contentions by Sri Patil on behalf of the petitioner, are threefold;

(i) That the Hyderabad Act which was bound up with the Hyderabad Legislative Assembly, ceased to have any legal existence when the Hyderabad Legislative Assembly became defunct consequent on the disappearance of the Hyderabad State; it is argued that a law such as this, would not attract the provisions of Section 119 of the S. R. Act.

(ii) even if the Hyderabad Act is held to continue, it would not be competent for the State Government, in the exercise of the power of adaptation under Section 120 of the S. R. Act to make the said Hyderabad Act applicable to the Legislative Assembly of the reorganised State of Mysore as such an adaptation will be beyond the limits of permissible delegation of Legislative power; and

(iii) even if such an adaptation is held to be competent, the Hyderabad Act had been impliedly repealed by the subsequent Mysore Act, by the time the nomination paper of the appellant was presented.'

All these contentions require to be examined carefully. A careful examination of Section 119 of the S. R. Act, will show that there is considerable force in Sri Patil's contention that the Hyderabad Act is not one of those laws which comes within the scope of that section. As the head note shows that section deals with the territorial, extent of laws. The section read as follows:-

'119. Territorial extent of laws:- The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day.'

The first part of this section refers to 'the territories to which any law in force immediately before the appointed day extends or applies'. It is stated that the provisions of Part II of the S. R. Act shall not be deemed to have effected any change in the said territories. The provisions of Part II of the S. R. Act pertain to 'territorial Changes and Formation of New States'. The law to which reference is made in the first part of Section 119, is one which extends or applies to territories; for the application of the first part of Section 119, it is necessary that the particular law must be one which extends or applies to some territories; then, the provisions of Part II shall not be deemed to have effected any change in such territories.

The latter part of Section 119 provides that territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. In order to attract application of this part of the section, there must be territorial references in that law.

Therefore, Section 119 pertains to territories to which any law (in force immediately before the appointed day) extends or applies, and to territorial references in such law. If a particular law is not one extending or applying to any territories and does not contain any territorial references, then such a law cannot fall within the scope of Section 119. The argument of Sri Krishna Murthy that there is a general saving of all the laws in an existing State, by virtue of Section 119, is not warranted by the language of that section. In support of his argument, Sri Krishna Murthy urged that Section 119 of the S. R. Act should be liberally construed and referred to certain observations made by the Bombay High Court in the case of W.W. Joshi v. State of Bombay, reported in : AIR1959Bom363 .

But, it is to be noted, that the observations to the effect that the provisions of the S. R. Act should be liberally construed were made, in that case, not with reference to Section 119 of the S. R. Act, but in the context of ascertaining whether the word 'liability' should be given a larger meaning or not, for the purposes of Sections 87 and 88 of the S. R. Act. Towards the end of para 8 of that judgment, at page 365 it has also been observed that this liberal construction should be, so far as the language used would permit. Under these circumstances, I do not think that the said observations in the Bombay case above referred to, would be of much help to Sri Krishna Murthy.

Reference has also been made by Sri Krishna Murthy, to a decision of the Andhra Pradesh High Court reported in AIR 1957 Andh Pra 123, Satyanarayanamurti v. Income-tax Appellate Tribunal Madras Bench, in which the reference to the 'High Court' in the Hyderabad Court Fees Act, was understood as being applicable to the High Court of Andhra Pradesh. But, the Hyderabad Court Fees Act was a law which had territorial application; from the reasoning stated in paragraphs 14 and 15 at pages 127 and 128 of that decision, it is seen that the learned Chief Justice had taken into consideration the circumstance that that Act still governed the rights of parties in the Telangana area. Further, as pointed out by that learned Chief Justice at para 15, the reference in the Court Fees Act was only to 'High Court' and not Hyderabad High Court. It was under those circumstances, that such a construction was viewed as being acceptable.

It may also be stated that the Hyderabad Court Fees Act was not a law which had ceased to be operative consequent on the Hyderabad High Court having become defunct. Being a law of territorial application, the Hyderabad Court Fees Act fell within the scope of Section 119 of the S. R. Act. This case also, does not support Sri Krishna Murthy's argument that there has been a general saving of all the laws of an existing State, under Section 119 of the S. R. Act. Sri Krishna Murthy has also cited the case of Channabasappa Shivappa v. Gurupadappa Murigappa, reported in AIR 1958 Mys 184 in which his Lordship the Chief Justice has stated as follows at page 187:-

'The effect of this section is that the law which was in force in the area which was within the State of Bombay before the appointed day and which had come to the State of Mysore after such appointed day, will remain in force so far as those territories are concerned. It follows therefrom that the Bombay District Municipal Act, 1901 would still be the law in the area which belonged to the State of Bombay but which had since come to the State of Mysore.'

But, this observation has got to be considered in the context in which it was made; it was while considering as to whether the Bombay District Municipal Act, 1901 fell within the scope of Section 119, that this observation was made. It will he seen that the Bombay District Municipal Act, 1901 contained an extent clause in which it had been enacted that the Act extended to the whole of the State of Bombay except the City of Bombay. That Act, therefore, was an Act which came within the scope of Section 119 of the S. R. Act. Under these circumstances, the above said observation relied upon by Sri Krishna Murthy cannot be viewed as an authority for the proposition that under Section 119 there was a general saving of all the laws in an existing State.

The Hyderabad Act (XVIII of 1955) does not purport to extend or apply to any territories; nor does it contain any territorial references. It cannot, therefore, fall within the scope of Section 119 of the S. R. Act. It is a law which declares that certain offices of profit do not disqualify their holders for being chosen as, or for being members of the Hyderabad Legislative Assembly. It is a Jaw which is so bound up with the Hyderabad Legislative Assembly that it cannot survive after that Legislative Assembly itself becomes defunct. While considering a similar contention as regards the applicability of Section 119 of the States Reorganisation Act to certain provisions governing the jurisdiction and procedure of the Hyderabad High Court which had ceased to exist from the appointed day it has been observed as follows by Chief Justice Subba Rao in AIR 1958 Andh Pra 60 at p. 62, In re Sridhar Rao:

'This section only preserves the laws prevailing in the Telengana area till the Legislature or other competent authority provides otherwise. The laws will be applied as if there was no territorial change. But the provisions of the section cannot preserve any laws governing the jurisdiction and procedure obtaining in the Hyderbad High Court which ceased to exist from the appointed day. When the High Court itself became defunct it is not possible to hold that the laws governing its jurisdiction and procedure continue to exist.

They ceased to have any legal existence along with the Court with which they were bound up.'

Sri Krishna Murthy referred to the comments of Professor Alexandrowicz about Section 119 of the S. R. Act at p. 182 of 'Constitutional Developments in India'; those comments are as follows:

'This section by way of legal fiction makes the law, as existing before the date of reorganisation, provisionally immune from the consequences of territorial changes and secures an interim status quo. No automatic change of the law follows the reorganization of India and all changes will have to be effected expressly by the competent legislature or authority whether central or local,'

The subject-matter of these comments, which begin with a reference to Section 119 of the S R. Act, is the law referred to in that section; namely, a law which extends or applies to territories and contains territorial references; to such a law, Section 119 may give provisional immunity from the consequences of territorial changes.

But, no such provisional immunity could accrue from this section to the Hyderabad Act which was not a law of territorial extent or application and which would have been unaffected by mere territorial changes had only the Hyderabad Legislative Assembly continued to exist. The operativeness of the Hyderabad Act depended not on mere territorial changes, but on the existence or otherwise of the Hyderabad Legislative Assembly. There is nothing in the learned Professor's comments, from which it can be properly inferred that the provisional immunity that may accrue from Section 119 has the effect of preventing a law from becoming inoperative for a reason other than mere territorial change. The Hyderabad Act was so bound up with the Hyderabad Legislative Assembly that the continued existence of the Hyderabad Legislative Assembly was vital to the operativeness of the Hyderabad Act; there, being no purpose to be served by that Act independently of that Assembly, its legal existence ceased in consequence of the Hyderabad Legislative Assembly becoming defunct. For these reasons, I am unable to accept the argument that section 119 of the S. R. Act has the effect of saving the operativeness of the Hyderabad Act.

The next contention of Sri Patil which requires to be considered is that even if it were to be assumed that the Hyderabad Act continued to be in force even after the Hyderabad Legislative Assembly became defunct it was not competent for the State Government to make that Act applicable, by adaptation, to the Mysore Legislative Assembly. It is argued by Sri Krishna Murthy that when the Hyderabad Act is construed in accordance with paragraph 6 (1) of the Mysore Adaptation of Laws Order, 1956, a holder of the Office of Patel will not be disqualified for being chosen as a member of the Legislative Assembly of the State of Mysore. This order was issued by the Government of Mysore under Section 120 of the S. R. Act; paragraph 6 (1) is as follows :

'6.(1) Any reference in any existing law to the Legislature of the State or any House or Houses thereof shall be construed as a reference to the Legislature of the State of Mysore or to the corresponding House or Houses thereof.'

