# Gauri Shanker v. Union of India was

- **Citation:** (2005) 1 ILRA 233
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-02-10
- **Case number:** Second Appeal No. 1766 of 1976
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gauri-shanker-v-union-of-india-was-40432
- **Pages:** 8

## Headnote

Act-Section
77Consigment
Booked
at
Tatanagar-a
contract brought into existence between
the
consignor
and
the
Railways
administration-if consignment damaged
due to the Negligence of the employees
of Railways-held-The railways becomes
responsible for such loss or damageRailways being largest state owned
Corporation-Serving peoples of largest
democracy has to conduct itself with
elevated sense of responsibility with
utmost care and caution.

Held: Para 10 & 12

The consignees can maintain the suit
only if they proved their title to the
goods in transit. Where the consignor
and
consignee
are
different,
the
consignees
are
not
necessarily
the
owners of the goods. In the instant case,
the plaintiff is a consignor of goods
having a Railway Receipt in his hand. It
is
admitted
position
that
the
consignment was booked at Tatanagar
Siding by the consignor, which brought
into existence a contract of carriage
between the consignor and the Railway
Administration. In the circumstances, if
the consignment is damaged or loss due
to misconduct or negligence of the
employees
of
the
Railway
Administration,
the
latter
becomes
responsible for the loss and damage.

Before parting, I feel called to observe
that Indian Railways is the largest State
owned Corporation and by reason of
being a State owned Corporation, and
serving
the
people
of
the
largest
democracy of the world, it has to
conduct itself with elevated sense of
responsibility and with utmost care and
concern.
Case law discussed:
AIR 1966 SC 395

## Text

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1All]
 The Union of India V. M/s Hari Shanker Gauri Shanker
233
 arrived at by the prescribed authority and
affirmed by the appellate authority are
perverse. In this view of the matter and in
view of the law laid down by the apex
Court reported in (2003) 6 S.C.C., page
675 Surya Dev Rai Vs Ram Chander
Rai and others; and 2004 (2) A.W.C.,
page 1721 (SC) Ranjet Singh Vs. Ravi
Prakash, I do not find this to be a fit case
for interference by this Court in exercise
of power under Article 226 of the
Constitution of India, thus, in my opinion
this writ petition has no force and is
accordingly dismissed. The interim order,
if any, stands vacated. However, the
parties shall bear their own costs.
Petition dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2005

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Second Appeal No. 1766 of 1976

The Union of India

 ...Appellant
Versus
M/S Hari Shanker Gauri Shanker

 ...Respondent

Counsel for the Appellant:
Sri Lal Ji Sinha
C.S.C.

Counsel for the Respondent:
Sri Radeshwari Prasad

Indian
Railways
Act-Section
77Consigment
Booked
at
Tatanagar-a
contract brought into existence between
the
consignor
and
the
Railways
administration-if consignment damaged
due to the Negligence of the employees
of Railways-held-The railways becomes
responsible for such loss or damageRailways being largest state owned
Corporation-Serving peoples of largest
democracy has to conduct itself with
elevated sense of responsibility with
utmost care and caution.

Held: Para 10 & 12

The consignees can maintain the suit
only if they proved their title to the
goods in transit. Where the consignor
and
consignee
are
different,
the
consignees
are
not
necessarily
the
owners of the goods. In the instant case,
the plaintiff is a consignor of goods
having a Railway Receipt in his hand. It
is
admitted
position
that
the
consignment was booked at Tatanagar
Siding by the consignor, which brought
into existence a contract of carriage
between the consignor and the Railway
Administration. In the circumstances, if
the consignment is damaged or loss due
to misconduct or negligence of the
employees
of
the
Railway
Administration,
the
latter
becomes
responsible for the loss and damage.

Before parting, I feel called to observe
that Indian Railways is the largest State
owned Corporation and by reason of
being a State owned Corporation, and
serving
the
people
of
the
largest
democracy of the world, it has to
conduct itself with elevated sense of
responsibility and with utmost care and
concern.
Case law discussed:
AIR 1966 SC 395

(Delivered by Hon'ble S.N. Srivastava, J.)

