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PETITIONER: JUGAL KISHORE PATNAIK

       Vs.

RESPONDENT: RATNAKAR MOHANTY

DATE OF JUDGMENT26/07/1976

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ KRISHNAIYER, V.R. UNTWALIA, N.L.

CITATION:  1976 AIR 2130            1977 SCR  (1)  49  1977 SCC  (1) 567

ACT:             Representation  of the People Act, 1951--S.  9  A.--Con-         tract  signed  as President,  Gram  panchayat--Rejection  of         nomination  paper--if valid--Improper  rejection--If  Courts         could give relief under s. 100(1)(c).

HEADNOTE:              On  the  ground  that there  were  subsisting  contracts         between  him and the State Government for execution of  cer-         tain works, the nomination papers of the respondent for  the         general election to the State Assembly were rejected by  the         Returning  Officer under s. 9A of the Representation of  the         People  Act, 1951 at the instance of one of  the  contesting         candidates.   In the election that ensued the appellant  was         declared  elected.  The respondent in his election  petition         contended  that  the works on account of which he  had  been         disqualified had been undertaken by him, not in his personal         capacity,  but as the Sarpanch of the Gram  Panchayat.   The         High  Court  held that the respondent was  not  disqualified         under s. 9A of the Act and declared the election void.             On appeal, it was contended that the objections  regard-         ing the validity of the nomination papers of the  respondent         were  raised  in collusion with the respondent  and  a  duly         elected candidate should not be made to suffer because of an         order made on such collusive objections.         Dismissing the appeal,             HELD: (1 )(a) The appellant has clearly admitted in  his         written statement that objections which were filed about the         validity  of  the respondent’s nomination  papers  were  not         collusive but genuine. [53 G]             (b) According to Sec. 100(1)(c) of the Act, if the  High         Court is of the opinion that any nomination had been improp-         erly rejected, it shall declare the election of the returned         candidate  to be void.  In view of the imperative nature  of         the  provision, it is open to question as to whether  courts         can,  in the event of an improper rejection  of  nomination,         afford relief to the successful candidate on the score  that         the objections resulting in the improper rejection of  nomi-         nation,  were collusive.  Whether the legislature  would  do         something  in the matter is essentially for the  legislature         to decide, [53 G-H]

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        (2)  A perusal of one of the disputed items shows that  the         tender  in respect of the work was accepted on behalf  of  a         Cooperative  Society of which the respondent was the  Presi-         dent.   It  was  not the respondent but  the  Society  which         entered  into contract for the execution of the work and  he         signed  the documents in his capacity as President  of  the.         Society.   The  contract was not subsisting on the  date  of         filing of the nomination paper.  In respect of another  item         the  contract was not entered into with the.  respondent  in         his personal capacity but the work had to be executed by the         Gram Panchayat. [54F-G]         Krishna Iyer J. (concurring)                   (1) In the instant case the Returning Officer  was         taken  in  by  the specious plea that  the  respondent  had‘         subsisting contracts with the State Government an&  rejected         his nomination papers.  Its aftermath was that the. people’s         verdict  had been stultified.  Had there been any  procedure         for  quick determination of objections to  nominations  with         early appellate finality attached to it, the lurking  danger         of the whole process being ultimately baulked on account  of         antecedent official error would not have arisen. [56 C]             (2)  The ambiguity in s. 9A, especially as to  how  long         and  in what sense can a contract be said to  be  subsisting         envelopes  the disbarment provision with subtle legal  ques-         tions such as: how long does a contract subsist ? Is every         50          liability arising on a breach of contract a claim under the         contract  the Provisions of s . A9 ? If Government  money is         involved  in  the execution  of the work does  the  contract         necessarily   become one with Government ? It  is  very  de-         sirable  that  the disqualificatory net should not  be  cast         too wide to  disfranchise  innumerable persons  and must  be         easy  of  ascertainment if must  be  uncertainty is  not  to         overhang elections  [56 EH]

