M.L. Chaturvedi, J.
1. This is an appeal under Section 116-A of the Representation of the People Act, as amended by Act No. 27 of 1956, (hereinafter called the Act), against the judgment of the Election Tribunal of Bijnor, allowing an election petition filed by Ratan Lal Jain, (hereinafter called the respondent).
2. The dispute arises out of an election to the U. P. Legislative Assembly from Constituency No. 51, known as Afzalgarh Constituency, situate in the district of Bijnor. Six persons sought the election from the above constituency. The polling took place on 6-3-1957 and as a result of the counting of votes, which took place on 10-3-1957, Allah Bux, (hereinafter called the appellant), was declared as the duly elected candidate. Ratan Lal Jain, respondent in this appeal, decided to challenge the election of the appellant Allah Bux and sent an election petition, within the time allowed by law, to the Election Commission. The Election Commission sent it for trial to the District Judge of Bijnor who was appointed as the Election Tribunal to try and dispose of the election petition. The respondent had impleaded the appellant and one Banwari Lal as opposite parties to the election petition. The appellant was impleaded as the duly elected Candidate and Banwari Lal as one of the candidates, who had committed certain corrupt practices. In the election petition three grounds were taken, namely, that the appellant was disqualified from being chosen as a member of the Legislative Assembly in view of the Provisions of Section 7(d) of the Act, that the appellant, along with his relations, workers, supporters and agents, had committed corrupt practices of undue influence, bribery and systematic appeal to the electors to vote for him on the ground of his community and religion. The third charge was that Banwari Lal, Opposite Party in the election petition, had been bribed by the appellant in order to induce Banwari Lal to stand as a candidate at the election.
Both the appellant and Banwari Lal contested the election petition, but on 31-7-1957, the learned counsel for the respondent, Ratan Lal Jain, made a statement before the Tribunal that he did not Propose to press the grounds relating to the commission of the different kinds of corrupt practices and that he would confine his case to the first ground, mentioned above. On this statement being made, it became unnecessary to continue Banwari Lal as a party to the election petition, and the Election Tribunal consequently passed an order the same day striking off the name of Banwari Lal from the array of opposite parties in the election petition, and Banwari Lal was awarded his costs, which he had incurred till that date, The election Petition then proceeded only against the appellant and only on the first ground.
3. The ground is set out in paragraph 4(a) of the election petition and it is to the effect that the appellant was disqualified for being chosen as a member of the U. P. Legislative Assembly, because he, along with his brothers Ali Husain and Kifaya-tullah and his uncle Inayutullah and other members of the family, jointly carried on business in the name of Messrs. Azamatullah Inayatullab, and the business was of purchasing at auctions timber and bamboos from the forest department of the U. P. Government and supplying sleepers, prepared out of the timber, to the U. P. Government. The appellant was said, to have a share, as well as interest, in the contract for the supply of sleepers to the Govt, and it was pleaded that the appellant was disqualified for being chosen to the U. P. Legislative Assembly because of the provisions of Section 7(d) of the Act.
4. The above facts, if proved would establish the ground for declaration of the election of the appellant to be void under Section 100(1)(a) of the Act. The appellant, in his written statement, denied that he had any share or interest in the contract for the supply of goods or for the execution of any works or the performance of any services undertaken by the State Government, that he had no interest in the timber and fuel business carried on by the firm. Azmatullah Inayatullah, that the appellant's brother Ali Hussain and his uncle Inayatullah only purchased the right to cut trees from Government forest, but even they had not entered into contract of any kind for the supply of sleepers to the U. P. Government, and that the appellant himself had never even purchased the right to cut trees from the Government forest and had not carried on this business individually or in partnership with anybody else. He alleged that his only business was agricultural farming. As a result of the pleadings, the Election Tribunal framed the following issue, which is the only issue relevant for the purpose of the appeal. ISSUE No. 1:
''Was respondent No. 1 Sri Allah Bus disqualified under Section 7(d) of the Representation of the People Act, 1951, for being chosen as a member of the U. P. Legislative Assembly? If so, its effect?'
5. Before proceeding to consider the oral and documentary evidence, we might mention the admitted facts of the case. The admitted facts only are that Azmatullah and Inayatullah were two brothers, and Azmatullah died in December 1946 leaving three sons, Allah Beva (appellant), Kifayatullah and Ali. Hussain. Before December 1946, Azmatullah and. Inayatullah carried on the business of purchasing and selling timber and other commodities under the name and style of Azmatullah Inayatullah.
The case of the appellant is that, after Azmatullah's death, the partnership between the two brothers came to an end; but his case as to who were the persons who continued to work under the style of Azmatullah Inavatullah has varied from time to time. According to the written statement, only the appellant's uncle Inayatullah and his brother Ali' Hussain carried on the business of purchasing timber from Government forest at public auctions, which would go to suggest that both Inayatullah and Ali Hussain continued to do the said business jointly.
