judgement
stringlengths 593
808k
| summary
stringlengths 0
158k
|
|---|---|
Appeal No. LXVI of 1949.
Appeal from the High Court of judicature, Bombay, in a reference under section 66 of the Indian Income tax Act, 1022.
K.M. Munshi (N. P. Nathvani, with him), for the appel lant. ' M.C. Setalvad, Attorney General for India (H. J. Umrigar, with him), for the respondent. 1950.
May 26.
The judgment of the Court was delivered by MEHR CHAND MAHAJAN J.
This is an appeal against a judgment of the High Court of Judicature at Bombay in an income tax matter and it raises the question whether munici pal property tax and urban immoveable property tax payable under the relevant Bombay Acts are allowable deductions under section 9 (1) (iv) of the Indian Income tax Act.
The assessee company is an investment company deriving its income from properties in the city of Bombay.
For the assessment year 1940 41 the net income of the assessee under the head "property" was computed by the Income tax Officer in the sum of Rs. 6,21,764 after deducting from gross rents certain payments.
The company had paid during the relevant year Rs. 1,22,675 as municipal property tax and Rs. 32,760 as urban property tax.
Deduction of these two sums was claimed under the provisions of section 9 the Act.
Out of the first item a deduction in the sum of Rs. 48,572 was allowed on the ground that this item represented tenants ' burdens paid by the assessee, otherwise the claim was disal lowed.
The, appeals of the assessee to the Appellate As sistant Commissioner and to the Income tax Appellate Tribu nal were unsuccessful.
The Tribunal, however, agreed to refer two questions of law to the High Court of Judicature at Bombay, namely, (1) Whether the municipal taxes paid by the applicant company are an allowable deduction under 555 the provisions of section 9 (1) (iv) of the Indian Income tax Act; (2) Whether the urban immoveable property taxes paid by the applicant company are an allowable deduction under section 9 (1) (iv) or under section 9 (1) (v) of the Indian Income tax Act.
A supplementary reference was made covering a third question which was not raised before us and it is not there fore necessary to refer to it.
The High Court answered all the three questions in the negative and hence this appeal.
The question for our determination is whether the munic ipal property tax and urban immoveable property tax can be deducted as an allowance under clause (iv) of sub section (1) of section 9 of the Act.
The decision of the point depends firstly on the construction of the language employed in sub clause (iv) of sub section (1) of section 9 of the Act, and secondly, on a finding as to the true nature and character of the liability of the owner under the relevant Bombay Acts for the payment of these taxes.
Section 9 along with the relevant clause runs thus: (1) The tax shall be payable by an assessee under the head ' income from property ' in respect of the bona fide annual value of property consisting of any buildings or lands appurtenant thereto of Which he is the owner, . . subject to the following allowances, namely : (iv) where the property is subject to a mortgage or other capital charge, the amount of any interest on such mortgage or charge; where the property is subject to an annual charge not being a capital charge, the. amount of such charge; where the property is subject to a ground rent, the amount of such ground rent; and, where the property has been acquired, constructed, repaired, renewed or recon structed with borrowed capital, the amount of any interest payable on such capital; . . . " It will be seen that clause (iv) consists of four sub clauses corresponding to the four deductions allowed 556 under the clause.
Before the amending Act of 1939, clause (iv) contained only the first, third and fourth sub clauses.
Under the first sub clause interest is deductible whether the amount borrowed on the security of the property was spent on the property or not.
There is no question of any capital or other expenditure on the property.
The expression "capital charge" in the sub clause cannot connote a charge on the capital, that is, the property assessed.
That would be a redundancy as the opening words themselves clearly indicate that the charge is on the property.
We are therefore of opinion that capital charge here could only mean a charge created for a capital sum, i.e., a charge to secure the discharge of a liability of a capital nature.
In 1933 the Privy Council decided the case of Bijoy Singh.
Dudhuria vs Commissioner of Income tax, Calcutta (1 ).
It was not an assessment under section 9 but an assess ment on the general income of an assessee who was liable to pay maintenance for his step mother which had been charged on all his assets by a decree of Court.
It was not a li ability voluntarily incurred by him but one cast on him by law.
The Privy Council held that the amount paid by him in discharge of that liability formed no part of his real income and so should not be included in his assessment.
Though the decision proceeded on the principle that the outgoings were not part of the assessee 's income at all, the framers of the amending Act of 1939 wanted, apparently, to extend the principle, so far as the assessment of property was concerned, even to cases where obligatory payments had to be made out of the assessee 's income from the property charged with such payments, and the second sub clause, namely, "where the property is subject to an annual charge not being a capital charge, the amount of such charge" was added.
It is this sub clause which the appellant invokes in support of its claim to deduction of the municipal and urban, property taxes in the present case.
In view of the opening words of the newly added sub clause, the expression "capital charge" also used therein cannot have reference to a charge on the property, and we think it must (1) I.L.R. 60 cal.
557 be understood in the same sense as in sub clause (1); that is to say, the first sub clause having provided for deduc tion of interest where a capital sum is charged on the property, this sub clause provides for a deduction of annual sums so charged, such sums not being capital sums, the limiting words being intended to exclude cases where capital raised on the security of the property is made repayable in instalments.
In Commissioner of Income tax, Bombay vs Mahomedbhoy Rowji (1), a Bench of the Bombay High Court considered the meaning of these words.
As regards "annual charge," Beau mont C.J. observed as follows : "The words, I think, would cover a charge to secure an annual liability." Kania J., as he then was, said as follows : "I do not see how a charge can be annual unless it means a charge in respect of a payment to be made annually." This construction of the words has been followed in the judgment under appeal.
In Gappumal Kanhaiya Lal vs Commissioner of Income tax (2) (the connected appeal before us), the Bench of the Allahabad High Court agreed with the construction placed on these words in the Bombay case, i.e., the words "annual charge" mean a charge to secure an annual liability.
It is therefore clear that there is no conflict of judicial deci sions as to the meaning of the phrase "annual charge" occur ring in section 3 (1) (iv) and the meaning given is the natural meaning of these words.
As to the phrase "capital charge", Beaumont C.J. in the case above referred to took the view that the words mean a charge on capital.
Kania J., however, took a different view and observed that he was not prepared to accept the sugges tion that a document which provides for a certain payment to be made monthly or annually and charged on immoveable property or the estate of an individual becomes a capital charge.
In the Allahabad judgment under appeal these (1) I.L.R. (2) I.L.R. 1944 All.
558 words were considered as not meaning a charge on capital.
It was said that if an annual charge means a charge to secure the discharge of an annual liability, then, capital charge means a charge to secure the discharge of a liability of a capital nature.
We think this construction is a natu ral construction of the section and is right.
The determination of the point whether the taxes in dispute fall within the ambit of the phrase "annual charge not being a capital charge" depends on the provisions of the statutes under which they are levied.
Section 143 of the City of Bombay Municipal Act, 1888, authorises the levy of a general tax on all buildings and lands in the city.
The primary responsibility to pay this property tax is on the lessor (vide section 146 of the Act).
In order to assess the tax provision has been made for the determination of the annual rateable value of the building in section 154.
Section 156 provides for the maintenance of an assessment book in which entries have to be made every official year of all buildings in the city, their rateable value, the names of persons primarily liable for payment of the property tax on such buildings and of the amount for which each building has been assessed.
Section 167 lays down that the assess ment book need not be prepared every official year but public notices shall be given in accordance with sections 160 to 162 every year and the provisions o+ the said sec tions and of sections 163 and 167 shall be applicable each year.
These sections lay down a procedure for hearing objections and complaints against entries in the assessment book.
From these provisions it is clear ' that the liabil ity for the tax is determined at the beginning of each official year and the tax is an annual one.
It recurs from year to year.
Sections 143to 168 concern themselves with the imposition, liability and assessment of the tax for the year.
The amount of the tax for the year and the liability for its payment having been determined, the Act then pre scribes for its collection in the chapter "The collection of taxes.
" Section 197 provides that each of the property taxes shall be payable in 559 advance in half yearly instalments on each first day of April and each first day of October.
The provision as to half yearly instalment necessarily connotes an annual li ability.
In other words, it means that the annual liability can be discharged by half yearly payments.
Procedure has also been prescribed for recovery of the instalments by presentment of a bill, a notice of demand and then distress, and sale.
Finally section 212 provides as follows : "Property taxes due under this Act in respect of any building or land shall, subject to the prior payment of the land revenue, if any, due to the provincial ,Government thereupon, be a first charge . . upon the said build ing or land . " It creates a statutory charge on the building.
Urban immove able property tax is leviable under section 22 of Part VI of the Bombay Finance Act, 1932,on the annual letting value of the property.
The duty to collect the tax is laid on the municipality and it does so in the same manner as in the case of the municipal property tax.
Section 24 (2) (b) is in terms similar to section 212 of the Bombay Municipal Act.
It makes the land or the building security for the payment of this tax also.
For the purposes of section 9 of the Indian Income tax Act both these taxes, namely, the munici pal property tax as well as the urban immoveable property tax are of the same character and stand on the same foot ing.
Mr. Munshi, the learned counsel for the appellant con tended that both the taxes are assessed on the annual value of the land or the building and are annual taxes, although it may be that they are collected at intervals of six months for the sake of convenience, that the income tax itself is assessed on an annual basis, that in allowing deductions all payments made or all liabilities incurred during the previ ous year of assessment should be allowed and that the taxes in question fell clearly within the language of section 9 (1) (iv).
The learned Attorney General, on the other hand, argued that although the taxes are assessed for the year the liability to pay them arises at the beginning 560 of each half year and unless a notice of demand is issued and a bill presented there is no liability to pay them and that till then no charge under section 212 of the Act could possibly arise and that the liability to pay being half yearly in advance, the charge is not an annual charge.
It was also suggested that the taxes were a capital charge in the sense of the property being security for the payment.
We are satisfied that the contentions raised by the learned Attorney General are not sound.
It is apparent from the whole tenor of the two Bombay Acts that the taxes are in the nature of an annual levy on the property ' and are assessed on the annual value of the property each year.
The annual liability can be discharged by half yearly instalments.
The liability being an annual one and the property having been subjected to it, the provisions of clause (iv) of sub sec tion (1) of section 9 are immediately attracted.
Great emphasis was laid on the word"due" used in section 212 of the Municipal Act and it was said that as the taxes do not become due under the Act unless the time for the payment arrives, no charge comes into existence till then and that the charge is not an annual charge.
We do not think that this is a correct construction of section 212.
The words "property taxes due under this Act" mean property taxes for which a person is liable under the Act.
Taxes payable during the year have been made a charge on the property.
The liability and the charge both co exist and are co exten sive.
The provisions of the Act affording facilities for the discharge of the liability do not in any way affect their true nature and character.
If the annual liability is not discharged in the manner laid down by section 197, can it be said that the property cannot be sold for recovery of the whole amount due for the year ? The answer to this query can only be in the affirmative, i.e., that the proper ty is liable to sale.
In Commissioner of Income tax, Bombay vs Mahomedbhoy Rowji(1) Beaumont C.J., while rejecting the claim for the deduction of the taxes, placed reliance on (1) I.L.R. 561 section 9 (1) (v) which allows a deduction in respect of any sums paid on account of land revenue.
It was observed that land revenue stands on the same footing as municipal taxes and that as the legislature made a special provision for deduction of sums payable in regard to land revenue but not in respect of sums paid on account of municipal taxes that circumstance indicated that the deduction was not allowable.
For the same purpose reference was also made to the provi sions of section 10 which deal with business allowances and wherein deduction of any sum paid on account of land reve nue, local rates or municipal taxes has been allowed.
In the concluding part of his judgment the learned Chief Jus tice said that it was not necessary for him to consider what the exact meaning of the words was and that it was suffi cient for him to say that it did not cover municipal taxes which are made a charge on the property under section 212 of the Bombay Municipal Act.
Without determining the exact meaning of the words used by the statute it seems to us it was not possible to arrive at the conclusion that the taxes were not within the ambit of the clause.
It is elementary that the primary duty of a Court is to give effect to the intention of the legislature as expressed in the words used by it and no outside consideration can be called in aid tO find that intention.
Again reference to clause (v) of the section is not very helpful because land revenue is a charge of a paramount nature on all buildings and lands and that being so, a deduction in respect of the amount was mentioned in express terms.
Municipal taxes, on the other hand, do not stand on the same footing as land revenue.
The law as to them varies from province to province and they may not be necessarily a charge on property in all cases.
The legis lature seems to have thought that so far as municipal taxes on property are concerned, if they fall within the ambit of clause (iv), deduction will be claimable in respect of them but not otherwise.
The deductions allowed in section 10 under the head "Income from business" proceed on a different footing and a construction of section 9 with the aid of section 10 is apt to mislead.
562 Kania J. in the above case in arriving at his conclusion was influenced by the consideration that these taxes were of a variable character, i.e., liable to be increased or re duced under the various provisions of the Municipal Act and that the charge was in the nature of a contingent charge.
With great respect, it may be pointed out that all charges in a way may be or are of a variable and contingent na ture.
If no default is made, no charge is ever enforceable and whenever there is a charge, it can be increased or reduced during the year either by payment or by additional borrowing.
In Moss Empires Ltd. vs Inland Revenue Commissioners (1) it was held by the House of Lords that the fact that certain payments were contingent and variable in amount did not affect their character of being annual payments and that the word, "annual" must be taken to have the quality of being recurrent or being capable of recurrence.
In Cunard 's Trustees vs Inland Revenue Commissioners (2) it was held that the payments were capable of being recur rent and were therefore annual payments within the meaning of schedule D, case III, rule 1 (1), even though they were not necessarily recurrent year by year and the fact that they varied in amount was immaterial.
The learned Attorney General in view of these decisions did not support the view expressed by Kania J. Reliance was placed on a decision of the High Court of Madras in Mamad Keyi vs Commissioner of Income tax, Madras(3), in which moneys paid as urban immoveable property tax under the Bombay Finance Act were disallowed as inadmis sible under section 9 (1) (iv) or 9 (1) (v) of the Indian Income tax Act. 'This decision merely followed the view expressed in Commissioner of income tax, Bombay vs Mahomedb hoy Rowji (4)and was not arrived at on any independent or fresh reasoning and is not of much assistance in the deci sion of the case.
The Allahabad High Court (1) (2) [1948] 1 A.E.R. 150. (3) I.L.R. (4) I.L.R. 563 in Gappumal Kanhaiya Lal vs Commissioner of Incometax (1) (the connected appeal) took a correct view of this matter and the reasoning given therein has our approval.
The result is that this appeal is allowed and the two questions which were referred to the High Court by the Income tax Tribunal and cited above are answered in the affirmative.
The appellants will have their costs in the appeal.
Appeal allowed.
| The charge created in respect of municipal property tax by section 212 of the City of Bombay Municipal Act, 1888, is an "annual charge not being a capital charge" within the mean ing of section 9 (1) (iv) of the Indian Income tax Act, 199.2, and the amount of such charge should therefore be deducted in computing the income from such property for the purposes of section 9 of the Indian Income tax Act.
The charge in respect of urban immoveable property tax created by the Bombay Finance Act, 1939 is similar in character and the amount of such charge should also be deducted.
The expression "capital charge" in s.9(1) (iv) means a charge created for a capital sum,that is to say, a charge created to. ' secure the discharge of a liability of a capi tal nature; and an "annual charge" means a charge to secure an annual liabili ty. 554
|
XXIX of 1950.
Application under article 32 of the Constitution of India for a writ of certiorari and prohibition.
The facts are stated in the judgment.
N.C. Chatterjee (B. Banerji, with him) for the petition er.
M.C. Setalvad, Attorney General for India, (section M. Sikri, with him) for the respondent.
May 26.
The judgment of Kania C.J., Patanjali Sastri, Mehr Chand Mahajan, Mukherjea and Das JJ.
was deliv ered by Patanjali Sastri J. Fazl Ali J. delivered a separate dissenting judgment, 607 PATANJALI SASTRI J. This is an application under arti cle 32 of the Constitution praying for the issue of writs of certiorari and prohibition to the respondent, the Chief Commissioner of Delhi, with a view to examine the legality of and quash the order made by him in regard to an English weekly of Delhi called the Organizer of which the first applicant is the printer and publisher, and the second is the editor.
On 2nd March, 1950, the respondent, in exercise of powers conferred on him by section 7 (1) (c) of the East Punjab Public Safety Act, 1949, which has been extended to the Delhi Province and is hereinafter referred to as the impugned Act, issued the following order: "Whereas the Chief Commissioner, Delhi, is satisfied that Organizer, an English weekly of Delhi, has been pub lishing highly objectionable matter constituting a threat to public law and order and that action as is hereinafter mentioned is necessary for the purpose of preventing or combating activities prejudicial to the public safety or the maintenance of public order.
Now there more in exercise of the powers conferred by section 7 (1)(c) of the East Punjab Public Safety Act, 1949, as extended to the Delhi Province, I, Shankar Prasad, Chief Commissioner, Delhi, do by this order require you Shri Brij Bhushan, Printer and Publisher and Shri K.R. Halkani, Editor of the aforesaid paper to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies, viz., Press Trust of India, United Press of India and United Press of America to the Provincial Press Officer, or in his absence, to Superintend ent of Press Branch at his office at 5, Alipur Road, Civil Lines, Delhi, between the hours 10 a.m. and 5 p.m. on work ing days.
" The only point argued before us relates to the consti tutional validity of section 7 (1) (c) of the impugned Act which, as appears from its preamble, was passed "to provide special measures to ensure public safety 608 and maintenance of public order.
" Section 7 (1) (c) under which the aforesaid order purports to have been made reads (so far as material here) as follows : "The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is neces sary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a print er, publisher or editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny." The petitioners claim that this provision infringes the fundamental right to the freedom of speech and expression conferred upon them by article 19 (1) (a) of the Constitu tion inasmuch as it authorises the imposition of a restric tion on the publication of the journal which is not justi fied under clause (2) of that article.
There can be little doubt that the imposition of precen sorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a).
As pointed out by Blackstone in his Commentaries "the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published.
Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press(1).
The only question therefore is whether section 7 (1)(c) which authorises the imposition of such a restriction falls within the reservation of clause (2) of article 19.
As this question turns on considerations which are essentially the same as those on which our decision in Petition No. XVI of 1950(2) was based, our judgment in that case concludes the present case also.
Accordingly, for the reasons indicated in that judgment, we allow this petition and hereby quash the impugned order of the Chief Commission er, Delhi, dated the 2nd March, 1950.
(1) Blackstone 's Commentaries, Vol.
IV, pp. 151, 152.
(2) Romesh Thappar vs The State of Madras, supra p. 594.
609 FAZL ALI J.
The question raised in this case relates to the validity of 'section 7 (1) (c) of the East Punjab Public Safety Act, 1949 (as extended to the Province of Delhi), which runs as follows : "The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is neces sary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order, may, by order in writing addressed to a print er, publisher or editor * * * * (c) require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny;" It should be noted that the provisions of sub clause (c) arc not in general terms but are confined to a "particular subject or class of subjects," and that having regard to the context in which these words are used, they must be connect ed with "public safety or the maintenance of public order.
" The petitioners, on whose behalf this provision is assailed, are respectively the printer (and publisher) and editor of an English weekly of Delhi called Organizer, and they pray for the issue of writs of certiorari and prohibi tion to the Chief Commissioner, Delhi, with a view ' 'to examine and review the legality" of and "restrain the operation" of and "quash" the order made by him on the 2nd March, 1950, under the impugned section, directing them "to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies. " The order in question recites among other things that the Chief Commissioner is satisfied that the Organizer has been publishing highly objectionable matter constituting a threat to public law and order and that action to which reference has been made is necessary for the purpose of preventing or combating activities 610 prejudicial to the public safety or the maintenance of public order.
It is contended on behalf of the petitioners that notwithstanding these recitals the order complained against is liable to be quashed, because it amounts to an infringement of the right of freedom of speech and expres sion guaranteed by article 19 (1) (a) of the Constitution.
Articles 19 (1) (a) and (2), which are to be read together, run as follows : 19, (1) All citizens shall have the right (a) to freedom of speech and expression; * * * * (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which under mines the security of, or tends to overthrow, the State.
" It is contended that section 7 (1)(c) of the Act, under which the impugned order has been made, cannot be saved by clause (2) of article 19 of the Constitution, because it does not relate to any matter which undermines the security of, or tends to overthrow, the State.
Thus the main ground of attack is that the impugned law is an infringement of a fundamental right and is not saved by the so called saving clause to which reference has been made.
There can be no doubt that to impose pre censorship on a journal, such as has been ordered by the Chief Commissioner in this case, is a restriction on the liberty of the press which is included in the right to freedom of speech and expression guaranteed by article 19 (1) (a) of the Constitu tion, and the only question which we have therefore to decide is whether clause (2) of article 19 stands in the way of the petitioners.
The East Punjab Public Safety Act, 1949, of which sec tion 7 is a part, was passed by the Provincial Legislature in exercise of the power conferred upon it by section 100 of the Government of India Act, 1935, is 611 read with Entry 1 of List II of the Seventh Schedule to that Act, which includes among other matters "public order." This expression in the general sense may be construed to have reference to the maintenance of what is generally known as law and order in the Province, and this is confirmed by the words which follow it in Entry 1 of List II and which have been put within brackets, viz., "but not including the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.