It is not disputed that Section 120 of the S. R. Act contains a delegation of Legislative power to the Executive. It is stressed by Sri Patil that this power to adapt is given only for the purpose of facilitating the application of any law in relation to any of the States formed or territorially altered by the provisions of Part II of the S. R. Act. His contention is that the general power to construe, which is available under paragraph 6 (1) cannot in any particular case, go beyond the purpose for which the power to adapt has been given under Section 120 of the S. R. Act. By way of examples of the legitimate exercise of this power, Sri Patil has brought to our notice some of the Acts which contained provisions for the rules framed under those Acts being laid before the legislatures of the States of Madras, Bombay or Hyderabad, as the case may be; it is pointed out that the power under paragraph 6 (1) of the Mysore Adaptation of Laws Order, can properly be availed of for construing the references in the said Acts to those Legislatures, as references to the Legislature of the reorganised State of Mysore.

But, it is contended by him that it would be beyond the competence of the State Government to make applicable, by adaptation, the Hyderabad Act to the Legislative Assembly of the State of Mysore.

His argument is on the following lines. The declaration of those offices the holding of which would not disqualify its holder to be a member of the Legislative Assembly of the State of Mysore, involves the determination of a Legislative policy. That Legislative policy, ought to be the result of a consideration by that particular Legislature of all the relevant factors which would enable it to decide as to which are the offices that should be so declared in the law. The determination of this Legislative policy, cannot be delegated to the Executive. If the State Government were to make the Hyderabad Act applicable, by adaptation, to the Mysore Legislative Assembly, it would amount to a determination by the Executive of the Legislative policy. It is argued by Sri Patil that such an adaptation would transgress the limits of permissible delegation of Legislative power and would be ultra vires.

It will be necessary in this connection to refer to the view which has been taken by the Supreme Court in regard to the limits of permissible delegation of Legislative powers to the Executive. His Lordship Chief justice Mahajan has stated as follows in Harishankar Bagla v. State of Madhya Pradesh reported in : 1954CriLJ1322 :

'It was settled by the majority judgment in the 'Constitution of India and Delhi Laws Act, 3912 etc.', AIR 1951 SC 332 that essential powers of legislation cannot be delegated. In other words, the Legislature cannot delegate its function of laying down Legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential Legislative function consists in the determination or choice of the Legislative policy and of formally enacting that policy into a binding rule of conduct.'

In the case of Rajnarain Singh v. Chairman, Patna Administration Committee, reported in : [1955]1SCR290 . his Lordship Bose J. took the view that an executive authority cannot be authorised to modify either existing or future laws so as to bring about, a change in the Legislative policy. It is not seriously disputed by Sri Krishna Murthy the learned Advocate for the appellant, that there cannot be a delegation of any matter which involves the determination of Legislative policy.

Paragraph 6 (1) of that Order, must be understood in such a way that the power to construe given under that paragraph, will be within the limits of the Legislative power that can be properly delegated to the Executive under Section 120 of the S. R. Act. As a matter of fact, when the definition of 'existing law' under Clause (h) of para 2 of that order is taken into consideration, it will be clear that the power to construe under para 6(1) is only with reference to an existing law in respect of which the State Government of Mysore has the competence to make adaptations Under Section 120 of the S. R. Act. In these circumstances, there is no good reason to understand para 6 (1) of the said Order as authorising the construing of any law in such a way as to transgress the limits of the Legislative power delegated under Section 120 of the S. R. Act; there will be such a transgression when the Legislative policy is affected by any adaptation or construction.

Article 191 of the Constitution has enabled the Legislature of each state, to declare by law, the offices of profit which would not disqualify the holder thereof, from being a member of that particular Legislature. Such a law would have the effect of limiting in respect of a particular Legislative Assembly or Legislative Council, the disqualification that, would normally result under Article 191 by the holding of an office of profit under the Government of India or the Government of any State. For making such a law, the Legislature of each State has to determine its own Legislative policy in regard to those offices of profit the holding of which would not disqualify the holder from being a member of that Legislature. Such Legislative policy of the Legislature of one State, could very well be different from the Legislative policy of the Legislature of another State. The Legislative policy involved in declaring such offices of profit which would not disqualify the holders thereof from being members of the Legislative Assembly of the reorganised State of Mysore, had to be considered and determined by the Legislature of that State alone.

There cannot be a delegation of the Legislative power so as to make the Executive Government competent to formulate the Legislative policy under-lying a law such as is contemplated in Article 191 of the Constitution; nor can the Legislative policy embodied in the law of some other legislature, be substituted, by the process of adaptation for the Legislative policy of the Mysore Legislature in regard to such a matter. The Act of the Hyderabad Legislature (whether with or without adaptation) cannot be regarded for purposes of Article 191, as a law made by the Legislature of the reorganised State of Mysore. For these reasons, I am of the view that the power to construe in paragraph 6(1) of the Mysore Adaptation of Laws Order, 1956, cannot be understood as authorising the substitution of the Mysore Legislative Assembly for the references to the Hyderabad Legislative Assembly, in the said Hyderabad Act; to hold otherwise, would be to allow transgression of the limits of permissible delegation of Legislative power.

The acceptance of a view contrary to that stated above will lead to anomalous and confusing results. If the Hyderabad Act is held to continue by virtue of Section 119 of the S. R. Act, then, it could continue only in respect of that area in which it was in force immediately prior to the appointed day. Enactments similar to the Hyderabad Act were in force, immediately prior to 1-11-1956, in the other areas also, which have become part of the reorganised State of Mysore. Those are Bombay Act XXV of 1951, Madras Act XX of 1951 and Mysore Act XXV of 1951. If Section 119 of the S. R. Act is held to be applicable to such enactments, these Acts also will continue in the respective areas in which they were in force immediately prior to the appointed day. Different offices of profit have been declared under these laws, as not disqualifying; some offices of profit which had been declared by one or the other of these laws as not disqualifying, had not been so declared under the other laws.

If paragraph 6 (1) of the Mysore Adaptation of Laws Order, 1956 is understood in the way in which Sri Krishna Murthy wants, then, all these enactments also become applicable to the Legislative Assembly of the reorganised State of Mysore. The consequence will be somewhat unusual; because, an office of profit while not disqualifying its holder when it is held in one area, might disqualify the holder when it is held in another area of the same State. Even a law made under Article 191 of the Constitution, cannot provide for such discriminatory results; because, there cannot be any justification for declaring that an office of profit when held in a particular area would not disqualify, while such a disqualification would result from holding it in some other area of the same State. The power of adaptation available under Section 120 of the S. R. Act, cannot be made use of in a way to bring about such a result. In my opinion, neither Section 120 of the S. R. Act nor paragraph 6(1) of the Mysore Adaptation of Laws Order, 1956, should be interpreted in a way which will bring about such anomalous and confusing results.

Sri Krishna Murthy suggested in the course of his arguments that even without having recourse to the adaptation under Section 120 of the S. R. Act, the Court can, under Section 121 of the S. R. Act construe the Hyderabad Act as being applicable to the Legislative Assembly of the reorganised State of Mysore. This argument has no force. Section 121 requires that in the case of no provision or insufficient provision having been made under Section 120 for the adaptation of a law, any Court, tribunal or authority empowered to enforce such a law may, for the purpose of facilitating its application in relating to any State formed or territorially altered by the provisions of Part II, construe the law in such a manner, without affecting the substance as may be necessary or proper in regard to the matter before the Court, tribunal or authority.

It will be noticed that this power to construe is available only for the purpose of facilitating the application of law; further, it should be so construed without affecting the substance of the law. The subject matter and the substance of the Hyderabad Act is the declaration of those offices of profit which would not disqualify the holder thereof from being a member of that particular body, viz. the Hyderabad Legislative Assembly. To construe such a law as if it were applicable not to the Hyderabad Legislative Assembly but to the Mysore Legislative Assembly, would, certainly affect the substance of that law. In my opinion, such a construction is not permissible. A result which it would not be competent to achieve by adaptation under Section 120 of the S. R. Act, cannot be brought about by resort to the power to construe under Section 121.

13. The last point which requires to be considered is whether the Hyderabad Act had been impliedly repealed by Mysore Act 4 of 1957. For the purpose of this contention, it is assumed that the Hyderabad Act continued to be operative even after the Hyderabad Legislative Assembly became defunct and could be construed as being applicable to the Legislative Assembly of the reorganised State of Mysore. The contention of Sri Krishna Murthy is that the provisions of the Hyderabad Act can stand together with the provisions of the Mysore Act and that, therefore, an implied repeal by the latter Act should not be inferred.

On the other hand, it is contended by Sri Patil that when different Acts of this nature continued in the different areas of the State declaring different offices of profit, it would not be unreasonable to presume that the intention of the Mysore Legislature was to supersede the earlier enactments on the same subject and to declare afresh the offices of profit which would not disqualify the holder thereof from whichever area of. the State, he may stand as a candidate for election to the Mysore Legislative Assembly. Though, as a general rule, Courts lean against repeal by implication, it appears to me that, having regard to the circumstances of the case, there is much force in the contention of Sri Patil.

As observed by his Lordship Venkatarama Ayyar J. in Zaverbhai Amaidas v. State of Bombay, : [1955]1SCR799 , the principle on which the rule of implied repeal rests is that it the subject matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment. The subject-matter of Mysore Act 4 of 1957 is the prevention of disqualification by the declaration that certain offices of profit would not disqualify their holders for being chosen as, or for being members of the Mysore Legislative Assembly. It was the same as the subject matter of the earlier enactments, namely, the Hyderabad Act, Bombay Act XXV of 1951, Madras Act XX of 1951 and Mysore Act XXV of 1951. The non-inclusion in this later Mysore Act, of some offices of profit which had been included in the earlier enactments, will not have the effect of rendering Mysore Act 4 of 1957, an incomplete law in respect of the subject-matter.