But, on the date of issues, the appellant's counsel made a statement that neither the appellant nor his brother Ali Hussain had any interest or share in the business carried on under the name and style of Azmatullah Inayatullah. It was further stated that even Ali Hussain was not a Government forest contractor in 1956-57, but was simply a bidder at Public auctions and he also never entered into any contract with U. P. Government for the supply of sleepers. The appellant was said to have had no concern with the forest business of his brother Ali Hussain.
6. The respondent realised in time the importance of the account books of the firm Azmatullah Inayatullah and before evidence was produced in the case, he applied to the Court for the issue of a commission for taking possession of the account books of the firm. This application was allowed and the commissioner went to the shop, where the business was carried on, and succeeded in obtaining possession of the account books of the firm for the years 1955-56 and 1956-57. The respondent was also able to find out the contracts entered into between Ali Hussain and the forest department of the U. P. Government for the purchase of timber and for the supply of sleepers to the Government. In view of this evidence, it was no longer possible to deny that Ali Hussain, brother of the appellant, had entered into contracts for the supply of sleepers to the U. P. Government. So the position taken up at the time the evidence was produced in the case was that Ali Hussain had become the sole proprietor of the firm Azmatullah Inayatulah, after the death of Azmatullah, and that, in lieu of the acquisition of this sole ownership, Ali Hussain gave a sum of Rs. 5000/- as compensation to theother partners of the firm. The case of the appellant, as disclosed from the evidence produced by him, mainly was that he was not a partner and had no interest in the business which was still carried on by his brother Ali Hussain in the name of Azmatullah Inayatullah. In order, however, to see whether the respondent has been able to establish the ground of disqualification set up in the election petition, we shall have to consider whether all the ingredients set out in see. 7(d) of the Act have been fully proved by the respondent. The respondent has to establish :
1. Whether the firm Azmatullah Inayatullah had a contract for the supply of sleepers which contract subsisted on the relevant dates?
2. Whether the appellant had a share or interest in the said contract for the supply of sleepers?
3. Whether the contract had been entered into either by the appellant himself or by any other person, that is Ali Hussain, for the benefit of the appellant? and
4. Whether the contract was for the supply of sleepers to the U. P. Government?
7. Before entering into the discussion on the points, mentioned above, we may deal with the contention of the learned counsel for the appellant that paragraph 4(a) of the election petition did not contain any averment to the effect that the appellant was a partner in the business. We are unable to accept the contention. What the respondent stated in the said paragraph is that the appellant, his 'brothers Ali Hussain and Kifayatullah, and his uncle Inayatullah along with other members of the family.
'''carry on business jointly in the name of Messrs Azmatullah Inayatullah''
and it has further been stated that the appellant has a share as well as an interest in a contract for the supply of goods to the U. P. Government, It is true that it has not been stated in so many words that the concern known as Azmatullah Inayatulah is a firm and that the appellant is a partner in the firm. What has been stated is that all the members of the family, including the appellant, carry on the business jointly in the name of Messrs. Azmatullah Inayatullah. The family, which is said to be carrying on the business in the name of Messrs. Azmatullah Inayatullah, is a Muslim family and the business is said to be carried on jointly by this family. The case thus cannot be a case of any business being carried on by any joint Hindu family and the facts stated necessarily lead to the conclusion that the concern Azmatullah Inayatullah is nothing else but a firm and those persons who jointly carry on the business of this firm must necessarily be partners of the firm. As a matter of fact, Clause (d) of Section 7 of the Act nowhere mentions a 'firm' or a 'partner' in a firm, and the omission therefore, to use the above two words in paragraph 4 (a) does not, in any way, show that the pleading contained in this paragraph does not disclose a charge as mentioned in the clause.
It has been stated in the paragraph that the appellant has a share as well as interest in a contract for the supply of goods to the U. P. Govt. and this averment, taken along with the allegation that the family of the appellant carries on the business jointly in the name of Azmatullah Inayatullah as forest contractors, is sufficient for making out a pleading for the charge under sec, 7 (d) of the Act. We think that the pleading contained in paragraph 4 (a) contains sufficient facts which were required to be stated in order to make out the charge and in order to give notice to the appellant of the precise charge which the appellant had to meet.
8. The learned counsel then contended that the issue that was framed was not sufficiently clear and did not bring out what facts were actually to be proved or disproved. The issue No. 1, which we have already quoted, only poses a question whether the appellant was disqualified under Section 7(d) of the Act for being chosen as a member of the U. P. Legislative Assembly, but all the required facts were stated in the pleading and before the Election Tribunal no objection appears to have been raised that the issue does not mention the exact facts which were required to be proved or disproved in the case. No such ground has been taken in the grounds of the appeal either, which are quite detailed and are as many as 25 in number. The contention has no substance in it and it is also not open to the learned counsel to put forward this contention, now in view of the fact that no such ground has been taken in the memorandum of appeal.
9. We now proceed to discuss the points mentioned by us above.
POINT NO. 1.
'Whether the firm Azmatullah Inayatullah had a contract for the supply of sleepers, which contract subsisted on the relevant dates?
Before proceeding to discuss the evidence on the point it may be mentioned that the case originally set up in the written statement in paragraph 8 (1) (a) was that Inayatullah and Ali Hussain purchased
'areas of the Government forests in public Suction which any person is entitled to do, but there has been no contract of any kind either for the supply of sleepers to the U. P. Government or otherwise'.