JUDGMENT:         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 910 of 1970.              (From  the Judgment and order dated  16-6-1975  of  the         Orissa High Court in Election Petition No. 1/74).              D.P.  Singh, R.P. Singh, Rajiv Dutta, Mrs. Nilma,  L.R.         Singh and R.K. Jain, for the Appellant.               Santosh Chatterjee, G.S. Chaterjee and D.P. Mukherjee,         for the Respondent.              The Judgment of H.R. Khanna and N.L.  Untwalia, JJ. was         delivered by Khanna, J. V. R. Krishna Iyer,  J gave a  sepa-         rate concur ring opinion.             KHANNA, J.  On an  election  petition filed by  Ratnakar         Mohanty  respondent, the election of Jugal  Kishore  Patnaik         appellant  to the Orissa Legislative Assembly  from  Bhadrak         constituency   was  declared to be void by the  Orissa  High         Court  and  as such set aside. The appellant has  filed  the         present appeal against the judgment of the High Court.             Bhadrak assembly constituency is a single-member general         constituency.  During  the general elections to  the  Orissa         Legislative  Assembly held in February 1974, the  respondent         filed  four  nomination papers for being elected  from  this         constituency.  At the time of scrutiny on January 36,  1974,         objection was raised at the  instance of  Balaram Sahu,  one         of  the contesting candidates, before the Returning  Officer         that  the respondent was disqualified for being chosen as  a         member of the Assembly as there subsisted contracts  between         him  and the Government of Orissa for execution  of  certain         works.   The  respondent, it was accordingly  asserted,  was

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       disqualified  under section 9A of the Representation of  the         People  Act, 1951 (hereinafter referred to as the Act)  from         seeking election.  Some documents were also produced  before         the  Returning  Officer to show that  proceedings  had  been         initiated by the Block Development Officer for   realisation         of  certain  amounts alleged to be due under those contracts         from  the  respondent.   The Returning  Officer  upheld  the         objection  and  rejected the  nomination papers of  the  re-         spondent.             Four  candidates  contested the election, but  the  main         contest was between the appellant, a Congress  nominee,  who         secured  25,522 votes, and Balaram Sahu, art Utkal  Congress         nominee,  who   secured  18,723 votes.  The  result  of  the         election  was declared on February 28, 1974.   Petition  to.         challenge  the  election of the appellant was filed  by  the         respondent on April 12, 1974.           The  case  of  the respondent as set up  in  the  election         petition was that his nomination papers had been  improperly         rejected  by  the Returning Officer.  According to  the  re-         spondent, the works on account         51         of which he had been held to be disqualified by the  Return-         ing  Officer had been undertaken by him not in his  personal         capacity but as  the Sarpanch of Rahanj Gram Panchayat under         the  Bhadrak Panchayat Samiti.  The  respondent,  therefore,         prayed  that the election  of  the appellant be declared  to         be void.             The  petition was resisted by the appellant.  Objections         were raised on his behalf that the petition was liable to be         dismissed for non-compliance with sections 81, 82 and 83  of         the  Act.  It was also averred that  the  nomination  papers         filed by the respondent were not in conformity with sections         33  and 34 of the Act. On merits, the appellant stated  that         the respondent was disqualified under section 9A of the  Act         from seeking election to the Legislative Assembly of  Orissa         because  he  had  on the date of filing  of  the  nomination         papers subsisting contracts with the Government of Orissa in         course  of  his  trade and business for  execution  of  work         undertaken by the Government.  Following issues were  framed         by the High Court:                  ISSUES                         1.  Is  the election petition liable  to  be                  dismissed for noncompliance of sections 81, 82  and                  83 of the Representation of the People Act, 1951 ?                         2. Whether the nomination paper filed by the                  petitioner  was in substantial compliance  of  sec-                  tions 33 and 34 of the Representation of the People                  Act, 1951 ?                         3.  Was  the petitioner  disqualified  under                  section 9A of the Representation of the People Act,                  1951  having  subsisting contract with the  Govern-                  ment of  Orissa in  course  of his trade and  busi-                  ness  for execution of work undertaken by the  Gov-                  ernment on the date of the filing of the nomination                  ?                           4. To what relief, if any, the  petitioner                  is  entitled to in the facts and  circumstances  of                  the case ?"         Issues  (1) to (3) were decided by the High Court in  favour         of the respondent and against the appellant.  In the result,         the election of the appellant was declared to be void.              In  appeal before us Mr. D.P. Singh has at  the  outset         assailed on behalf of the appellant the finding of the  High         Court  on  issue No. (1 ). The challenge to the  finding  on         issue  No.  (1  ) is,  however,  confined  only  to  alleged