The Legislature of the reorganised State of Mysore, which alone was competent under Article 191 to declare by law the offices of profit which would not disqualify the holders thereof from being members of the Mysore Legislative Assembly, having made such a law whereby it so declared certain offices as not disqualifying the holders thereof, it must be taken to be the law completely covering the subject-matter; it would be legitimate to presume that the Legislative intent was to supersede the earlier enactments on the same subject, each of which had continued only in some particular area of the State.

The fact that there was disparity in the said earlier enactments in regard to the offices of profit declared by them, is one more circumstance which supports the view that the intention in enacting Mysore Act 4 of 1957, was to supersede the earlier laws. The continuance of those Acts which had declared certain offices of profit not covered by Mysore Act 4 of 1957, would have led to inconvenience or incongruity. In the tenth edition of Maxwell on Statutes, it is stated at page 169, that 'the inconvenience or incongruity of keeping two enactments in force has justified the conclusion that one impliedly repealed the other, for the legislature is presumed not to intend such consequences.' In these circumstances, I am of the view that the above mentioned earlier enactments, including the Hyderabad Act, were all impliedly repealed by Mysore Act 4 of 1957.

It is not disputed that by the time the nomination paper of the appellant was presented, Mysore Act 4 of 1957 had come into force. If so, the question as to whether the appellant was under a disqualification by reason of his holding the office of Mali Patel, has to be determined with reference to the provisions of Mysore Act 4 of 1957. As that office is not one of those specified in the said Mysore Act, the appellant was disqualified under Article 191 of the Constitution for being chosen as a member of the Mysore Legislative Assembly.

There is substance in each one of the contentions advanced by Sri Patil in respect of the first issue. Looked at from whichever point of view, the conclusion cannot be avoided that the appellant was disqualified under Article 191 of the Constitution for being chosen as a member of the Legislative Assembly of the reorganised State of Mysore. This is my finding on the first issue; the view taken by the Tribunal on this issue is erroneous.

14. As the appellant, on the date of his election, was disqualified to be chosen as a member of the Mysore Legislative Assembly, his election should be declared to be void. On this ground, the declaration made by the Tribunal that the appellant's election is void, is correct and has to be maintained. As already mentioned at para 11, the Tribunal was in error in having declared the petitioner having been duly elected; this portionof the Tribunal's order is liable to be set aside.

There is one other point which requires to be mentioned; that is, towards the end of the arguments (which had gone on for a number of days), Sri Patil mentioned that the Tribunal had not taken into consideration the evidence of sixteen more witnesses who had been examined before it, in connection with this case; he also filed a memo to that effect. But, it was not conceded on behalf of the appellant, that the said sixteen witnesses had been examined in connection with this case. There appears to have been some confusion, on account of the fact that a number of witnesses were common to this case as well as the case in Election Petition No. 306 of 1957 which pertained to the election in respect of the Parliamentary Constituency.

On looking into the records of the election case out of which this appeal has arisen, we did not find any material to show that these sixteen witnesses had been examined as witnesses for this case; the list of witnesses prepared by the Tribuna1 also did not show these sixteen witnesses as having been examined in this case. Under these circumstances, we have declined to comply with the request of Sri Patil that we should take into consideration the evidence of the said sixteen witnesses.

15. I have perused the judgment of my learned brother Mir Iqbal Husain J. which he is now about to deliver. He does not agree with the view which I have taken in respect of the points of law relevant to the decision of the first issue. Those points of law on which we have differed will be formulated, for being decided in accordance with the proviso to Sub-section (2) of Section 98 of the C. P. C.

Mir Iqbal Husain, J.

16. Having had the opportunity of perusing the exhaustive judgment given by my learned Brother, I am in agreement with his findings that the learned Member of the Tribunal has erred in holding that the appellant has committed any corrupt practices. Hence issues Nos. 2, 3, 4, 5, 6, 7, 8 and 9 arc to be decided in favour of the appellant and against the petitioner. In passing it may be mentioned that I have retained the same nomenclature used by my learned Brother with regard to the parties, the appellant in the present case being Sankare Gouda Alvandi and petitioner, Shirur Veerabhadrappa. I also concur with his findings that the learned Member of the Tribunal has erred in declaring the petitioner as duly elected under Section 98(c) read with Section 100(1)(b) of the Representation of People Act. But I am constrained to differ from him regarding the issue of law, viz., the first issue that the appellant is disqualified from being chosen as a member of the Mysore Legislative Assembly. On the other hand, I accept the finding of the learned Member of the Tribunal as per his order that he is not so disqualified but is protected by Act XVIII of 1955 -- Hyderabad Legislative Assembly (Prevention of Disqualification) Act, 1955.

17. The learned Member of the Election Tribunal has considered as a preliminary issue the point raised regarding the disqualification of the appellant from being chosen as a member of the Mysore Legislative Assembly and decided the same in his favour inasmuch as, he is exempted under Act XVIII of 1955 -- Hyderabad Legislative Assembly (Prevention of Disqualification) Act. For purposes of reference this Act will be referred to as Act XVIII of 1955 henceforth.

18. The appellant is the Pattedar Mali Patel of Halvagali, Koppal Taluk. On the 9th of January 1957, he appointed one Hanumantha Gowda as gumasta Patel reserving for himself one-third potagi. It is, therefore, contended by the petitioner that he is disqualified for being chosen as a member of the Mysore Legislative Assembly on the ground that he was holding an office of profit under the Government of the State on the day he was elected viz., I4th March 1957. The appellant seeks protection under Act XVIII of 1955 referred to above which runs as follows :

'3. It is hereby declared that the following offices shall not disqualify and shall be deemed never to have disqualified, the holders thereof for being chosen as, or for being members of the Hyderabad Legislative Assembly .'

(j) The office of a village official or Watandar, namely, Patel, Patwari,, Deshmukh, Deshpandya or Hissedar in such Watan who is not performing any service connected with the office or Watan himself or who is not customarily entrusted with any such service and who is in receipt of any share of the scale or Rusum or other emoluments to which he may be entitled as a hereditary Watandar or Hissadar in the form of Haq-i-Malikana or otherwise :'

19. That the appellant is not performing any service in connection with the office himself but is receiving a share in the Potagi or other emoluments is borne out by evidence. It is beyond doubt that the disqualification would not have attached to him had the old order of things continued to exist. But that order has changed and yielded place to a new order of things on the reorganisation of States. The Hyderabad State as a separate entity is no longer in existence. It is split up into three parts. The Telugu speaking area of that State otherwise called Telangana has merged in the State of Andhra Pradesh, the Marathi speaking area has become part and parcel of the Bombay State and the Kannada speaking districts have formed part of the Mysore State on the reorganisation of the States.

The Districts of Raichur, Gulbarga and Bidar, as per Section 7(c) of S. R. Act have thus become part of the enlarged Mysore State. Yelburga Constituency in Koppal Taluk of Raichur District is consequently a part of the Mysore territory. These events have given rise to complex problems. Has this reorganisation of the States any bearing on the election of the appellant as a member of the Mysore Legislative Assembly? Several State Legislatures have enacted laws preventing disqualification of holders of certain offices enumerated in the respective Acts. One such is the patel not performing the services connected with his office as in the case of the present appellant as per Hyderabad Act XVIII of 1955.

20. Briefly stated, the contentions of Sri Patil,, the learned Counsel for the petitioner is that the Hyderabad enactment, Act XVIII of 1955 remains good so long as the Hyderabad State and the Hyderabad Legislature existed and is no longer in force on the reorganisation of Slates. It is further contended by him that the Legislature of the Mysore State has passed a new Law, Mysore Act IV of 1957 wherein there is no corresponding exemption given as provided for in Section 3 (j) of the Hyderabad Act XVIII of 1955.

Hence by implication the Hyderabad Act is repealed. It is argued on the other hand, by Sri Krishna Murthy, the learned Advocate for the appellant that in spite of the reorganisation of the States, the Hyderabad Act XVIII of 1955 continues to be in force, and hence the appellant is not disqualified for election to the Mysore Legislative Assembly. He mainly relies on Section 119 of the States Reorganisation Act (Act XXXVII of 1956) which will be henceforth called as S, R. Act for easy reference. It is further contended that the power of repeal is vested in the competent Legislature viz. the Mysore Legislature which has not exercised it till now by expressly repealing Act XVIII of 1955 or any part thereof and there could be no implied repeal.

21. Section 119 of the States Reorganisation Act runs as follows :

'Territorial extent of laws : The provisions of p'art II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that state immediately before the appointed day.'

22. This 'deeming' provision, is enacted to keep status quo intact even after the reorganisation of the States. The law in force immediately before the appointed day which extended to that territory shall be construed to apply to those territories even after the reorganisation. Thus, this section guarantees the statutory continuance of the law existing in that State unless abrogated. The law passed by the Hyderabad Legislature and embodied in Act XVIII of 1955 is a general law extending to the Hyderabad territory though the extent is not expressly mentioned therein. This Act repeals and re-enacts with modifications the previous Act, viz. The Hyderabad Legislative Assembly (Prevention of Disqualification) Act 1951 with, a view to declare certain offices of profit under the Government of India or Government of any State not to disqualify their holders for being chosen as or for being members of the Hyderabad Legislative Assembly.