The appellant denied any connection of his with this business and, as far as his uncle and brothers are concerned, he stated that they also had not taken any contract for the supply of sleepers to the U. P. Government, but had merely purchased the wood of the Government forest at public auctions. The learned counsel for the appellant added on the date of the framing of the issue viz. on 31-7-1957 that even Ali Husain had no interest or share in the business which was carried on under the name and style of Messrs. Azmatullah Inayatullah. But this position had subsequently to be given up and an application was made on 31-10-1957 by the appellant stating that his counsel had wrongly made this statement and that he had not been instructed to state the above facts. In his statement before the Election Tribunal the appellant struck to what he had said in the application, but the real reason why this part of the case was given up appears to be, as already stated, that the account books of the firm for the years 1955-1956 and 1956-57 had been taken possession of by the commissioner under orders of the court, and the other evidence which the respondent was able to collect clearly established that Ali Husain really had entered into contracts for the purchase of wood and the supply of sleepers. During their statements in court, the appellant and his brother Ali Hussain have both admitted, that Ali Husain did enter into the two contracts, mentioned above, with the forest department of the State of Uttar Pradesh and that Ali Husain was the proprietor of the concern Azmatullah Inayatullah. They have stated that, after the death of Azmatullah in 1946, a family arrangement was arrived at by which Ali Husain paid a sum of Rs. 5000/~ to the other heirs of Azmatullah and thence forward he carried on the business in the old name and style, as the sole proprietor of it. We shall consider the correctness of this part of the case of the appellant while considering the evidence on point No. 2.
10. The fact that Ali Husain entered into a contract with the U. P. Government for the purchase of wood of a part of the forest and for the supply of sleepers to the U. P. Government is conclusively established by the two contracts which were entered into by him with the forests department of the U. P. Government on 24-9-1956. One of the contracts is for the purchase of wood in the forest and it is marked Ex. 11 and the other is for the supply of sleepers and is marked Ex. 10. Both these contracts bear the signatures of the Divisional Forest Officer and of Ali Hussain and purport to have been entered into between Ali Husain son of Azmatullah on the one part and the Governor of Uttar Pradesh on the other. Ex. 11 is the contract for the purchase of wood for a sum of Rs. 23,300/-, and one of the terms of this contract is that all the wood shall be cut and removed from the area specified in the contract by 31-3-1957, unless the time is extended by some officer of the forest department. The contract thus for the purchase of the wood continued to be in forest at least till 31-3-1957, that is till after the date of the declaration of the result.
11. The contract for the supply of sleepers is maked Ex. 10 and it provides for the supply of sleepers by 28-2-1957 after having been examined by the officers of the forest department, and if some sleepers had been rejected, they were to be supplied by 115-3-1957. It was further provided in paragraph 8(A) of the contract that the sleepers prepared for the Railway shall be sold through the forest department only, Ex. 10 is clearly a contract for the supply of sleepers to the U. P. Government and it was admittedly entered into by Ali Husain.
12-16. (After reviewing the evidence his Lordship continued.) The above evidence leaves no room for doubt that Ali Husain had entered into a contract for the supply of sleepers to the U. P. Government on 24-9-1956 and under this contract same sleepers were examined and passed on 12-3-1957. It further appears that a bill for the payment of the price of the sleepers was prepared in August 1957, but it does not appear to be necessary to pursue the question as to whom the payment of bill was made.
17. The next question is whether Ali Husain had entered into the contract for the supply of sleepers on his own account or on behalf of the firm Azmatullah Inayatullah. The fact that the purchase was made on behalf of the firm is evident from the fact that the appellant, as well as his witness Ali Husain, both admit that Ali Husain is doing the business of taking contracts from the forest department, and he is also the proprietor of the firm Azmatullah Inayatullah. If Ali Husain took this contract & if he is trading under the name of Azamtullah Inayatullah, it would require very little evidence to prove that the contract was on behalf of the firm. This fact, however, is conclusively established by the two entries in the account-books of the firm, which were seized by the commissioner Ex. 24 is the extract from the Khata of the jungle lot No. 28, Kaligarh forest division, in the account-books of the firm Azmatullah Inayatullah and it shows a debit entry in the Khata of the jungle lot of a sum of Rs. 33,300/-. Another entry in this Khata is of a sum of Rs. 409-14-6, the third entry is Rs. 4000/- and the fourth entry of Re. 1/-. Pages of corresponding entries in the Rokar Bahi are also mentioned in the Exhibit. Exhibit 29 is an extract from the Rokar Bahi for the date 24-9-1956, Jungle Khata lot No. 28 is debited with a sum of Rs. 23300/- and the amount is shown to have been spent 'through Haji Ali Husain Contractor'. The entry is quite consistent with the case of the respondent that Ali Husain was only one of the partners in this firm, because the amount is shown as having been spent through Ali Husain contractor. In the corresponding Khata for the year 1955-1956 there is a corresponding entry of the above amount in jungle khata lot No. 28. It appears that account year of this firm begins on the 1st of November of each year and in the Roznamcha of 1956-57 there is an entry to the effect that on the 1st November 1956 a balance of Rs. 23300/- was brought forward in the Rokar or daily book. Cash balance as shown in Ex. 21, on 10-11-1956 shows a further debit to jungle lot No. 28 of a sum of Rs. 4000/- through Haji Ali Hussain contractor. It is thus fully established that the firm Azmatullah Inayatullah was the purchaser of lot No. 28 of Kaligarh forest division, which was sold on 24-9-1956.