1. By means of the present second
appeal, the appellant has assailed the
judgment and decree dated 12.4.1973
rendered by Lower Appellate Court in
Civil Appeal No. 98 of 1974 whereby the
judgment and decree aforestated passed in
O.S. No. 10 of 1971 M/S Hari Shanker
Gauri Shanker v. Union of India was
affirmed.
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INDIAN LAW REPORTS ALLAHABAD SERIES
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2. It would appear that the plaintiff
respondent instituted O.S. No.10 of 1971
with the allegations that a consignment
consisting of 316 boxes containing tin
sheets was booked with the Railways at
Tatanagar Tin Plate Siding for onward
transmission
and
delivery
to
M/S
Associated
Industrial
Corporation
at
Kanpur Fazalganj Goods Shed vide R.R.
No. 238057 dated 9.7.1969. The goods
according to the record was taken delivery
of
by
M/S
Associated
Industrial
Corporation at Kanpur Fazalganj Goods
Shed on 22.7.1969 alongwith a certificate
of
damage
issued
by
Railway
Administration at Kanpur after it was
noticed that some of the boxes of tin
plates had become wet and rusted and as a
sequel thereto, the plaintiff suffered loss
to the extent of Rs. 6946/-. From a perusal
of written statement, it would appear that
defendants
repudiated
the
plaint
allegations and averred that the goods
were loaded by Tata Tin Plate Company
without any supervision of Railway
Administration. It was further averred that
the wagons in which goods were loaded,
were watertight wagons and in case, the
wagons developed some fault in transit as
a result of which damage was caused to
the goods, the defendants could not be
held liable to damages. Other allied pleas
were
also
pressed
into
service
in
extenuation of the claims of plaintiff for
damages.

3. At the time of admission, it would
appear from a perusal of order-dated
4.4.77, the Court was pleased to admit the
appeal prima facie considering ground
Nos. 7 and 9 as raising substantial
questions for determination. The grounds
aforestated may be quoted below.

"7. Because the plaintiff respondent
being merely an endorsee of the
goods was not entitled to sue.
8. Because the present case was
governed by Section 73(f), (g) and
(h) of the Railways Act and the
plaintiff respondent was not entitled
to any damage."

Heard learned counsel for the parties.

4. Submerging all the others
arguments, the learned counsel for the
petitioner pressed into service the only
argument across the bar that the goods
were not loaded at Tatanagar Tin Plate
Siding under the supervision of Railway
Administration and they were loaded by
Tata Tin Plate Company itself and by this
reckoning, proceeds the argument, the
Railway Administration could not be
made liable to damages occasioned to the
plaintiff.