" It is clear that anything which affects public tranquillity within the State or the Province will also affect public order and the State Legislature is therefore competent to frame laws on matters relating to public tranquillity and public order.
It was not disputed that under the Government of India Act, 1935 (under, which the impugned Act was passed) it was the responsibility of each Province to deal with all internal disorders whatever their magnitude may be and to preserve public tranquillity and order within the Province.
At this stage, it will be convenient to consider the meaning of another expression "public safety" which is used throughout the impugned Act and which is also chosen by its framers for its title.
This expression, though it has been variously used in different contexts (see the Indian Penal Code, Ch.
XIV), has now acquired a well recognized meaning in relation to an Act like the impugned Act, as a result of a long course of legislative practice, and may be taken to denote safety or security of the State.
In this sense, it was used in the Defence of the Realm (Consolidation) Act, 1914, as well as the Defence of India Act.
and this is how it was judicially interpreted in Rex vs Governor of Wormwood Scrubbs Prison(1).
The headnote of this case runs as follows "By section 1 of the Defence of the Realm (Consolidation) Act, 1914, power was given to His Majesty in Council 'during the continuance of the present war to issue regula tions . for securing the public safety and the de fence of the realm ' : (1) 612 Held, that the regulations thereby authorized were not limited to regulations for the protection of the country against foreign enemies, but included regulations designed for the prevention of internal disorder and rebellion " Thus 'public order ' and 'public safety ' are allied matters, but, in order to appreciate how they stand in relation to each other, it seems best to direct our atten tion to the opposite concepts which we may, for convenience of reference, respectively label as 'public disorder ' and 'public unsafety '.
If 'public safety ' is, as we have seen, equivalent to 'security of the State ', what I have designat ed as public unsafety may be regarded as equivalent to 'insecurity of the State '.
When we approach the matter in this way, we find that while 'public disorder ' iS wide enough to cover a small riot or an affray and other cases where peace is disturbed by, or affects, a small group of persons, 'public unsafety ' (or insecurity of the State), will usually be connected with serious internal disorders and such disturbances of public tranquillity as jeopardize the security of the State.
In order to understand the scope of the Act, it will be necessary to note that in the Act "maintenance of public order" always occurs in juxtaposition with "public safety", and the Act itself is called "The East Punjab Public Safety Act.
" The prominence thus given to 'public safety ' strongly suggests that the Act was intended to deal with serious cases of public disorder which affect public safety or the security of the State, or cases in which, owing to some kind of emergency or a grave situation having arisen, even public disorders of comparatively small dimensions may have far reaching effects on the security of the State.
It is to be noted that the Act purports to provide "special measures to ensure public safety and maintenance of public order.
" The words "special measures" are rather important, because they show that the Act was not intended for ordinary cases or ordinary situations.
The ordinary cases are provided for by the Penal Code and other existing laws, and 613 with these the Act which purports to be of a temporary Act is not apparently concerned.
It is concerned with special measures which would presumably be required for special cases or special situations.
Once this important fact is grasped and the Act is viewed in the proper perspective, much of the confusion which has been created in the course of the arguments will disappear.
The line of argument advanced on behalf of the petitioners is that since the Act has been passed in exercise of the power granted by the expression "public order," used in the Government of India Act, which is a general term of wide import, and since it purports to provide for the maintenance of public order, its provisions are intended or are liable to be used for all cases of breaches of public order, be they small or insig nificant breaches or those of a grave or serious nature.
This is, in my opinion, approaching the case from a wrong angle.
The Act is a piece of special legislation providing for special measures and the central idea dominating it is public safety and maintenance of public order in a situation requiring special measures.
It was argued that "public safety" and "maintenance of public order" are used in the Act disjunctively and they are separated by the word "or" and not "and," and therefore we cannot rule out the possibility of the Act providing for ordinary as well as serious cases of disturbance of public order and tranquillity.
This, as I have already indicated, is a somewhat narrow and technical approach to the question.
In construing the Act, we must try to get at its aim and purpose, and before the Act is declared to be invalid, we must see whether it is capable of being so construed as to bear a reasonable meaning consistent with its validity.
We therefore cannot ignore the fact that preservation of public safety is the dominant purpose of the Act and that it is a special Act providing for special measures and therefore it should not be confused with an Act which is applicable to ordinary situations and to any and every trivial case of breach of public order, 614 In my opinion, the word "or" is used here not so much to separate two wholly different concepts as to show that they are closely allied concepts and can be used almost inter changeably in the context.
I think that "public order" may well be paraphrased in the context as public tranquillity and the words "public safety" and "public order" may be read as equivalent to "security of the State" and "public tran quillity.
" I will now advert once more to clause (2) of article 19 and state what I consider to be the reason for inserting in it the words "matter which undermines the security of, or tends to overthrow, the State.
" It is well recognized in all systems of law that the right to freedom of speech and expression or freedom of the press means that any person may write or say what he pleases so long as he does not infringe the law relating to libel or slander or to blasphemous, obscene or seditious words or writings: (see Halsbury 's Laws of England, 2nd Edition, Vol.
II, page 391).
This is prac tically what has been said in clause (2) of article 19, with this difference only that instead of using the words "law relating to sedition," the framers of the Constitution have used the words mentioned above.
It is interesting to note that sedition was mentioned in the original draft of the Constitution, but subsequently that word was dropped and the words which I have quoted were inserted.
I think it is not difficult to discover the reason for this change and I shall briefly state in my own words what I consider it to be.
The latest pronouncement by the highest Indian tribunal as to the law of sedition is to be found in Niharendu Dutt Majumdar vs The King(1) which has been quoted again and again and in which Gwyer C.J. laid down that public disor der, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence of sedition and "the acts or words complained of must either incite to disorder or (1) 615 must be such as to satisfy reasonable men that is their intention or tendency.
" For this view, the learned Chief Justice relied on certain observations of Fitzgerald J. in R.v.
Sullivan (1), and he also added that he was content to adopt "the words of that learned Judge which are to be found in every book dealing with this branch of the criminal law.
" There is no doubt that what Gwyer C.J. has stated in that case represents the view of a number of Judges and authors and was also the view of Sir James Stephen in regard to whom Cave J. in his charge to the jury in a case relating to the law of sedition JR.
vs Burns(2) said : "The law upon the question of what is seditious and what is not is to be found stated very clearly in a book by Stephen J. who has undoubtedly a greater knowledge of crimi nal law than any other Judge who sits upon the Bench, and what he has said upon the subject of sedition was submitted to the other Judges, who sometime back were engaged with him in drafting a criminal code, and upon their report the Commissioners say that his statement of law appears to them to be stated accurately as it exists at present.
" The decision of Gwyer C.J. held the field for several years until the Privy Council, dealing with a case under the Defence of India Rules, expressed the view in King Emper or vs Sadhashiv Narayan Bhalerao(3) that the test laid down by the learned Chief Justice was not applicable in India where the offence under section 124A of the Indian Penal Code should be construed with reference to the words used in that section.
They also added : "The word 'sedition ' does not occur either in section 124A or in the Rule; it is only found as a marginal note to section 124A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known.
(1) [1868] 11 Cox c.c. 44.
(2) [1886] 16 cox 855.
(8) 74 I.A. 616 There can be no justification for restricting the contents of the section by the marginal note.
In England there is no statutory definition of sedition; its meaning and content have been laid down in many decisions, some of which are referred to by the Chief Justice, but these decisions are not relevant when you have a statutory definition of that which is termed sedition as we have in the present case.
Their Lordships are unable to find anything in the language of either section 124A or the Rule which could suggest that 'the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that this is their intention or tendency.
" The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word "sedition" should be used in article 19 (2) and if it was to be used in what sense it was to be used.
On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquil lity and was connected in some way or other with public disorder; and, on the other hand, there was the pronounce ment of the Judicial Committee that sedition as defined in the Indian Penal Code did not necessarily imply any inten tion or tendency to incite disorder.
In these circumstances, it is not surprising that they decided not to use the word "sedition" in clause (2) but used the more general words which cover sedition and everything else which makes sedi tion such a serious offence.
That sedition does undermine the security of the State is a matter which cannot admit of much doubt.
That it undermines the security of the State usually through the medium of public disorder is also a matter on which eminent Judges and jurists are agreed.
Therefore it is difficult to hold that public disorder or disturbance of public tranquillity are not matters which undermine the security of the State.
617 It will not be out of place to quote here the following passage from Stephen 's Criminal Law of England (Vol. II, pp. 242 and 243) : "It often happens, however, that the public peace is disturbed by offences which without tending to the subver sion of the existing political constitution practically subvert the authority of the Government over a greater or less local area for a longer or shorter time.
The Bristol riots in 1832 and the Gordon riots in 1780 are instances of this kind.
No definite line can be drawn between insur rections of this sort, ordinary riots, and unlawful assem blies.
The difference between a meeting stormy enough to cause well founded fear of a breach of the peace, and a civil war the result of which may determine the course of a nation 's history for centuries, is a difference of degree.
Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other, and are not capable of being marked off by perfectly definite boundaries, All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it.
Another class of offences against public tranquillity are those in which no actual force is either employed or displayed, but in which steps are taken tending to cause it.
These are the formation of secret societies, seditious conspiracies, libels or words spoken.
Under these two heads all offences against the internal public tranquillity of the State may be arranged.
" This passage brings out two matters with remarkable clarity.
It shows firstly that sedition is essentially an offence against public tranquillity and secondly that broadly speaking there are two classes of offences against public tranquillity: (a) those accompanied by violence including disorders which 618 affect tranquillity of a considerable number of persons or an extensive local area, and (b) those not accompanied by violence but tending to cause it, such as seditious utter ances, seditious conspiracies, etc.
Both these classes of offences are such as will undermine the security of the State or tend to overthrow it if left unchecked, and, as I have tried to point out, there is a good deal of authorita tive opinion in favour of the view that the gravity ascribed to sedition is due to the fact that it tends to seriously affect the tranquillity and security of the State.
In principle, then, it would not have been logical to refer to sedition in clause (2) of article 19 and omit matters which are no less grave and which have equal potentiality for undermining the security of the State.
It appears that the framers of the Constitution preferred to adopt the logical course and have used the more general and basic words which are apt to cover sedition as well as other matters which are as detrimental to the security of the State as sedition.
If the Act is to be viewed as I have suggested, it is difficult to hold that section 7 (1) (c) falls outside the ambit of article 19 (2).
That clause clearly states that nothing in clause (1) (a) shall affect the operation of any existing law relating to any matter which undermines the security of, or tends to overthrow, the State.
I have tried to show that public disorders and disturbance of public tranquillity do undermine the security of the State and if the Act is a law aimed at preventing such disorders, it fulfils the requirement of the Constitution.
It is needless to add that the word "State" has been defined in article 12 of the Constitution to include "the Government and Parlia ment of India and the Government and Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
" I find that section 20 of the impugned Act provides that the Provincial Government may by notification 619 declare that the whole or any part of the Province as may be specified in the notification is a dangerously disturbed area.
This provision has some bearing on the aim and object of the Act, and we cannot overlook it when considering its scope.
It may be incidentally mentioned that we have been informed that, under this section, Delhi Province has been notified to be a "dangerously disturbed area.
" It must be recognized that freedom of speech and expres sion is one of the most valuable rights guaranteed to a citizen by the Constitution and should be jealously guard ed by the Courts.
It must also be recognised that free political discussion is essential for the proper functioning of a democratic government, and the tendency of modern jurists is to deprecate censorship though they all agree that "liberty of the press" is not to be confused with its "licentiousness.
" But the Constitution itself has pre scribed certain limits for the exercise of the freedom of speech and expression and this Court is only called upon to see whether a particular case comes within those limits.
In my opinion, the law which is impugned is fully saved by article 19 (2) and if it cannot be successfully assailed it is not possible to grant the remedy which the petitioners are seeking here.
As has been stated already, the order which is impugned in this case recites that the weekly Organizer has been publishing highly objectionable matter constituting a threat to public law and order" and that the action which it is proposed to take against the petitioners "is necessary for the purpose of preventing or combating activities prejudi cial to public safety or the maintenance of public order.
" These facts are supported by an affidavit sworn by the Home Secretary to the Chief Commissioner, who also states among other things that the order in question was passed by the Chief Commissioner in consultation with the Central Press Advisory Committee, which is an independent body elected by the All India Newspaper Editors ' Conference and is composed of 620 representatives of some of the leading papers such as The Hindustan Times, Statesman, etc.
In my opinion, there can be no doubt that the Chief Commissioner has purported to act in this case within the sphere within which he is permitted to act under the law, and it is beyond the power of this Court to grant the reliefs claimed by the petitioners.
In these circumstances, I would dismiss the petitioners ' application.
Petition allowed.
Agent for the petitioners: Ganpat Rai.
| Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny.
" Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl.
(9.) of article 19 and was therefore unconstitutional and void.
Romesh Thappar vs The State ([1950] S.C.R. 594) followed.
Per FAZL ALI J.
The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity".
Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution.
Held by the Full Court.
The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a).
Black stone 's Commentaries referred to.
|
XXXVII of 1950.
Application under article 32 of the Constitution of India for a writ of certiorari and prohibition.
The facts are set out in the judgment.
B. Banerji for the petitioner.
M.C. Setalvad, Attorney General for India (Gyan Chand, with him) for the opposite party.
522 1950.
May 26.
The following judgments were delivered: KANIA C.J. This is an application for a writ of 'certiorari and prohibition under article 32 of the Constitution of India.
The petitioner who is the President of the All India Hindu Mahasabha since December, 1949, was served with an order of externment dated the gist of March, 1950, that night.
By that order he is directed by the District Magis trate, Delhi, not to remain in the Delhi District, and immediately to remove himself from the Delhi District and not to return to the District.
The order was to continue in force for three months.
By another order of the Madhya Bharat Government he was directed to reside in Nagpur.
That order has been recently cancelled.
The petitioner disputes the validity of the first order on the ground that the East Punjab Public Safety Act, 1949, under which the order was made, is an infringement of his fundamental right given under article 19 (1) (d) of the Constitution of India.
He further contends that the grounds of the order served on him are vague, insufficient and incomplete.
According to him the object of the externment order passed by the District Magistrate, Delhi, was to suppress political opposition to the policy of the Government in respect of Pakistan and the Muslim League.
It is alleged that because the petitioner and the Hindu Mahasabha are against the Government policy of appeasement this order is served on him.
It is therefore mala fide and illegal.
In support of his contention about the invalidity of the East Punjab Public Safety Act and its provisions as regards externment, counsel for the petitioner relied on the recent unreported judgments of the Patna High Court in Miscellaneous Judicial Case No. 29 of 1950, Brij nandan vs The State of Bihar, and of the High Court of Bombay in Criminal Application No. 114 of 1950, re Jai singhbhai Ishwarlal Modi.
It is necessary first to ascertain the true meaning of article 19 (1) (d) read with clause (5) of the same article.
There is no doubt that by the order of extern 523 ment the right of the petitioner to freedom of movement throughout the territory of India is abridged.
The only question is whether the limits of permissible legislation under clause (5) are exceeded.
That clause provides as follows: "19.
(5) Nothing in subclauses (d), (e) and (f) of the said clause shall affect the operation of any exist ing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
" It is clear that the clause permits imposition of reasonable restrictions on the exercise of the right conferred by sub clause (d)in the interests of the general public.
The rest of the provision of clause (5) is not material and neither side relies on it.
Two interpretations of the clause are put before the Court.
It is argued that grammatically understood the only question before the Court is whether the impugned legislation imposes reasonable restrictions on the exercise of the right.
To put it in other words, the only justiciable issue to be decided by the Court is whether the restrictions imposed by the legislation on the exercise of the right are reasonable.
If those restrictions on the exercise of the right are reasonable, the Court has not to consider whether the law imposing the restrictions is rea sonable.
The other interpretation is that while the Consti tution permits a law laying down reasonable restrictions on the exercise of the rights mentioned in sub clause 19 (1) (d), the reasonableness has to be of the law also.
It is submitted that in deciding whether the restrictions, on the exercise of the right are reasonable, the Court has to decide not only on the extent and nature of the restric tions on the exercise of the right but also as to whether the conditions under which the right is restricted are reasonable.
The majority judgments of the Patna and the Bombay High Courts, although the impugned Acts of the State Legislatures before them were materially different on cer tain important points, have given clause (5) of article 19 the latter meaning.
524 In my opinion, clause (5) must be given its full mean ing.
The question which the Court has to consider is wheth er the restrictions put by the impugned legislation on the exercise of the right are reasonable or not.
The question whether the provisions of the Act provide reasonable safe guards against the abuse of the power given to the executive authority tO administer the law is not relevant for the true interpretation of the 'clause.
The Court, on either inter pretation, will be entitled to consider whether the re strictions on the right to move throughout India, i.e,, both as regards the territory and the duration, are reasonable or not.
The law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions.
While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law.
It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substan tive part, is necessarily for the consideration of the Court under clause (5).
Similarly, if the law provides the proce dure under which the exercise of the right may be restrict ed, the same is also for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted.
I do not think by this interpretation the scope and ambit of the word "reasonable" as applied to restrictions on the exercise of the right, is in any way unjustifiably enlarged.
it seems that the narrow construc tion sought to be put on the expression, to restrict the Court 's power to consider only the substantive law on the point, is not correct.
In my opinion this aspect of the construction of article 19 (5) has escaped the minority judgment in the two matters mentioned above.
I am not con cerned with the conclusions of the two Courts about the invalidity of the provisions of the Acts they were asked to consider.
To the extent they help in the interpretation of article 19 (5) only they are helpful.
525 The next question is whether the impugned Act contains reasonable restrictions on the exercise of the right given under article 19 (1)(d)or (e).
It was argued on behalf of the petitioner that under section 4 the power to make the order of externment was given to the Provincial Government or the District Magistrate, whose satisfaction was final.
That decision was not open to review by the Court.
On that ground it was contended that there was an unreasonable restriction on the exercise of the citizen 's right.
In my opinion, this argument is unsound.
This is not legislative delegation.
The desirability of passing an individual order of externment against a citizen has to be left to an offi cer.
In the Act such a provision cannot be made.
The satisfaction of the officer thus does not impose an unrea sonable restriction on the exercise of the citizen 's right.
So far as the Bombay High Court is concerned Chagla C.J. appears to have decided this point against the contention of the petitioner.
It was next urged that under section 4 (3) the order made by the District Magistrate shall not, unless the Pro vincial Government by special order otherwise direct, remain in force for more than three months.
It was argued that the period of three months itself was unreasonable as the ex ternee had no remedy during that time.
It was contended that when the Provincial Government directed the renewal of the order no limit of time was prescribed by the legislature for the duration of the order.
The order therefore can be in operation for an indefinite period.
This was argued to be an unreasonable restriction on the exercise of a citi zen 's right.
In this connection it may be pointed out that in respect of preventive detention, which is a more severe restriction on the right of the citizen, the Constitution itself under article 22 (4) to (7) permits preventive deten tion for three months without any remedy.
The period of three months therefore prima facie does not appear unreason able.
Under the proviso to section 4 (5) the Provincial Government is not permitted to direct the exclusion or removal from the Province of a person ordinarily residing in the Province, and similarly 526 the District Magistrate is not permitted to order the exclu sion or removal of a person ordinarily resident in his district from that district.
This is a great safeguard provided under the East Punjab Public Safety Act.
The further extension of the externment order beyond three months may be for an indefinite period, but in that connec tion the fact that the whole Act is to remain in force only up to the 14th August, 1951, cannot be overlooked.
More over, this whole argument is based on the assumption that the Provincial Government when making the order will not perform its duty and may abuse the provisions of the sec tion.
In my opinion, it is improper to start with such an assumption and decide the legality of an Act on that basis.
Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension.
In my opinion, therefore, this contention of the petitioner cannot be accepted.
was next argued that there is no provision in the Act for furnishing grounds of externment to the citizen.
Section 4 (6) provides that when an externment order has been made its grounds may be communicated to the externee by the authority making the order and in any case when the order is to be enforced for more than three months he shall have a right of making a representation which shall be referred to the advisory tribunal constituted under section 3 (4).
While the word "may" ordinarily conveys the idea of a discretion and not compulsion, reading it with the last part of the clause it seems that when an externment order has to be enforced for more than three months an absolute right is given to the cxternee to make a representation.
He cannot make a representation unless he has been furnished grounds for the order.
In no other part of the Act a right to obtain the grouuds for the order in such a case is given to him.
Therefore, that right has to be read as given under the first part of section 4 (6).
That can be done only by reading the word "may" for that purpose as having the mean ing of "shall" If the word "may" has to be so read for that purpose, it appears to be against the well recognised canons of construction to 527 read the same "may" as having a different meaning when the order is to be in force for less than three months.
I do not think in putting the meaning of "shall" on "may" in the clause, I am unduly straining the language used in the clause.
So read this argument must fail.
It was next argued that there is no provision in the Act showing what the advisory board has to do when it receives a representation.
