Appeal No 108 of 1959
Appeal from the judgment and order dated November 25 1958 of the Punjab High Court in FA0
No 173 of 1958
A V Viswanatha Sastri and Naunit Lal for the appellant
M C Setalvad Attorney General for India V A Syed Mohammad and M K Ramamurthi for respondent No 1
R H Dhebar for respondent No 3 1959
April 23 The Judgment of the Court was delivered by 750 SINHA J
When the hearing of the appeal had been concluded on March 18 1959 we had informed the parties as also the counsel for the Election Commission of India that the appeal is dismissed with costs and that the reasons would follow
We now proceed to give our reasons
This is an appeal on a certificate of fitness granted by the High Court of Judicature for the State of Punjab at Chandigarh against the judgment and order dated November 25 1958 of that Court dismissing an appeal against the order of the Election Tribunal Hissar dated September 14 1958 setting aside the appellant s election to the Punjab Legislative Assembly
The appellant was the successful candidate from the general seat which was a double member constituency of Sirsa the other successful candidate being a Harijan candidate respondent No 2 in this Court
The first respondent contested the general seat
The Election Commission of India was added as the third respondent by an order of this Court dated February 27 1959 when this Court was moved in the stay matter
This Court directed the case itself to be heard before the date fixed for the fresh election as a result of the order of the Election Tribunal
It appears that for the double member constituency of Sirsa there were a large number of candidates
One of the two seats was reserved for members of the scheduled castes
After the usual withdrawals sixteen candidates were left in the field to contest the two seats eight candidates being for the general seat and the other eight for the reserved seat
We are not here concerned with the seat reserved for members of the scheduled castes
In respect of the general constituency the appellant secured 27272 votes whereas the first respondent secured 23329 as a result of the election which took place on March 12 and 14 1957
The result of the election was declared on March 17 1957
The first respondent filed an election petition on April 289 1957 challenging the election of the appellant
The election was challenged on a large number of grounds practically exhausting all available 751 grounds under the election law but as a result of the findings of the Election Tribunal and of the High Court we are only concerned with the allegations relating to  corrupt practices  contained in sub paras
I to 3 of para
13B of the election petition which formed the basis for issue No 4
The relevant allegations may be stated in extenso in the words of the election petition as under  B  That respondent No I himself his agents and other persons with the consent of the respondent No 1 and his agents have committed the corrupt practice of undue influence by interfering directly or indirectly with the free exercise of the electoral right of the electors of this constituency
The known details of these corrupt practices are given in the various clauses under the sub para
 1 Sat Guru Maharaj Pratap Singh of Jiwan Nagar the religious head of Namdharis sect of the Sikhs had some personal grievances against Shri Devi Lal of Chautala a prominent Congress Leader of the constituency and the chief supporter of the petitioner at this election
Respondent No 1 fully knowing of this grievance of the Sat Guru approached him and through him also approached Maharaj Charan Singh of Sikanderpur the religious head of the Radha Swaini Samaj and got issued Farmans orders by both these religious heads to their followers in this constituency to the effect that their Dharma required them to wholeheartedly support respondent No 1 and to oppose the candidature of the petitioner and that if any of the followers dared to act against their Farmans the wrath of the aforementioned Gurus would fall upon him and he would be the object of Divine displeasure
These Farmans of the two Gurus were orally conveyed through the Subas  of Namdharis Shri Bir Singh the son of Sat Guru Partap Singh and Naginder Singh and Shri Purshotam Singh followers of Guru Charan Singh throughout the Constituency wherever the followers of these two sects resided from the day of withdrawal till the polling began during their canvassing tours for respondent No 1 Shri Bir Singh Purshotam Singh and Naginder Singh aforesaid and Sant Teja 752 Singh MLC in Diwans held in the various villages and towns of the Constituency during their canvassing tour besides repeating these Farmans  of the two Gurus also threatened the followers with expulsion from the sect and Samaj if they went against the wish of the Gurus in this matter