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       infraction  of  sub-section (3) of section 81  of  the  Act.         According to that sub-section, every election petition shall         be  accompanied by as many copies thereof as there  are  re-         spondents  mentioned  in the petition, and every  such  copy         shall be attested by the petitioner under his own  signature         to be a true copy of the petition.  Mr. Singh contends  that         no  attested  copy of the election petition  signed  by  the         petitioner was filed along with the petition.  This  conten-         tion  has been: controverted by Mr. Chatterjee on behalf  of         the  respondent,  who submits that a copy  of  the  petition         attested by the respondent under his own signature was filed         along with the petition.  It is further pointed out that the         said attested copy of the petition was sent along with the         52         summons to the appellant, but as., he declined to accept the         summons,  the attested copy along with the summons  was  af-         fixed at his residence. The above stand of the respondent is         borne out by the report of  the process server.             Mr.  Singh  has assailed the correctness  of  the  above         report of the process server, and has contended that in  the         index  attached to  the petition there was no  reference  to         the  copy.  As against that, it  is submitted on  behalf  of         the respondent that it is not the usual practice in the High         Court to refer to the copy of the petition in the index.             There are, in our opinion, some broad facts of the  case         which  lend  support  to the finding of the  High  Court  on         issue  No.  (1 ) that the election petition was  accompanied         by an attested copy signed by  the respondent.   Endorsement         dated  April 15, 1974 made by an officer of the  High  Court         shows  that a copy of the election petition had been  flied.         We  find no cogent reason as to why an officer of  the  High         Court  should make a false endorsement on the petition  if,,         in fact, no such copy had been filed.  As regards the factum         o.f the, attestation of the copy by the respondent under his         own signature we find that the appellant cannot in the  very         nature  of  things assert positively that the copy  had  not         been  attested by the respondent as, according to.  him,  he         did  not see that copy.  The copy was also not available  on         the record as the same had been affixed at the residence  of         the appellant when he, according to the report of the  proc-         ess server, declined to accept  the summons.  Before summons         were issued to the appellant, the following endorsement  was         made  by  an  officer of the High Court in  respect  of  the         election petition flied by the respondent:         "Defect Nil."         We see no cogent ground to question the correctness of  this         endorsement  which  clearly lends support to  the  inference         that  the copy filed with the petition had been attested  by         the  respondent  and that the petition did not  suffer  from         lack of compliance with the: procedural requirement.             Mr.  Singh  has next assailed the  correctness  of  the,         finding of the High Court on issue No. (2). It is urged that         the respondent obtained signatures of his proposers on blank         nomination  papers, subsequently filled in the  columns  and         then filed the nomination papers.  It is, in our opinion not         necessary  to express opinion about three of the  nomination         papers  as  we find that one of the, nomination  papers  in.         any  case  did not suffer from any such  alleged  infirmity.         This nomination paper of the respondent was signed by Laksh-         mikant  Mahapotra  (PW 3 ) as proposer.   Evidence  of  this         witness dearly shows that he signed, the nomination paper as         proposer  of the  respondent after  the  various columns  in         that paper had been filled in.  Nothing has been brought  to         our  notice as to why the statement of the witness  in  this         respect be not accepted.  As at least one of the  nomination