5. In connection with the above
proposition, I propose the scan the finding
of the trial court as well as the appellate
court. The trial court framed as many as 9
issues. Issue no. 7 framed by the trial
court, posed whether the plaintiff suffered
damages on account of negligence and
misconduct of the defendant and its
employees. No doubt, the trial court held
the view in answering issue no. 5 that it
was plaintiff's company which had loaded
the goods and affixed its seal to the watertight wagon but in dealing with issue no.
7, the trial court referring to section 73 of
the Indian Railways Act, converged to the
view
that
it
is
for
the
Railway
administration to prove that the damage to
the goods occurred on account of anyone
of the reasons mentioned in Section 73 of
the Indian Railways Act. Section 73
before its amendment by Act 39 of 1961
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envisaged
the
responsibility
of
the
Railway Administration as carrier of
animals and goods. It further envisaged
that Railway Administration shall be
responsible for loss, destruction, damage
or non-delivery in transit of animals or
goods delivered to the administration to
be carried by Railway arising from any
cause except the acts enumerated in the
Section i.e. (A) Act of God; (B) Act of
War; (C) Act of public enemies; (D)
Arrest, restraint or seizure under the legal
process;
(E)
Orders
or
restrictions
imposed by the Central Government or
State Government or by any officer or
authority subordinate to the Central
Government
or
State
Government
authorised in this behalf; (F) Act or
omission or negligence of the consignor
or the consignee or the agent or servants
of the consigner or the consignee; (G)
Natural deterioration or wastage in bulk
or weight about inherent defects, quality
or voices of the goods; (H) Latest defects;
(I) Fire, explosion or any unforeseen risk.
In the proviso, it is envisaged that even
where such loss, destruction, damage,
deterioration or non delivery as proved to
have arisen from anyone or more of the
aforesaid
causes,
the
Railway
administration shall not be relieved of its
responsibility for the loss, destruction,
damage deterioration or non delivery
unless
the
administration
further
establishes that it has used reasonable
foresight and care in the carriage of the
animals or goods. After amendment by
Act no. 39, this section prescribed that the
responsibility of Railway Administration
for the loss, destruction or deterioration of
animals or goods delivered to the
Administration to be carried by Railway
was, subject to the other provisions of the
Act, be that of a bailee under section 151,
152 and 161 of the Indian Contract Act,
1872. The trial court on a comparative
examination of the two sections held the
view that Old Section 73 envisaged
Railways responsible only in the capacity
of a bailee while the amendment made in
the
year
1961
has
made
Railway
responsible for the loss, destruction,
damage, deterioration or non delivery in
transmit of animals or goods except in the
cases provided by the Act and on this
reckoning, the trial court converged to the
conclusion that the onus fell on Railway
to prove that the damage or loss occurred
on account of one of the conditions
specified in Section 73 of the Act. While
dealing with the arguments that damage to
the goods occurred on account of
negligence of the consignor due to
defective packing, the trial court held that
the defendant has failed to prove that the
boxes were defectively packed and in this
connection, it referred to Railway Receipt
and forwarding note which contained note
that
packing
conditions
had
been
complied with. The trial court also
referred to statement of D.W.1 Sri S.N.
Bhattacharya in which it was conceded
that besides the T.X.R two clerks had
been posted at the siding and one of the
functions of them was to supervise weight
of the load and thereafter, a note is
appended to the forwarding receipt. The
trial court also alluded to certificate of
damage and shortage a perusal of which
indicated that the goods were damaged on
account of rain water which trickled into
the wagon and damaged the goods. In the
ultimate analysis, the trial court held that
the defendant had failed to prove that
there was defective packing or that the
goods were damaged due to fault of the
consignor. The findings recorded by the
trial court do not suffer from any infirmity
and therefore, the contentions of the
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INDIAN LAW REPORTS ALLAHABAD SERIES
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learned counsel for the appellant do not
commend to me for acceptance.

6. In so far as next contention of the
learned counsel for the defendant that
having assigned water-tight wagon, the
Railway administration was absolved of
the liability to damages if any occurred to
the goods. To rephrase, it has been
contended that if the water-tight wagon
developed some flaw in transit, the
Railway
Administration
cannot
be
fastened with the liability to damages. In
connection with this contention, the
learned counsel referred to paragraph 15
of the written statement filed by the
Railways in the trail court.

"15. The goods were loaded by Tata
Tin Plate Company without any
supervision
of
Railway
Administration as such said R.R.
issued. Wagon No. WR 37993 in
which said goods were loaded by the
aforesaid company was admittedly a
water tight wagon and by supplying
a water tight compartment the
Railway Administration discharged
its duty faithfully and could not be
held liable for goods being founded
rusted at the destination as they
could have already been rusted at the
time of dispatch or may have got
rusted on account of the fact that
when goods were booked it was rainy
season
and
atmosphere
was
surcharged with moisture. In fact,
even if wagon which was water tight
before dispatch became non-water
tight on the way- the defendant could
not be held liable for any negligence
or misconduct."