18. The learned counsel for the appellant has argued that even though the Purchase of lot no. 28 may be proved to have been made on behalf of the firm Azmatullah Inayatullah, it has not been proved that the contract for the supply of sleepers was also a contract entered into on behalf of the above firm. This argument of the learned counsel is easily-answered by reference to the statement of Sri Vijai Bahadur, Divisional Forest Officer, and the circumstances, of the case. Sri Vijaya Bahadur has stated sleepers are allotted to each lot of the forest, which is sold at auction, and a list of the number of sleepers to be supplied by the purchaser of each lot is separately prepared. The purchaser of the lot is bound to supply sleepers in accordance with this list. The scheme appears to be that the wood of a particular area is sold, but the purchaser of it is under an obligation to supply a certain number of sleepers, which are expected to be prepared out of the timber growing in the area. The two contracts for the purchase of the wood and the supply of sleepers were entered into on the same day and it is not denied on behalf of Ali Husain, witness for the appellant, that the essential condition of the purchase of the lot was a supply of the specified number of sleepers, as mentioned in the list prepared by the forest department. The contract for the purchase of the lot is dependent on the contract for the supply of sleepers and the two contracts, under the circumstances of the case, must be held to form part of the same transaction. The Election Tribunal has noted the fact that the question, whether Ali Husain had signed the two contracts for the purchase of wood and supply of sleepers, was put thrice to the witness.
It was then that the witness replied that these papers might be bearing his signatures. It is after this that he admitted his signatures on the two contracts and also admitted the fact that he had supplied sleepers to the Government according to the contract in March 1957. In their statements none of the witnesses of the appellant took up the position that the firm Azmatullah Inayatullah took the contract for the purchase of wood but not for the supply of sleepers to the U. P. Government. In fact, Ali Husain had to admit that he signed both these contracts and the contracts admittedly bear the same date, We have thus no hesitation in holding that the firm Azmatullah Inayatullah had not only taken the contract for the purchase of wood of lot No. 28 but had also taken the contract for the supply of sleepers to the U. P. Government according to the list prepared by the forest department.
The appellant was declared elected on 10-3-1957, the sleepers were supplied on 12th March under the contract and payment was made long after this. Under the circumstances, the disqualification would attach to the appellant if he was a partner of this firm according to the law laid down by the Supreme Court in the case of Chaturbhuj Vithaldas Janani v. Moreshwar Parashram : 1SCR817 .
19. This brings us to the next point.
20. Point No. 2. Whether the appellant had a share or interest in the said contract for the supply of sleepers. We have already held above that it has been proved in the case that the firm Azmatullah Inayatullah had a contract for the purchase of the wood in lot No. 28 and also entered into a contract for the supply of sleepers to the U. P. Government. This contract was for the year 1956-57 and the sleepers under the contract were supplied to the U. P. Government on 12-3-1957, after the declaration of the result of the election.
21. The most important evidence of the fact that the appellant was a partner in the firm Azmatullah Inayatullah is afforded by the three documents concerning assessment proceedings for 1955-56 under the U. P. Sales Tax Act. The first document is the assessment order Ex. 9 passed by the Sales Tax Officer of Bijnor on 25-5-1956 with respect to the assessment year 1955-56. Ex. 44 is the return of sales tax for this year submitted to the Sales Tax Officer, and Ex. 48 is the statement of Allah Bux appellant himself, made to the Sales Tax Officer, in the course of assessment proceedings for the above year.
22. The learned counsel for the appellant argued that these three documents were excluded from evidence by the provisions of sec, 23 of the U. P. Sales Act, 1948. Sub-section (1) of this section is important and it is as follows :
23(1). 'All particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of the Act OE pi the rules made thereunder, or in any evidence given or affidavit or deposition made, in the course of any proceedings under the Act or the rules made thereunder or in any record of any proceedings relating to the recovery of a demand, prepared for the puroose of the Act or the rules made thereunder, shall be treated as confidential'.
Sub-section (2) permits disclosure of certain particulars which are enumerated in Clauses (i) to (vi) of the sub-section. A reading of this sub-section shows that the sub-section directs that the matters enumerated in it shall be treated as confidential. They are particulars contained in any statement made or return furnished in the course of any proceedings under the Act or the rules or in the record of any proceedings relating to recovery of a demand, as well as certain other papers with which we are not concerned. The argument of the learned counsel is that the statement made by the appellant before the Sales Tax Officer and the return furnished to him are directed to be treated as confidential, which necessarily means that no court is permitted to take the above documents into evidence or to ask the Sales Tax Officers to file them or their copies in court. He also says that as far as the assessment order goes, it is a document produced under the provisions of the Sales Tax Act and has thus also been directed to be treated as confidential.