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       papers  filed by the respondent was in compliance with  the.         legal requirement,. the High Court, in our opinion, correct-         ly decided issue No. (2).  In view of the above finding,  it         is  not necessary to express  opinion on  the  point  as  to         whether  a nomination paper should be hold to be invalid  in         case the         53         signature of the proposer is obtained before filling in  the         columns of the nomination paper.             It has been faintly argued that Balaram Sahu, who raised         objection  to the validity of the nomination papers  of  the         respondent,  was  not impleaded as a party in  the  election         petition  and  as such the: petition was liable to  be  dis-         missed  for non-joinder of parties.  This submission too  is         bereft  of  force.  According to section 82 of  the  Act,  a         petitioner  shall join as respondents to his petition  where         the  petitioner, in addition to claiming a declaration  that         the  election of all or  any  of the returned candidates  is         void,  claims a further declaration that he himself  or  any         other candidates has, been duly elected, all the  contesting         candidates  other  than the petitioner, and  where  no  such         further declaration is claimed, all the returned candidates.         It  is further provided that if allegations of  any  corrupt         practice  are made in the petition against any other  candi-         date, he too shall be joined as a respondent. In the present         case,  there  was no prayer made by the  respondent  in  the         election  petition  that he or any other  person  should  be         declared  to  have  been duly elected.  There  was  also  no         allegation  of corrupt practice against any  candidate.   In         the circumstances, the requirements of law should be held to         be  fully satisfied when the respondent impleaded  the  suc-         cessful candidate, namely, the appellant, as a respondent in         the petition.             Contention  has  also  been advanced on  behalf  of  the         appellant  that  the objections of Balaram Sahu  before  the         Returning  Officer  about  the validity  of  the  nomination         papers  of the respondent were raised in collusion with  the         respondent.   The  appellant, who has  been  duly  elected,,         should  not, according to the contention, suffer because  of         any   order  made  on such collusive  objections.   In  this         respect  we  find that .there is no factual  basis  for  the         assertion that the  objections which  were raised by Balaram         Sahu  about  the validity of the nomination  papers  of  the         respondent were of collusive character. On the contrary, the         appellant  in the course of his written statement stated  in         respect of the objections as under:               "At the time of the scrutiny valid and genuine  objec-         tions  were filed against the petitioner on the ground  that         there was subsisting contract between the petitioner and the         Government of Orissa and as such he was disqualified to be a         candidate."         In  view of the unequivocal assertion of the   appellant  in         the   written statement that the objections were  valid  and         genuine,  it would not be permissible for the  appellant  to         take  an  inconsistent stand in appeal and urge  that  those         objections had been filed in collusion with the. respondent.         Apart  from that, we find that according to section 100  (1)         (e) of the Act, if the High Court is of the opinion that any         nomination  has been improperly rejected, it  shall  declare         the election of the returned candidate to be void.  In  view         of  the  imperative nature of the provision, it is  open  to         question  as  to whether the courts cam in the event  of  an         improper  rejection  of  nomination, afford  relief  to  the         successful  candidate on the score that the  objections  re-         sulting in  the  improper rejection of the nomination,  were