ii That Sat Guru Pratap Singh himself in the presence of respondent No 1 in the Big Diwan of his followers held on the 25th of February 1957 at Sirsa in Radha Swami Sat Sangh Hall preached and commended all those present that it was the primary Dharma of all his followers to help the candidature of respondent No 1 and to oppose the petitioner with all their might by giving their own votes and by canvassing among their area of influence in the constituency The Sat Guru himself held Diwans at villages Tharaj on the 6th of March 1957 at village Dhiwan on the 5th March 1957 at village Rori on the 6th March 1957 and at Phaggu on the 6th March 1957
In these Diwans he besides repeating his Farmans aforesaid also relied upon the strong appeal of his relationship he being the son of the daughter of village Tharaj
A very big diwan of his followers also hold at Khairpur on the 26th February 1957 for the same purpose where the Sat Guru himself commended his followers in the like tune
iii That respondent No 1 got issued posters in thousands printed on both the sides in Hindi and Gurumukhi scripts on the 26th of February 1957 containing the orders Farmans  of Satguru Partap Singh under the signature of Shri Maharaj Bir Singh son of Satguru Partap Singh
These posters were got published at the instance of respondent No 1 at Bansal Press Hissaria Bazar Sirsa
These posters contained in verbatim the orders Farmans  of the Satguru to the effect that it was the primary Dharma of every Namdhari of this constituency to give his own vote as well as to canvass votes of their all acquaintances for Shri Ram Dayal candidate respondent No 1
A copy of the poster in original together with its English translation is attached with the petition and may be read as to form its part
These posters were distributed 753 throughout the constituency after the same were got printed till the polling day in all the villages where Namdhari reside In support of all his allegations quoted above the first respondent adduced a large volume of oral evidence besides some documentary evidence as well
The Tribunal came to the conclusion that Maharaj Pratap Singh had issued farmans to his satsanghis that he who will not vote for the appellant would suffer not only in this world but in the next also but it found it not proved that the farmans or orders of the two religious heads of the Namdharis and Radhaswamis were orally conveyed through Maharaj Bir Singh son of Maharaj Partap Singh Naginder Singh and Shri Purshotam Singh to the followers of the two Gurus in the constituency or that they while conveying the farmans of the Gurus threatened the followers with expulsion from the sect if they went against the wishes of the Gurus except what Naginder Singh had said in the Diwan at Sirsa and at other places
It also recorded the finding that the Diwans were held for the purpose of canvassing in favour of the appellant at the time and place mentioned in the petition and that those Diwans were addressed by Maharaj Partap Singh and others
It was also found that Maharaj Partap Singh actively supported the candidature of the appellant and addressed his followers on the basis of religion and asked them to vote for the appellant and that all this was done at the instance and in the presence of the appellant
It was further found that posters like exh
P 1 were issued by the appellant under the authority of Maharaj Bir Singh and his father Maharaj Partap Singh and widely distributed throughout the constituency
The Tribunal also discussed the question as to whether on those findings the provisions of section 1232 of the Representation of the People Act 1951 which will hereinafter be referred to as I the Act  relating to undue influence  could be said to have been satisfied and alternatively whether those findings would bring the case within the provisions of cl
3 of section 123 of the Act 95 754 relating to systematic appeal on grounds of caste race community or religion etc
The Tribunal appeared to be inclined to the view that a command in terms of exh
P 1 emanating from a religious head like the Sat Guru to his followers mostly illiterate and ignorant persons may well be construed as  undue influence
But alternatively it also held that even if the provisions of cl
2 of section 123 of the Act had not been satisfied the case had been brought well within the purview of el
3 of section 123
Other issues were either not pressed or were decided against the petitioner in that court
The Tribunal therefore declared the appellant s election void under section 1001b of the Act
In view of the fact that the petitioner had failed to substantiate many of his allegations the Tribunal directed the parties to bear their own costs
The appellant preferred an appeal which was heard by a Division Bench Falshaw and Dua JJ of the High Court of Judicature for the State Of Punjab at Chandigarh
The High Court substantially affirmed the findings of the Election Tribunal on issue No 4 aforesaid
The High Court also accepted the oral evidence adduced on behalf of the respondentwith particular reference
to the publication and wide distribution of the poster exh