23. A comparison of the provisions of Section 23(1) of the U.P. Sales Tax Act with the provisions of Section 54 (1) of the Indian Income-tax Act shows that there are two very important points of difference between the two sections, though the language of Section 23(1) of the Sales Tax Act appears to have been borrowed from Section 54(1) of the Indian Income-tax Act. The two important points of difference are that Section 54(1) includes within its ambit all particulars contained in any record of any assessment proceeding', but these words have been omitted from Section 23(1) of the U. P. Sales Tax Act.
The omission of the above words from Section 23(1) of the Sales Tax Act appears to be a deliberate one and this omission clearly shows that the intention of the Legislature was not to make the particulars contained in the record of any assessment proceeding confidential. The assessment order Ex. 9 thus does not come within the ambit of Section 23(1) of the. Sales Tax Act at all and there is no direction to treat the said order as confidential. The reason for the difference in the two provisions of these two Acts appears to be that an assessment order passed by the Income-tax Officer exposes the real financial status of the assessee, whereas the assessment order under the U. P. Sales Tax Act would only show the value of sales and purchases made by the dealer in the particular year.
The assessment order under the Sales Tax Act would show the amount for which business was transacted by the dealer, but other financial status would not appear from the assessment order. The Legislature probably considered that disclosure of the total amount for which the business was transacted in a particular year by a dealer did not really disclose his real financial status. Whatever the reason, a reading of the two provisions, mentioned above, makes it quite clear that the omission of the relevant words, quoted above, was a deliberate one.
24. The second important difference between the two provisions is that in Section 54(1) of the Income-tax Act the Legislature, after saying that the documents mentioned in it shall be treated as confidential, proceeds to say
'and notwithstanding anything contained in the Indian Evidence Act, 1872, no court shall, save as provided in this Act, be entitled to require any public servant to produce before it any such return, accounts, documents or record or any part of any such record, or to give evidence before it in respect thereof'.
The whole of the above sentence is omitted from Section 23(1) of the U. P. Sales Tax Act, which goes to show that the prohibition contained in the sentence, quoted above, has not been applied to the documents mentioned in Section 23(1) of the Sales Tax Act. Subsection (2) of the Sales Tax Act contains certain exceptions us also does Sub-section (3) of Section 54 of the Indian Income-tax Act. In spite of the said exceptions contained in Sub-section (3), Section 54(1) of the Indian Income-tax Act contains a clear direction to the courts not to require any public servant to produce before them the documents specified in the sub-section. The existence of similar exceptions in Sub-section (1) of Section 23 of the U. P. Sales Tax Act, therefore, does not have the effect that the direction to use the document as confidential must necessarily mean that the courts should not accept evidence afforded by the documents enumerated in the sub-section, if they do not fall within the exceptions mentioned in Sub-section (2) of Section 23 of the Sales Tax Act.
25. The very fact that the Legislature, while enacting Section 54(1) of the Income-tax Act, in spite of the use of the word 'confidential', considered it necessary to lay down a prohibition against the courts requiring any public servant to produce the documents mentioned in the sub-section, shows that the mere use of the word 'confidential' did not mean that the courts were barred from asking the officers of the department to produce the documents enumerated in the section before them. The same must be the position with respect to the use of the same words in the analogous provision of law contained in Section 23(1) of the U. P. Sales Tax Act. It appears that the direction contained in the two enactments for treating the documents mentioned therein as confidential is a direction to the officers of the two departments not to voluntarily disclose the contents of the documents or to supply their copies to outsiders.
The court has not been prohibited from asking the said officers to produce the relevant documents before it, nor are the officers prohibited from disclosing the contents of the documents or from filing those documents in court. If the use of the word 'confidential' had the effect of bringing out this result, it would not be possible even for the assessee to produce such documents, though the provision is meant mainly to protect the interest of the assesses. There are a number of decisions of different Courts holding that the use of the word 'confidential' did not debar the assessee from producing any of the documents mentioned in Section 54(1) of the Income-tax Act in a court of law. We might mention in this connection two cases of this Court, namely, Suraj Narain v. Jhabbu Lal : AIR1944All114 and Naim Singh v. Tikam Singh : AIR1955All388 .
26. A Division Bench of the Bombay High Court in the case of Emperor v. Osman Chotani, : 10ITR429(Bom) (D), has ruled that in providing that the documents are to be treated as confidential the Legislature only meant that they are to be treated by Income-tax authorities as confidential and not that the documents were confidential in whosoever's hands they might be and the section did not prevent an assessee from disclosing the contents of the documents referred to in Section 54 of the Indian Income-tax Act.
27. A Full Bench of the Madras High Court in the case of Ramrao v. Venkattaramaiyya : AIR1940Mad768 , has also taken the view that the fact that the return of the income-tax is to be treated as a confidential document does not mean that the assessee himself cannot obtain a copy of it for his own purpose.