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       collusive.   Whether the legislature would do  something  in         the matter is essentially for the legislature to         54         decide.   We need not, however, dilate upon this  aspect  of         this case in the face of our finding that the appellant  has         clearly  admitted in  the written statement that the  objec-         tions which were filed about the validity of the  nomination         papers  of the respondent were not collusive but were  genu-         ine.             Lastly, Mr. Singh has assailed the finding of the   High         Court  on issue No. (3).  Although during the course of  the         trial of the election petition the appellant relied upon  15         items  to  show that the respondent had entered  into  works         contracts with the State Government, in this Court Mr. Singh         has  ,confined his argument to only two items, namely,  item         No.  (1) and item No. (8).  Item No. (1) relates to  an  ad-         vance  of Rs. 100 for repair of Erein School.  The  case  of         the respondent is that the above amount was received by  him         as Sarpanch of Gram Panchayat Rahanj and that the said  work         had  to  be executed by that Gram Panchayat and not  by  the         respondent personally.  The High Court accepted the stand of         the  respondent,  and  we find no cogent ground  to  take  a         different view.  Ex. 43 is letter  dated  December 3,   1968         signed by the Sub-Divisional Officer Bhadrak to the Certifi-         cate Officer for recovery of Rs. 7,017/-.  This letter shows         that the aggregate sum of Rs. 7,017, of which Rs. 100 was  a         part,  constituted the fund of the Gram  Panchayat..   Order         dated  May  25, 1965 of the Block Development  Officer  also         shows  that the work on account of which Rs. 100  were  paid         had  to be executed through the agency of Rahani  Gram  Pan-         chayat.  To similar effect is the statement of PW 9  Khages-         war  Roy. Block Development Officer.  The evidence  of  this         witness  shows that the amount in question was given to  the         Gram Panchayat for repair work.  The above material, in  our         opinion,, clearly shows that the contract for the  execution         of the repair work, which is the subject matter of item  No.         (1  ), was not entered into with the respondent in his  per-         sonal capacity and that the said work had to be. executed by         the Gram Panchayat.             So far as item No. (8) is concerned, the same relates to         work  of wooden  culvert No. 9 on Jamujhari  Khirkona  road.         Ex.  55 is the written agreement relating to this  contract.         Perusal  of the agreement makes it clear that the tender  in         respect  of this work was accepted on behalf of  the  Modern         Labour Co-operative Contract Society, of which the  respond-         ent was the PreSident.  The document thus shows that  it was         not  the respondent but the society which entered into  con-         trac to the execution of the above work, and the  respondent         signed the document in his capacity as the President of that         Society.             Apart from the above, we agree with the High Court  that         the  above  contract was not subsisting on the date  of  the         filing  of  the  nomination paper.  The  agreement  for  the         execution  of  the  above work was dated May  8,  1964.   On         November 24., 1966 an order was made by  the Block  Develop-         ment Officer that the construction work of the culvert   had         been  completed  since long and final measurements  too  had         already been made. The total work was found to be worth  Rs.         4,253.70. It was further observed in the order that Rs.  722         should be  paid on  account of the above work after  deduct-         ing  the  previous advances and cost of the  material.   The         contractor  was directed to return the material used in  the         tubewell. The above order of the Block Development         55         Officer shows that the cost of the material and the  amounts