In the course of its judgment the High Court observed  The language of the mandate and the general background and circumstances of this case including the obvious consciousness of Maharaj Pratap Singh and Ram Dial of the probable and likely effect of such commands on the illiterate ignorant and credulous followers of the Maharaj can lead but to one conclusion that it was intended to convey to them
the threat of divine displeasure and spiritual censure if they dared to disobey the farman of their supreme spiritual and religious head
 In answer to the contention that the farman had been motivated not by religious considerations but by a personal grievance the High Court did not attach any importance to the alleged difference in the motive and observed If the influence exercised by the religious and 755 spiritual head has the effect of creating in the minds of the voters a feeling of divine displeasure or spiritual censure then whatever the motive the influence would amount to undue influence
The contents of the poster reproduced earlier unequivocally establish the mandatory nature of the command
Religious sanction is in my opinion implict in it and I think on a reasonable construction of its contents it must be held that Maharaj Pratap Singh intended to convey to his followers who are mostly illiterate ignorant credulous and unsophisticated villagers having blind and implicit faith in their religious head that if they did not vote for Ram Dial they would incur divine dis pleasure and spiritual censure
With this class of villagers the displeasure of the religious head is usually associated with divine displeasure
 Dealing with the scope of section 1232 it held that the language of the poster exh
P 1 construed in the light of the oral evidence left the Court in no doubt that Maharaj Partap Singh s farman did necessarily imply divine displeasure and spiritual censure for those who chose to disobey the farman
In its view therefore the facts as found attracted the provisions of section 1232 of the Act
It also held that the evidence led in the case established that the meetings addressed by Maharaj Partap Singh and others in support of the election of the appellant induced the belief that the voters would incur divine displeasure or spiritual censure if they did not vote in accordance with the mandate issued by the Maharaj thus clearly establish ing the commission of corrupt practice of  undue influence 
The High Court also examined the question whether the corrupt practice falling under cl
3 of section 123 of the Act had been established and decided the question in the negative though not without some hesitation
It further held that the publication of the poster exh
P 2 did not bring the case within the purview of section 1234 of the Act
In the result the High Court agreed with the conclusion of the Tribunal declaring the election void and dismissed the appeal with costs
The appellant applied to the High Court praying for the necessary certificate that the 756 case was a fit one for appeal to this Court and that Court granted the certificate
Hence this appeal
After the decision of the Tribunal and of the High Court the only question for determination in this appeal is whether on the findings of fact recorded as stated above the corrupt practice of  undue influence  as defined in section 1232 has been made out
It has been argued on behalf of the appellant that the main cl
2 of section 123 is out of the way of the parties in this case because it applies only to threats of injury to person or property and not to what may be termed  spiritual undue influence  which is specifically covered by sub el
ii of proviso a to cl
2 of section 123
It was further argued that the word  deemed  would show that the proviso is by way of an addition to the main provision of el
2 of section 123 that is to say what was not actually covered by the main cl
2 has been added to the ambit of the definition by the proviso
It has further been argued that el
2 is directed against unduly influencing individual voters and reliance was placed upon the cases of Cheltenham1 Nottingham 2 and North Durham Reference was also made to the observations in Rogers on Elections  4 and it was argued that anelectoral right as defined in section 79d of the Act is a personal individual right including the right to vote or to refrain from voting at an election
Hence there should have been pleading by the petitioner and finding by the Court on evidence that certain named individuals had been subjected to the corrupt practice of undue influence
Secondly in the absence of any such pleading or finding a general allegation of the corrupt practice of undue influence without reference to individuals is not enough in law to vitiate an election
The corrupt practice of undue influence has been defined in el
2 of section 123 of the Act in these terms   2 Undue influence that is to say any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other 1  64