7. Precisely, the learned counsel by
referring to the above paragraph tried to
go into finer points, which in my opinion,
are unable to turn the scale against the
plaintiff. I would confine myself to saying
that the trial court has extensively dealt
with the above aspects and having noticed
that there were Railway employees at the
siding to supervise weight and loading
etc. by referring to the statement of D.W.
1, and also the Railway Receipt and
Forwarding note issued by the Railways,
it now does not lie in the mouth to say
that if any damage has been occasioned to
the goods in transit or water-tight wagon
stuck
loose
on
way
the
Railway
Administration could not be held liable to
damages. The evidence appraised by both
the courts below leave no manner of
doubt that the goods were dispatched at
the Railway's risk and Railway was
rightly held liable to damages.

8. As stated supra, it would transpire
from the order of the Court dated 4.4.77
that the Court was inclined to admit the
appeal pursuant to grounds 7 and 9 which
according to the order prima facie
disclosed substantial questions of law
required to be decided. Section 73 (f)
envisages act or omission or negligence of
the consignor or the consignee or the
agent or servant of the consignor or the
consignees. Sub section (g) envisages
natural deterioration or wastage in bulk or
weight due to inherent defect, quality of
vice of the goods. From the discussion
aforestated, any act or omission or
negligence of the consignor or the
consignee has been ruled out on valid
grounds. The damage caused to the goods
can also not be said stemming from
natural deterioration or wastage or due to
inherent defect, quality or vice of the
goods in view of specific finding of the
courts that certificate of damage issued by
the Railway Administration at Kanpur
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clearly indicated that damage was caused
due to percolation of rain water into the
wagon. It clearly implies that the wagons
assigned were defective and hence, the
Railways cannot be absolved of its
responsibility. Section 77 of the Railways
Act being germane to the controversy
involved in the present appeal may also
be excerpted below.

"S. 77. Responsibility of a railway
administration after termination of
transit.- (1) A railway administration
shall be responsible as a bailee
under sections 151, 152 and 161 of
the Indian Contract Act, 1872 for the
loss,
destruction,
damage,
deterioration or non-delivery of
goods carried by railway within a
period of seven days after the
termination of transit;

Provided that where the goods
are carried at owner's risk rate, the
railway administration shall not be
responsible
for
such
loss,
destruction, damage, deterioration
or non delivery except on proof of
negligence or misconduct on the part
of the railway administration or of
any of its servants.

(2) The railway administration shall
not be responsible in any case for the
loss,
destruction,
damage,
deterioration or non-delivery of
goods, carried by railway, arising
after the expiry of the period of seven
days after the termination of transit.

(3)
Notwithstanding
anything
contained in the foregoing provisions
of
this
section,
a
railway
administration
shall
not
be
responsible for the loss, destruction
damage,
deterioration
or
non
delivery of the goods mentioned in
the Second Schedule, animals and
explosives and other dangerous
goods carried by railway, after the
termination of transit.

(4)
Nothing
in
the
foregoing
provisions of this section shall
relieve the owner of animals or
goods
from
liability
to
any
demurrage or wharfage for so long
as the animals or goods are not
unloaded from the railway wagons
or
removed
from
the
railway
premises..................."

9. A conjoint reading of sections 73
and 77 of the Act would be eloquent of
the fact that the railway administration as
bailee under sections 151, 152 and 162 of
the Indian Contract Act, 1872 cannot
wash his hands off the responsibility for
the loss, destruction or deterioration or
non-delivery of the goods carried by the
railway. No doubt, responsibility of
Railway Administration has been limited
to seven days but here in the instant case,
there is no dispute that the consignee had
taken delivery of goods within the period
prescribed and it is only after the expiry
of
the
period
prescribed
that
the
responsibility of railway administration
comes to an end. The goods loaded by the
plaintiff were of the kind, which could
well be said to be ones for which section
77 clearly postulates responsibility of the
railway administration. A clear finding
has been recorded by the two courts
below taking into reckoning the statement
of D.W.1 namely, S.S.Bhattachary that
there are two clerks of the Railway in the
siding of Tin Plate Company of India
besides a T.X.R. and a siding clerk to
supervise loading and unloading of goods.
Besides, it is also worthy of notice that a
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INDIAN LAW REPORTS ALLAHABAD SERIES
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Railway receipt issued to the consignor
bears ample testimony to the fact that the
loading of goods had been supervised by
the Railways. Relevant section envisages
that a railway receipt shall be prima facie
evidence of the weight and the number of
packages stated therein. It is further
envisaged that Railway administration
shall issue a railway receipt in a case
where the goods are to be loaded by a
person entrusting such goods on the
completion of such loading and/or in any
other case, on the acceptance of the goods
by it or else a statement to that effect that
the consignment in wagon load or train
load and the weight or the number of
packages has not been checked by a
Railway servant authorised in this behalf
would have found mention in such
railway receipt. It, therefore, furnishes
enough
evidence
to
demolish
the
contention of the learned counsel for the
appellant that the loading of goods was
not supervised by the Railways. In view
of the above, ground no. 9 which was at
the time of admission of appeal was
considered to be one of the questions
requiring determination is accordingly
answered and it is held that there was no
act or omission or negligence on the part
of consignor or the agent or servant of the
consignor nor was there any natural
deterioration or wastage due to inherent
defect, quality of vice of the goods etc.
and the Railway administration was
responsible for the damage caused to the
goods of the plaintiff.