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       advanced  to tile respondent were deducted before  direction         was  given  for payment of Rs. 722 to  the  contractor.  Mr.         Singh  has laid particular stress upon the direction in  the         order  of the Block Development Officer that the  contractor         should return the material used in the tubewell.  In respect         of the material used in the tubewell, it appears to us  that         the  said material was also returned by the  contractor  the         same  day the order was made. According to the testimony  of         RW 11 J.K. Satpathy Block Development Officer, if the  mate-         rial required to be returned as per that last order was  not         returned,  the  final bill amount in respect  of  that  work         could not have been paid.  Rs. 722 were, however, admittedly         paid  on  November 24, 1966.  The factum  of  that   payment         clearly  points  to the conclusion that the  contractor  re-         turned the material used in the tubewell before the  payment         of  Rs. 722 was made to him. There is also nothing  to  show         that  any demand was made’ to the contractor  subsequent  to         1966  for return of the material used in the  tubewell.  The         absence  of any such demand, even though a long  period  has         elapsed  since 1966, clearly goes to show that no,  material         used  in  the,  tubewell remained with  the  contractor.  It         cannot,  therefore be said that the said contract  was  sub-         sisting  on  the date the respondent  filed  his  nomination         paper.   We  consequently uphold the finding  of  the   High         Court on items (1) and (8) under issue No. (3).             As a result of the above, we dismiss the appeal, but  in         the circumstances without costs.         KRISHNA  IYER,  J., Whole-hearted is my agreement  with  the         judgment  of my learned brother Khanna J., both in the  con-         clusions  and in the reasonings.  This does not  obviate  an         extra   opinion on  certain deeper, though  peripheral,  as-         pects  of  the law thrown up. by the  facts,  disturbing  in         their  implications and laying bare certain gaping  gaps  in         the  election law.  In a democracy,, the  electoral  process         has  a  strategic role and in India  it  has  constitutional         status  although  canalysed  by the  Representation  of  the         People  Act,  1951 (hereinafter called the Act).  Lord  Holt         long ago observed:(1)                        "A  right that a man has to give his vote  at                  an election of a person to represent him in Parlia-                  ment, there to concur to. the making of laws, which                  are  to  bind his liberty and property, is  a  most                  transcendent thing, and of an high nature, and  the                  law   takes  notice  of  it  as  such   in   divers                  statutes  ......  The right of voting at the  elec-                  tion  of  burgesses is a thing of   highest  impor-                  tance, and so great a privilege, that it is a great                  injury to deprive the plaintiff of it  ......  "         And, if I may add,, this widespread right  belongs to  every         common citizen.             In  such circumstances, nO one can gainsay the need  for         the  provisions regulating disqualifications  affecting  the         adult franchise to run for -elective office to be fool-proof         to that degree that the little man of India may  confidently         participate  in the political process without being  exposed         to booby traps of the law.         Quoted  in University of Pensylvania Law Review 1968  p.  24         (Vol. 117).         56             In this case an election was honestly fought and won  by         the appellant but the verdict has been reduced to a Dead Sea         fruit by a surprise blow of the law because the respondent’s         nomination, on the captious objection of the defeated candi-         date (the appellant being innocent, at that stage, of  rais-         ing  any  obstructive tactic),  was illegally  rejected  The

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       facts,  already  set out by my  learned  brother,   disclose         that   the wrong rejection by the Returning Officer  was  on         the  score that he had subsisting contracts with the   State         Government.   This ground  was plausibly urge.d  before  the         Returning  Officer  by a candidate who polled  poorly.   The         Officer  was taken in by the specious plea and rejected  the         respondent’s  nomination..  Its aftermath,  long  after  the         election  was fought and won, is that people’s  verdict  has         been  stultified and its victim is the then innocent  appel-         lant.  Had there been any procedure for double-quick  deter-         mination of objections to nominations  with  early appellate         finality  attached  to it, the lurking danger of  the  whole         process  being ultimately baulked on account  of  antecedent         official error would not have arisen--a consummation devout-         ly  to be wished. Nor does it require great  imagination  to         make  provision in this behalf, but its omission has led  to         the  martyrdom  of the appellant and the  orphanage  of  the         electorate.             Yet another legislative insufficiency surrounding s.  9A         of the Act needs to be highlighted.  This provision, as  has         been explained earlier by my learned brother, disqualifies a         person  from being a candidate if there subsists a  contract         entered  into by him in the course of his trade or  business         with the appropriate government for the supply of goods  to,         or  for the execution of any works undertaken by, that  gov-         ernment.  It is followed by an Explanation which is more  or         less a legal fiction. The rugged edges of ambiguity of s. 9A         especially  as to how long and in what sense can a  contract         be  said to be subsisting envelop the  disbarment  provision         with  subtle  legal questions.  The common man of  India  is         the  .potential candidate and is he to risk his  candidature         en the niceties of the law of contracts ? In this context we         must remember that the vast and various developmental  works         undertaken  by  the State and its subsidiaries and  executed         by a large number of little construction contractors made it         very  desirable that the disqualificatory net should not  be         cast  too wide to disfranchise innumerable persons and  must         be  easy of ascertainment if uncertainty is not to  overhang         elections in our political system.  In this very case sever-         al problems were mooted, somewhat difficult to answer.   How         long does a contract subsist ? Is every liability arising on         a breach of contract, a claim under  the contract attracting         the lethal coils of s. 9A ? If government money is  involved         in the execution of the work.  does the contract necessarily         become one with government ?  A host of other questions  may         mystify  the legal imports of the taboo s. 9A sets  out  and         yet  every lay man is imperilled by this vague provision  in         the  exercise of his electoral right.  Such a brooding  fear         and  haunting provisions is counter productive and may  per-         haps  have  to be redrafted in the light  of  experience  in         court.  These  are  problems not of  high-sounding  law  but         affecting  the common man in the exercise of his most  demo-         cratic right. Nietzche once said: ,The great problems are in         the  streets.  The inaugural error in the drawing up of  our         election law, as is illustrated by this         57         case,  is that sophisticated provisions amenable to  logico-         linguistic  feats or subtle interpretation of civil law  ill         suit  a regulatory area of the political process  where  the         small  individual offers himself for electoral  contest.   I         choose to make these observations and draw the attention  of         the  concerned instrumentalities only because in  my  humble         view  the  court has an activist role to  tell  the  nation,         through its judgment or other designated channels where  the         law misfires, or how the law stands in need of reform.  This