Thus the statutory right enjoyed under the said Act by the residents of the Hyderabad State in view of the provisions of Act XVIII of 1955 remain intact and continue to be enjoyed by the residents of the territories to which they belong, When they have formed part of the Mysore State after the reorganisation. In the words of Alexanderowich in his learned treatise on the Constitutional Developments in India :

'This section (Section 119) by way of legal fiction makes the law as existing before the date of reorganisation provisionally immune from the consequences of territorial changes and secures an interim status quo. No automatic change of law follows reorganisation of India and all changes will have to be effected expressly by the competent Legislature or authority whether central or local.'

23. The provisions of Section 119 of the States Reorganisation Act came up for consideration before a Bench of this Court in the case reported in AIR 1958 Mys 184. A notification was issued appointing Joint Judges and Assistant Judges to decide election cases under the Bombay District Municipal Act. On the reorganisation of States, Belgaum District became part of Mysore. The question arose whether the notification issued tinder the provisions of Section 22 (2) of the District Municipal Act by the Government of Bombay had still any force on the reorganisation of the States and would apply to the part of the Mysore State, viz., Belgaum which, before integration formed part of the Bombay State.

It was contended on behalf of the petitioners that the Mysore Government should have appointed an authority or an officer or a person for the purpose of exercising the functions mentioned in Sub-section (2) of Section 22 of the Bombay District Municipal Act of 1901 and the notifications issued by the Bombay Government would not be of any force whatsoever. That contention was repelled on the ground that Section 119 of the States Reorganisation Act applied and in the words of his Lordship Das Gupta C. J. :

'The effect of this section is that the law which was in force in the area which was within the State of Bombay before the appointed day and which had come to the State of Mysore after such appointed day will remain in force so far as those territories are concerned. It follows therefrom that the Bombay District Municipal Act 1901 would still be the law in the area which belonged to the State of Bombay which had since come to the State of Mysore.'

24. Applying the above principles to the facts of the present case, the law viz., Act XVIII of 1955 which was in force in Raichur Area within the State of Hyderabad immediately before the appointed day which had come to the State of Mysore after such appointed day will remain in force so far as that territory is concerned. The question arises that there is no specific mention of the extent in the Hyderabad Act, Act XVIII of 1955. The very heading 'The Hyderabad Legislative Assembly (Prevention of Disqualification) Act 1955' indicates that it applied to Hyderabad State. In fact as their Lordships of the Bombay High Court have stated while interpreting certain sections of the States Reorganisation Act and the effects thereof in the case reported in : AIR1959Bom363 :

'Looking to the aim, scope and the object of the Act, in our opinion, the intention of Parliament clearly appears to be to provide for a solution of all problems arising out of the States Reorganisation. Effect can only be given to the intention of Parliament by liberally construing its provisions so far as the language used would permit.'

25. This word of caution is to be borne in mind while construing the provisions of S. R. Act and the consequences flowing therefrom. Otherwise the result would be that what is given by the right hand is snatched away by the left.

26. In a decision of the Andhra Pradesh High Court in the case reported in (S) AIR 1957 Andh Pra 123 the question of Court fee as per the Hyderabad Court Fees Act on an application for mandamus was considered. As per that Act, Court fee that was payable was only Rs. 2/- on the Writ Petition, while on a similar application under the Andhra Pradesh Court Fees Act, a sum of Rs. 100/- was prescribed. His Lordship Subba Rao C. J. (as he then was) delivering the judgment of the Bench held as follows :

'Section 119 enacts, that for the purpose of the application of the laws, there must be deemed to have been no change in the territories, i.e., though Telengana is now a part of the State of Andhra Pradesh, the Laws of the State of Hyderabad will be in force in that area as if there was no disintegration of that area of the State of Hyderabad and integration of the same with the State of Andhra Pradesh. The laws in that area would continue to prevail and govern the rights of parties till the competent Legislature or other competent authority otherwise provides.'

Further his Lordship held :

'The result is that the law obtaining in the State of Hyderabad before the appointed day would still govern the rights of parties in the Telengana area. The law of Court fees obtaining before that date in the State of Hyderabad is the Hyderabad Court Fees Act and, therefore, the Hyderabad Court-fees Act governs the proceedings arising out of that area. In the present case, the petitioner seeks the aid of the High Court to issue a writ of mandamus against a Tribunal situated in Hyderabad City. The Hyderabad Court-fees Act which, was the law obtaining in the State of Hyderabad before the appointed day, would apply to such a proceeding. If so, the Court-fee payable under Schedule II serial No. 1 (d) is Rs. 2/- on a writ petition.'

27. In a decision of the very same High Court in the case of In re Pitla Gangaram, reported in 1958-1 Andh WR 116, the question for consideration was whether in second appeals arising out of Telengana area, Section 602 of the Hyderabad Civil Procedure Code applied after the Reorganisation of the States or whether it was repealed and the Civil Procedure Code 1908 applied instead. According to Section 602 of Hyderabad Civil Procedure Code a second appeal could lie against a decision on facts as well as on law, while as per Section 100 Civil Procedure Code, an appeal could lie only if the decision was contrary to law or some usage having the force of law etc. It was held by his Lordship Subba Rao C. J. (as he then was) as follows :

'Territorial changes effected by Part II (of the S. R. Act) did not affect the law obtaining in the different areas forming part of a new State or a State with extended jurisdiction. The laws prevailing in different parts continue to govern those parts till appropriate Government made such adaptations and modifications of the law of the Parliament or any competent authority altered, repealed or amended any such law. Where no provision or insufficient provision had been made for the adaptation of a law before the appointed day, the Courts or Tribunals were authorised to construe the law in such a way that was proper in regard to any matter without affecting the substance. By reason of these provisions the law governing second appeals obtaining in the Telengana area continued to be in force. It is not disputed that the appropriate Government did not make an order making adaptations or modifications of the law or that the appropriate Legislature or authority made any such law altering or amending the law prevailing in the Telengana area. It follows that provisions of Section 602, Hyderabad Civil Procedure Code, i.e. a second appeal, against the appellate decree of a Subordinate Court in the Telengana area could be filed not only on questions of law but also on questions of fact.'

In a later part of the Judgment, His Lordship states as follows:

'The States Reorganisation Act by Section 65 extended the jurisdiction of the High Court of Andhra Pradesh to the Telengana area and provided for the automatic transfer of all proceedings pending in the High Court of Hyderabad immediately before the appointed day other than those certified by the Chief Justice of that High Court as proceedings transferrable to the Bombay and the Mysore High Courts, to the High Court of Andhra Pradesh and Section 119 preserved the continuance of the laws in the Telengana area till suitably modified by the appropriate authority.'

28. Applying these principles to the case of the appellant, it comes well within the purview of Section 119 of the S. R. Act. Hence the argument of Sri Patil that the appellant is disqualified to be elected as a member of the Mysore Legislative Assembly because both the Hyderabad State and Hyderabad Legislature have gone out of existence has no force.

29. In view of the above discussion it appears to me unnecessary to unravel the mysteries of delegated legislation.

30. The next point for consideration is whether there has been a repeal of Act XVIII of 1955 vis a vis the later Act of Mysore, viz., Act IV of 1957 called the Mysore Legislative (Prevention of Disqualification) Act. Both these Acts declare that certain offices should not, under certain conditions, disqualify or deem to disqualify the holders thereof for being chosen as a member of the Legislature. Both of them give a few categories of offices which are saved by the mischief of disqualification. It is an admitted fact that there is no express provision in the later Act of Mysore repealing the earlier Act of Hyderabad. But it is urged by Sri Patil for the petitioner that the later Act, viz., Mysore Act IV of 1957 impliedly repeals the earlier Act XVIII of 1955. How far is this argument tenable is to be tested by some well-known principles of interpretation of statutes. Maxwell in his book on Interpretation of Statutes lays down on p. 170 the general principle that repeal by implication is not favoured by Courts.

A sufficient (sic) (An earlier?) Act ought not to be held to be repealed by implication without some strong reason. The very same principle is accepted with approval by Courts of law. For instance, in the case of Hind Iran Bank v. Ishar Singh Narain Singh, reported in , it is held as follows :

'The Courts as a rule do not favour repeals of earlier statutes by implication, except where the repugnancy between the two enactments is manifest and irreconcilable.'

31. In a later part of the Judgment relying on the principle laid down in the case of Goodwin v. Phillips, (1908) 7 Aust CLR 1 (16) it is held that the Courts ordinarily lean against repeal by implication, but where the contradiction is unavoidable, then 'the latest expression of the will of Parliament must always prevail.' The question following from this is whether there has been any contradiction, conflict or repugnancy between the two statutes referred to above. A close study of these indicates that there is no such conflict or contradiction. In fact these two are parallel Acts. Their aim is to save certain offices from disqualification. In its wisdom each Legislature mentions different offices. Hence the Acts run on parallel lines and each one of them can co-exist with the other. It is only in case each impliedly contradicts the other, then, their separate existence could be questioned.