28. For the above reasons, we are unable to accept the contention of the learned counsel that the Election Tribunal was not authorised to take Exhibits 9, 44 and 48 into evidence. The question was raised before the Election Tribunal also and it passed a considered order permitting the respondent to produce the documents concerning the sales-tax and to produce the Sales Tax Officer, but it refused to permit the respondent to examine the Income-tax Officer or to have any documents concerning income-tax proceedings of the firm to be produced in court.
29. We may now proceed to consider what Exhibits 9, 44 and 48 prove. Ex. 9 is the order of assessment for the assessment year 1955-56. The name of the dealer is mentioned as 'Azmatullah Inayatullah, Timber Merchant, Dhampur', and it is said that the dealer was represented by 'Allah Bux (appellant) partner'. In the body of the order it is stated that in response to the notice under the U. P. Sales Tax rules to produce the account-books of the firm, in order to verify the correctness of the return submitted. Allah Bux, partner of the firm, appeared on 16-5-1956. At two places it says that Allah Bux appellant is a partner in the firm Azmatullah Inaya-tullah. This is a public document and it contains the entries which are relevant to the matter in issue before us. It is admissible under Section 35 of the Indian Evidence Act. There is no reason why the Sales Tax Officer mentioned the fact that the appellant is a partner in the firm, if it had not been admitted before him. At least the manner in which this fact has been stated shows that there was no dispute concerning the above fact.
30. Ex. 44 is a return of the turnover of the firm Sheikh Azmatullah Inayatullah for the year for which the tax was assessed under Ex. 9. It purports to .bear the signatures of the appellant and also describes the appellant either as proprietor, or partner or manager of the firm. In fact, the form is a printed one and the inappropriate description of the person signing the form was to be scored out.
It was expected that two out of the three words, 'proprietor' 'partner' or 'manager' would be scored out and the word connoting the appropriate description of the person signing the return was to be allowed to stand, but none of the words having been scored out, the position is that Allah Bux appellant was described either as proprietor, or partner or manager of the firm, Allah Bux totally denies having had anything to do with this firm and this denial of his is proved to be wrong by the contents of Ex. 44.
The respondent gave some evidence of the fact that the form actually bore the signatures of the appellant, but the appellant, it appears, wanted time to summon a handwriting expert, and in order to avoid the delay that this proceeding would have caused, the counsel for the respondent made a statement on 5-11-1957 that for the purpose of this case the respondent would not base his arguments on the fact that the signatures on Ex. 44 must be those of Allah Bux and that he would 'concede that, for the purpose of arguments in this case', the signatures on Ex. 44 may not be taken to be those of the appellant. After this concession, it must be taken that it has not been Droved in the case that the signatures on Ex. 44 are those of the appellant.
It has, however, been proved in the case that the blanks in the printed form, including the important words, mentioned above, were filled in by Shyam Singh Munim of the firm, accepting the signature at the bottom of the form. The learned counsel for the respondent has argued that this form is a public document and is also admissible in evidence under Sections 7 and 11 of the Evidence Act, besides, Section 35 of the Evidence Act. Section 35 brings within its ambit not only entries in public or official books, registers or records and made by a public servant in the discharge of his official duties, but also the entries in any public or other record made by any other person in the performance of his duties, specially enjoined by the law of the country.
The argument of the learned counsel is that every assessee is enjoined by law to submit a return of his turnover and the return is thus a document prepared by a person in the performance of such a duty. This may be so, but the further requirement is that the relevant entry must be in any public or other official book, register or record. It is likely that the return of turnover is a part of the official record maintained by the Sales Tax Officer and the return is a public document admissible under Section 35 of the Evidence Act.
31. The Full Bench of the Madras High Court in the case of Ramarao (E), cited above, held that the profit and loss statement and a statement showing the details of the net income, filed by an assessee in support of his return of income, furnished under Section 22 of the Income-tax Act, are public documents within the meaning of Section 74 of the Indian Evidence Act and the certified copies of the same would be admissible under Section 65(8) of the Indian Evidence Act. We agree with the decision of the Madras High Court and, on the principle laid down in the case, it must be held that the return of sales tax filed by an assessee under the U. P. Sales Tax Act is also a public document. Apart from Section 35 of the Indian Evidence Act, we think this return of the sales tax is also admissible under Section 11 of the Evidence Act, as it makes the existence of the fact in issue highly probable. But even if this document is excluded from consideration, the evidence afforded by Ex. 48 conclusively proved the case of the respondent. It is a copy of the statement made by the appellant himself before the Sales Tax Officer. It begins,
'I, Allah Bux, son of Azmatullah, Sheikh, partner of the firm Azmatullah Inayatullah, Dhampur, Bijnor, state 'on oath
This statement refers to the assessment evidenced by Ex. 9 and the appellant has clearly admitted that he was a partner in the firm Azmatullah Inayatullah. In the body of the statement he has stated,
'We deal in timber business',
'We had no other sale besides this'.
The use of the word 'we' clearly included the appellant as also a person who was a partner or a co-sharer in this business.