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       case  therefore induces me to make what may be  regarded  as         obiter:                        "The  little  case, the ordinary case,  is  a                  constant  occasion and vehicle for creative  choice                  and creative activity, for the shaping and on-going                  reshaping of our law."(1)                  More  than  a  hundred years ago Lord Chancellor                  Westbury made certain seminal observations(2):                        "The  first thing, then, that  strikes  every                  member  of  our  profession who  directs  his  mind                  beyond  the daily practical necessity of the  cases                  which come before him is, that We have no machinery                  for  noting, arranging, generalising  and  deducing                  conclusions  from  the  observations  which   every                  scientific mind could naturally make on the way  in                  which  the  law is worked in  the  country   ......                  Take  any  particular  department  of  the   common                  law--take,  if you  please,  any  particular  stat-                  ute. Why is there not a body of men in this country                  whose  duty  it is to collect a  body  of  judicial                  statistics, or, in the more common phrase, make the                  necessary  experiments  to see how far the  law  is                  fitted  to the exigencies of society, the  necessi-                  ties  of the times, the growth of wealth,  and  the                  progress of mankind ?  ....  "                  Way  back  in 1921,, Benjamin N.  Cardozo,  then  a                  Judge of New York’s highest court, said :(3)                       "The  Courts are not helped as they could  and                  ought  to be in the adaptation of law  to  justice.                  The reason they are not helped is because there  is                  no  one whose business it is to give  warning  that                  help is needed  .......  We must have a courier who                  will carry the tidings of distress  ......       To                  day  courts and legislature work in separation  and                  aloofness. The  penalty is paid both in the  wasted                  effort of production and in  the lowered quality of                  the product.  On the one side, the  judges, left to                  fight  against  anachronism and  injustice  by  the                  methods  of judge-made law, are distracted  by  the                  conflicting   promptings of justice and  logic,  of                  consistency  and  mercy, and the  output  of  their                  labors bears the token of the strain. On the  other                  side,  the legislature, informed only casually  and                  intermittently  of  the needs and problems  of  the                  courts, without expert or responsible or  disinter-                  ested or systematic advice                   (1) Quoted in (1961-62) Vol. 71 Yale Law Jownal p.                  259.                   (2) Quoted in Vol. 128, Mod. L.R.p. 1.                   (3)  Address to the Association of the Bar of  the                  City of                  New York  quoted in  (3) supra.                  6--1003 SCI/76                  58                  as to the workings of one rule or another,  patches                  the  fabric here and there, and mars often when  it                  would mend. Legislature and courts move on in proud                  and silent isolation. Some agency must be found to.                  mediate between them."         May  be,  as  has been done in the State of  New  York,  the         establishment  of  a Law Revision  Commission  charged  with         comprehensive  law reform duties with direct link  with  the         law court may go a long way to meet the felt need.         P.B.R.         59

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