32. The decision of the Supreme Court in the case reported in : [1955]1SCR799 is strongly relied on by Sri. Patil in support of his contention. In that case, the subject matter of the later legislation was identical with that of the earlier, The later Act dealt with matters not only forming the subject matter of the earlier Legislation but with other and distinct matters though of a cognate and allied character. The earlier Act was limited to the case of hoarding of food-grains only and prescribed punishment therefor.

But the later Act not only dealt with boarding of food-grains but also other commodities and prescribed punishment for hoarding each of them. Under the circumstances of that case, their Lordships of the Supreme Court held :

'...............that they cannot both stand together and hence the earlier Act is repealed by the later enactment.'

Hence that case is distinguishable from the facts of the present case where there is no conflict or repugnancy between the Acts which run on parallel lines. Hence there is no substance in the argument of Sri Patil that there is implied repeal in the present case. Therefore, in my opinion, the appeal has to be allowed in its entirety. But in view of the disagreement between myself and my learned Brother on the questions of law pertaining to the first issue, I will not be proceeding to final judgment; the points of law in respect of which there has been disagreement between us, will be formulated for being heard and decided in accordance with the Proviso to Sub-section (2) of Section 98 C. P. C.

BY COURT (M. SADASIVAYYA AND MIR IQBAL HUSAIN JJ.) :

33. We are satisfied that none of the corrupt practices alleged against the appellant has been established; the findings of the Tribunal holding that the corrupt practices have been established, are set aside.

34. We are agreed that the declaration by the Tribunal that the petitioner (who is the respondent before us) has been duly elected, cannot be sustained; therefore, we set aside the said declaration made by the Tribunal.

35. The question as to whether the appellant's election is void or as to whether he is entitled to be declared to have been duly elected, depends on the decision of the first issue. The points of law relevant in connection with the decision of the first issue, on which there has been no agreement between us, are formulated as follows, for being heard and decided in accordance with the proviso to Sub-section (2) of Section 98 C. P. C. :

1. Whether the Hyderabad Legislative Assembly (Prevention of Disqualification) Act XVIII of 1955 continued to be operative even after the Hyderabad Legislative Assembly became defunct?

2. If so, whether under the provisions of Section 120 of the S. R. Act (read with paragraph 6(1) of the Mysore Adaptation of Laws Order, 1956) and Section 121 of the S. R. Act, it would be competent or permissible to construe the references to the Legislative Assembly of the Hyderabad State in the said Hyderabad Act, as references to the Legislative Assembly of the reorganised State of Mysore?

3. Even if the answers to questions 1 and 2 above be in the affirmative, whether the said Hyderabad Act can be regarded, for the purpose of Article 191 of the Constitution, as a law made by the Legislature of the reorganised State of Mysore declaring the office of profit held by the appellant as not disqualifying him for being chosen as a member of the Legislative Assembly, of the reorganised State of Mysore?

4. Whether the said Hyderabad Act was impliedly repealed by Mysore Act 4 of 1957.

36. We direct that the records be placed before the Hon'ble the Chief Justice for obtaining his directions in regard to the further hearing of this appeal in accordance with the proviso to Sub-section (2) of Section 98 of the C. P. C.

(This appeal coming on for final hearing before Somnath Iyer J. on 17-6-1960 in pursuance of the order of reference made on 27-4-1960 by Sadasivayya and Mir Iqbal Husain JJ., on the points of law formulated therein, under the proviso to Section 98(2) of the Code of Civil Procedure, for pronouncement of opinion Somnath Iyer J. made the following :)

Somnath Iyer, J.

37. This appeal which arises out of an election petition was heard by Sadasivayya and Mir Iqbal Husain JJ., and on their differing in opinion, on the questions of law, arising in it, it has been posted before me under the proviso to Section 98(2) of the Code of Civil Procedure.

38. The material facts are these : The appellant and the respondent sought election to the Legislative Assembly of the new State of Mysore from the constituency of Yelburga, in the district of Raichur. That district was in the erstwhile State of Hyderabad and became part of the new State of Mysore after the reorganisation of States, which took place on November 1, 1956.

39. January 29, 1957, was the final date for presenting nominations. The nominations of these two candidates were delivered to the Returning Officer on January 29, 1957. After their scrutiny, which was made on February 1, 1957, the Returning Officer accepted them.

40. The election was held on March 10, 1957. The appellant secured 20,541 votes while the respondent secured 14,500 votes. The appellant was declared elected.

41. Under the provisions of Section 80 of the Representation of the People Act, the respondent presented an election petition challenging the appellant's election on various grounds. He charged the appellant with having committed 'corrupt practices and contended that the appellant who was the holder of an office of profit under the new State of Mysore, was disqualified for election.

42. It is admitted that the appellant was a revenue Patel under the new State of Mysore, and that he was, therefore, the holder of an office of profit.

43. The Tribunal which tried the election, petition heard arguments on the preliminary question whether the appellant suffered from any disqualification, and by an order which it made on November, 22, 1958, held that, he did not. Its conclusion rested on the provisions of Section 3 of the Hyderabad Legislative Assembly (Prevention of Disqualification) Act, 1955, (Hyderabad Act No. XVIII of 1955), hereinafter referred to as the Hyderabad Act, which enumerated the offices of profit which did not disqualify their holders for being chosen as or for being members of the Hyderabad Legislative Assembly. The office of a Patel was one of those offices.

44. The Tribunal next proceeded to record a finding that the corrupt practices alleged by the respondent had been proved and declared the appellant's election to be void. It made a further declaration that the respondent had been duly elected.

45. From that order, the appellant appealed to this Court under the provisions of Section 116-A of the Representation of the People Act. Sadasivayya and Mir Iqbal Husain, JJ., who heard that appeal, reversed the finding of the Election Tribunal that the appellant had committed corrupt practices. The declaration made by the Tribunal that the respondent had been duly elected was also set aside.

46. The view taken by that Bench on those two matters should have normally entailed the dismissal of the election petition. But, before their Lordships the respondent assailed the correctness of the Tribunal's finding that the appellant was not disqualified for being chosen as a member of the Assembly. Their Lordships agreed with the contention of the learned advocate for the respondent, that that finding of the Tribunal could be impugned under the provisions of Rule 22 of Order XLI of the Code of Civil Procedure, read with Sub-section (2) of Section 116-A. of the Representation of the People Act. The appellant's contention that it was not open to the respondent to support the decision of the Tribunal on a ground on which the finding of the Tribunal was adverse to the respondent, was repelled.

47. On the question whether the appellant was so disqualified, the learned judges composing the Bench did not however agree.

48. The relevant questions of law, on which they differed, are: -

'1. Whether the Hyderabad Legislative Assembly (Prevention of Disqualification) Act XVIII of 1955 continued to be operative even after the Hyderabad Legislative Assembly became defunct?

2. If so, whether under the provisions of Section 120 of the States Reorganisation Act (read with paragraph 6 (1) of the Mysore Adaptation of Laws Order, 1956) and Section 121 of the States Reorganization Act, it would be competent or permissible to construe the references to the Legislative Assembly of the Hyderabad State in the said Hyderabad Act, as references to the Legislative Assembly of the reorganized State of Mysore?

3. Even if the answers to questions I and 2 above be in the affirmative, whether the said Hyderabad Act can be regarded, for the purpose of Article 191 of the Constitution, as a law made by the Legislature of the reorganised State of Mysore declaring the office of profit held bv the appellant as not disqualifying him for being chosen as a member of the Legislative Assembly of the reorganized State of Mvsore?

4. Whether the said Hyderabad Act was impliedly repealed by Mysore Act 4 of 1957?'

49. Now, Article 191 of the Constitution which, according to the respondent, disqualified the appellant reads: -

'191. (1) A person shall be disqualified for being chosen as, and for being, a member Disqualifications OF THE Legislative Assembly or Le for membership.Legislative Council of a State.

(a) if he holds any office of profit under the Government of India or the Government of any State specified in the first Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;

* ' * * '.

It is unnecessary to refer to the other provisions of this article.

50. The office of Revenue Patel held by the appellant being admittedly an office of profit, the appellant was plainly disqualified for the membership of the Legislative Assembly of the State of Mysore, if the Legislature of that State had not by law removed the disqualification. The appellant's case was that it had been so removed by the Hyderabad Act.

51. The Hyderabad Act was a law made by the Legislative Assembly of the erstwhile State of Hyderabad and came into force on October 24, 1955. The preamble to that Act reads:-

'Whereas it is expedient to repeal and re-enact with modifications the Hydera-Preamble.bad Legislative Assembly (Prevention of Disqualification) Act, 1951 with a view to declare that certain offices of profit under the Government of India or the Government of any State should not, under certain conditions, disqualify, or be deemed to have disqualified the holders thereof for being chosen as, or for being, members of the Hyderabad Legislative Assembly;'

52. Section 3 of that Act enumerated eleven sets of offices of profit as not disqualifying their holders, for being chosen as or for being members of the Hyderabad Legislative Assembly, among which the office of a, Patel was one.

53. The Tribunal was of the view that the Hyderabad Act, although enacted by the Hyderabad Legislative Assembly for declaring the offices referred to in Section 3 of that Act as not disqualifying their holders for being chosen as members of the Hyderabad Legislative Assembly, has however to be regarded as a law made by the Legislature of the State of Mysore, declaring that those offices did not disqualify their holders for the membership of the Mysore Legislative Assembly.