A reference to the advisory board neces sarily implies a consideration of the case by such board.
The absence of an express statement to that effect in the impugned Act does not invalidate the Act.
It was finally contended on behalf of the petitioner that the grounds for the externment order supplied to him are vague, insufficient and incomplete.
The grounds are stated as follows : "Your activities generally and particularly since the recent trouble in East and West Bengal have been of a communal nature tending to excite hatred between communities and whereas in the present composition of the population of Delhi and the recent communal disturbances of Delhi feelings are roused between the majority and minority communities, your presence and activities in Delhi are likely to prove prejudicial to the maintenance of law and order, it is considered necessary to order you to leave Delhi.
" These grounds cannot be described as vague, insufficient or incomplete.
It is expressly stated that the activities of the petitioner, who is the President of the Hindu Maha sabha, since the recent disturbances between two communities in the East and West Bengal have particularly been of a communal nature which excites hatred between the communi ties.
It is further stated that having regard to the recent disturbance in Delhi, the population of which is composed of both these communities, the excitement of such,hatred is likely to be dangerous to the peace and maintenance of law and order.
Apart from being vague, I think that these grounds are specific and if honestly be lieved can support the order.
The argument that the order 528 was served to stifle opposition to the Government policy of appeasement has little bearing because the District Magis trate of Delhi is not concerned with the policy of the Government of appeasement or otherwise.
The order is made because the activities of the petitioner are likely to prove prejudicial to the maintenance of law and order and the grounds specified have a direct bearing on that conclusion of the District Magistrate.
I therefore think that this contention of the petitioner must be rejected.
The result is that the petition fails and is dismissed.
FAZL ALI J.
I agree.
PATANJALI SASTRI J.
I agree that this application must fail.
As I share the views expressed by my Lord in.the judgment just delivered by him on the reasonableness of the restrictions imposed by the impugned legislation whichever construction of article 19 (5) of the Constitution is adopt ed, I consider it unnecessary to express any opinion on the true scope of the judicial review permitted under that article, and I hold myself free to deal with that point when it becomes necessary to do so.
MAHAJAN J. I concur in the judgment which my brother Mukh erjea is delivering and for the reasons given by him I allow the petition and quash the order of externment.
MUKHERJEA J. This is an application under article 32 of the Constitution, praying for quashing of an externment order made by the District Magistrate of Delhi, against the petitioner Dr. N.B. Khare, on 31st March, 1950, by which the latter was directed to remove himself immediately from the Delhi District and not to return to that District so long as the order remained in force.
The order is for three months at present.
Complaint was also made in the petition in respect of another and a subsequent order passed by the Government of Madhya Bharat which was served on the peti tioner on his way to Nagpur and which 529 directed him to reside within the limits of the Nagpur Municipality and not to leave that area without the permis sion of the District Magistrate of that place.
This order of the Government of Madhya Bharat, we are told, has since been withdrawn and we are not concerned with that order or the Act under which it was passed in the present proceeding.
The substantial contention raised on behalf of the petitioner is that the particular provision of the East Punjab Public Safety Act, 1949, under which the District Magistrate of Delhi purported to make the externment order, became void and ceased to be operative after the new Consti tution came into force, by reason of these provisions being inconsistent with the fundamental rights guaranteed under article 19 (1) (d) of the Constitution read with clause (5) of the same article.
The argument is that any order passed under such void legislative provisions must necessarily be void and of no effect in law.
In order to appreciate the merits of this contention, it may be convenient to advert to the material provisions of the East Punjab Public Safety Act which are alleged to have become void as well as to the articles of the Constitution, upon which reliance has been placed by the learned counsel for the petitioner.
The East Punjab Public Safety Act came into force on 29th March, 1949, and its object, as stated in the preamble, is to provide for special measures to ensure public safety and maintenance of public order.
Section 4 (1) of the Act provides: "The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudi cial to the public safety or the maintenance of public order it is necessary so to do, may, by order in writing, give anyone or more of the following directions, namely that such person . . . . . . . . . (c) shall remove himself from, and shall not return to, any area that may be specified in the order." , 530 Sub section (3) of the section lays down that "An order under sub section (1) made by the District Magistrate shall not, unless the Provincial Government by special order otherwise directs, remain in force for more than three months from the making thereof." The contention of the petitioner is that the restrictive provisions mentioned above, under which a person could be removed from a particular area or prohibited from returning to it are inconsistent with the fundamental right guaranteed by article 19 (1) (d) of the Constitution under which all citizens shall have the right "to move freely throughout the territory of India.
" This right indeed is not absolute and the extent to which it could be curtailed by legislation is laid down in clause.(5)of article 19 which runs as follows: "Nothing in sub clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe." Thus the primary question which requires consideration is, whether the impugned legislation which apparently seems to be in conflict with the fundamental right enunciated in article 19 (1) (d) of the Consitution is protected by clause (5) of the article, under which a law would be valid if it imposes reasonable restrictions on the exercise of the right in the interests of the general public.
It is not disputed that the question of reasonableness is a justiciable matter which has to be determined by the Court.
If the Courts 'hold the restrictions imposed by the law to be reasonable, the petitioner would certainly have no remedy.
If, on the other hand, they are held to be unreasonable, article 13 (1)of the Constitution imposes a duty upon the Court to pronounce the law to be invalid to the extent that it is inconsistent with the fundamental rights guaranteed under Part III of the Constitution.
531 It has been urged, though somewhat faintly, by the learned Attorney General that the right of free movement throughout the Indian territory as enunciated in article 19 (1) (d) of the Constitution contemplates nothing else but absence of inter State restrictions, which might prevent citizens of the Indian Union from moving from one State to another.
A law which does not impose barriers of this kind, it is said, cannot be inconsistent with the fundamental right secured by this clause.
Such a restricted interpreta tion is, in my opinion, not at all warranted by the language of the sub clause.
What article 19 (1) (d) of the Constitu tion guarantees is the free right of all citizens to go wherever they like in the Indian territory without any kind of restriction whatsoever.
They can move not merely from one State to another but from one place to another within the same State and what the Constitution lays stress upon is that the entire Indian territory is one unit so far as the citizens are concerned.
Clause (c) of section 4 (1) of the East Punjab Public Safety Act, 1949, authorises the Provin cial Government or the District Magistrate to direct any person to remove himself from any area and prohibit him from entering the same.
On the face of it such provision repre sents an interference with the.
fundamental right guaran teed by article 19 (1) (d) of the Constitution.
The contro versy, therefore, narrows down to this, whether the impugned legislation is saved by reason of its being within the permissible limits prescribed by clause (5) of article 19.
With regard to clause (5), the learned AttorneyGeneral points out at the outset that the word "reasonable" occur ring in the clause qualifies "restrictions" and not "law '".
It is argued that in applying the clause, all that we have to see is whether the restrictions that are imposed upon the exercise of the right by law are reasonable or not and we have not to enquire into the reasonableness or otherwise of the law itself.
The reasonableness of the restrictions can be judged, ' according to the learned Attorney General, from the nature of the restrictions themselves and not from the manner in which or the authorities by which they are 532 imposed.
The question whether the operation of the law produces hardship in individual cases is also a matter which is quite irrelevant to our enquiry.
I do agree that in clause (5) the adjective 'reasonable ' is predicated of the restrictions that are imposed by law and not of the law itself; but that does not mean that in deciding the reasonableness or otherwise of the restric tions, we have to confine ourselves to an examination of the restrictions in the abstract with reference merely to their duration or territorial extent, and that it is beyond our province to look up to the circumstances under which or the manner in which the restrictions have been imposed.
It is not possible to formulate an effective test which would enable us to pronounce any particular restriction to be reasonable or unreasonable per se.
All the attendant cir cumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice.
The question of reasonableness of the restric tions imposed by a law may arise as much from the substan tive part of the law as from its procedural portion.
Thus, although I agree with the learned Attorney General that the word "reasonable" in clause (5) of article 19 goes with "restrictions" and not with "law," I cannot accept his suggestion as regards the proper way of determining the reasonableness of the restrictions which a legislation might impose upon the exercise of the right of free movement.
Coming now to the provisions of the impugned Act, Mr. Baner jee 's main contention is that section 4 (1) (c)of the East Punjab Public Safety Act, which provides for passing of orders removing a person from a particular area, on the satisfaction of the Provincial Government or the District Magistrate, cannot be a reasonable piece of legislation inasmuch as the only pre requisite for imposition of the restrictions is the personal satisfaction of certain indi viduals or authorities, the propriety or reasonableness of which cannot be tested by the application of any external rule or standard.
It is said that any law which places the liberty 533 of a subject at the mercy of an executive officer, however high placed he might be and whose action cannot be reviewed by a judicial tribunal, is an arbitrary and not a reasonable exercise of legislative powers.
The contention requires careful examination.
It is not disputed that under clause (5) of article 19, the reasonableness of a challenged legislation has to be determined by a Court and the Court decides such matters by applying some objective standard which is said to be the standard of an average prudent man.
Judged by such standard which is sometimes described as an external yard stick, the vesting of authority in particular officers to take prompt action under emergent circumstances, entirely on their own responsibility or personal satisfaction, is not necessarily unreasonable.
One has to take into account the whole scheme of the legislation and the circumstances under which the restrictive orders could be made.
The object of the East Punjab Public Safety Act is to pro vide for special measures to ensure public safety and maintenance of public order.
Under section 4 (1) (c) of the Act, the Provincial Govern ment or the District Magistrate may make an order directing the removal of a certain person from a particular area, if they are satisfied that such order is necessary to prevent such person from acting in any way prejudicial to public safety or maintenance of public order.
Preventive orders by their very nature cannot be made after any judicial enquiry or trial.
If emergent steps have got to be taken to prevent apprehended acts which are likely to jeopardise the inter ests or safety of the public, somebody must be given the power of taking the initial steps on his own responsibility; and no reasonable objection could be taken if the authority, who is given the power, is also entrusted with the responsi bility of maintaining order and public peace in any particu lar district or province.
The preventive provisions of the Criminal Procedure Code are based on similar principle.
In my opinion, therefore, the provision of section 4 (1) (c) of the East Punjab Public Safety Act cannot be pronounced to be unreasonable, simply because the order could be passed by the Provincial Government 534 or the District Magistrate on their own personal satisfac tion and not on materials which satisfy certain objective tests.
But though certain authorities can be invested with powers to make the initial orders on their own satisfaction in cases of this description, the position would certainly be different if the order thus made is allowed to continue for any indefinite period of time without giving the ag grieved person an opportunity to say what he has got to say against the order.
I have already set out the provisions of sub section (3) of section 4 which deals with duration of the orders made under the various clauses of sub section (1).
It will be seen from this sub section that there is absolutely no limit as to the period of time during which an externment order would remain in force if the order is made by the Provincial Government.
The Provincial Government has been given unlimited authority in this respect and they can keep the order in force as long as they chose to do so.
As regards orders made by a District Magistrate, the period indeed has been fixed at three months, but even here the Provincial Government is competent to extend it to any length of time by means of a special order.
The law does not fix any maximum period beyond which the order cannot continue; and the fact that the Act itself would expire in August, 1951, is, in my opinion, not a relevant matter for consideration in this connection at all.
I have no hesi tation in holding that the provision of sub section (3) of section 4 is manifestly unreasonable and cannot be supported on any just ground.
One could understand that the exigen cies of circumstances might justify the vesting of plenary powers on certain authorities which could pass orders on their ' own personal satisfaction temporarily and for a short period of time; but if these orders are to continue indefi nitely, it is only fair that an opportunity should be given to the person against whom such order is made to say what he has to say in answer to the allegations made against him.
There may not be an investigation by a regular Court but it is necessary that the aggrieved person should be given a fair hearing and that by an 535 impartial tribunal.
The provision of the impugned Act which has bearing on this point is contained in sub section (6) of section 4 and it runs as follows: "When an order has been made in respect of any person under any of the clauses under section 4, sub section (1), or sub section (2) the grounds of it may be communicated to him by the authority making the order and in any case, when the order is to be in force for more than three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal, constituted under section 3, sub section (4).
" It will be noted that the first part of the subsection makes it entirely optional with the authorities to communi cate the grounds, upon which the order is made, to the person affected by it.
The grounds need not be communicated at all if the authorities so desire.
As regards the right of representation the latter part of the sub section seems to imply that when the order is to remain in force for more than three months, the right of representation should be given to the aggrieved person and the representation shall be referred for consideration to the advisory tribunal constituted under section 3, sub section (4), of the Act.
The right, however, is purely illusory as would appear from the fact that even in cases where the order is to be opera tive for more than three months, there is no obligation on the part of the authorities to communicate to the person the grounds upon which the order was made.
The aggrieved person consequently may not at all be apprised of the allegations made against him and it will be impossible for him to make any adequate or proper representation, if he is not told on what grounds the order was passed.
In my opinion, this is an equally unreasonable provision and neither sub section (3) nor sub section (6) of section 4 of the Act can be said to have imposed restrictions which are reasonable in the inter ests of the general public.
My conclusion, therefore, is that under article 13 (1) of the Indian Constitution, these provisions of the Act became void and inoperative after the Constitution came into 536 force, and consequently the order made by the District Magistrate in the present case cannot stand.
I would, therefore, allow the application and quash the externment order that has been passed against the petition er.
Petition dismissed.
Agent for the petitioner: Ganpat Rai.
Agent for the opposite party: P.A. Mehta.
| Section 4, sub section
(1) (c), of the East Punjab Public Safety Act of 1949 which was passed on the 29th March, 1949, and was to be in force until the 14th August, 1951, provided that "The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary to do so, may, by order in writing, give a direction that such person shall remove himself from, and shall not return to, any area that may be specified in the order.
" Sub section (3) of section 4 provided that "an order under sub section
(1) made by the District Magistrate shall not, unless the Provincial Goverment by special order otherwise directs, remain in force for more than three months from the making thereof," and sub section
(6) laid down that "when an order has been made in respect of any person under any of the clauses under section 4, sub section
(1) or sub section
(9.), the grounds of it may be communicated to him by the authority making the order, and in any case when the order is to be in force for more then three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal constituted under section 3, sub section
" The petitioner, against whom an order under (1) (c) of the Act was passed applied to the Court under article 39, of the Constitution for a writ of certiorari contending that the order was illegal inasmuch as the provisions of the above mentioned Act under which the order was made infringed the fundamental right to move freely throughout the territo ry of India which was guaranteed by article 19 (1) (d) of the Constitution and were accordingly void under article 13 (1) of the Constitution: Held, per KANIA C.J., FAZL ALl and PATANJALI SASTRI, J3.
(MAHAJAN and MUKHERJEA, JJ.
dissenting) (i) that there was nothing unreasonable in the provision contained in sub section
(1) (c) empowering the Provincial Government or the Dis trict Magistrate to make an externment order, and making their satisfaction as to the necessity of making such an order final, or in the provisions contained in sub section
(3) of section 4 that an order of a District Magistrate may remain in force for three months and that the Provincial Government may make an order, or keep alive an order made by a District Magistrate, for a period exceeding three months without fixing any time limit; (ii) with regard to sub section
(6), the word "may" in the expression "may communicate" must, in the context, be read as meaning "shall" and under the sub sec tion it is obligatory on the authority making an order to communicate the grounds to the externee;.(iii) the restric tions imposed by the above mentioned provisions of the Act upon the fundamental right guaranteed by article (19) (1) (d) were not, therefore, unreasonable restrictions within the meaning 01 article 19 (5) and the provisions of the Act were not void under article 13 (1), and the order of externment was not illegal.
Per MUKHERJEA J. (MAHAJAN J. concurring) Though certain authorities can be invested with power to make 521 initial orders on their own satisfaction in cases of this description, and section 4 (1) (c) of the East punjab Public Safety Act cannot be pronounced to be unreasonable simply because an order I could be passed by the Provincial Gov ernment or the District Magistrate on their own personal satisfaction and not on materials, which satisfy certain objective tests, yet, the position would be different if the order thus made is allowed to continue for any indefinite period of time without giving the aggrieved person an oppor tunity to say what he has got to say against the order; and inasmuch as sub section
(3) of section 4 prescribes no limit to the period of time during which an externment order would remain in force if it is made by the Provincial Government, and the Provincial Government is also given power to keep an order made by a District Magistrate in force for an indefinite period, the provisions of sub section
(3) are manifestly unrea sonable.
The provisions of sub section
(6)of section 4 are also unreasonable as they make it entirely optional with the authorities to communicate to the person affected, the grounds upon which the order is made.
Neither sub section
(3) nor sub section
(6) of section 4 can, therefore, be said to have imposed restrictions which are reasonable in the interests of the general public within the meaning of article 19 (5) and these provisions of the Act were consequently void and inoperative under article 13 (1)of the Constitution, and the externment order was illegal.
Held also, per KANIA C.J., FAZL ALI, MAHAJAN and MUKH ERJEA JJ.
Whether the restrictions imposed by a legislative enactment upon the fundamental right guaranteed by article 19 (1) (d) are reasonable within the meaning of article 19 (5) of the Constitution would depend as much on the procedural portion of the law as the substantive part of it] and in considering whether such restrictions are reasonable the Court is not therefore bound to confine itself to an exami nation of the reasonableness of the restrictions in the abstract with reference to their duration and territorial extent.
The Court can also consider the reasonableness of the procedural part of the law and the circumstances under which, and the manner in which, the restrictions have been imposed.
[PATANJALI SASLUP, I J. did not express any opin ion on this point.]
|
No. XVI of 1950.
Appli cation under article 32 of the Constitution for a writ of prohibition and certiorari.
The facts are set out in the judgment.
C.R.Pattabhi Raman, for the petitioner.
K. Rajah Ayyar, Advocate General of MadraS, (Ganapathi Ayyar, with him) for the opposite party.
May 26.
The Judgment of Kania C.J., Mehr Chand Mahajan, Mukherjea and Das JJ.
was delivered by Patanjali Sastri J. Fazl Ali J. delivered a separate judgment.
PATANJALI SASTRI J.
The petitioner is the printer, publisher and editor of a recently started weekly journal in English called Cross Roads printed and published in Bombay.
The Government of Madras, the respondents herein, in exer cise of their powers under section 9 (1 A) of the Madras Maintenance of Public Order Act, 1949 (hereinafter referred to as the impugned Act) purported to issue an order No. MS.
1333 dated 1st March, 1950, whereby they imposed a ban upon the entry and circulation of the journal in that State.
The order was published in the Fort St. George Gazette and the notification ran as follows : "In exercise of the powers conferred by section 9 (I A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949) His Excellency the Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in the Fort St. George Gazette the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled Cross Roads an English weekly published at Bombay.
" The petitioner claims that the said order contravenes the fundamental right of the petitioner to freedom of See the headnote to Brij Bhushan vs The State of Delhi, p. 605 infra.
596 speech and expression conferred on him by article 19 (1) (a) of the Constitution and he challenges the validity of section 9 (1 A) of the impugned Act as being void under article 13 (1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid.
The Advocate General of Madras appearing on be half of the respondents raised a preliminary objection, not indeed to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resort ing to this Court directly for such relief in the first instance.
He contended that, as a matter of orderly proce dure, the petitioner should first resort to the High Court at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter.
He cited criminal revision petitions under section 435 of the Crimi nal Procedure Code, applications for bail and applications for transfer under section 24 of the Civil Procedure Code as instances where, concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court.
He referred to Emperor vs Bisheswar Prasad Sinha (1) where such a rule of practice was enforced in a criminal revision case, and called our attention also to certain American decisions Urquhart vs Brown (2) and Hooney vs Kolohan (3) as showing that the Supreme Court of the United States ordinarily required that whatever judicial remedies remained open to the appli cant in Federal and State Courts should be exhausted before the remedy in the Supreme Court be it habeas corpus or certiorari would be allowed.
We are of opinion that neither the instances mentioned by the learned Advocate General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution.
That article does not merely confer power on this Court, as article 226 does on the (1) I.L.R. 56 All.
(2) ; (3) ; 597 High Courts, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction.
In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction.
Article 32 provides a "guaranteed" remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part 1II.
This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights.
No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point.
Turning now to the merits, there can be no doubt that freedom of speech and expression includes freedom of propa gation of ideas, and that freedom is ensured by the freedom of circulation.
"Liberty of circulation is as essential to that freedom as the liberty of publication.
Indeed, without circulation the publication would be of little value ": Ex parte Jackson(1).
See also LoveIl vs City of Griffin(s).
It is therefore perfectly clear that the order of the Gov ernment of Madras would be a violation of the petitioner 's fundamental right under article 19 (1) (a), unless section 9 (1 A) of the impugned Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 which (omitting immaterial words regarding laws relating to libel, slander, etc., with which we are not concerned in this case) saves the operation of any "existinglaw in so far as it relates to any matter which undermines the security of, or tends to overthrow, the State.
" The question accord ingly arises whether, the impugned Act, in so far as it purports by section 9 (1 A) to authorise the Provincial Government "for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into (1) ; (2) ; 598 or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents" is a "law relating to any matter which undermines the security of or tends to overthrow the State." The impugned Act was passed by the Provincial Legisla ture in exercise of the power conferred upon it by section 100 of the Government of India Act 1935, read with Entry 1 of List II of the Seventh Schedule to that Act, which com prises among other matters, "public order.