2  246 3  156
4 Vol II 20th Ed P 329
757 person with the consent of a candidate or his election agent with the free exercise of any electoral right Provided that awithout prejudice to the generality of the provisions of this clause any such person as is referred to therein who ithreatens any candidate or any elector or any person in whom a candidate or an elector is interested with injury of any kind including social ostracism and excommunication or expulsion from any caste or community  or iiinduces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause ba declaration of public policy or a promise of public action or the mere exercise of a legal right without intent to interfere with an electoral right shall not be deemed to be interference within the meaning of this clause It should be observed at the outset that the law in England relating to undue influence at elections is not the same as the law in India as will appear from the following definition of  undue influence  contained in section 2 of 46  47 Vict
c 51 which substantially re enacted the former section 5 of 17  18 Viet
c 102  Every person who shall directly or indirectly by himself or by any other person on his behalf
make use of or threaten to make use of any force violence or restraint or inflict or threaten to inflict by himself or by any other person any temporal or spiritual injury damage harm or loss upon or against any person in order to induce or compel such person to vote or refrain from voting or on account of such person having voted or refrained from voting at any election or who shall by abduction duress or any fraudulent device or contrivance impede or prevent the free exercise of the franchise of any elector or shall thereby compel induce or prevail upon any 758 elector either to give or to refrain from giving his vote at any election shall be guilty of undue influence
The words of the English statute quoted above lay emphasis upon the individual aspect of the exercise of undue influence
It was with reference to the words of that statute that Bramwell B made the following observations in North Durham 1  When the language of the Act is examined it will be found that intimidation to be within the statute must be intimidation practised upon an individual 
The Indian law on the other hand does not emphasise the individual aspect of the exercise of such influence but pays regard to the use of such influence as has the tendency to bring about the result contemplated in the clause
What is material under the Indian law is not the actual effect produced but the doing of such acts as are calculated to interfere with the free exercise of any electoral right
Decisions of the English Courts based on the words of the English statute which are not strictly in pari materia with the words of the Indian statute cannot therefore be used as precedents in this country
In the present case we are not concerned with the threat of temporal injury damage or harm
On the pleadings and on the findings of the Tribunal and of the High Court we are concerned with the undue exercise of spiritual influence which has been found by the High Court to have been such a potent influence as to induce in the electors the belief that they will be rendered objects of divine displeasure or spiritual censure if they did not carry out the command of their spiritual head
It was argued that exh
P 1 on which so much stress was laid by the Tribunal and by the High Court did not contain any such direct threat as would bring the case within the second paragraph of proviso a to section 1232
Exhibit P 1 as officially translated is in these terms  A command from Shri Sat Guru Sacha Padshah to the Namdharies of Halqa Sirsa  Every Namdhari of this Halqa is commanded by Shri Sat Guru that he should make every effort for 1 156
759 the success of Shri Ram Dayal Vaid a candidate for the Punjab Vidhan Sabha by giving his own vote and those of his friends and acquaintances it being our primary duty to make him successful in the election
The election symbol of Shri Vaid is a riding horseman
Maharaj Bir Singh So Sat Guru Maharaj Partap Singh Jivan Nagar Hissar 
We have looked into the original document also and we agree with the High Court that the crucial words like hukam of Shri Sat Guru Sacha Padshah etc have been printed in very bold letters conveying the distinct impression to the large number of Namdharis who are voters in the constituency that it was a mandate from their spiritual guru who wielded great local influence amongst them that it was their bounden duty under the strict orders of their religious leader not only to cast their own votes in favour of the particular candidate but also to exert their influence amongst their friends and acquaintances in favour of that candidate and that any infringement of that mandate had implicit in it divine displeasure or spiritual censure