53a. According to the Tribunal, the Hyderabad Act continued to be operative in the new State of Mysore even after the reorganization of States and that view rested on the provisions of Section 119 of the States Reorganisation Act and the adaptations made to the Hyderabad Act under Section 120 of the States Reorganisation Act, by the Government of the new State of Mysore, under the Mysore Adaptation of Laws Order, 1956. Paragraph 6 (1) of that Adaptation of Laws Order reads:-

'6. (1) Any reference in any Existing law to the Legislature of the State or any House or Mousse thereof shall be construed as a reference to the Legislature of the State of Mysore or to the corresponding House or Houses thereof.'

The Tribunal thus reached the conclusion that the reference in the Hyderabad Act to the Hyderabad Legislative Assembly has to be construed, after the creation of the new State of Mysore, as a reference to the Mysore Legislative Assembly. By that process of reasoning, the Tribunal formed the opinion that the office of profit held by the appellant must be regarded to have been declared by the Mysore Legislative Assembly as not disqualifying him for its membership.

54. Section 119 of the States Reorganisation Act reads: -

'119. Territorial extent of laws. -- The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day.'

55. The argument proffered for the respondent was that that section takes within it only those laws in force in the erstwhile State of Hyderabad which extended or applied to a territory and that the Hyderabad Act which did not extend or apply to any territory became inoperative when by reason of the reorganisation of States, the Hyderabad State ceased to have existence and its Legislative Assembly consequently became defunct.

56. Now, the Hyderabad Act enacted by the Hyderabad Legislative Assembly for the purpose of Article 191 of the Constitution was designed to except certain offices of profit out of the operation of that Article, and to thereby remove certain disqualifications of persons otherwise qualified for election. Under the provisions of Section 5 of the Representation of the People Act of 1951, an elector for an assembly constituency of a State is qualified to stand for election to a Legislative Assembly of that State. Section 19 of the Representation of the People Act, 1950, entitles a person who is not less than twenty one years of age and who is ordinarily resident in a constituency of a State to be registered in the electoral roll for that constituency. The meaning of the words 'ordinarily resident' occurring in the above section is explained by Section 20 of that Act.

57. But, an elector, though eligible for election under the provisions of the Representation of the People Act, stands disqualified if he holds an office of profit, whether he holds such office under the Government of India or under the Government of a State.

58. The Hyderabad Act did not remove from the ambit of such disqualification only those offices held under the erstwhile State of Hyderabad. The offices declared by it as not disqualifying their holders included offices of profit under the Government of India and under the Governments of all the other States. The question whether a legislation like the Hyderabad Act made by the legislature of a State for the purpose of declaring certain offices of profit, as not disqualifying their holders for its membership could properly be regarded as a law having territorial application is not entirely free from difficulty. The Constitution disqualifies the holder of an office of profit for the membership of a legislature, but, bestows on that legislature the power to make by law a declaration to the contrary. The view that a law made for that purpose cannot have any territorial application appears as legitimate as the competing argument that the territories to which that law extends or applies are those constituencies of the legislatures for whose electors the law was enacted. But, since it appears to me that this question, though difficult, is not of any materiality for this case, I abstain from expressing my opinion on it.

59. It appears to me, however, that even if the Hyderabad Act was a territorial law, it ceased to operate after the reorganisation of States.

60. On the reorganisation of States which caused the dismemberment of the Hyderabad State, the Hyderabad Legislative Assembly functioning in that State also became defunct. One of the Legislatures for the new State of Mysore in which were included some of the districts of the old Hyderabad State was the Legislative Assembly of that State.

61. Part IV of the States Reorganisation Act contained elaborate provisions for representation in the legislatures of the reorganised States. Section 28 of the Act provided for changes in the composition and allocation of sitting members. That section also provided that the whole area of such assembly constituency which became part of a new State shall be deemed to form a constituency in the new State, and that the sitting member re-presenting that constituency shall be deemed to have been duly elected to the Legislative Assembly of the new State by that constituency. Under Clause (b) of Section 28(1) of that Act, the sitting member ceased to be a member of the former Legislative Assembly.

62. So, a sitting member of the Hyderabad Legislative Assembly was statutorily transformed into a sitting member of the Legislative Assembly of the new State.

63. In that situation, it should, I think, be difficult for the appellant to contend that although the Hyderabad Assembly itself became defunct, a law made by that Assembly for a purpose which no longer existed, was nevertheless continued by Section 119 of the States Reorganisation Act. I do not understand that section to have that effect.

64. Section 119 of the States Reorganisation Act, on which the appellant depends, consists of two parts. Part II of the Act contains provisions for territorial changes and formation of new States. The first part of Section 119 provides that the provisions of Part II of the Act shall not be deemed to have effected any change to the territories to which any law in force immediately before the appointed day extends or applies. The meaning of this provision is that if there was a territory to which any law in force before November I, 1956, extended, or applied, that territory has still to be regarded for the purpose of that law as remaining in the State in which it originally was and not as part of the State to which it was added or transferred after reorganisation.

65. The district of Raichur containing the constituency from which the parties to this case contested the election was in the State of Hyderabad before reorganisation. The effect of the first part of Section 119 of the States Reorganisation Act is that if there was a law in force before November 1, 1956, which extended or applied to that district, that district for the purpose of the application of that law has to be regarded as still being within the State of Hyderabad and not as having been added to the new State of Mysore. This transitional provision which has effect until a competent legislature or other competent authority otherwise provides was designed to avoid a vacuum and to ensure the continuance of the legal system operating in the old States whose structure was constitutionally altered.

66. If it could be said that the Hyderabad Act was a law in force which extended or applied to the district of Raichur, for the purpose of the application of that law, the district of Raichur would still have to be regarded as an area within the Hyderabad State and governed by the Hyderabad laws of which the Hyderabad Act was one. But, for the affirmance of the appellant's contention it is not enough that for the application of the Hyderabad Act, the district of Raichur should still be deemed to be in the State of Hyderabad.

67. Even if by the force of such statutory fiction, the Hyderabad Act continued to be in force after November 1, 1956, in the district of Raichur, that Act which, according to its language, only entitled the appellant to seek membership of a defunct legislature, had clearly no efficacy, unless, as contended, its operation extended after reorganisation to the membership of the Mysore Legislative Assembly.

68. Under the second part of Section 119 of the States Reorganisation Act, territorial references in the laws governed by the first part of that section shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within which it was operating before reorganisation. The meaning of this provision is that where a law of one State continues to operate in another, territorial references in such law shall be understood as references to the territories of the old State. But, the Hyderabad Act contained no territorial references, which could be so understood.

69. To support the argument that the Hyderabad Act, after reorganisation, became a law which removed disqualifications for the membership of the Legislative Assembly of the new State of Mysore reliance was placed on the provisions of Section 120 of the States Reorganisation Act. That section reads: -

'120. Power to adapt laws -- For the purpose of facilitating the application of any law in relation to any of the States or Union Territories formed or territorially altered by the provisions of Part II, the appropriate Government may, before the expiration of one year from the appointed day, by order make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent legislature or other competent authority.

* * *'

It is not necessary to refer to the explanation appearing under this section.

70. In the exercise of the power conferred by this section, the Government of the new State of Mysore made certain adaptations and modifications tinder the Mysore Adaptation of Laws Order, 1956. This Adaptation of Laws Order came into force on November 1, 1956. Paragraph 6 (1) of this order reads: -

'6 (1). Any reference in any existing law to the Legislature of the State or any House or Houses thereof shall be construed as a reference to the Legislature of the State of Mysore or to the corresponding House or Houses thereof.'

The expression 'existing law' occurring in this paragraph is defined by paragraph 2 (1) (h) of the Order as hereunder: -

'2. (1) In this Order,

* * *

(h) 'existing law' means any law as defined in Clause (h) of Section 2 of the Act, in force in the Bombay Area, Hyderabad Area, Madras Area, Mysore Area, or Coorg District, or any part of the said Areas or District, immediately before the appointed day and in respect of which the State Government of Mysore has power to make adaptations under Section 120 of the Act.'

The Act referred to in this definition is the States Reorganisation Act. Clause (h) of Section 2 of that Act, to which reference is made in paragraph 2 (1) (h) of the Adaptation of Laws Order, reads --

'2. Definitions. -- In this Act, unless the context otherwise requires, --

* * *

(h) 'law' includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having the force of law in the whole or in any part of the territory of India;'

71. The Hyderabad Act, it was pointed out, was a law as defined by Section 2(h) of the States Reorganisation Act, and, therefore an 'existing law' as defined by paragraph 2 (1) (h) of the Adaptation of Laws Order. Paragraph 6 (1) of the Adaptation of Laws Order, being thus clearly applicable to the Hyderabad Act, it was contended that the reference in that Act to the Hyderabad Legislative Assembly should be construed as a reference to the Legislature of the State of Mysore. So construed, it was urged that Section 3 (j) of the Hyderabad Act which declared the office of a Revenue Patel as not disqualifying its holder for the membership of the Hyderabad Legislative Assembly has to be understood, after the reorganisation of States, as declaring that office as not disqualifying its holder for the membership of the new legislature of Mysore.

72. The argument is to my mind insubstantial. There is, I think, sufficient reason for thinking that the Government of Mysore did not and could not make any adaptation or modification to the Hyderabad Act, the source of the power to make which is Section 120 of the States Reorganisation Act.