" Now "public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regula tions enforced by the government which they have estab lished.
Although section 9 (I A) refers to "securing the public safety" and "the maintenance of public order" as distinct purposes, it must be taken that "public safety" is used as a part of the wider concept of public order, for, if public safety were intended to signify any 'matter distinct from and outside the content of the expression "public order," it would not have been competent for the Madras Legislature to enact the provision so far as it relates to public safety.
This indeed was not disputed on behalf of the respondents.
But it was urged that the expression "public safety" in the impugned Act, which is a statute relating to law and order, means the security of the Province, and, therefore, ' 'the security of the State" with the meaning of article 19 (2)as "the State" has been defined in article 12 as including, among other things, the Government and the Legislature of each of the erstwhile Provinces.
Much reli ance was placed in support of this view on Rex vs Wormwood Scrubbs Prison(1) where it was held that the phrase "for securing the public safety and the ' defence of.
the realm" in section 1 of the Defence of the Realm (Consolidation) Act, 1914, was not limited to securing the country against a foreign foe but included also protection against internal disorder such as a rebellion.
The decision is not of much assistance to the respondents as the context in (1) 599 which the words "public safety" occurred in that Act showed unmistakably that the security of the State was the aim in view.
Our attention has not been drawn to any definition of the expression "public safety," nor does it appear that the words have acquired any technical signification as words of article "Public safety" ordinarily means security of the public or their freedom from danger.
In that sense, anything which tends to prevent dangers to public health may also be regarded as securing public safety.
The meaning of the expression must, however, vary according to the context.
In the classification of offenCes in the Indian Penal Code, for instance, Chapter XIV enumerates the "offences affecting the public health, safety, convenience, decency, and morals" and it includes rash driving or riding on a public way (section 279) and rash navigation of a vessel (section 280), among others, as offences against public safety, while Chapter VI lists waging war against the Queen (section 121), sedition (section 124 A) etc.
as "offences against the State", because they are calculated to undermine or affect the security of the State, and Chapter VIII defines "of fences against the public tranquillity" which include unlaw ful assembly (section 141) rioting (section 146), promot ing enmity between classes (section 153 A), affray (sec tion 159) etc.
Although in the context of a statute relat ing to law and order "securing public safety" may not in clude the securing of public health, it may well mean secur ing the public against rash driving on a public way and the like, and not necessarily the security of the State.
It was said that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of the State rather than trivial offences like rash driving, or an affray.
But whatever ends the impugned Act may have been intended to subserve, and whatever aims its framers may have had in view, its application and scope cannot, in the ab sence of limiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to 600 endanger the security of the State.
Nor is there any guar antee that those authorised to exercise the powers under the Act will in using them discriminate between those who act prejudicially to the security of the State and those who do not.
The Government of India Act, 1935, nowhere used the expression" security of the State" though it made provision under section 57 for dealing with crimes of violence intend ed to overthrow the Government.
While the administration of law and order including the maintenance of public order was placed in charge of a Minister elected by the people, the Governor was entrusted with the responsibility of combating the operations of persons who "endangered the peace or tranquillity of the Province" by committing or attempting to commit "crimes of violence intended to overthrow the Govern ment.
" Similarly, article 352 of the Constitution empowers the President to make a Proclamation of Emergency when he is satisfied that the "security of India or any part of the territory thereof is threatened by war or by external ag gression or by internal disturbance.
" These provisions recognise that disturbance of public peace or tranquillity may assume such grave proportions as to threaten the securi ty of the State.
As Stephen in his 'Criminal Law of England(1) observes: ' ' Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries.
All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it.
" Though all these offences thus involve disturbances of public tranquil lity and are in theory offences against public order, the difference between them being only a difference ' of degree, yet for the purpose of grading the punishment to be inflict ed in respect of them they may be classified into different minor categories as has been done by (1) Vol.
II, p. 242.
601 the Indian Penal Code.
Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19 (1), has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridge ment of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly "sub clause (b)" and the right of association "sub clause (c)" may be restricted under clauses (3) and (4) of article 19 in the interests of" public order," which in those clauses includes the security of the State.
The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the Seventh Sched ule, which refers to the "security of a State" and "mainte nance of public order" as distinct subjects of.legislation.
The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differ ences in kind.
It is also worthy of note that the word "sedition" which occurred in article 13 (2) of the Draft Constitution pre pared by the Drafting Committee was deleted before the article was finally.
passed as article 19 (2).
In this connection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt Majumdar vs The King Emperor (1), held that "the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency", but the Privy Council overruled that 602 decision and emphatically reaffirmed the view expressed in Tilak 's case (1) to the effect that "the offence "consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small " King Emperor vs Sada shiv Narayan Bhalerao (2) Deletion of the word "sedition" from the draft article 13 (2), therefore, shows that criticism of Government exciting disaffection or bad feel ings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State.
It is also significant that the corre sponding Irish formula of "undermining the public order or the authority of the State" article 40 (6) (i) of the Constitution of Eire, [1937] did not apparently find favour with the framers of the Indian Constitution.
Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the founda tion of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular govern ment, is possible.
A freedom of such amplitude might involve risks of abuse.
But the framers of the Constitution may well have reflected, with Madison who was "the leading spirit in the preparation of the First Amendment of the Federal Constitution," that "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.": [Quoted in Near vs Minnesotta (3)].
We are therefore of opinion 'that unless a law restrict ing freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the (1) (21 L.R. 74, I A. 89.
(8) 282U.S, 607, 717 8.
603 restrictions which it seeks to impose may have been con ceived generally in the interests of public order.
It fol lows that section 9 (1 A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is there fore void and unconstitutional.
It was, however, argued that section 9 (1 A) could not be considered wholly void, as, under article 13 (1), an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more.
In so far as the securing of the public safety or the maintenance of public order would include the ' security of the State, the impugned provision, as applied to the latter purpose, was covered by clause (2) of article 19 and must, it was said, be held to be valid.
We are unable to accede to this contention.
Where a law purports to authorise the imposi tion of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional lim its, as it is not severable.
So long as the possibility of its being applied for purposes not sanctioned by the Consti tution cannot be ruled out, it must be held to be wholly unconstitutional and void.
In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.
The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioner 's journal in the State of Madras is hereby quashed.
FAZL ALI J.
For the reasons given by me in Brij Bhushan and Another vs The State(1) , which practically 605.
604 involves the same question as is involved in this case, I hold that the reliefs sought by the petitioner cannot be granted.
In this view, I would dismiss this petition, but I should like to add a few observations to supplement what I have said in the other case.
It appears to me that in the ultimate analysis the real question to be decided in this case is whether "disorders involving menace to the peace and tranquillity of the Prov ince" and affecting "public safety" will be a matter which undermines the security of the State or not.
I have bor rowed the words quoted within inverted commas from the preamble of the Act which shows its scope and necessity and the question raised before us attacking the, validity of the Act must be formulated in the manner I have suggested.
If the answer to the question is in the affirmative, as I think it must be, then the impugned law which prohibits entry into the State of Madras of "any document or class of documents" for securing public safety and maintenance of public order should satisfy the requirements laid down in article 19 (2)of the Constitution.
From the trend of the arguments addressed to us, it would appear that if a docu ment is seditious, its entry could be validly prohibited, because sedition is a matter which undermines the security of the State; but if, on the other hand, the document is calculated to disturb public tranquillity and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquillity are not matters which undermine the security of the State.
Speaking for myself, I cannot understand this argument.
In Brij Bhushan and Another vs The State(1), I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and an authority on criminal law like Sir James Stephen has classed sedition as an of fence against public tranquillity.
If so, how could sedi tion be a matter which would undermine the security of the State and public disorders and disturbance of public safety will not be such a matter? It was argued that a small riot or an affray will not (1) ; 605 undermine the security of the State, but to this line of argument there is a two fold answer : (1) The Act, as its preamble shows, is not intended for petty disorders but for disorders involving menace to the peace and tranquillity of the Province, (2) There are de grees of gravity in the offence of sedition also and an isolated piece of writing of mildly seditious character by one insignificant individual may not also, from the layman 's point of view, be a matter which undermines the security of the State, but that would not affect the law which aims at checking sedition.
It was also said that the law as it stands may be misused by the State executive, but misuse of the law is one thing and its being unconstitutional is another.
We are here concerned with the latter aspect only.
I shall not pursue the matter further as I have said enough on the subject in the connected case.
Petition allowed.
Agent for the petitioner: K. J. Kale.
Agent for the opposite party : P. A. Mehta.
| Held, by the Full Court (i) (overruling a preliminary objection) Under the Constitution the Supreme Court is constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights, although such applications are made to the Court in the first in stance without resort to a High Court having concurrent jurisdiction in the matter.
Urquhart vs Brown ; and Hooney vs Kolohan ; distinguished.
(ii) Freedom of speech and expression includes freedom propagation of ideas and that freedom is ensured by the freedom of circulation.
Ex parte Jackson ; and Lovell vs City of Griffin ; referred to.
Held per KANIA C.J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting): (i) Apart from libel, slander etc.
unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the over throw of it, such law cannot fall within the reservation under cl.
(2) of article 19 of the Constitution, although the restrictions which it seeks to impose may have been con ceived generally in the interests of public order.
Section 9 (1 A) of the Madras Maintenance of Public Order Act, XXXIII of 1949, which authorises impositions of restrictions for the wider purpose of securing public safety or the mainte nance of public order falls outside the scope of authorised restrictions under cl.
(2) and is therefore void and uncon stitutional; (ii) Where a law purports to authorise the imposition of restrictions on a fundamental right in lan guage wide enough to cover restrictions both within and without the limits of constitutionally permissible legisla tive action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable.
So long as the possibilitY of its being applied for purposes not sanc tioned by the Constitution cannot be ruled out 595 must be held to be wholly unconstitutional and void.
Section 9 (1 A) is therefore wholly unconstitutional and void.
Per FAZL ALI J. Restrictions which section 9 (1 A) autho rised are within the provisions of cl.
(2) of article 19 of the Constitution and section 9 (1 A)is not therefore unconstitutional or void.(1) Brij Bhushan and Another vs The State ; referred to.
|
Civil Appeal No. 8 of 1951.
Appeal from the judgment and decree dated 12th October, 1944, of the High Court of Judicature at Allahabad (Allsop and Malik JJ.)in First Appeal No. 374 of 1941 arising out of a Decree dated 31st July, 1941, of the Court of the Civil Judge, Moradabad, in Original Suit No. 9 of 1941.
Bakshi Tek Chand (section K. Kapoor, with him) for the appel lant.
Achhru Ram (Jwala Prasad, with him) for the respondent.
February 22.
The judgment of the Court was deliv ered by BoSE J.
This is a litigation between two branches of a family whose common ancestor was one Megh Raj Singh The family tree is as follows: Megh Raj Singh Jawahar Singh Madan Singh Shankar Lal(d 1884) Brijlal (d. 1889 or (1890) Daughter: Met.
Mohan Dei (d. Oct 1929) Kishan Lal Mahabir Prasad Husband: Narain Das (d. 21 5 1940) (d. 1921) Shri Kishan Das Mst.
Deoki Jugal Kishore Amar Nath (d.march 1929) (d. 1894) Plff.
1 Plff.2.
Dhiyan Singh Jai Bhagwan Singh Deft.
1 Deft. 2 Ghas Ram Onkar Prasad The dispute is about property which, according to the plaintiffs, formed part of Shanker Lal 's estate.
The plain tiffs state that the two branches of the family were sepa rate at all material times; that on 480 Shanker Lal 's death in 1884 his daughter Mst.
Mohan Dei (the defendants ' grandmother) succeeded to a limited estate.
The reversion opened out on her death in October 1929 and the plaintiffs are entitled as the next reversioners, for Mst.
Mohan Dei 's son Shri Kishan Das predeceased her.
The defendants admit that Shanker Lal was separate from the other branch of the family.
They divide the property which their grandmother Mst.
Mohan Dei possessed into two categories.
First, there was property which they say be longed to her.
These are properties which, according to them, she purchased or obtained under mortgages in her own right.
Next, there were properties which belonged exclu sively to her father and to which she succeeded as daughter.
On Shanker Lal 's death disputes arose between Shanker Lal 's father 's brother 's son Brijlal (the plaintiffs ' grandfa ther) and the defendants ' grandmother Mst.
Mohan Dei.
Brijlal claimed the entire estate by survivorship, his allegation being that Shanker Lal died in a state of joint ness with him and that all the properties were joint family properties.
This dispute was referred to arbitration and an award was delivered.
Under it Mst.
Mohan Dei was given the suit properties as absolute owner and the rest of the estate then in dispute was given to Brijlal, A division was ef fected accordingly and ever since, that is to say, from 21 12 1884, the date of the award, down to 26 3 1941, the date of the suit, each branch has been in separate and uninter rupted possession of the properties respectively allotted to it and each has been dealing with them as absolute owner.
The defendants claim that the plaintiffs are bound by this award and are in any event estopped.
The plaintiffs lost in the first Court but won in the High Court.
The defendants appeal.
The first question is about the nature of the award.
The defendants say that it gave Mst.
Mohan Dei an absolute estate.
The plaintiffs deny this and say she obtained only a limited estate.
In our opinion, the defendants are right.
481 The question at issue is a simple one of construction.
The award is exhibit A 1.
The operative portion runs thus: "Having regard to the specifications give above, Brij Lal, first party, and Musammat Mohan Devi, the deceased 's female issue, second party, have been held entitled to shares, worth Rs. 28,500 and Rs. 42,482 10 0 respective ly in the said properties; and accordingly. two lots have been made and the first lot is allotted to the first party and the second lot to the second party; and henceforth the parties shall have no claim or liability against each other; and each party has become permanent owner (malikmustaqil) of his or her share; and each party should enter in proprietary possession and occupation of his or her respective share. " The underlining is ours.
We do not think the words admit of any doubt, particu larly as the words "malik mustaqil" have been used: see Ram Gopal vs Nand Lal and Others (1) and Bishunath Prasad Singh vs Chandika Prasad Kumari (2).
But it was argued that the award must be viewed as a whole and that certain earlier passages show that this could not have been the intention. ]he passages relied on are these.
First, the finding that the properties claimed by Mst.
Mohan Dei as her own really belonged to Shanker Lal.
He had purchased some and acquired others through mortgages in her name but she was only a benamidar and had no title to them.
Second, that some of the properties in dispute were ancestral and the rest sell acquired, though whether with the help of ances tral funds or not the arbitrator was unable to determine.
Third, the arbitrator 's view of the Hindu law, namely that "the brother should be the owner of the joint ancestral property and the daughter who has a male issue should be owner of the self acquired property.
" And lastly, this passage (1) ; at 773.(2)(1933) 60 I.A. 56 at 61 & 62. 482 "Furthermore, when the 2nd party (Mohan Dei) has inher ited no property from her husband, she, in case of getting this share, will certainly settle down in Amroha and will make her father 's haveli as her abode and thus the haveli shall remain a bad as heretofore, and in this way the de ceased 's name will be perpetuated; and it is positive that, after the Musammat, this property shall devolve on her son, who will be the malik (owner) thereof, and later the de scendant of this son will become the owner thereof.
" We do not think these passages qualify the operative portion of the award and are unable to agree with the learned Judges of the High Court who hold they do.
In our opinion, the arbitrator was confused in his mind both as regards the facts as well as regards the law.
His view of the law may have been wrong but the words used are, in our opinion, clear and, in the absence of anything which would unambiguously qualify them, we must interpret them in their usual sense.
Some cases were cited in which the word "malik", and in one case the words "malik mustaqil" were held to import a limited estate because of qualifying circumstances.
We think it would be pointless to examine them because we are concerned here with the document before us and even if it be conceded that words which would ordinarily mean one thing can be qualified by other words and circumstances appearing in the same document, we are of opinion that the passages and circumstances relied on in this case do not qualify the strong, clear and unambiguous words used in this document.
The learned counsel for the plaintiffs respondents had to search diligently for the meaning for which he contended in other passages and had to make several assumptions which do not appear on the face of the award as to what the arbitra tor must have thought and must have intended.
We are not prepared to qualify clear and unambiguous language by phrases of dubious import which can be made to coincide with either view by calling in aid assumptions of fact about whose existence we can only guess 483 The award was attacked on other grounds also.
It was urged, among other things, that the arbitrator had travelled beyond the terms of his reference in awarding Mst.
Mohan Dei an absolute interest.
It was also urged that even if Brij lal was bound his son Kishan Lal, who did not claim through him but who had an independent title as reversioner to Shanker Lal, would not be bound, and it was contended that if Kishan Lal was not bound the plaintiffs would not be either.
But we need not examine these points because we do not need to proceed on the binding nature of the award.
Even if the award be invalid we are of opinion that the plaintiffs ' claim is completely answered by the plea of estoppel.
Now it can be conceded that before an estoppel can arise, there must be, first, a representation of an existing fact as distinct from a mere promise de futuro made by one party to the other; second, that the other party, believing it, must have been induced to act on the faith of it; and third, that he must have so acted to his detriment.
It will be necessary to deal with this in stages and first we will consider whether there was any estoppel against Brijlal.
It is beyond dispute that he laid serious claim to the property in 1884.
He claimed that he was joint with Shanker Lal and so, on Shanker Lal 's death he became entitled to the whole of the estate and that Mst.
Mohan Dei had only a right of maintenance.
Whether he would have had difficulty in establishing such a claim, or indeed whether it would have been impossible for him to do so, is wholly immaterial.
The fact remains that he pressed his claim and was serious about it, so much so that he was able to per suade the arbitrator that he had an immediate right to part of the estate.
Mohan Dei, on the other hand, resisted this claim and contended that she was entitled to separate and exclusive possession, and in any event, that she was entitled in absolute right to a part of the property.
On the facts which now emerge it is evident that Brijlal had no right and that his hopes of one day succeeding as 484 reversioner were remote.
Mohan Dei had a son Shri Kishan Das who was the next presumptive reversioner and as the boy was a good deal younger than Brijlal, Brijlal 's chances were slim.
Actually, the boy survived Brijlal by nearly forty years.
Brijlal died in 1889or 1890 and the boy did not die till March 1929.
Had he lived another eight or nine months he would have succeeded and the plaintiffs would have been nowhere.
Now this dispute, seriously pressed by both sides, was referred to arbitration.
It is neither here nor there whether the award was valid, whether the decision fell within the scope of the reference or whether it had any binding character in itself.
Even if it was wholly invalid, it was still open to the parties to say: Never mind whether the arbitrator was right or wrong, his decision is fair and sensible, so instead of wasting further time and money in useless litigation, we will accept it and divide the estate in accordance with his findings.
That would have been a perfectly right and proper settlement of the dispute, and whether it bound third parties or not it would certainly bind the immediate parties; and that in effect is what they did.
By his conduct Brijlal induced Mst.
Mohan Dei to be lieve that this would be the case and on the faith of that representation, namely the acceptance of the award, he induced Mst.
Mohan Dei to act greatly to her detriment and to alter her position by accepting the award and parting with an appreciable portion of the estate, and he himself obtained a substantial advantage to which he would not otherwise have been entitled and enjoyed the benefit of it for the rest of his life; and to his credit be it said, he never attempted to go behind his decision.
In any event, we are clear that that created an estoppel as against Brijlal.
In our opinion, the present case is very similar to the one which their Lordships of the Privy Council decided in Kanhai Lal vs Brij Lal (1).
There also there was a dispute between a limited owner and a person who, but for an un proved claim (adoption) which he (1) (1919) 45 I.A. 118.
485 put forward, had no right to the estate.
The dispute was taken to the courts but was compromised and according to the agreement the property was divided between the two rival claimants and the agreement was given effect to and acted on for a period of twenty years.
Later, the succession opened out and the other party to the compromise, who by then had stepped into the reversion, claimed the rest of the estate, which had been assigned to the limited owner, against her personal heirs.
The Judicial Committee rejected the claim on the ground of estoppel and held that even though the plaintiff claimed in a different character in the suit, namely as reversioner, he having been a party to the compro mise and having acted on it and induced the other side to alter her position to her detriment, was estopped.
We do not think the fact that there was a voluntary compromise whereas here there was the imposed decision of an arbitra tor.
makes any difference because we are not proceeding on the footing of the award but on the actings of the parties in accepting it when they need not have done so if the present contentions are correct.
It is true that in one sense a question of title is one of law and it is equally true that there can be no estoppel on a question of law.
But every question of law must be grounded on facts and when Brijlal 's conduct is analysed it will be found to entail an assertion by him that he admitted and recognised facts which would in law give Mst.
Mohan Dei an absolute interest in the lands awarded to her.
It was because of that assertion of fact, namely his recognition and admission of the existence of facts which would give Mst.
Mohan Dei an absolute interest, that she was induced to part with about one third of the property to which Brijlal, on a true estimate of the facts as now known, had no right.
There can be no doubt that she acted to her detriment and there can, we think, be equally no doubt that she was in duced to do so on the faith of Brijlal 's statements and conduct which induced her to believe that he accepted all the implications of the 63 486 award.