It was contended on behalf of the appellant that a religious leader has as much the right to freedom of speech as any other citizen and that therefore his exhortation in favour of a particular candidate should not have the result of vitiating the election
There cannot be the least doubt that a religious leader has the right freely to express his opinion on the comparative merits of the contesting candidate and to canvass for such of them as he considers worthy of the confidence of the electors
In other words the religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him
He has a right to express his opinion on the individual merits of the candidates
Such a course of conduct on his part will only be a use of his great influence amongst a particular section of the voters in the constituency  but it will amount to an abuse of his great influence if 760 the words he uses in a document or utters in his speeches leave no choice to the persons addressed by him in the exercise of their electoral rights
If the religious head had said that he preferred the appellant to the other candidate because in his opinion he was more worthy of the confidence of the electors for certain reasons good bad or indifferent and addressed words to that effect to persons who were amenable to his influence he would be within his rights and his influence however great could not be said to have been misused
But in the instant case as it appears according to the findings of the High Court in agreement with the Tribunal that the religious leader practically left no free choice to the Namdhari electors not only by issuing the hukam or farman as contained in exh
P 1 quoted above but also by his speeches to the effect that they must vote for the appellant implying that disobedience of his mandate would carry divine displeasure or spiritual censure the case is clearly brought within the purview of the second paragraph of the proviso to section 1232 of the Act
This aspect of the case has been dealt with at length by the High Court in a well considered judgment and we do not think it necessary to repeat all those obser vations beyond saying that we agree with them
In that view of the matter it is not necessary for us to consider the further question whether el 2 of section 123 of the Act apart from the proviso para
ii discussed above covers a case like the present where the undue influence is of a spiritual character as distinguished from threats of injury to person or property
As the main ground urged in support of the appeal against the judgment of the High Court fails the appeal must be dismissed with costs to the respondent No 1
Appeal dismissed


Summary:
In resisting the workmen s claim for bonus for the year 1955 56 the appellant contended that in calculating gross profits for the purpose of the Full Bench formula the following items of income should be excluded  i Income earned by way of rent light and power ii estate revenue derived from sale of excess coconuts used in preparing oil grown in the appellant s groves iii profit from sale of empty barrels and iv sale proceeds of tin cans scraps logs planks gunnies etc
as they were extraneous income unrelated to the efforts of the workmen
The appellant also claimed that a profit of Rs 3 lacs appearing in the accounts due to a change in the method of valuation was no real profit due to the efforts of labour and should not be taken into account
In calculating the available surplus the appellant claimed that it was entitled to 4 interest on the depreciation reserve used as working capital
Held that the four items were earned by the appellant in the normal course of its business and could no be excluded from the gross profits on the ground that it had not been proved that they were the result of the direct efforts of labour in the bonus year
Though there must be contribution of the workmen in earning profits before they could be entitled to profit bonus it was not necessary to establish direct connection between the efforts of the workmen and each item of profit earned
Profits earned in the normal course of business were generally the result of the joint effort of capital and labour
Income or profit may be extraneous if it either did not really arise in that year or it arose out of fortuitous circumstances altogether unconnected with the efforts of labour or arose out of sale of fixed or capital assets
2 Mill Owners Association Bombay vs The Rashtriya Mill Mazdoor Sangh Bombay  Shalimar Rope Works Mazdoor Union Howrah vs Shalimar Rope Works Ltd Howrah  referred to
The profit of Rs 3 lacs due to change in the method of accounting was extraneous income and had to be excluded
It was not income in the normal course of business as it was not likely
to arise again
It had arisen out of fortuitous circumstances and had nothing whatsoever to do with the efforts of labour
The appellant was entitled to a 4 return on the deprecia tion reserves used as working capital
If reserves were not used for this purpose the concern would have to borrow money and pay interest thereon