32. The learned counsel for the appellant has argued that the first paragraph of the statement is not admissible in evidence, because, according to him, this portion where the name of the witness, or his description, or parentage, is given, is not a part of the statement of the witness himself. In support of his contention he relied upon a decision of the Privy Council in the case of Mst. Maqboolan v. Ahmad Husain, 31 Ind App 38 (F). Their Lordships in this case, while considering the heading of a statement recorded under the Code of Criminal Procedure, observed that the description given of a witness in the heading of a deposition was not part of the deposition proper and was not even a part of the evidence given by the witness on solemn affirmation, and this portion may have been filed in by a subordinate official and may not have been read out to the witness by the Magistrate. In these circumstances, they observed that even assuming that there was no slip or accidental omission in the heading of the document, and assuming that the document was admissible in evidence, the document was not entitled to any weight.
33. We think that the Position with respect to the record of the description of the witness before recording his statement under the Code of Criminal Procedure is different from the position that this document Ex. 48 discloses. The statement as regards the description of the appellant in Ex. 48 expressly purports to be a statement made by the appellant himself. The portion stated on oath begins afterwards, but as far as the admission contained in this portion is concerned, it would be admissible in evidence, even though the admission was not on oath and had been made before the oath was administered. The statement is also signed by the appellant.
The only explanation the appellant has given is that he never made any statement to the Sales Tax Officer and that he had been sent to that officer by his brother Ali Husain along with the Munim Shiam Singh, and it was Shiam Singh who had made the whole statement, though the appellant signed it, at the instance of the Sales Tax Officer. This explanation is wholly unbelievable because there is no reason to suppose that if the statement was made by Shiam Singh, it would not be supposed to be his statement and would be attributed to the appellant. We have no hesitation in saying that we did not expect a man in the position of the appellant to be making a statement of this nature and to be giving such explanations. We unhesitatingly reject the explanation.
34. The above three documents leave no room for doubt that the appellant was a partner in the firm Azmatullah Inayatullah in the year 1955-56 and also on the date_he furnished the return, that is 31-3-1956, & on the date that he made the statement, i.e. 16-5-1956. The assessment for the year 1956-57 has not yet been completed and no useful papers regarding that assessment could, therefore, be filed. The appellant took up the case that he was never a partner in this firm after 1946. This case has been conclusively proved to be wrong and the contrary has been established. Section 109 of the Evidence Act is to the effect that when the question is whether the persons concerned are partners and it has been shown that they had been acting as such, the burden of proving that they are not partners or that they had ceased to be partners is on the person who says that he was not a partner or had ceased to be a partner. The presumption under this section, therefore, is that the appellant, who has been acting as a partner, is in fact a partner in the firm Azmatullah Inayatullah and that he continues to be such.
35. Apart from the above presumption, other circumstances have been proved to show that the appellant all along has been and still continues to be a partner in the firm. One of the circumstances is that the plot on which the wood from the forest is stacked has been taken on lease by the appellant from the Municipal Board. The plot really has been in possession of the family of the appellant since before 1946, but the lease has to be renewed every year and the lease ending the 31-3-1957 was in favour of the appellant. A certified copy of the lease has been filed and has been marked Ex. 12. It is admitted that it has been signed by the appellant and it is clearly in respect of plot no, 1.
The explanation of the appellant is that the lease is in his name, but the business of the sale of wood that is transacted on the land is the sole business of his brother Ali Husain, His case is that he takes the rent, which he pays to the Municipal Board, from Ali Husain. Apart from his statement, there is no good evidence of the fact that he takes the rent of the land from Ali Husain. On the other hand, it appears that the lease money has in some years been debited in the account of the firm Azamutullah Inayatullah.
There is also evidence of the fact that the appellant, who is President of the Town Area Committee, Afzalgarh, has got his letterheads printed in which he has styled himself as Government forest contractor. His explanation is that he got the letter heads printed in 1953 and had taken some small contracts in that year and had, therefore, called himself a Government forest contractor.
In his written statement, he has stated that he has always been doing the business of agricultural farming only. But in his statement he has said that in some of the years he had also purchased timber from the Government forest. When confronted with different situations, which had been proved, he came out with new explanations. We do not find it possible to attach any value to his explanations.
36. The third circumstance is that the appellant is jointly assessed to circumstances and property-tax with Ali Husain and his suggestion is that it is the practice in the Town Areas to jointly assess persons even though the business of those persons was separate. It is also said that the residents in the same house have been jointly assessed on separate businesses also. He was able to pro-duce a witness, who is Bakshi of the Town Area, by name Nisar Adil, and he went the whole length of supporting this explanation and gave out half a dozen cases where, according to him, the business was separate but the assessment was joint. We have not been able to attach any value to the statement of Nisar Adil in so far as he says that the businesses of the persons mentioned by him were separate. He is the Bakshi of the Town Area of which the appellant is the President and he also owes his appointment to the appellant. His statement is absolutely worthless.
37. We do not say that the three circumstances, mentioned by us above, are by themselves conclusive of the fact that the appellant is a partner in the firm Azmatullah Inayatullah, but these do support the case of the respondent, which has been conclusively proved by Exhibits 9 and 48, mentioned above.