But in any event, we are clear that Brijlal would have been estopped.
The nature of the dispute and the de scription of it given in the award show that there was considerable doubt, and certainly much dispute, about the true state of affairs.
Even if the arbitrator was wholly wrong and even if he had no power to decide as he did, it was open to both sides to accept the decision and by their acceptance recognise the existence of facts which would in law give the other an absolute estate in the properties they agreed to divide among themselves and did divide.
That, in our opinion is a representation of an existing fact or set of facts.
Each would consequently be estopped as against the other and Brijlal in particular would have been estopped from denying the existence of facts which would give Mst.
Mohan Dei an absolute interest in the suit property.
We turn next to his son Kishan Lal.
Brijlal died in 1889 or 1890.
At that date Mst.
Mohan Dei 's son Shri Kishan Das was alive and was the next presumptive reversioner.
Brijlal 's sons therefore had no more right to that portion of his estate which was assigned to Brijlal than Brijlal himself.
But they took possession and claimed through their father. ]hey did not claim an independent title in them selves, and, as we know, they had no other title at that date.
They were therefore in no better position than Brij lal and as Brijlal would have been estopped, the estoppel descended to them also because they stepped into his shoes.
This would be so even if Brijlal had claimed the property independently for himself, which he did not; but much more so as he claimed in joint family rights and evidently acted as karta or manager on behalf of his family.
But apart from this, there was also an independent estoppel in Kishan Lal.
We have said, he had no right to this part of the estate when his father died apart from the award.
But nevertheless he took possession along with his brother and the two of them treated the property as their own and derived benefit 487 from it.
They partitioned the estate between themselves and sold away parts of it to third parties.
Kishan Lal knew of the award.
He knew that mutation had been effected in accordance with it and possession taken by Brijlal under it and that the rest had been retained by Mst.
Mohan Dei.
His retention of the property therefore and his continuing to deal with it on the basis of the award indicated his own acceptance of the award and, therefore, by his acts and conduct, he represented that he also, like his father, admitted the existence of facts which would in law give Mst.
Mohan Dei an absolute estate; and further, he allowed Mst.
Mohan Dei to deal with the estate as her own, for she, on her part.
also acted on the award and claimed absolute rights in the property assigned to her.
She dealt with it on that footing and gifted it in that right to her grand sons, the contesting defendants, on 4th April, 1929.
Muta tion was effected and Kishan Lal raised no objection.
We see then that Brijlal retained possession of property to which he was not entitled for a period of five or six years from 1884 to 1889 or 1890 and induced Mst.
Mohan Dei to part with it by representing that he accepted the award and her abso lute title to the rest, and after him Kishan Lal and his brother between them enjoyed the benefit of it from 1889 or 1890 down to October 1929 when Mst.
Mohan Dei died, that is, for a further forty years, and led Mst.
Mohan Dei to believe that they also acknowledged her title to an absolute estate.
We have no doubt that down to that time Kishan Lal was also estopped for the reasons given above.
Had he questioned the award and reopened the dispute Mst.
Mohan Dei would at once have sued and would then for forty years have obtained the benefit of property from which she was excluded because of her acceptance of the award on the faith of Brijlal 's asser tion that he too accepted it.
Kishan Lal 's inaction over these years with full knowledge of the facts, as is evident from the deposition of D.W. 2, Dhiyan Singh, whose testimony is uncontradicted, and his acceptance of the estate with all its consequential benefits, unquestionably creates an estoppel in him.
This witness tells us that 488 "Kishanlal always accepted this award and acted upon it.
" He qualifies this in cross examination by saying that Kishan Lal had also objected to it but the witness did not know whether that was before or after Mst.
Mohan Dei 's death.
The documents filed show it was after, so there is no reason why the main portion of his statement which is uncontradicted, and which could have been contradicted, should not be accepted.
In March, 1929, Mst.
Mohan Dei 's son Shri Kishan Das died and Kishan Lal thereupon became the next presumptive reversioner, and in October, 1929, when the reversion opened out the estate vested in him, or rather would have vested in him but for the estoppel.
The question therefore is, did he continue to be bound by the estoppel when he assumed a new character on the opening out of the reversion ? We have no doubt he did.
The decision of the Judicial Committee which we have just cited, Kanhai Lal vs Brijlal(1), is, we think, clear on that point.
Although other reversioners who do not claim through the one who has consented are not bound.
the consenting reversioner is estopped.
This is beyond dispute when there is an alienation by a limited owner without legal necessity.
See Ramgouda Annagouda vs Bhausaheb (2) where the ground of decision was ". .but
Annagouda himself being a party to and benefiting by the transaction evidenced thereby was preclud ed from questioning any part of it.
" In our opinion, the same principles apply to a case of the present kind.
It was contended, however, on the strength of Rangasami Gounden vs Nachiappa Gounden(3) and Mr. Binda Kuer vs Lalitha Prasad(4), that even if Kishan Lal did take posses sion in 1889or 1890 on the strength of a title derived from his father, that would not have precluded him from asserting his own rights in a different character when the succession opened (1)(1918) 45 I.A 118.
(2) (1927) 54 I.A. 396 at 403.
(3) (1919) 46 I.A. 72.
(4) (1936) A.I.R. 1936 P.C. 304 at 308.
489 out.
Reliance in particular was placed upon page 808 of the latter ruling.
In our opinion, that decision is to be distinguished.
In that case the reversion did not fall in till 1916.
Long before that, namely in 1868, the next presumptive reversioners entered into a compromise whereby the grandfa ther of one Jairam who figured in that case obtained a good deal more than he Would have been entitled to in the ordi nary way.
But for the compromise this grandfather would have got only one anna 12 gundas share, whereas due to the compromise he got as much as 2 annas 4 gundas, The actual taking of possession was however deferred under the compro mise till the death of one Anandi Kuer.
She died in 1885 and on that date Jairam was entitled to his grandfather 's share as both his father and grandfather were dead.
Jairam accordingly reaped the benefit of the transaction.
But it is to be observed that the extra benefit which he derived was only as to a 12 gundas share because he had an absolute and indefeasible right to 1 anna 12 gundas in any event in his own right under a title which did not spring from the com promise.
Jairam lost 1 anna 4 gundas to a creditor Munniram and out of the one anna which he had left from the 2 annas 4 gundas he sold 13 gundas to the plaintiffs for a sum of Rs. 500.
Now it is evident that on those facts it is impossible to predicate that the 13 gundas which the plaintiffs pur chased came out of the extra 12 gundas which Jairam obtained because of the compromise rather than out of the 1 anna 12 gundas to which he had a good and independent title anyway; and of course unless the plaintiffs ' 13 gundas could be assigned with certainty to the 12 gundas it would be impos sible to say that they had obtained any benefit from the compromise.
The Judicial Committee also added that even if it was possible to assign this 13 gundas with certainty to the 12 gundas it by no means followed that the plaintiffs admitted that fact nor would that necessarily have given them a benefit under the compromise.
They had the right to contest 'the 490 position and gamble on the possibility of being able to prove the contrary.
Their Lordships added " Unless the plaintiffs ' individual conduct makes it unjust that they should have a place among Bajrangi Lal 's reversioners their legal rights should have effect.
" In the other case, Rangasami Gounden vs Nachiappa Goun den(1), their Lordships ' decision about this matter turned on the same sort of point: see page 87.
The present case is very different.
When Kishan Lal took possession of his father 's property he held by virtue of the award and under no other title, and for forty years he continued to derive benefit from it.
Accordingly, he would have been estopped even if he had claimed in a differ ent character as reversioner after the succession opened out.
It was conceded that if the estoppel against Kishan Lal enured after October 1929, then the plaintiffs, who claim through Kishan Lal, would also be estopped.
The appeal succeeds.
The decree of the High Court is set aside and that of the first Court dismissing the plaintiffs ' claim is restored.
Costs here and in the High Court will be borne by the plaintiffs respondents.
Appeal allowed.
(1) (1919) 46 I.A. 72.
| S and B were sons of two brothers respectively.
S died in 1884 leaving a daughter M, surviving him.
On the death of S dispute arose between B and M. B claimed the entire estate by survivorship, alleging that S died in a state of jointness with him and that all the properties were joint family properties and M was entitled only to maintenance.
The dispute was referred to arbitration and an award was delivered.
Under it the suit properties were given to M and the rest of the estate then in dispute was given to B.
The operative part of the award stated inter alia that B, first party, and M, the second party, were held entitled to speci fied shares in the properties in dispute and each had become permanent owner (Malik Mustaqil) of his or her share.
A division was effected and ever since the date of the award in 1884 each branch continued in possession of the proper ties allotted to it and each had been dealing with them as absolute owner.
The defendants claimed that the plaintiffs were bound by the award and were in any event estopped from challenging it.
In 1941 B 's grandsons instituted a suit claiming the properties allotted to M claiming that on the death of S his daughter M succeeded to a limited estate and reversion opened out on her death in 1929 and the plain tiffs were entitled as next reversioners, as M 's son had predeceased her.
The defendants (Ms grandsons) alleged that the property possessed by M consisted partly of property which belonged to her and partly of property which belonged exclusively to her father to which she succeeded as daughter.
Held, that the award gave an absolute estate to M as the words "Malik Mustaqil" were strong.
clear and unambiguous and were not qualified by.
other words and circumstances appearing in the same document in the present case.
Held further.
that even if the award be assumed to be invalid the plaintiffs ' claim was barred by the plea of estoppel.
There was estoppel against B because by his conduct he induced M to believe that the decision of the arbitrator was fair and reasonable and both the parties would be bound by it and he induced her to act greatly to her detriment and to alter her position by accepting the award and never attempting to go behind it as long 479 as he lived; there was estoppel against B 's sons because it descended to them as they stepped into his shoes, and fur ther there was independent estoppel against B 's son K by his acts and conduct as evidenced in this case.
There was estoppel against plaintiffs who claimed through their father K.
|
78 and 79 of 1950.
Application under article 32 of the Constitution of India for a writ of mandamus.
G.N. Joshi, for the petitioners.
S.M. Sikri, for the respondent.
November 8.
The judgment 0 the Court was delivered by MAHAJAN J.
These two applications for enforcement of the fundamental right guaranteed under article 19 (1) (g) of the Constitution of India have been made by a proprietor and an employee respectively of a bidi manufacturing concern of District Sagar (State of Madhya Pradesh).
It is contended that the law in force in the State authorizing it to prohib it the manufacture of bidis in certain villages including the one 761 wherein the applicants reside is inconsistent with the provisions of Part III of the Constitution and is conse quently void.
The Central Provinces and Berar Regulation of Manufac ture of Bidis (Agricultural Purposes) Act, LXIV of 1948, was passed on 19th October 1948 and was the law in force in the State at the commencement of the Constitution.
Sections 3 and 4 of the Act are in these terms; " 3.
The Deputy Commissioner may by notification fix a period to be an agricultural season with respect to such villages as may be specified therein.
(1) The Deputy Commissioner may, by general order which shall extend to such villages as he may specify, prohibit the manufacture of bidis during the agricultural season.
(2) No person residing in a village specified in such order shall during the agricultural season engage himself in the manufacture of bidis, and no manufacturer shall during the said season employ any person for the manufacture of bidis.
" On the 13th June 1950 an order was issued by the Deputy Commissioner of Sagar under the provisions of the Act for bidding all persons residing in certain villages from engag ing in the manufacture of bidis.
On the 19th June 1950 these two petitions were presented to this Court under article 32 of the Constitution challenging the validity of the order as it prejudicially affected the petitioners ' right of freedom of occupation and business.
During the pendency of the petitions the season mentioned in the order of the 13th June ran out.
A fresh order for the ensuing agricultural season 8th October to 18th November 1950 was issued on 29th September 1950 in the same terms.
This order was also challenged in a supplementary petition.
Article 19 (1) (g) runs as follows : "All citizens shall have the right to practise any profession, or to carry on any occupation, trade or busi ness.
" 762 The article guarantees freedom of occupation and busi ness.
The freedom guaranteed herein is, however, subject to the limitations imposed by clause (6) of article 19.
That clause is in these terms : "Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restric tions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any pro fession or carrying on any occupation, trade or business.
" The point for consideration in these applications is whether the Central Provinces and Berar Act LXIV of 1948 comes within the ambit of this saving clause or is in excess of its provisions.
The learned counsel for the petitioners contends that the impugned Act does not impose reasonable restrictions on the exercise of the fundamental right in the interests of the general public but totally negatives it.
In order to judge the validity of this contention it is neces sary to examine the impugned Act and some of its provisions.
In the preamble to the Act, it is stated that it has been enacted to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas.
Sections 3 and 4 cited above empower the Deputy Commissioner to prohibit the manufacture of bidis during the agricultural season.
The contravention of any of these provisions is made punishable by section 7 of the Act, the penalty being imprisonment for a term which may extend to six months or with fine or with both.
It was enacted to help in the grow more food campaign and for the purpose of bring ing under the plough considerable areas of fallow land.
The question for decision is whether the statute under the guise of protecting public interests arbitrarily 763 interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupation; in other words, whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in article 19 (1) (g) of the Constitution.
Unless it is shown that there is a reason able relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it.
The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.
The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates.
Legisla tion which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19 (1) (g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.
Clause (6) in the concluding paragraph particularizes certain instances of the nature of the restrictions that were in the mind of the constitution makers and which have the quality of reasonableness.
They afford a guide to the interpretation of the clause and illustrate the extent and nature of the restrictions which according to the statute could be imposed on the freedom guaranteed in clause (g).
The statute in substance and effect suspends altogether the right mentioned in article 19 (1) (g) during the agri cultural seasons and such suspension may lead to such dislocation of the industry as to prove its ultimate ruin.
The object of the statute is to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas of the Province and it could well be achieved by legislation restraining the employment of agri cultural labour in the manufacture 764 of bidis during the agricultural season.
Even in point of time a restriction may well have been reasonable if it amounted to a regulation of the hours of work in the busi ness.
Such legislation though it would limit the field for recruiting persons for the manufacture of bidis and regulate the hours of the working of the industry, would not have amounted to a complete stoppage of the business of manufac ture and might well have been within the ambit of clause (6).
The effect of the provisions of the Act, however, has no reasonable relation to the object in view but is so drastic in scope that it goes much in excess of that object.
Not only are the provisions of the statute in excess of the requirements of the case but the language employed prohibits a manufacturer of bidis from employing any person m his business, no matter wherever that person may be residing.
In other words, a manufacturer of bidis residing in this area cannot import labour from neighbouring places in the district or province or from outside the province.
Such a prohibition on the face of it is of an arbitrary nature inasmuch as it has no relation whatsoever to the object which the legislation seeks to achieve and as such cannot be said to be a reasonable restriction on the exercise of the right.
Further the statute seeks to prohibit all persons residing in the notified villages during the agricultural season from engaging themselves in the manufacture of bidis.
It cannot be denied that there would be a number of infirm and disabled persons, a number of children, old women and petty shop keepers residing in these villages who are inca pable of being used for agricultural labour.
All such persons are prohibited by law from engaging themselves in the manufacture of bidis; and are thus being deprived of earning their livelihood.
It is a matter of common knowledge that there are certain classes of persons residing in every village who do not engage in agricultural operations.
They and their womenfolk and children in their leisure hours supplement their income by engaging themselves in bidi business.
There seems no reason for prohibiting them from carrying on this occupation, The statute as 765 it stands, not only compels those who can be engaged in agricultural work from not taking to other avocations, but it also prohibits persons who have no connection or relation to agricultural operations from engaging in the business of bidi making and thus earning their livelihood.
These provi sions of the statute, in our opinion, cannot be said to amount to reasonable restrictions on the right of the appli cants and that being so, the statute is not in conformity with the provisions of Part III of the Constitution.
The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right.
So long as the possibility of its being applied for purposes not sanctioned by the Consti tution cannot be ruled out, it must be held to be wholly void.
Mr. Sikri for the Government of Madhya Pradesh contends that the legislature of Madhya Pradesh was the proper judge of the reasonableness of the restrictions imposed by the statute, that that legislature alone knew the conditions prevailing in the State and it alone could say what kind of legislation could effectively achieve the end in view and would help in the grow more food campaign and would help for bringing in fallow land under the plough and that this Court sitting at this great distance could not judge by its own yardstick of reason whether the restrictions imposed in the circumstances of the case were reasonable or not.
This argument runs counter to the clear provisions of the Con stitution.
The determination by the legislature of what constitutes a reasonable restriction is not final or conclu sive;it is subject to the supervision by this Court.
In the matter of fundamental rights, the Supreme Court watches and guards the rights guaranteed by the Constitution and in exercising its functions it has the power to set aside an Act of the Legislature if it is in violation of the freedoms guaranteed by the Constitution.
We are therefore of opinion 98 766 that the impugned statute does not stand the test of reason ableness and is therefore void.
The result therefore is that the orders issued by the Deputy Commissioner on 13th June 1950 and 26th September 1950 are void, inoperative and ineffective.
We therefore direct the respondents not to enforce the provisions con tained in section 4 of the Act against the petitioners in any manner whatsoever.
The petitioners will have their costs of these proceedings in the two petitions.
Petitions allowed.
Agent for the petitioners in Nos. 78 and 79: Rajinder Narain.
Agent for the respondent in Nos. 78 and 79: P.A. Mehta.
| The Central Provinces and Berar Regulation of Manufac ture of Bidis (Agricultural Purposes) Act, LXIV of 1948, a law which was in force at the commencement of the Constitu tion of India, provided that" the Deputy Commissioner may by notification fix a period to be an agricultural season with respect to such villages as may be specified therein" and that "the Deputy Commissioner may by general order which shall extend to such villages as he may specify, prohibit the manufacture of bidis during the agricultural season.
" The Act provided further that" no person residing in a, village specified in such order shall during the agricultur al season engage himself in the manufacture of bidis, and no manufacturer shall during the said season employ any person for the manufacture of bidis." An order was issued by the Deputy Commissioner under the provisions of the Act forbid ding all persons residing in certain villages from engaging in the manufacture of bidis during a. particular season.
A manufacturer of bidis and an employee in a bidi factory residing in one of the said villages applied under article 32 of the Constitution for a writ of mandamus alleging that since the Act prohibited the petitioners from exercising their fundamental right to carry on their trade or business which was guaranteed to them by cl.
(1) (g) of article 19 of the Constitution, the Act was void: Held, (i) that the object of the statute, namely, to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas of the Province could well have been achieved by legislation re straining the employment of agricultural labour in the manufacture of bidis during the agriculrural season without prohibiting altogether the manufacture of bidis.
As the provisions of the Act had no reasonable relation 760 to the object in view, the Act was not a law imposing "reasonable restrictions" within the meaning of cl.
(6) of Art 19 and was therefore void.
(ii) The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agri cultural labour cannot be held to be valid because the language employed was wide enough to cover restrictions both within and without the limits of constitutionally permissi ble legislative action affecting the right, and so long as the possibility of its being applied for purposes not sanc tioned by the Constitution cannot be ruled out, it must be held to be wholly void.
The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.
The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates.
Legisla tion which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guarnteed in article 19 (1) (g) and the social control permit ted by el.
(6) of article 19, it must be held to be wanting in that quality.
Held also, that the determination by the Legislature of what constitutes a reasonable restriction is not final and conclusive.
The Supreme Court has power to consider whether the restrictions imposed by the Legislature are reasonable within the meaning of article 19, cl.
(6) and to declare the law void if in its opinion the restrictions are not reasonable.
|
eal No. 10 of 1950.
Appeal by special leave from a judgment of the High Court of Punjab (Falshaw and Soni JJ.) dated 30th December, 1949, upholding the conviction of the appellant under sections 302 and 307 read with section 34 of the Indian Penal Code and confirming the sentence of death passed against him by the Sessions Judge of Ferozepore on the 20th July, 1949, in Criminal Appeal Case No. 325 of 1949.
Jai Gopal Sethi (R. L. Kohli, with him) for the appel lant.
B.K. Khanna, Advocate.
General of the Punjab, (section M. Sikri, with him) for the respondent.
October 17.
The judgment of the court was deliv ered by FAZL ALI J.
This is an appeal by special leave from the judgment of the High Court of Punjab upholding the convic tion of the appellant.
Mohinder Singh, under sections 302 and 307 read with section 34 of the Indian Penal Code, and confirming the sentence of death passed against him by the Sessions Judge of Ferozepore.
The case for the prosecution which has been substantial ly accepted by the trial Judge and the High Court is briefly as follows.
Sometime in January, 1949, one Bachittar Singh, brother of Dalip Singh who is said, to have been murdered, lodged a complaint before the NaibTehsildar at Zira to the effect that a tree belonging to him had been cut by 7 per sons including Mohinder Singh, the appellant.
On the 28th February, 1949, which was the date fixed for the hearing of the case before the Naib TehsiIdar, Jita Singh and Dalip Singh, the two brothers of Bachittar Singh, were attacked by the appellant and one Gurnam Singh, a lad of 17, near a Gurdwara at about mid day, when 823 they were returning from their field.
Jita Singh was then carrying a load of fodder on his head while Dalip Singh had sickles in his hand.