Although that Section empowers the appropriate Government to make necessary adaptations and modifications, whether by way of repeal or amendment, such power is exercisable only for the purpose of facilitating the application of any law in relation to any of the States formed or territorially altered. I am unwilling to think that the Government of Mysore could or intended to adapt or modify, after the Hyderabad Legislative Assembly became defunct, a law which governed only its membership, to make it applicable to the membership of the Legislature of the new State of Mysore, which alone could, as provided by Article 191 of the Constitution, legislate on that matter.

73. Nor could such adaptation or modification be defended as being necessary for facilitating the application of the Hyderabad Act, in relation to the State of Mysore.

74. That the selection of offices of profit not disqualifying their holders is an essential Legislative function of the legislature does not admit of discussion or debate. Sadasivayya, J., therefore, thought that such selection which could be made only by the appropriate legislature was incapable of delegation.

75. With, respect, I entirely agree with that view. I do not understand Section 120 of the States Reorganisation Act as empowering the appropriate Government to make modifications or adaptations even by way of repeal or amendment in respect of matters in which the legislature alone can express its Legislative will. That section which empowers only those modifications and adaptations which are necessary for the continuance without interruption of the operation of the existing laws does not bestow power to so alter or modify a law as to give it the status of a law which the legislature alone has the competence to make.

76. It would, therefore, be right to think that paragraph 6 (1) of the Mysore Adaptation of Laws Order made no adaptation or modification of the Hyderabad Act. Even if it did, the changes made in that law, being plainly incompetent, were invalid.

77. At one stage Mr. Krishnamurthy, on behalf of the appellant, suggested that paragraph 6 (1) of the Mysore Adaptation of Laws Order was really in the nature of a supplemental, incidental and consequential provision made by the Parliament, under Article 4 of the Constitution in respect of a matter concerning representation in the legislature of the new State of Mysore. The Parliament having enacted the States Reorganisation Act under the Provisions of Articles 2 and 3 of the Constitution had, it was urged, power under Article 4 of the Constitution to make such supplemental, incidental and consequential provisions. Section 120 of the States Reorganisation Act, according to the argument, contains those supplemental, incidental and consequential provisions empowering the appropriate Government to make the modifications and adaptations referred to in that section.

78. Any adaptations or modifications so made by the Government of Mysore under paragraph 6 (1) of the Mysore Adaptation of Laws Order, it was suggested, are therefore really adaptations and modifications made by the Parliament and thus immune from the challenge of excessive delegation.

79. The weakness in this argument is twofold. The argument resting on Article 4 of the Constitution would have been unanswerable if the Parliament itself had made an adaptation or modification, like the one which the Government of Mysore made under paragraph 6 (1) of the Mysore, Adaptation of Laws Order. The supplemental, incidental and consequential provisions authorised by Article 4 of the Constitution can be made only by the Parliament and should be contained, as provided by Article 4, of the Constitution, in the law referred to in Articles 2 and 3. The adaptation made by paragraph 6 (1) of the Mysore Adaptation of Laws Order cannot, therefore, claim the status of a provision made by Parliament under Article 4 of the Constitution.

80. There is another ground on which the argument fails. I do not understand Sadasivayya, J., to say that Parliament made any excessive delegation of power on the appropriate government under Section 120 of the States Reorganisation Act.

In his opinion, although Section 120 of the States Reorganisation Act did not make any such excessive delegation, the Government of Mysore if it purported under paragraph 6 (1) of the Mysore Adaptation of Laws Order to adapt or modify the Hyderabad Act by directing the substitution of the Mysore Legislative Assembly for the Hyderabad Legislative Assembly, it made that adaptation or modification in exercise of a power which it did not possess. The appellant cannot successfully overcome the difficulty suggested by Sadasivayya, J., by the assistance of anything contained in Article 4 of the Constitution.

81. What I have said so far concerns the first two questions of law on which the Bench hearing the appeal did not agree. Now, I proceed to consider the third.

82. If this question cannot be answered in favour of the appellant, his contentions resting on the provisions of Sections 119 and 120 of the States Reorganisation Act read with paragraph 6 (1) of the Mysore Adaptation of Laws Order become immaterial. Even if the appellant should succeed in his contention that the Hyderabad Act continued to bo in force in the district of Raichur, after it was added to the State of Mysore, and the reference in that Act to the Hyderabad Legislative Assembly has to be read after its adaptation as a reference to the Mysore Legislative Assembly, the more important question that next arises is whether a law which was so continued under Section 119 of the States Reorganisation Act and adapted under Section 120 of that Act, is a law which could be regarded as one made by the Legislature of the State of Mysore for the purpose of Article 191 of the Constitution. In my opinion, it cannot be so regarded.

83. The holding of an office of profit under the Government of India or the Government of a State is a disqualification under the provisions of Article 191 of the Constitution for membership of a Legislative Assembly or a Legislative Council. The machinery for the removal of such disqualification is, what is provided by that very article. It is only when such office of profit is declared by law by the legislature of the State not to disqualify its holder that the disqualification ceases to exist. Article 191(1)(a) reads :-

'191. Disqualifications for Membership. (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly, or Legislative Council of a State --

(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder'.

The words 'Legislature of the State' occurring in Clause (a) clearly have reference to the Legislative Assembly and the Legislative Council to which the opening portion of Article 191 refers. That being so, the law by which an office of profit could be declared as not to disqualify its holder for the membership of the Mysore Legislative Assembly could have been enacted only by the Legislature of the new State of Mysore. It was for that legislature to make a law as respects that matter, after the reorganisation, and the consequence of the omission by that legislature to make such law, would have been that all offices of profit held under the Government of India or under the Government of any State disqualified, their holders for being chosen as or for being a member of the Legislative Assembly or the Legislative Council of the State.

Now, the Government of Mysore could not, as I have said in another context, by means of adaptations and modifications, exercise a power exercisable only by the Legislature of the State. Even if it did, and made an adaptation to the Hyderabad Act, by substituting for the Hyderabad Legislative Assembly the Mysore Legislative Assembly, the law so adapted does not become a law made by the Legislature of the new State of Mysore.

84. It was contended that even a law to be made by the Legislature of a State for the purpose of Article 191 of the Constitution could be made by that Legislature only in the exercise of the Legislative power conferred on it by Article 246 of the Constitution, read with the 37th entry of the State List, and that, therefore, if the Hyderabad Act which had been made by the Hyderabad Legislative Assembly under those constitutional provisions, was adapted and modified by the Government of Mysore, it became, for the purpose of Article 191, a law made by the Legislature of the State of Mysore.

85. I am unable to agree that to be the correct position. Even on the assumption that the law to be made for the purpose of Article 191 can be made only under the provisions of Article 246 of the Constitution, in the field of the 37th entry of the State List, that law, it is plain, has to be made by the Legislature of the State referred to in Article 191, and to which the person holding the office of profit seeks election. That Legislature, after November 1, 1956, was the legislature of the new State of Mysore which had exclusive competence to enact such law. A law made by the Hyderabad Legislative Assembly for a purpose concerning itself, even after its adaptation, cannot claim to be a law made by the Legislature of the new State of Mysore for the purpose of Article 191 of the Constitution. Any equip ration of the Hyderabad Act with a law to be made by the Legislature of the new State of Mysore seems plainly impossible. The position would not be different even if the adaptation was within the competence of the Government of Mysore.

86. According to Mr. Krishnamurthy, there was something in Section 121 of the States Reorganisation Act justifying the construction of the Hyderabad Act as a law removing the disqualifications of persons for being chosen as or for being members of the Legislative Assembly of the new State of Mysore.

87. That section reads: -

'121. Power to construe laws. -- Notwithstanding that no provision or insufficient provision has been made under Section 120 for the adaptation of a law made before the appointed day, any court, tribunal or authority required or empowered to enforce such law may, for the purpose of facilitating its application in relation to any State or Union Territory formed or territorially altered by the provisions of Part II, construe the law in such manner, without affecting the substance as may be necessary or proper in regard to the matter before the court, tribunal or authority.'

88. In my opinion, this contention fails for the very same reasons for which I concluded that the provisions of Section 120 of the Act read with paragraph 6 (1) of the Mysore Adaptation of Laws Order did not convert the Hyderabad Act into a law made by the Legislature of the new State of Mysore.

89. What remains to be considered is the fourth question formulated by the Bench. That question arises in this way: After the reorganisation of States, the Legislature of the State of Mysore enacted a la.w intituled the Mysore Legislature (Prevention of Disqualification) Act, 1956, which will hereinafter be referred to as the Mysore Act. It came into force on January 15, 1957. As the preamble to that Act indicates, it was enacted to declare certain offices of profit not to disqualify their holders for being chosen as or for being members of the Mysore Legislative Assembly and the Mysore Legislative Council. Section 3 of that Act enumerates those offices.

90. Sadasivayya, J., took the view that even if the Hyderabad Act could be regarded for the purpose of Article 191 of the Constitution as a law made by the Legislature of the new State of Mysore, that law stood impliedly repealed by the Mysore Act. That repeal having taken place on January 15, 1957, before the commencement of the election to which this appeal relates, his Lordship was of opinion that the only offices of profit which, for the purpose of that election did not disqualify their holders are those enumerated in Section 3 of the Mysore Act.