38-47. Coming now to the oral evidence produced in the case, the appellant has produced P. W. 6, Sri Rishi Kumar Gupta, Executive Officer of the Municipal Board, Dhampur. (His Lordship reviewed the oral evidence and proceeded.) It has thus been fully established that the appellant is a partner in the firm Azmatullah Inayatullah, which: firm had taken a contract for the supply of sleepers to the U. P. Government and that the said contract subsisted even after the date of the declaration, of the appellant as the duly elected candidate. The appellant is proved to have had a share and interest in this contract for the supply of sleepers to the U. P. Government.
48. Point No. 3.
'Whether the contract had been entered into either by the appellant himself or by any other person, that is Ali Husain, for the benefit of the appellant.'
49. On the findings that we have recorded' above, there can be no difficulty in deciding this point also in favour of the respondent, because the facts that we have found above clearly establish that Ali Husain had entered into a contract for the supply of sleepers to the U. P. Government on behalf of the firm Azmatullah Inayatullah and that the appellant is a partner in the said firm. But the learned Counsel for the appellant argued that, if a partner enters into a contract on behalf of the firm, the case would not come under Clause (d) of Section 7 of the Act at all. He says that the words' 'firm' and 'partner' have nowhere been mentioned in Clause (d) and the words that have been used do not cover the case of a partner entering into a contract on behalf of his firm. We do not find it possible to accept this argument of the learned Counsel. We think that if one partner of a firm takes a contract on behalf of the firm, the case would fall under Clause (d), and the other partners of the firm would also be disqualified under the said clause from being chosen as members of the U. P. Legislative Assembly or Council.
What is to be proved is that the candidate seeking election has any share or interest in such a contract and his share or interest may have been created either by himself or by any other person for his benefit or on his account. When one partner takes a contract on behalf of the firm, he takes it for the benefit of all the partners of the firm, and all the partners of the firm would be disqualified, if the contract is for the supply of goods to the appropriate Government.
50. The learned Counsel argued that the words 'for his benefit' can only apply to a case where the share or interest has been created for the exclusive benefit of the candidate and not where the person, who obtains the contract, is only a sharer in the benefit which the candidate also may have in the contract. We see no reason for adding the word 'exclusive' before the word 'benefit.' If the candidate has a share or interest in the contract and is likely to be benefited along with the other partners in the firm, we think his case also would fall within the ambit of Clause (d) of Section 7 of the Act.
51. Point No. 4.
'Whether the contract was for the supply of sleepers to the U. P. Government?'
We think this point also must be answered in favour of the respondent, because the contract Ex. 10 expressly appears to be a contract between Ali Husain and the Governor of Uttar Pradesh for the supply of sleepers by the former to the latter. The learned Counsel for the appellant has relied on the provisions of paragraph 8 (A) of Ex. 10 wherein it is stated that the contractor will be able to sell Railway sleepers only through the forest department (of the U. P. Government).
He says that the sleepers were supplied to the State Railways, and, therefore, the contract should be taken to be one for supplying goods to the Union Government and not to the State Government. Reference has also been made to paragraph 7 of this Exhibit wherein it is stated that the expenses for carting and loading the sleepers in the Railways shall be borne by the contractor. We do not think that all the edifice of this argument could be built on the slender foundation afforded by paragraph 8 (A) of Ex. 10.
It may be that some of the sleepers will ultimately go to the Union Railways, but the contract nowhere says that all the sleepers, which were to be supplied by the contractor, would be used only by the Railways and not by the State Government at all for other purposes. Further a reading of the contract makes it quite clear that the contracting party is the State Government and, as far as the contractor goes, his supply will be to the State Government and not to any Railway.
The State Government may then sell these sleepers to the Railway, but they would be sold as property of the State Government and not as property of the contractor. Paragraph 8 (A) expressly says that even Railways sleepers will be sold through the forest department of the U. P. Government. In fact, the U. P. Government has contracted to purchase these sleepers at specified rates and the supply by the contractor will be to the State Government and the State Government alone, though some of the sleepers may subsequently be utilised by the Union Government in agreement with the State Government.
52. This point was urged for the first time in the course of his reply by the learned counsel for the appellant. It finds no mention in the judgment of the Election Tribunal. Neither the point has been taken in any of the grounds of appeal. Such a point cannot be permitted to be raised for the first time in a Court of appeal. But we have considered it on the merits also and we do not find any substance in it at all.
53. We think that the Election Tribunal has written a well considered judgment and we agree with the said Tribunal on all the important points decided by it. At some places the Tribunal has said that the signatures on Ex. 44 were proved to be those of the appellant. This it was not entitled to say, because of the statement made by the learned counsel for the respondent before the Election Tribunal to the effect that, for purposes of this case, the signatures on Ex, 44 may not be treated to be those of the appellant. We have had to make reference to the above statement, but we have considered the evidentiary value of Ex. 44 on the assumption that it docs not bear the signatures of the appellant. The evidence produced against the appellant on all material points is, in our view, convincing and was rightly accepted by the Tribunal. We agree with the findings of the Tribunal on all the points and find no force in this appeal.
54. The appeal is accordingly dismissed with costs, and we assess the fee of the respondent's counsel in the case at Rs. 300/-.