Jita Singh was the first to be at tacked near a tailor 's shop by Mohinder Singh who fired at him from behind hitting him on the neck whereupon he fell down together with the bundle of fodder.
Dalip Singh, who was following Jita Singh, then ran backwards and he was chased by Gurnam Singh round the outer boundary of a tank which was close by.
Mohinder Singh ran on the other side of the tank in the opposite direction and confronted him and shot him with a gun on the chest whereupon he fell down.
Meanwhile, Gurnam Singh had also reached the spot and he fired with his rifle from a distance of about 4 or 5 feet near about Dalip Singh 's ear while he was lying sideways.
The injuries proved fatal and Dalip Singh died on the spot.
The same day at 3 p.m., Jita Singh went to the police station at Dharamkot, which is at a distance of 3 miles from village Augar, where the occurrence had taken place, and lodged a first information report, charging Mohinder Singh, with having caused injury to him, and Mohinder Singh and Gurnam Singh with the murder of Dalip Singh; and the police after investigating the case sent up a charge sheet against the two accused persons.
Thereafter they were tried by the Sessions Judge of Ferozepore under sections 302 and 307 read with section 34 of the Indian Penal Code.
The appellant was sentenced to death under section 302 and Gurnam Singh was sentenced to transportation for life under that section in view of his youth.
They were also sentenced to 3 years ' rigorous imprisonment each under section 307 read with section 34 of the Indian Penal Code.
It appears that Dalip Singh had 6 injuries altogether which are described by the doctor who performed the post mortem on his body in these words: " 1.
An irregularly round gun shot wound on the left temporal region, 1" diameter.
The wound is 22" behind outer canthus of left eye, its upper portion is at a level with the top of the pinna of the left ear, 824 behind it commences at the cartilages of the ear which are broken.
Brain is visible in the gap of the wound.
An area 4 " x 4 " is blackened, the wound being situated in the middle of this area.
A gun shot wound 3/4" X 1/2" on the back of right mastoid region, upper end of the wound is 1" behind the root of the right ear.
Direction is vertically oblique.
On dissection the left temporal bone under injury No. 1 is, hole and its petrous portion shattered.
A linear fracture extends upwards and backwards, from the hole into the left parietal and occipital bones.
After piercing through the left temporal lobe of the brain the projectile has pierced through the brainstem, and emerged out as injury No. 2, holding the mastoid region of the skull on the right side.
A gun shot wound 3/4" X 5/8" on the left side of chest 21/2" above and behind the left nipple and 1/2" behind the anterior axillary fold as area 1" below the wound is bruised.
A gun shot wound 1/2"X 3/4" on the right side of chest in the mid axillary line.
The top of the wound being 1 3/4" from the apex of right axilla and 4 3/4" above and behind the right nipple.
A gun shot wound 1/2"x 1/4" on the inner aspect of the right arm, upper end of the wound is 11/4" from the top of the anterior axillary fold.
A gun shot wound 3/4"X 1/2" on the front of the right arm.
Its upper end being 21/2" from the top of the anterior axillary fold.
Its distance from injury No. 5 being 1" and it is inter connected with injury No. 5 under the skin.
" The doctor has stated in his evidence that in all two projectiles appeared to have hit Dalip Singh, and injuries Nos. 1 and 2 were caused by one of them, injury No. 1 being the wound of entrance and injury No. 2 being the wound of exit, With regard to the other 4 injuries, his evidence is as follows : "Injury No. 3 is the wound of entrance of another projectile and No. 4 is the wound of its exit.
Wound 825 No. 5 is the wound of its re entrance and wound No. 6 the wound of its final exit from the body." Jita Singh had 4 slight injuries on the back of the neck which are said to have been caused by pellets and two abra sions below the right elbow and right knee said to have been caused by blunt weapons.
It may be stated here that when the investigating police officer arrived at the scene of occurrence, he found an empty cartridge case at the place where Jita Singh is said to have been fired at, and 2 empty cartridge cases and a blood stained cap of a cartridge case near the place where the dead body of Dalip Singh was lying.
Later, when Mohinder Singh appeared before the police, he was asked whether he possessed a gun and he produced a 12 bore gun (exhibit P 16) for which he held a licence.
The gun and the empty cartridges were thereupon sent to Dr. Goyle, Director of the C.I.D. Laboratory, Phillaur, and the opinion that he submitted may be summed up as follows : The gun had signs of having been fired but he could not say when it was fired last.
The cartridge cases P 10 and P 15 could have been fired through the gun P 16, but he could not say wheth er they were actually fired from that particular gun or a similar gun or guns.
He did not make any experiment by firing any cartridge from the gun P 16, nor did he compare the markings on the empty cartridges P 10 and P 15.
A notable feature of the case is that the occurrence is said to have taken place in the vicinity of a Gurdwara and some houses, but in spite of this fact, not a single person of the locality has been cited or examined as a witness by the prosecution.
The whole case rests on the evidence of 3 witnesses, viz., Jita Singh, Harnam Singh and Buta Singh.
Jita Singh, who had been shot at from behind, claims to have seen the two accused firing at his brother.
Harnam Singh admittedly lives at a considerable distance from the place of occurrence but has stated that he was coming from another village where he had gone to fetch some medicine for his maternal cousin, when he 826 saw the occurrence.
Buta Singh, who is a tonga driver, belongs to a distant village and is somewhat remotely related to Harnam Singh, and accounts for his presence near the scene of occurrence by saying that he had come to see Harnarn Singh the evening before.
Harnam Singh admitted in his evidence that there was a dispute between him and Mohinder Singh nearly a month before the occurrence about a wall, but he also says that the dispute ' had been amicably settled by the panchayat".
There is nothing before us to show what the award of the panchayat was and whether or not it left any ill feeling behind.
But, on the argu ments of the counsel and the apparently trivial motive for which Dalip Singh is said to have been murdered, it would appear that among the class of persons with which we are concerned petty quarrels give rise to enmity which does not die soon or easily.
After the close of prosecution evidence in the Ses sions Court, the appellant was examined under section 342 of the Criminal Procedure Code, and he denied that he had fired at Jita Singh and Dalip Singh with the gun P 16 and that Gurnam Singh had fired at Dalip Singh with a rifle.
He added that he was not present in village Augur at the time of the alleged occurrence but had gone to Zira to attend the Naib Tehsildar 's court.
To establish his plea of alibi, he examined 3 witnesses in the court of the Sessions Judge.
The first witness was the Naib Tehsildar before whom Bachittar Singh had lodged the complaint, and he stated that when the case was called on the 28th February, 1949, 6 or 7 persons appeared in court.
He also proved an application for a taccavi loan which purports to have been filed by the appel lant on the 28th February, 1949, and bears his thumb impres sion.
He further stated in his evidence that he had passed orders on that application on the 28th February but he did not know Mohinder Singh and therefore could not say who had produced that application before him on that date.
The second witness for the appellant was his brother in law, Jogindar Singh, who had written the application.
exhibit D C.
He has stated that 827 Mohinder Singh himself was present in the court of the Naib Tehsildar on the 28th February, 1949, that he had signed the application (exhibit D C) and that he was also one of the persons who had appeared before the Tehsildar when Bachittar Singh 's case was called out.
The third defence witness is a hand writing and fingerprint expert.
He has proved that the application (exhibit D C) alleged to have been presented to the Naib Tehsildar on the 28th February bore the thumb impression of the appellant, and he has also given evidence to show that certain handwritings which he was asked to compare did not tally.
The evidence given by him with regard to these handwritings has a bearing on the assertion made by the appellant in a petition filed before the committing Magistrate to the effect that the original service report of the process peon showing that the appellant also was one of the persons served for appearance before the Naib Tehsildar on the 28th February, 1949, had been suppressed and another report with forged handwriting had been substituted in its place.
Both the courts below have held that the alibi has not been proved by satisfactory evidence and that the charges against the appellant have been made 'out.
It seems that the learned Judges of the High Court were not at all impressed by the evidence of Dr. Goyle which they characterized as unsatisfactory and they were not also confident that the gun, exhibit P 16, had been used in causing the injuries to Dalip Singh.
This appears from the folio.wing observations made by them in their judgment: "The gun P 16 was identified by Jita Singh as the gun with which Mohinder Singh fired at him and Dalip Singh but he identified the gun because of a brass plate at its butt end.
We have seen the gun.
Its brass plate could be of no use for the identification of the gun.
" Again, commenting on the nature of the injuries, the learned Judges observed as follows : 828 "Another difficulty which is created in this case is the nature of injuries found on the body of Dalip Singh .
What kind of bullet it was which, though it had blackened the area where it entered the brain showing that it had been fired from not far away, did not shatter the brain we do not know.
What kind of projectile it was which entered the body (which if the evidence as to be believed was fired at from a few feet at Dalip Singh) and passed through the body without shattering the inside of the chest or causing extensive damage therein is also not known.
Mr. Sethi (counsel for the accused) quoted Taylor 's book on medical jurisprudence and Hateher 's book on ballistics and argued that the firing must have been from a place between 600 and 1,200 yards away in order that the projectile may pass through and through the body and not shatter it.
That of course pre supposes that the barrel of the gun, using the word 'gun ' m ' a generic sense, is grooved which causes a projectile to go forward with a rotatory motion of something under a quarter of a million revolutions a minute and travelling at the rate of about 2,000 miles an hour when it leaves the gun . .
We do not know whether the barrel of this gun (exhibit P 16) is grooved or not.
is a single bar relled gun and is country made.
The likelihood is that the barrel is not grooved.
" On a careful reading of the judgment under appeal, it appears that the learned Judges of the High Court strongly felt that they had no adequate explanation in the oral evidence before them for certain puzzling features of the injuries on Dalip Singh.
This is exactly what we also feel in this case, and it seems to us that the evidence which has been adduced falls short of proof in regard to a very mate rial part of the prosecution case.
in a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are al leged to have been caused.
It is 829 elementary that where the prosecution has a definite or positive case, it must prove the whole of that case.
In the present case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle.
Indeed, it seems more likely that they were caused by a rifle than by a gun, and yet the case for the prosecu tion is that the appellant was armed with a gun and, in his examination, it was definitely put to him that he was armed with the gun P 16.
It is only by the evidence of a duly qualified expert that it could have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone could settle the controversy as to whether they could possibly have been caused by a fire arm being used at such a close range as is suggested in the evidence.
It is clear, and it is also the prosecution case, that only 2 shots were fired at Dalip Singh and one of the crucial points which the prosecution had to prove was that these shots were fired by two persons and not by one man, and both the shots were fired in such manner and from such distance as is alleged by the eye witnesses.
There is, in our opinion, a gap in the prosecu tion evidence on a most fundamental point and the error which has been committed by the courts below is to ignore the gap and decide the case merely upon the oral evidence of 3 witnesses, two of whom are mere chance witnesses and not altogether independent persons, and the evidence of the third witness is open to criticism on the ground of his partisanship as well as the improbability of his having been able to see the firing at his brother after he had himself been shot at the back of the neck.
The learned Judges of the High Court, after commenting upon the entire evidence, say in their judgment: " We are thus left with the evidence of the three wit nesses of the prosecution together with the state of wounds as shown by the medical evidence and an unsatisfactory statement of Dr. Goyle.
" 106 830 They reject the evidence of Dr. Goyle and they consider the nature of the wounds to have created a serious dificulty in the case.
Having arrived at these conclusions, it was a serious thing to rest the appellant 's conviction wholly upon the oral testimony in the case which has remained unchecked and unconfirmed by expert evidence.
The real position ap pears to be that the prosecution case cannot be said to be wholly proved but only partly proved if it is permissible to use such an expression.
This Court, as was pointed out in Pritam Singh vs The State (1), will not entertain a criminal appeal except in special and exceptional cases where it is manifest that by a disregard of the forms of legal process or by a violation of the principles of natural justice or otherwise substantial and grave injustice has been done.
It seems to us that the present case comes within the rule laid down, because the appellant has been convicted notwithstand ing the fact that the evidence is wanting on a most.material part of the prosecution case.
This is enough to dispose of this appeal, but we are constrained to say that we are not altogether happy about the manner in which the plea of alibi put forward by the appellant has been disposed of by the courts below.
Ordi narily tiffs court will not look beyond the findings of fact arrived at by the courts below, but we find that in the present case the decision on the plea of alibi has been arrived at in disregard of the principle that the standard of proof which is required in regard to that plea must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable stand ard.
It is common ground in this appeal that the appellant was summoned to appear before the Naib Tehsildar on the 28th February, 1949, which was the date fixed for dealing with Bachittar Singh 's complaint.
Ordinarily and without looking at anything else, there should have been nothing improbable about his appearance before the Naib Tehsildar on that date, but in the present case there is positive (1) 831 evidence that an application for a taccavi loan bearing that date and also bearing the thumb impression the appellant was put up before the Naib Tehsildar and that was dealt with by him on that very day.
There is also affirmative evidence of a witness to prove that the appellant was present in the Naib Tehsildar 's court.
This witness is undoubtedly closely related to the appellant but his evidence is supported by probability and a written document.
One of the points raised by the prosecution was that the summons for appear ance on the 28th February was not served upon Mohinder Singh, but such evidence as there is on the record bearing on this point has certain peculiar features.
The prosecu tion having cited the Naib Tehsildar and the Ahlmad (Bench Clerk) as witnesses in the case gave them up and stated that the former had been won over by the appellant.
This allega tion could have been substantiated in the cross examina tion of the Naib Tehsildar who was examined as a defence witness, but nothing was elicited from him to support such a charge.
From the evidence of the Naib Tehsildar, it appears that on the 5th July, 1949, the Public Prosecutor showed him exhibit P.S. (which is an order directing the appearance of the seven persons including the appellant mentioned by Bachittar Singh in his complaint, before the Naib Tehsildar on the 28th February, 1949).
and that he told the Public Prosecutor that 6 or 7 persons appeared in his court.
on that date.
After this incident, on the 6th July, 1949, the Public Prosecutor informed the Court that he would "give up the Naib Tehsildar as he has been won over ".
The evidence of the process peon is of a somewhat suspicious character, because he has conveniently forgotten every material detail.
The appellant asserted at the trial that the original report of the process peon had been suppressed and another report had been fabricated and substituted in its place.
An application to this effect was made by him before the committing Magistrate, and he also examined a handwriting expert to prove some of his allegations.
Neither of the courts below has dealt with the evidence 832 of this expert.
The evidence of the Investigating Officer as recorded by the Sessions Judge is to the following effect : "P.B. and P.C. were obtained by me from the headquar ters.
Along with P.B. and P.C. the Parvana P.S. was also received by me.
After going through the zimnis, the witness states that the aforesaid documents P.B., P.C. and P.S. were summoned by the committing Magistrate and were not sent for by the witness.
On 16th March, 1949, a Foot Constable was certainly sent to Zira to bring the said file.
But since the file had been sent to the headquarters, therefore, the said constable returned quite blank.
I never inspected this file at the headquarters.
" The most material document with which we are concerned is P.S. which should have contained an endorsement of serv ice of summons on the persons against whom Bachittar Singh had complained.
It is clear from the first part of the evidence of the Investigating Officer that he had received the report of the process peon which was endorsed on the back of P.S., from the headquarters, but he says later that the papers were sent for but they did not arrive.
It is surprising that when a document was the subject of so much controversy he should have said by mistake that he had received it.
One of the comments made by the learned Ses sions Judge in dealing with the application alleged to have been made by the appellant on the 28th February, 1949, for a taccavi loan is that after producing the application before the Naib Tehsildar on that date, Mohinder Singh could have reached his village by noon time, but on this point the learned Sessions Judge seems to have wholly ignored the evidence of the Naib Tehsildar that he usually dealt with such applications between 12 and 4 P.M. on working days, and also the affirmative evidence of Joginder Singh.
In our opinion, there has been in substance no fair and proper trial in this case, and we are constrained to allow this appeal, set aside the conviction of the appellant under sections 302 and 307 read with section S4 833 of the Indian Penal Code, and direct that he be set at liberty forthwith.
In ordinary circumstances, we might have remanded the case for a flesh trial, but we consider that such a course would, in the present case, be unfair and contrary to settled practice, seeing that the appellant has been in a state of suspense over his sentence of death for more than a year.
Appeal allowed.
| In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they are have been caused.
Where in a case of murder, the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the inajuries was also such that the shots must have been fired by more than one person and not by one person only, and the prosection had no evidence to show that another person also shot, and the High Court, though realis ing that there was thus a gap in the prosecution evidence, convicted the accused placing reliance on the oral evidence of 3 witnesses which was not, disinterested: Held, that, the present case fell within the rule laid down in Pritam Singh vs The State ([1959] S C R. 453) inas much as the appellant had been convicted notwithstanding the fact that evidence was wanting on a most material part of the prosecution case, and the conviction could not therefore be upheld, 822 Held also, that the standard of proof which is required in regard to the plea of alibi must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard.
|
eal No. XIII of 1950.
Appeal from a judgment and decree of a Division Bench of the Madras High Court (Wadsworth and Rajamannar JJ.) dated 27th November, 1945, in Appeal No. 518 of 1941, reversing the judgment of the Subordinate Judge of Mayuram dated 10th July, 1944, in Original Suit No. 34 of 1943.
B. Somayya (R. Ramamurti, with him) for the appel lant.
951 K.S. Krishnaswami Aiyangar (K. Narasimha Aiyangar, with him) for respondent No. 1. 1950.
December 21.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal is directed against an appellate judgment of a Division Bench of the Madras High Court dated November 27, 1945, reversing the decision of the Subordinate Judge of ' Mayuram made in Original Suit No. 34 of 1943.
There is no dispute about the material facts of the case which lie within a short compass and the controversy centers round one point only which turns upon the construction of a will left by one Kothandarama Ayyar to whom the properties in suit admittedly belonged.
Kothandarama, who was a Hindu inhabitant of the District of Tanjore and owned considerable properties, died on 25th April 1905, leaving behind him as his near relations his adoptive mother Valu Ammal, his widow Parbari and two daughters Nagammal and Gnanambal, of whom Nagammal,who became a widow during the testator 's life time had an infant daughter named Alamelu Kothandarama executed his last will on 13th March, 1905, and by this will, the genuineness of which is not disputed in the present litigation, he gave an authority to his widow to adopt unto him a son of his second daughter Gnanambal, should she beget one before January., 1908, or in the alter native any of the sons of his two nephews, if the widow so chose.
The suit, out of which the appeal arises, was commenced by Raju Ayyar, who was a son of the testator 's nephews and was taken in adoption by the widow in terms of the will; and it was for recovery of possession of certain properties, known as Kothangudi properties which formed part of the testator 's estate on the allegation that under the will mentioned above, these properties were given to Nagarnmal, the wid owed daughter of the testator for her life time, but as there was no disposition of the remaining interest after the death of the life tenant, the properties vested in the 952 plaintiff as the adopted son and heir of the deceased on the death of Nagammal which took place on 3rd of January, 1943.
Gnanambal, the second daughter of the testator, was the first and main defendant in the suit, and she resisted the plaintiff 's claim primarily on the ground that there was no intestacy as regards the suit properties after the termina tion of the life interest of Nagammal, and that under the terms of the will itself she was entitled to get these properties in absolute right after the death of Nagammal, subject to payment of a sum of Rs. 5,000 to Alamelu, the daughter of Nagammal.
Alamelu was made the second defendant in the suit and as she died when the suit was pending in the trial court, her heirs were impleaded as defendants 3 to 9.
The first court accepted the contention of the defendant No. 1 and dismissed the plaintiff 's suit.
On appeal to the High Court, the judgment was reversed and the plaintiff 's claim was allowed.
The defendant No. 1 has now come up appeal to this court.
To appreciate the contentions that have been raised by the parties to this appeal, it would be convenient first of all to refer briefly to the relevant provisions of the will: After cancelling his previous wills.
the testator in the third paragraph of his will, gave his widow authority to adopt a son.
She was to adopt the son of Gnanambal, if the latter got a son previous to January 1908, or she could adopt any of the sons of the testator 's nephews.
Paragraph 4 provides that if the first course is followed, that is, if the son of Gnanambal is adopted by the widow, then all the properties, movable and immovable, belonging to the testator excepting the village of Kothangudi, the house at Injigudi and the other properties which were disposed of by the will would go to such adopted son.
Paragraph 5, which is materi al for our present purposes runs as follows:. "The whole village of Kothangudi and the house at Injigudi, both of Nannilam Taluk, my daughter Nagammal, shall enjoy with life interest and after her the said property shall pass to my daughter Gnanambal and her chil dren on payment by the latter of Rs. 5,000 to Alamelu Nagam mal 's daughter.
" 953 By the sixth paragraph the Nallathukudi and Pungavur villages together with certain house property at Mayavaram are given to the testaor 's adoptive mother and wife in equal shares to be enjoyed by both of them during their life time and after their death they are to pass on to the adopted son.
Paragraph 7 gives a small h.use absolutely to Nagammal for her residence and paragraph 8 makes certain provisions for management of the properties.
In paragraph 9 direction is given to collect the money due on the insurance policy on the life of the testator and to pay off his debts.
Pragraph 10 mentions certain charities, the expenses of which are to be derrayed from the income of the Nallathukudi properties.