91. The argument presented for the appellant is that the Mysore Act is neither a consolidating nor a repealing statute and that its provisions were not so repugnant to those of the Hyderabad Act that the two laws could not co-exist.

92. If it could be said that the Hyderabad Act was continued by Section 119 of the States Reorganisation Act and properly adapted under paragraph 6 (1) of the Mysore Adaptation of Laws Order, that law would continue to be in force until its repeal by a competent legislature, as provided, by Section 120 of the States Reorganisation Act.

93. The Mysore Act did not expressly repeal the Hyderabad Act. The endeavour for the appellant was to establish that there was not even a repeal by implication, in support of which it was urged that the enumeration in Section 3 of the Mysore Act of the Offices of profit not disqualifying, their holders was only supplementary to the enumeration contained in Section 3 of the Hyderabad Act.

94. But, the infirmity in that argument is that some of the offices specified in Section 3 of the Hyderabad Act are also those specified in Section 3 of the Mysore Act. Such plurality of provisions is incompatible with the supposition that when the legislature of the new State of Mysore enacted the Mysore Act, it merely added to the list of offices of profit which did not disqualify their holders.

95. Now, it is familiar law that when a new Act is couched in general affirmative language and the previous law can well stand with it, in the absence of an express repeal of the previous law, the old and the new laws may stand together. It is equally well settled that a mere accidental inconsistency between the two statutes cannot amount to a total repeal of the earlier. The true principle is that it is impossible to say from authority or decided cases what words will establish a repeal by implication. If, on the one hand, the general presumption must be against such repeal, on the ground that the intention to repeal, if any, had existed, would have been declared in express terms, so, on the other hand, it is not necessary that any express reference be made to the statute which it is intended to repeal.

The prior statute would clearly stand repealed' by implication if there be such contrariety between the two statutes as to make the provisions of one wholly incompatible with the other. The position would be similar if the co-existence of the two statutes lead to wholly absurd consequences; or, if the entire subject-matter of the previous one was taken away by the subsequent statute.

96. It seems to me clear that the Hyderabad Act if it required to be repealed at all was clearly repealed by implication and I shall state briefly my reasons for reaching that conclusion.

97. Section 3 of the Mysore Act enacted by the Legislature of the new State of Mysore for declaring certain offices of profit as not disqualifying: their holders for the membership of the legislature is, I think, a complete code on that subject. The necessary implication of the enumeration of those offices is that the other offices of profit falling within Article 191 of the Constitution continue to constitute the source of disqualification.

98. A comparison of the provisions of Section 3 of the Mysore Act with those of Section 3 of the Hyderabad Act reinforces the conclusion that the Mysore Act is a complete Code on the subject of the removal of disqualification. Section 3 of the Mysore Act reads:-

'3. Removal of certain disqualifications --it is hereby declared that the following offices shall not disqualify and shall be deemed never to have disqualified, the holders thereof for being chosen as, or for being members of the Mysore Legislative Assembly or the Mysore Legislative Council: --

(a) the office of a Deputy Minister, a parliamentary Secretary, a Chief Whip or a Deputy Chief Whip;

(b) the offices held in the National Cadet Corps raised and maintained under the National Cadet Corps Act, 1948 (Central Act XXXI of 1948), in the Territorial Army raised and maintained under the Territorial Army Act, 1948 (Central Act LVI of 1948) and in the Auxiliary Air Force and the Air Defence Reserve under the Reserve and Auxiliary Air Forces Act, 1952 (Central Act LXII of 1952):

(c) the, office of the Secretaries of the District Development Boards constituted by the State Government (by whatever name called);

Provided that the holders of such office do not Bold any other office of profit under the State Government;

(d) the office of the Chairman or Member of a Committee :

Provided that the holder of any such office is not in receipt of or entitled to, any remuneration other than the compensatory allowance'.

99. Now, the offices referred to in Clauses (a) and (d) of Section 3 of the Mysore Act are also the offices declared by Clauses (a) and (d) of Section 3 of the Hyderabad Act as offices not disqualifying their holders. Similarly, the offices specified in Clause (b) of Section 3 of the Mysore Act, excepting the offices held in the Auxiliary Air Force and Air Defences Reserve under the Reserve and Auxiliary Air Forces Act, 1952, (Central Act LXII of 1952) are the very offices enumerated in Clause (c) of Section 3 of the Hyderabad Act. The enumeration in the Mysore Act of the very offices which had already been declared by the Hyderabad Act as not disqualifying their holders is, to my mind, entirely destructive of the argument that the provisions of the Mysore Act were complementary to those of the Hyderabad Act.

100. The new State of Mysore formed under the States Reorganisation Act consisted of five areas. The territories of the former State of Mysore, four districts of the then State of Bombay, three districts of the erstwhile State of Hyderabad, one district and one taluk of the then State of Madras, and the then existing State of Coorg were those areas. There were operating in these live areas five laws made by the respective legislatures of the states of those areas, declaring the offices of profit which would not disqualify their holders for membership of the legislatures of those States. If the contention of the appellant resting on the provisions of Sections 119 and 120 of the States Reorganisation Act and paragraph 6 (1) of the Mysore Adaptation of Laws Order is sound, then, each of those five laws continued to be in force in the new State of Mysore, and each of them had co-existence with the Mysore Act after its enactment.

101. Now, if the appellant's argument that the Hyderabad Act was not by implication repealed by the Mysore Act is accepted, the consequential strange result would be that the four other previous laws on the same subject-matter on which the Legislature of the new State of Mysore made the Mysore Act did not also stand repealed. What is stranger still would be that within each of the five areas, constituting the new State of Mysore, there would be operating two laws on the subject of disqualification, one the law made by the Legislature of the new State of Mysore and the other the previous law made by the Legislature of the old State. This oddity to which the appellant's contention would inevitably lead is, in my opinion, a sufficient ground for discarding it.

102. The repeal by implication of the Hyderabad Act can also, in my opinion, be deduced from the incompatibility between the provisions of the two statutes. The repugnancy between the two laws, although both of them are couched in affirmative language, emerges from the queer results, to which the provisions in the Hyderabad Act under which a Village Office is not a disqualifying Office, as contracted with those of the Mysore Act under which it is can lead. Unlike the Hyderabad Act, the Mysore Act does not declare a village office as not disqualifying its holder. If the Hyderabad Act and the Mysore Act can stand together, a village officer who ordinarily resides in a constituency in the district of Bangalore could seek election to the Legislature of the State of Mysore from a constituency, in Yelburga where the Hyderabad Act would be in force.

Similarly, an elector who is disqualified for election from a constituency in the districts of the erstwhile Hyderabad State would be able to seek election from a Bangalore constituency if under the Mysore Act his office is declared as not disqualifying him. The position would be the same in regard to the other four areas. A person who is disqualified for election from a particular constituency can select a constituency where, under the old law in force in that constituency, the disqualification is removed.

103. Again, the subject-matter of the Mysore Act is also the subject-matter of the Hyderabad Act. Both are laws made for the removal of disqualifications.

104. In : [1955]1SCR799 the rule of implied repeal was thus stated : -

'...... but the principle on which the rule ofimplied repeal rests, namely that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment will be equally applicable to a question under Article 254(2) where the further legislation by Parliament is in respect of the same matter as that of the State law.'

105. That being the ruling principle of repeal by implication, the correct view as it appears to me is that when the Mysore Act was enacted, the Hyderabad Act fell within the orbit of repeal by implication.

106. My opinion on the questions of law, formulated may be thus stated:-

(1) The Hyderabad Legislative Assembly (Prevention of Disqualification) Act (XVIII of 1955) did not continue to be operative after the Hyderabad Legislative Assembly became defunct.

(2) Neither under Section 120 of the States Reorganisation Act read with paragraph 6 (1) of the Mysore Adaptation of Laws Order, nor under Section 121 of that Act would it be competent or permissible to construe the references to the Legislative Assembly of the Hyderabad State in the Hyderabad Act as references to the Legislative Assembly of the reorganised State of Mysore.

(3) The Hyderabad Act cannot be regarded for the purpose of Article 191 of the Constitution as a law made by the Legislature of the reorganised State of Mysore, declaring the office of profit held by the appellant as not disqualifying him for being chosen as a member of the Legislative Assembly of the reorganised State of Mysore.

(4) The Hyderabad Act was, by implication, repealed by Mysore Act No. 4 of 1957.

107. Let my opinion be placed before the Bench which heard the appeal.

(On receipt of the opinion pronounced by Somnath Iyer, J. the order of the Bench (Sadasivayya and Mir Iqbal Husain JJ.) was delivered by :)

S. Sadashvayya, J.

108. In view of the opinion of the majority of the Judges (namely Sadasivayya and Somnath Iyer, JJ.) the appellant, who was the returned candidate, was disqualified to be chosen to fill the seat by reason of his having held an office of profit under the State Government, at the relevant time. Therefore, under the provisions of Section 100 of the Representation of the People Act, the election of the appellant has to be declared to be void.

109. We have already held that none of the corrupt practices alleged against the appellant, has been established. We have also already found that the declaration by the Tribunal that the respondent had been duly elected could not be sustained and we have already set aside the said declaration made by the Tribunal. In the result, under Section 100 of the Representation of the People Act, the election of the appellant is declared to be void Parties shall bear their own costs throughout.


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