10. In so far as ground no. 7
enumerated in the memo of appeal is
concerned, it is settled position in law as
enunciated by various decision that the
consignor of goods has right to sue for
loss or damage of goods and in this
connection I would not like to burden this
judgment with copious citations on the
aspect. In connection with this argument,
I would sketch few reasons. The reason is
that the contract of carriage is between the
consignor and the railway administration.
The consignees can maintain the suit only
if they proved their title to the goods in
transit.
Where
the
consignor
and
consignee are different, the consignees are
not necessarily the owners of the goods.
In the instant case, the plaintiff is a
consignor of goods having a Railway
Receipt in his hand. It is admitted position
that the consignment was booked at
Tatanagar Siding by the consignor, which
brought into existence a contract of
carriage between the consignor and the
Railway
Administration.
In
the
circumstances, if the consignment is
damaged or loss due to misconduct or
negligence of the employees of the
Railway
Administration,
the
latter
becomes responsible for the loss and
damage. In this connection, decision of
the Apex Court in Union of India v. The
West Punjab Factories Ltd 1 in which
the Apex Court laid down the principles
as
to
who
can
sue
the
Railway
Administration for the loss or damage.

"From the mere fact that a railway
receipt is a document of title to
goods covered by it, it does not
follow, where the consignor and
consignee are different that the
consignee is necessarily the owner of
goods and the consignor can never be
the owner of the goods. The mere
fact that the consignee is different
from
the
consignor
does
not
necessarily pass title to the goods
from the consignor to the consignee
and the question whether title to

1 AIR 1966 SC 395
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239
goods has passed to the consignee
has to be decided on other evidence.
Ordinarily, it is the consignor who
can sue if there is damage to the
consignment, because the contract of
carriage is between the consignor
and
the
railway
administration.
Where, however, the property in the
goods carried has passed from the
consignor to consignee, the latter
may be able to sue. Whether title to
goods has passed from the consignor
to the consignee depends on the facts
of each case."

11. In the light of discussion above
that consignor had booked the goods and
there was contract between the consignor
and railway administration, the plaintiff
rightly filed the suit in the instant case.
Therefore the argument of the learned
counsel that the plaintiff being merely
endorsee was not entitled to sue is
accordingly answered that the plaintiff
being consignor of the goods was entitled
to sue.