Paragraph 11 then says that in the event of the widow adopt ing any of the nephew 's sons of the testator, such son shall inherit the entire property at Kokkur and also the lands of Nallathukudi after the death of the testator 's wife and mother.
By paragraph 12, the village of Maruthanthanallur is given to Gnanambal and paragraph 13 provides that "the village of Kothangudi shall be enjoyed by Nagammal as stated in paragraph 5" By paragraphs 15 and 16 the remainder in the house at Mayavaram situated in the east row of Vellalar kovil Street is given to Gnanambal after the death of the testator 's wife and mother.
Paragraph 18 provides for cer tain other charities.
In paragraph 20 it is stated that if the wife of the testator should die before January, 1908, without making any adoption, then the eldest or any son of Gnanambal would be his adopted son without any formality and inherit all the properties subject to the conditions men tioned in the will.
Paragraph 21, which is the penultimate paragraph in the will, further lays down that if all the three contingencies fail and no adoption is taken, the male child or children born to Gnanambal shall inherit as grand sons all the properties of the testator, subject to the conditions specified in the will.
These, in brief, are the dispositions made in the will.
The plaintiff founds him claim upon paragraph 13 of the will which, according to him, contains the enire disposition so far as the Kothangudi 954 property is concerned.
That village is given to Nagarm mal for her life with no disposition of the remaining inter est.
If the remainder has not been disposed of, there is no doubt that the plaintiff would be entitled to the property as the heir of the testator under the ordinary law of inher itance.
The defendant No. 1.
on the other hand, relies on para graph 5 of the will, which gives the Kothangudi village and the Injigudi house to Nagammal to he enjoyed by her so long as she lives and after her death they are to go to Gnanambal and her children subject to the payment of a sum of Rs. 5,000 to be paid to Alamelu, the daughter of Nagammal.
The High Court on a construction of the will has found in favour of the plaintiff primarily on the ground that in the contingency which happened in the present case, viz., that the widow took in adoption a nephew 's son of the testa tor, paragraph 5 of the will did not come into operation at all.
The disposition as regards Kothangudi property is, therefore, to be found exclusively in paragraph 13 of the will and the actual words employed by the testator in that paragraph do not indicate that apart from Nagammal 's taking a life estate in the Kothangudi village the rest of the provisions in regard to this property as laid down in para graph 5 would also be incorporated into paragraph 13.
An Obvious difficulty, according to the learned Judges, in accepting the construction sought to be put upon the will by defendant No. 1 is that paragraph 5 speaks both of Kothan gudi and Injigudi properties, whereas paragraph 13 does not mention the Injigudi house at all, nor does it purport to give a life interest in the same to Nagammal.
It could not be reasonably held on a construction of the will that the intention of the testator was that Gnanambal was to pay Rs. 5,000 to Alamelu for the Kothangudi property alone.
The result was that the plaintiff 's claim was allowed.
It is the propriety of this decision that has been challenged before us in this appeal.
In course of the arguments, we have been referred by the learned Counsel on both sides to quite a large 955 number of decided authorities, both English and Indian, in support of their respective contentions.
It is seldom prof itable to compare the words of one will with those of anoth er or to attempt to find out to which of the wills upon which decisions have been: given in reported cases, the will before us approximates closely.
Cases are helpful only in so far as they purport to lay down certain general princi ples of construction and at the present day these general principles seem to be fairly well settled.
The cardinal maxim to be observed by courts in constru ing a will is to endeavour to ascertain the intentions of the testator.
This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised.
In construing the language of the will as the Privy Council observed in Venkata Narasimha vs Parthasarathy (1), "the courts are entitled and bound to bear in mind other matters than merely the words used.
They must consider the surrounding circumstances, the position of the testator, 'his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure 'The court is entitled to put itself into the testator 's armchair ' .
But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document.
So soon as the con struction is settled, the.duty of the court is to carry out the intentions as expressed, and none other.
The court is in no case justified in adding to testamentary dispositions.
In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life." A question is sometimes raised as to whether in constru ing a will the court should lean against (1) 42 I.A. 51 at p.70.
956 intestacy.
The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian court.
It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances; "but it can be invoked only when there is undoubted ambiguity in acertainment of the intentions of the testator.
As Lord Justice Romer observed in Re Edwards; Jones vs Jones (1), "it cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning".
It is in the light of the above principles that we should proceed to examine the contents of the will before us.
The present will, which is the last of four testamentary document executed by the testator, appears to have been prepared with a great deal of care and circumspection.
The testator had clearly in mind the different situations that might arise in case his widow adopted either Gnanambal 's son or a son of one of the nephews of the testator.
He envis aged also the possibility of the widow dying without making any adoption at all.
Besides the son to be adopted, the only other relations who had natural claims upon the affection and bounty of the testator and for whom he desired to make provisions were his wife, his adoptive mother, the two datughters and the infant grand daughter.
The interests given to his wife, the adoptive mother and the eldest daugh ter, who were all widows, were for their life time, except a small house property which was given absolutely for the residence of the eldest daughter.
On the other hand., the bequests in favour of Gnanambal, who was a married daughter, and the adopted son of the testator, were absolute in their character.
Besides these dispositions, there were certain gifts for charity which were to be met out of the income of the properties given to the wife and the adoptive mother for their lives.
One singular feature (1) [1906]1 Ch. 570 at p. 574. 957 in the will is that the testator took scrupulous care to include in it every item of property that he owned.
There are two provisions in the will relating Kothan gudi property to which the dispute in the present suit relates.
One is in paragraph 5 which gives this property along with the house at Injigudi to Nagammal, the remainder being given to the appellant subject to the payment of a sum of Rs. 5, 000 to Alamelu, the daughter of Nagammal.
The other is in paragraph 13, which merely says that Nagammal was to get it for life as stated in paragraph 5.
The view taken by the High Court and which has been pressed for our acceptance here by the learned Counsel for the respondents is that paragraph 5 was meant to be operative only if Gna nambal 's son was adopted by the widow.
As that was not done, paragraphs 4 to 8 of the will, it is urged, will go out of the picture alttgether and it is not permissible to refer to them except to the extent that they were impliedly incorporated in the subsequent paragraphs of the will.
We do not think that this is the correct way of reading the document.
The testator undoubtedly contemplated different contingencies; but a reading of the whole will does not show that he wanted to make separate and self contained provisions with regard to each of the contingencies that might arise and that each set of provisions were to be read as exclusive of the other set or sets.
That does not appear to be the scheme of the will.
The testator 's main desire undoubtedly was that his widow should adopt the son of his daughter Gnanambal, and in the first part his will after making provisions for his two daughters, his wife and adoptive mother and also for certain charities, he left the rest of his properties to the son of Gnanambal that was to be adopted by his widow.
In the second part of the will, which is comprised in paragraphs 11 to 16, the testator sets out the modifications which he desires to make in the earli er dispositions in case a son of one of his nephews was adopted by the widow.
It was not the intention of the testa tor that on the happening of the second contingency, all 958 the earlier provisions of the will would stand cancelled and the entire dispositions of the testator 's property would have to be found within the four corners of paragraphs 11 to 16 of the will.
In our opinion, the provisions made for the two daughters, the widow and the adoptive mother as made in paragraphs 5, 6 and 7 of the will and also the provisions for charities and payment of debts contained in paragraphs 9 and 10 were meant to be applicable under all the three contingencies referred to above.
This is clear from the fact that provisions of paragraphs 7, 9 and 10 have not been repeated or incorporated in paragraphs 11 to 16, although it cannot be suggested that they were not to take effect on the happening of the second contingency.
Again in the third contingency contemplated by the testator, which is described in paragraph 20, it is expressly stated that if no adoption is made, the eldest or any son of Gnanambal would inher it the properties and he shall take the properties subject to the conditions mentioned in the will.
The conditions spoken of here undoubtedly refer to the provi sions made for the mother, wife and the two daughters of the testator as well as in respect to payment of debts and carrying out of the charities specified in paragraph 10.
The changes that are to take effect on the happening of the second event are in regard to the bequests in favour of the adopted son.
Under paragraph 4 of the will, the adopted son was to get all the p. roperties of the testator with the exception of those given to the two daughters, the mother and the wife.
Under paragraph 11, if the adoption is of a nephew 's son of the testator, the adopted son gets only the Kokkur properties and the reversionary interestin Nallathukudi village after the death of the testator 's wife and mother.
The village Maruthanthanallur which would go to the adopted son under paragraph 4 is taken away under para graph 11 and is given to Gnanambal.
She is also given the remaining interest in the Mayavaram house which was given to the adopted son under paragraph 6.
Subject to the changes thus made, the provisions 959 of paragraphs 5, 6 and 7 would, in our opinion, still remain operative even if the person adopted was a nephew 's son of the testator.
No change is made in paragraphs 11 to 16 with regard to the provision in paragraph 5 of the will.
In paragraph 13 it is only stated that the village Kothangudi shall be enjoyed by Nagammal as stated in paragraph 5.
It may be conceded that this statement by itself does not let in the entire provision of paragraph 5, but that is not material for our present purpose.
It is enough that para graph 5 has not been changed or altered in any way.
The statement in paragraph 13 may, after all, be a loose expres sion which the testator used only for the purpose of empha sising that the Kothangudi village would be enjoyed by Nagammal even if Gnanambal 's son was not adopted.
This is not by way of making any new disposition, but only to affirm what has been already done.
The affirmation of a portion of the provision which is perfectly superfluous cannot exclude the rest.
It is somewhat difficult to say why the rest of the provisions in paragraph 5, particularly the benefit that was meant to be given to Alamelu, was not repeated in para graph 13.
It may be that the testator did not consider it necessary or it may be that it was due to inadvertance.
It is to be noted here that the testator did not mention any where in paragraphs 11 to 16 the small house that was given absolutely to Nagamreal under paragraph 7.
It was certainly not the intention of the testator that Nagammal would not have that house on the happening of the second contingency.
If paragraph 5 itself is held to be applicable and in our opinion it should be so held there is no question of adding to or altering any of the words made use of by the testator.
It is not a question of making a new will for the testator or inventing a bequest for certain persons simply because the will shows that they were the objects of the testator 's affection.
The provision is in the will itself and it is only a question of interpretation as to whether it is ap plicable in the circumstances which have happened in the present case.
The position, therefore, seems 960 to be that the disposition made in paragraphs 5, 6 and 7, which were in favour of the mother, the wife and the two daughters of the testator were meant to take effect immedi ately on the testator 's death.
They were not contingent gifts in the sense of being made dependent upon the adoption of Gnanambal 's son by the wife of the testator.
Only the reversionary interest in the Mayavaram house, which was to vest in the adopted son under the provision of paragraph 6 after the death of the widow and the mother was taken away from the adopted son and given to Gnanambal in case the person adopted was not her own son.
If the whole of para graph 5 remains operative the Injigudi house must also be deemed to have been given to Nagammal for her life and in fact the evidence is that she enjoyed it so long as she was alive.
No difficulty also arises regarding the payment of Rs. 5,000 to Alamelu as has been stated by the High Court in its judgment.
Having regard to the meticulous care with which the testator seems to have attempted to provide for the differ ent contingencies that might arise and the anxiety displayed by him in making an effective disposition of all the proper ties he owned, it is not probable that he would omit to make any provision regarding the future devolution of the Kothan gudi village if he really thought that such direction had to be repeated in the latter part of the will.
The omission of the gift of Rs. 5,000 to Alamelu also cannot be explained on any other hypothesis.
It is not necessary for the purpose of the present case to invoke any rule of presumption against.
intestacy, but if the presumption exists at all, it certainly fortifies the conclusion which we have arrived at.
The result is that the appeal is allowed, the judgment and decree of the of the High Court are set aside and those of the Subordinate Judge restored.
The appellant will have costs of all the courts.
Appeal allowed.
Agent for respondent No. 1: M. section Krishnamoorthi Sastri.
| The cardinal maxim to be observed by courts in constru ing a will is to endeavour to ascertain the infentions of the testator.
This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised.
The courts are however entitled and bound to bear in mind other matters than merely the words used.
They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure the court is entitled to put itself into the testator 's armchair '.
But all this is solely as an aid to arriving at a right construetion of the will, and to ascertain the meaning of the language when used by that particular testator in that document.
As soon as the construction is settled, the duty of the court is to carry out the intsentions as expressed.
The court is in no case justified in adding to testamentary dispositions.
In all cases it must loyally carry out the will as properly construed, and this duty is 950 universal, and is true alike of wills of every nationality and every religion or rank of life.
A presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances; but it can be invoked only when there is undoubted ambignity in ascertainment of the intentions of the testator.
It cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning.
A Hindu died leaving a widow, a widowed daughter and a married daughter G, after he had made a will giving authori ty to his widow to adopt a son of G should she beget one, or in the alternative a son of one of his nephews.
4 of the will provided that if his widow adopted G 's son all his properties except the village of K and the house at I and other properties disposed of by the will shall pass to the adopted son; and para.
5 provided as follows: ' 'The whole of the village of K and the house a I, my daughter N shall enjoy with life interest and after her the said property shall pass to my daughter G and her children on payment by the latter of Rs. 5,000 to A, the daughter of N." Later on, amongst the provisions which he wished to make if a son of a nephew was adopted, there was a provision which ran as follows: "Para. 13.
The village of K shall be enjoyed by N as stated in para.
" A nephew 's son was adopted and he instituted a suit against G after N 's death for recovery of the village K contending that under para.
13 of the will there was no disposition of the village after the life interest of N and on her death the village vested in him as the testator 's heir: Held, on a construction of the will as a whole, that the teststor did not intend that in the contingency of the adoption of nephew 's son, the village K should pass, on N 's death, to the adopted son; on the other hand, the provisions of para. 5 of the will were intended to apply even in the case of such a contingency and the village passed to G on N 's death under para.
5 of the will.
Judgment of the High Court of Madras reversed.
Venkatanarasimha vs Parthasarathy (41 I.A. 51) and Re Edward; Jones vs Jones , referred to.
|
No. 37 of 1950.
Appeal from a judgment of the Bombay High Court (Chagla C.J. and Dixit J.) in Appeal No. 281 of 1947.
K. section Krishnaswami Aiyangar (K. Narasimha Aiyangar, with him) for the appellant.
M.C. Setalvad, Attorney General for India, (B. Sen, with him) for the respondent.
December 1.
The Judgment of the court was deliv ered by CHANDRASEKHARA AIYAR J.
This appeal, preferred ch from the decree of the Bombay High Court in Appeal No. 281 of 1947, raises the question whether an execution application seeking to execute a final decree, passed by the let Class Subordinate Judge 's Court at Poona, on 6th December, 1932, for a sum of Rs. 1,24,215 and odd, is barred by limitation.
The decree was made in a suit for dissolution of a partner ship and the taking of accounts.
854 The execution application was filed on 4th October, 1946, and the amount stated to be due under the decree on that date was Rs. 2,30,986 and odd.
The previous execution application No 946 of 1940 filed in the Court of the 1st Class Sub Judge, Sholapur, to which the decree had been transferred for execution, was made on 24th June, 1940.
It was dismissed on 9th September, 1940, for non prosecution.
It would thus be seen that the present application was filed after the lapse of 12 years from the date of the final decree and 3 years from the date of the final order on the previous application.
To surmount the bar of limitation, the decree holder, who is the appellant before us, raised four contentions:firstly, that the final decree, which provided that the plaintiff should pay the deficit court fees on the decretal amount before the execution of the decree, was a conditional decree, and that time began to run from the date when the condition was fulfilled on 5th Decem ber, 1935, by payment; secondly, that the period occupied by the insolvency proceedings from 10th August, 1937, to 14th December, 1942, initiated by the decree holder to get the first judgment debtor Walchand Ramchand Kothari (with whom alone we are now concerned) adjudged an insolvent, should be excluded under section 14 (2) of the Limitation Act; third ly, that the period occupied by one Tendulkar, who was the creditor of the present decree holder, in seeking to execute this decree, should be deducted; and lastly, that as the judgment debtor prevented execution of the decree against the 'Prabhat ' newspaper by suppressing his ownership of the same, a fresh starting point of limitation springs up in the decree holder 's favour from the date of the discovery of the fraud.
The Subordinate Judge held that the execution applica tion was not barred, agreeing with every one of these con tentions.
On appeal to the High Court Chagla C.J. and Dixit J. reversed this decision, holding that it was not a condi tional decree, that the steps taken by Tendulkar to execute this decree were of no avail, and that the insolvency pro ceedings were for a 855 different relief altogether, so that section 14 (2) of the Limitation Act could not be invoked.
They concurred with the finding of the Subordinate Judge that the judgment debtor prevented the execution of the decree within 12 years by fraudulent concealment of his ownership of the 'Prabhat ' newspaper and that the twelve years ' bar of limi tation did not apply; but they held that the application was barred under article 182 of the Limitation Act, as more than three years had run from 9th September, 1940, the date of the dismissal of the previous execution application, before the present application was filed on 4th October, 1946.
Points 1 to 3 above mentioned are of no avail to the appel lant.
The decree was not a conditional one in the sense that some extraneous event was to happen on the fulfilment of which alone it could be executed.
The payment of court fees on the amount found due was entirely in the power of the decree holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execu tion from the very date it was passed.
There could be no exclusion of the time occupied by the insolvency proceedings which clearly was not for the purpose of obtaining the same relief.
The relief sought in insolvency is obviously differ ent from the relief sought in the execution application.
In the former, an adjudication of the debtor as insolvent is sought as preliminary to the vesting of all his estate and the administration of it by the Official Receiver or the Official Assignee, as the case may be, for the benefit of all the creditors; but in the latter, the money due is sought to be realized for the benefit of the decree holder alone, by processes like attachment of property and arrest of person.
It may be that ultimately in the insolvency proceedings the decreeholder may be able to realize his debt wholly or in part, but this is a mere consequence or result.
Not only is the relief of a different nature in the two proceedings but the procedure is also widely divergent.
The steps taken by the appellant 's creditor Tendulkar to attach this decree and put it in execution do not save limitation.
His darkhast for attachment of the 856 present decree was on 3rd April, 1940, and for execution of the present decree was on 1st February, 1944, more than 3 years from 9th September, 1940, which is the date of the dismissal of the appellant 's prior execution petition.
The learned Advocate for the appellant therefore devot ed most of his argument to the fourth contention set forth above.
That the judgment debtor respondent suppressed his ownership of the 'Prabhat ' newspaper and fraudulently pre vented the execution of the decree against this property has been found by both the Courts below, as stated already.
It was strenuously urged that the fraud so found is not merely fraud as broadly interpreted under section 48 (2), Civil Procedure Code, but also strict or concealed fraud within the meaning of section 18 of the Limitation Act.
In this connection, it is as well to set out very briefly the nature of the concealment and the steps taken by the judgment debtor to achieve the same.
He purchased the 'Prabhat ' newspaper with all its assets and goodwill from its previ ous owner one Purushottam Mahadev in 1938 under the letter marked Exhibit 129.
He opened current accounts in several banks, and gave the name of one Abhyankar as the owner of the paper, but he was himself operating on those accounts.
One Rajwade, a friend of the judgment debtor, was shown as the printer and publisher of the paper.
Even in his supplementary written statement flied in Court in answer to the present execution, marked Exhibit 88 (page 53 of the printed book), the defendant asserted in paragraph 2 that he became the owner of the newspaper only in April,/944, and that previously he had no ownership or right in the same.
He did not go into the witness box to refute the allegation that he was the owner ever since the purchase of the paper in 1938 and that he opened accounts in the names of other people on which he was operating for his own benefit.
On these facts, the Subordinate Judge found as follows : "I think on the whole that the evidence establish es beyond doubt that the judgment debtor had concealed his proprietary interest in his newspaper called 857 Prabhat ' from June, 1938, to April, 1944.
The only purpose for which the property could have been concealed in this way was probably the fear that the decree holder would pounce upon it if he came to know about it.
The decree holder came to know of this fraud after April, 1944; for thereafter the judgment debtor made an open declaration that the newspaper belonged to him.
I think therefore that this fraud has prevented the decree holder from executing the decree against some property of the judgment debtor.
" In this finding, the High Court concurred.
After referring to the stratagem adopted by the judgment debtor in Bhagu Jetha vs Malick Bawasaheb(1), the learned Judges observed: "In this case, in our opinion, the stratagem is much more dishonest.
The attempt on the part of the judgment debtor was to conceal his property, to deny its ownership and to put forward a mere benamidar as the real owner of that property.
In our opinion, therefore, the execution of the decree is not barred under section 48.
The 'judgment debtor has, by fraud, prevented the execution of the decree within 12 years before the date of the application for execution by the decree holder and therefore the decree under consideration is capable of being executed.
" On the strength of this concurrent finding, Mr. Krish naswami Iyengar for the appellant argued that the fraud fell within the scope of section 18 of the Limitation Act and that if it were so, he was out of the woods, inasmuch as the proper article to apply would be article 181 of the/imita tion Act.
The right to apply accrued to him when the fraud became known to him in or about June, 1946. 'Till then he was kept by the fraud from the knowledge of his right to make an application against the property.
Law does not require him to make futile successive applications in execu tion, in the face of this fraud.