12. Before parting, I feel called to
observe that Indian Railways is the largest
State owned Corporation and by reason of
being a State owned Corporation, and
serving
the
people
of
the
largest
democracy of the world, it has to conduct
itself with elevated sense of responsibility
and with utmost care and concern. In this
connection,
I
recall
the
immortal
observation of Justice Brandies of U.S.
quoted in (1961) 367 US 643 at page 659
which
have
become
classic.
"Government as the omnipotent and
omnipresent teacher teaches the whole
people
by
its
example,
if
the
Government becomes a law breaker, it
breeds contempt for law, it invites
every man to become a law into
himself." The Railway cannot be seen to
behave like private transporters who are
often seen to be concerned with profits
and are inclined to leapfrog to courts at
the slightest pretext. It is the duty of
Railway administration to ensure that
loading and unloading is not left to the
unguided discretion of the consignors and
it must exercise utmost vigilance and
circumspection and beef up vigilance at
the time of loading and unloading of
goods in strict observance of the Railway
Act lest any laxity on the part of Railway
Administration should not imperil and
jeopardize the safety of the Railways and
security of the country. Recently, scraps
off-loaded somewhere at the shores in
Gujrat from where they were transported
to various factories situated all over the
country, were found mingled with live
grenades, rockets and it wrought havoc at
places. Luckily, the mischief was nipped
in the bud before it could assume
proportion. From various news reports, it
can be gleaned that those charged with the
duties of supervising and checking onloading and off-loading goods, were
wanting in their duties. In my opinion, if
the Railway Administration plugs the
holes and its officials take care to do
proper scanning of the goods at the siding
at the time of loading or unloading of
goods,
the
burgeoning
number
of
frivolous litigation could well be avoided
besides saving public exchequer and
court's precious time. It cannot be
appreciated that after losing battles in
both the courts below, the matter was
dragged to this Court by way of Second
Appeal on grounds which do not yield
any substantial question for determination
and still the matter has been lingering
since 1976, that is to say, it has taken 28
years to come up for final disposal. As
stated supra, the Railway Administration
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INDIAN LAW REPORTS ALLAHABAD SERIES
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must pay heed that it is a responsible
Government owned Corporation and it
should watch every step with care and
concern and take measures consistent
with the urgency of situation and its
responsibility
so
that
unwarranted
frivolous litigations do not gain ground.

In view of the above, the second
appeal fails and is accordingly dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2005

BEFORE
THE HON'BLE RAKESH TIWARI

Civil Misc. Writ Petition No. 16836 of 2001

Adare
Madarsa
Ziaul-ul-um,
Gontha,
District Mau and others ...Petitioners
Versus
Assistant Registrar, Firms, Societies and
Chits, Azamgarh Region, Azamgarh and
another

 ...Respondents

Counsel for the Petitioner:
Sri A.N. Singh
Sri Dharam Pal Singh
Sri P.K. Dubey
Sri M.A. Siddiqui

Counsel for the Respondents:
Sri J.A. Azami
S.C.

Societies Registration Act- 1860-S-25 (2)
Election held on dated 7.10.2000 found
illegal
by
Asstt.
Registrar-Society
became unregistered society under the
provision of Section 3-A of the Act-within
five years election could not held-except
the Registrar no other person can hold
election.

Held: Para 12 & 13

Sub-section (2) of Section 25 of the Act
provides that where any election of
office bearers of the Society has not
been held within the time specified, i.e.,
within 5 years, the Registrar may call
meeting of general body of the Society
for electing the office bearers.

In view of the facts and circumstances of
the case, the impugned order dated
26.2.2001 deserves to be set aside and it
is expedient in the interest of justice that
the Registrar may be directed to hold
election of the Society in accordance
with law in exercise of powers under
sub-section (2) of Section 25 of the Act.
Case law discussed:
1995 (2) UPLBEC-1242
1998 (2) UPLBEC 1000
2000 (III) UPLBEC 2063

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties and
perused the record.

2. This writ petition has been filed
challenging the order dated 26.2.2001
passed by the Assistant Registrar, Firms,
Societies & Chits, Azamgarh Region,
Azamgarh (respondent no. 1) whereby
certificate of renewal of the Society has
been granted on the basis of the yearly list
for 2000-2001 in exercise of powers
under Section 3-A of the Societies
Registration Act, 1860 (in short the Act).
By the order dated 26.2.2001 Sri Iltaf
(respondent no. 2) is held to be the
Secretary of the Society and the list of
office bearers for the year 2000-2001
submitted by respondent no. 2 is held to
be valid. By the aforesaid order the
election held on 7.10.2000 alleged to have
been conducted by petitioner no. 3 has
been held to be illegal and has been
cancelled.