He was not in a position to seek even the arrest of the judgment debtor as he had got himself declared in the insolvency proceedings as agriclu turist." within the meaning of the Deccan (1) I.L.R. 110 858 Agriculturists ' Relief Act.
alleging falsely that he was not in receipt of any income by way of salary or remuneration from the newspaper concerned and that he was mainly depend ent on the income of his family lands for his maintenance.
There can be no question that the conduct of the re spondent was fraudulent within the meaning of section 48 (2) of the Civil Procedure Code.
Though benami transactions are common in this country and there is nothing per se wrong in a judgment debtor purchasing property in another man 's name, we have to take into account all the circumstances attending the purchase and his subsequent conduct for find ing out whether it was part of a fraudulent scheme on his part to prevent the judgment creditor from realizing the fruits of his decree.
Fraudulent motive or design is not capable of direct proof in most cases; it can only be in ferred.
The facts before us here leave no room for doubt that the true object of the judgmentdebtor was to prevent the execution of the decree against the ' Prabhat ' news paper Which he had purchased.
Other persons were shown as the printer and the publisher of the newspaper, while Abhy ankar was mentioned as the proprietor, The judgement debtor, was, however, operating on those accounts for his own benefit.
In the Insolvency Court, he set up the plea that he was an agriculturist, by suppressing the truth about his ownership of the paper, and pretending that his income was mainly, if not solely, from the family lands.
He kept up this show till April 1944, when probably he felt that he was sale from the reach of the judgment creditor.
Even in his answer to the execution application, out of which this appeal has arisen, he had the hardihood to assert that he was not the owner of the paper till April 1944.
It should also be remembered that he did not get into the witness box to explain what other necessity there was for all this camouflage, except it be to cheat the appellant of his dues under the decree.
Mr. Setalvad, the learned Attorney General, who appeared for the respondent, pointed out that there 859 was no benami purchase and that the holding out of Abhyankar as the proprietor of the ' Prabhat ' did not amount to any false representation or misrepresentation to the judgment creditor, as the accounts on which reliance was placed were accounts opened in the banks and were not ordinarily avail able for inspection by third parties.
This line of reasoning is hardly convincing, when we have to consider whether what is attributed to the judgment debtor does not amount to a fraudulent scheme or device for preventing execution of the decree that had been passed against him for a very large sum of money.
In the very nature of things, fraud is secret in its origin or inception and in the means adopted for its success.
Each circumstance by itself may not mean much, but taking all of them together, they may reveal a fraudulent or dishonest plan.
It would be convenient to set out here in extenso sec tion 48, Civil Procedure Code, and section 18 of the Limita tion Act before we proceed to consider the soundness of the arguments advanced by both sides in support of the positions they have taken up.
Section 48, Civil Procedure Code (which corresponds to section 230 of the Code of 1882), is in these terms: " 48.
(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from (a) the date of the decree sought to be executed, or (b) where the decree or any subsequent order directs, any payment of money or the delivery of any property to be made at a certain date or at recurring periods the date of the default in making the payment of delivery in respect of which the applicant seeks to execute the decree.
(2) Nothing in this section shall be deemed (a) to preclude the Court from ordering the executior of a decree upon an application presented after the expiration of the said term of twelve years, where the 860 judgment debtor has by fraud or force prevented the execu tion of the decree at some time within twelve years immedi ately before the date of the application; or (b) to limit or otherwise affect the operation of arti cle 183 of the first Schedule to the Indian Limitation Act, 1908.
" Section 18 of the Limitation Act, 1908, runs thus: " 18.
Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application (a) against the person guilty of the fraud or accessory thereto, or (b) against any person claiming through him other wise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production." Whether the fraud of the judgment debtor should actually prevent the execution of the decree or whether it is enough if the fraud has been committed without esulting in actual prevention is a question on which there has been some diver gence of opinion in the decided cases.
The former view was taken in an early Madras case Kannu Pillay vs Chellathammal and ) Others(1) and receives support from the decision reported in Sri Raja Venkata Lingama Nayanim Bahadur Varu and Another vs Raja Inuganti Rajaopala Venkata Narasimha Rayanim Bahadur Varu and five Others(2)to which our learned brother Mr. Justice Patanjali Sastri was a party.
The latter view ( (1) [1898] M.I.J. Mad.
861 is indicated in M.R.M.A.S.P. Ramathan Chefliar vs Mahalingam Chetti(1) by a Bench of which Sir Madhavan Nair J. was a member.
It is not necessary to determine which view is correct, as we have here definite findings of both the Courts below that there was fraud preventing the execution of the decree within the meaning of Section 48 of the Civil Procedure Code.
The appellant thus escapes the bar of the 12 years ' period and he has a fresh starting point of limitation from the date of the fraud for section 48 of the Civil Procedure Code.
In other words, the decree holder has another 12 years within which he can execute his decree.
Having thus got over the difficulty in his way under section 48 of the Code of Civil Procedure, he has next to meet the objection under the Limitation Act.
On behalf of the appellant, it was urged that section 18 of the Limita tion Act applied to the facts and that the right to apply accrued to the appellant when the fraud by the judgment debtor became known to him in 1946.
No reliance was placed on section 18 of the Limitation Act in the courts below and no reference to it is found in the grounds of appeal to this court.
It is however mentioned for the first time in the appellant 's statement of the case.
If the facts proved and found as established are sufficient to make out a case of fraud within the meaning of section 18, this objection may not be serious, as the question of the applicability of the section will be only a question of law and such a question could be raised at any stage of the case and also in the final court of appeal.
The following obser vations of Lord Watson in Connecticut Fire Insurance Co. vs Kavanagh (2) are relevant.
He said: "When a ques tion of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea.
The expediency of (1) 1.L.R. (2) 862 adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the court of ultimate review is placed in a much less advantageous position than the courts below." Mr. Setalvad, however, urged that the appellant should not be allowed to rely on section 18 now for the first time and that even if fraud within the meaning of that section had been pleaded the respondent might have adduced counter evidence by himself going into the witness box or otherwise.
According to him, the approach to the question of fraud under section 18 of the Limitation Act is quite different from the approach under section 48 of the Civil Procedure Code.
There may be cases where the fraud alleged and found is fraud in the wider sense of the term within the meaning of section 48 (2) of the Civil Procedure Code, but the same facts do not amount to fraud as strictly construed under section 18 of the Limitation Act.
The fact that the decree holder in the lower courts relied on section 48, Civil Procedure Code, only does not prevent him from relying on section 18 of the Limitation Act if the facts necessary to be established for bringing in the assistance of section 18 of the Limitation Act are admitted, or proved.
It is not disputed that the fraud contemplated by section 18 of the Limitation Act is of a different type from the fraud contem plated by section 48 (2) of the Civil Procedure Code.
The wording of section 18 which requires the fraud "to prevent knowledge of the right to make the application" is neces sarily of a different nature from the fraud which prevents the decree holder from making an application for execution.
Conceding to the appellant the right to rely on section 18 of the Limitation Act even at this late stage, let us see if it is really of any help to him on the facts found.
The section has been quoted already.
It speaks of the right to institute a suit or make an application which by means of fraud has been kept from the knowledge of the person having the right or the title on which it is founded.
The right to apply for 863 execution of a decree like the one before us is a single and indivisible right, and not a composite right consisting of different smaller rights and based on the decree holder 's remedies to proceed against the person of the judgment debtor or his properties, moveable and immoveable.
Togive such a meaning would be to split up the single right into parcels and to enable the decree holder to contend that while his right to proceed against a particular item of property is barred, it is not barred in respect of other items.
We would then be face to face with different periods of limitation as regards one and the same decree.
An inter pretation which leads to this result is prima facie un sound.
Both sides agreed that this is the true position, but they reached it from slightly varying standpoints.
According to the appellant, fraud even with reference to one property gives him a further extension of 12 years under section 48 (2) as regards the whole decree and it is not necessary for him to show that he had proceeded against the other properties of the judgment debtor.
According to the respondent, the fraud must consist in the concealment of the knowledge of the decree holder 's right to apply for execution of the decree and it is not enough to prove or establish that the fraud prevented him from ' proceeding against a specific item.
The two contentions, lead to the same conclusion about the indivisibility of the decree, but along different lines.
In our opinion, the facts necessary to establish fraud under section 18 of the Limitation Act are neither admitted nor proved in the present case.
Concealing from a person the knowledge of his right to apply for execution of a decree is undoubtedly different from preventing him from exercising his right, of which he has knowledge.
Section 18 of the Limitation Act postulates the former alternative.
To read it as referring to an application for execution to proceed against a particular property would be destructive of the oneness of the decree and would lead to multiplicity of periods of limitation.
It is true that articles 181 and 182 of the Limitation Act and section 48, 864 Civil Procedure Code, should be read together.
The articles expressly refer to the section.
But they are independent or parallel provisions, different in their scope and object.
As held in Kalyanasundaram Pillai vs Vaithilinga Vanniar (1) section 48 (2) extends the 12 years ' period of closure by a further period of similar duration but the necessity of resort to article 182 is not thereby obviated.
The decree holder must have been taking steps to keep the decree alive and the only circumstance that could relieve him of this obligation is the existence of fraud under section 18 of the Limitation Act.
The learned Advocate of the appellant asked how it could be possible for him to apply in execution when there was the fraud and whether the law contemplated that, even though the fraud prevented execution of the decree, he was to go on filing useless or futile applications every three years merely for keeping the decree alive.
The answer is simple.
The fraud pleaded namely suppression of owner ship of the 'Prabhat ' newspaper, did not conceal from him his right to make an application for execution of the de cree.
Indeed, the suppression, which began in 1938, did not prevent the decree holder from applying for execution in 19 10; and in his answers in cross examination, he has adimitted that there were other properties to his knowledge against which he could have sought execution, viz., deposits in several banks of the judgment debtor 's monies but stand ing in his wife 's or daughter 's names, life insurance poli cies for which premia were being paid by him, law books written and published by him, movable properties in the house at Poona etc.
As a matter of fact, the appellant 's present application seeks execution against several of these properties.
Nothing prevented him therefore ,from seeking such execution within 3 years of the dismissal of his prior application in 1940.
Even with reference to the 'Prabhat ', all that the decree holder states is that as he had no evidence to prove that the concern belonged to the defendant he did not take any steps, and not that he had no (1) I,L.R. 1939 Mad.611 865 knowledge of the ownership.
To quote two sentences from his deposition: "I had suspected that defendant No. 1 was the real owner of the business all the while.
But I had no posi tive knowledge or information till 1946" . . "I could not take any step for attaching the defendant 's business till 1946 as I had no evidence to prove the defendant 's fraud till then.
" There is no obligation on the judgment debtor to post the decree holder with all details of his properties; it is the decree holder 's business to gather knowledge about the properties so that he can realise the fruits of his decree.
In dealing with this evidence, Mr. Krishnaswami lyengar relied on the Privy Council decision, Rahimbhoy vs Turner in 20 I.A. 1 and referred to the following observation of Lord Hobhouse at page "But their Lordships consider, and in this they agree with both the Courts below, that all that the appellant Rahimbhoy has done is to show that some clues and hints reached the assignee in the year 1881, which perhaps, if vigorously and acutely followed up, might have led to a complete knowledge of the fraud, but that there was no disclosure made which informed the mind of the assignee that the insolvent 's estate had been defrauded by Rahimbhoy of these assets in the year 1867.
" The passage cited does not apply here because the appellant admits knowledge, which is more than a mere suspicion, but states that he had no evidence to prove the defendant 's ownership.
In any event, it has not been established within the meaning of section 18 of the Limitation Act that the fraud alleged and proved kept back from him the knowledge of his right to execute the decree.
It is thus clear that the appellant cannot get the benefit of section 18 of the Limitation Act.
It was next argued on behalf of the appellant that under section 48(2) of the Civil Procedure Code, because of the fraud of the respondent the appellant got a fresh starting point of limitation for the Limitation Act also 111 866 and therefore the starting point contemplated in the third column of the schedule to the Limitation Act relating to applications for execution should be the date when the fraud was discovered by the appellant.
In other words, it was argued that the effect of section 48 was not merely to make the 12 years ' period start from the discovery of fraud for the purpose of section 48(2) of the Civil Procedure Code but also to give a fresh starting point for the schedule to the Limitation Act.
This argument cannot be accepted.
If a man is prevented from making an application, because of the fraud of the debtor, he is not necessarily prevented from knowing his right to make the application.
By the enactment of section 18, the Legislature has distinctly contemplated that for the Limitation Act the starting point is changed on the ground of fraud, only when the knowledge of the right to make the application is prevented by the fraud of the judg mentdebtor.
Having the knowledge that he had the right to make the application, if the judgment debtor prevents the decree holder from knowing the existence of certain properties against which the decree could be enforced, the case is clearly not covered by the words of section 18 of the Limitation Act.
Therefore the argument advanced on behalf of the appellant is unsound.
It was urged that the various starting points mentioned in the third column to article 182 of the Limitation Act cannot apply because none of them specify a fresh starting point for execution acquired on the ground of the fraud of the judgment debtor.
This argument, in our opinion, instead of helping the appellant, goes against him.
Such a provision in the third column in the article relating to execution of decrees is not necessary because provision for such a con tingency is made in section 18.
Affirmatively, by the inclu sion of section 18 in the Limitation Act, and, negatively, by not providing for a separate period of limitation in the case of the fraud of the judgment debtor in the third column in the articles, the Legislature has clearly indicated that unless advantage could be taken by the 867 decree holder under section 18 on the ground of the fraud of the judgment debtor, fraud does not give any other relief under the Limitation Act.
This scheme of the Legislature is not inconsistent with section 48 of the Civil Procedure Code.
The two provisions in the two Acts have to be read as related to the same subject but dealing with two differents aspects.
Without section 48 of the Civil Procedure Code a decree holder, if he made applications as required by arti cle 181 or 182 of the Limitation Act, could keep his decree alive for an indefinite period.
The Legislature, as a matter of policy, ruled that a decree of a civil court (but excluding the High Court) shall not be kept alive for more than 12 years, although all necessary steps are taken under the Limitation Act to keep the decree alive and operative.
That is one limit to the right of the decree holder to enforce the decree of the court.
The second limitation to his right, which is independent of the first, is that he must keep the decree alive under article 182 or 181, as the case may be.
In the case of the fraud of the judgment debtor provision is made in section 48(2) for enlarging the 12 years period prescribed under section 48.
For defeating the plea of the bar of limitation under the Limitation Act, in the case of fraud of the judgment debtor, provision is found in section 18 of the Limitation Act.
If the particu lar case of fraud set up and proved is not covered by those words, there is no protection against the same in the Limi tation Act.
Read in that way, the two legislative provi sions are neither conflicting nor overlapping; and they are capable of operating harmoniously, as they deal with different situations and circumstances.
The argument ad vanced on behalf of the appellant that because of the fraud he got not merely a fresh starting point for computing the 12 years period prescribed in section 48 ( '2,) of the Civil Procedure Code but is also entitled to an extension of the time under the Limitation Act, must therefore fail.
The second contention urged on behalf of the appellant that because in the third column of article 182 868 fraud is not mentioned, the case is covered by article 181 does not also appear to be sound.
The third column in article 182 prescribes the starting point of limitation under different specified circumstances.
It does not, and indeed need not, mention the ground of fraud because if fraud of the kind against which the Limitation Act contem plates relief, as prescribed in section 18 of the Limitation Act, is established, the time is automatically altered by operation of that section.
If the case does not fall under that section, no relief is permitted under the Limitation Act and the starting point for computing the period must be as mentioned in the third column, irrespective of the question of fraud.
In our opinion, therefore, the conten tion that because of the fraud established in the present case under section 48(2) of the Civil Procedure Code, the appellant gets a fresh starting point of limitation under article 182 of the Limitation Act is unacceptable.
The appellant relied on the general principle of juris prudence that fraud stops or suspends the running of time and that it should be applied in his favour, apart from section 18 of the Limitation Act.
Rules of equity have no application.
where there are definite statutory provisions specifying the grounds on the basis of which alone the stoppage or suspension of running of time can arise.
While the courts necessarily are astute in checkmating or fighting fraud, it should be equally borne in mind that statutes of limitation are statutes of repose.
For the reasons given above we concur in the conclusion reached by the High Court and dismiss the appeal with costs.
Appeal dismissed.
| An application for execution of a decree was made after the expiry of 12 'years from the date of the decree and 3 years from the date of the final order on the last previous application for execution.
The decree holder contended that the judgment debtor had "fraudulently purchased a business in the name of a stranger and had conducted the same in the name of the latter with a view to prevent the assets of the business from being proceeded against in execution by the decree holder and that therefore under section 48 of the Civil Procedure Code he was entitled to make an application even after the expiry of 19, years.
The High Court found that, as the decree holder was prevented by the fraud of the judgment debtor from executing the decree, the application was not barred under section 48 of the Code, but as it was made more than 3 years from the date of the order on the last application it was barred under article 182 of the Limitation Act.
The decree holder appealed contending for the first time before the Supreme Court as fraud for the purpose of section 48 of Civil Procedure Code was proved, section 18 of the Limita tion Act was applicable to the case and his application was not barred under article 189.
as it was made within three years of the date when he became aware of the fraud and the proper article applicable was article 181: Held, (i) that the question whether on the proved facts section 18 was applicable to the case was a pure question of law and the decree holder was entitled to raise the question before the Supreme Court, even though he had not raised it before the lower courts; (ii) though section 48, Civil Procedure Code, and articles 181 and 189.
of the Limitation Act dealt with the time limit for making applications for execution of decrees and should be read together, they were different in their scope and object, and the fact that the application was not barred under section 48, Civil Procedure Code, did not obviate the necessity of considering whether it was barred 853 under article 182; (iii) that, as the fraud committed by the judgment debtor did not in any way conceal from the decree holder the knowledge of his right to make an application for execution of , the decree but only prevented him from exer cising that right in respect of a particular property, section 18 had no application to the case, and the application was therefore barred under article 182 of the Limitation Act; (iv) the fact that there was no provision in article 182 for cases where the judgment debtor had committed a fraud as in the present case did not render that article inapplicable and bring the case within the purview of article 181 as article 182 has to be read with the general provisions contained in s.18 relating to eases where there is fraud.
Held also, (i) A decree which provides that the plain tiff should pay the deficient court fees before executing the decree is not a conditional decree and time for making an application for execution of such a decree runs from the date of the decree, and not from the date on which the plaintiff pays the deficit court fees.
(ii) The period of time during which the decree holder was prosecuting proceedings for adjudging the judgment debtor an insolvent cannot be excluded under 6.14 (2) of Limitation Act, in computing the period of limitation for making an application for executing the decree.
Judgment of the Bombay High Court affirmed.
|
Civil Appeal No.94 of 1949.
107 834 Appeal from a judgment and decree of the High Court of Judi cature at Patna in Appeal from Appellate Decree No. 97 of 1946 (Mannohar Lall and Mukherji JJ.) dated 23rd Decem ber, 1947, confirming the judgment of the District Judge of Purulia in Appeal No. 159 of 1944.
S.P. Sinha (P. K. Bose, with him) for the appel lant.
N.C. Chatterjee and Panchanan Ghosh (Chandra Narayan Naik, with them) for the respondent. 1950.
December 1.
The Judgment of the Court was deliv ered by PATANJALI SASTRI J.
This appeal arises out of a suit brought by the respondent in the court of the Subordinate Judge, Dhanbad, for recovery of arrears of royalty and cess from the appellant and another alleged to be due under a compromise decree passed on the 6th March, 1923, in a previ ous suit between the predecessors in interest of the par ties.
The only plea which is material for the purpose of this appeal is that the compromise decree not having been registered was inadmissible in evidence.
The courts below held that the document did not require registration and gave effect to its terms in decreeing the suit.
The second defendant has preferred this appeal.
The facts are not now in dispute and may be briefly stated.
On 11th March, 1921, one Kumar Krishna Prasad Singh (hereinafter referred to as Kumar) granted a perma nent lease of the right to the underground coal in 5,800 bighas of land belonging to him to Shibsaran Singh and Sitaram Singh (hereinafter referred to as the Singhs) by a registered patta stipulating for a salami of Rs. 8,000 and royalty at the rate of 2a.
per ton of coal raised subject to a minimum of Rs. 8,000 and for certain other cesses and interest.
On 7th June, 1921, Kumar executed another perma nent patta leasing the right to the coal in 500 bighas out of the 5,800 bighas referred to above to one Prayngji Bal lavji Deoshi and his son Harakchand Deoshi (hereinafter referred to as the Deoshis).
By this document.
835 the Deoshis agreed inter alia to pay royalty at the rate of 2a. per ton on all classes of coal raised subject to a minimum of Rs. 750 a year.
The Singhs feeling themselves aggrieved by the latter transaction brought a title suit (No. 1291 of 1921) in the Court of the Subordinate Judge of Dhanbad for a declaration of their title and for possession of the 500 bighas leased to the Deoshis under the aforesaid patta of 7th June, 1921.
To that suit Kumar was made a party as defendant No. 3, the Deoshis being defendants 1 and 2.
The suit was however cornpromised on 6th March, 1923, by all the parties and a decree based on the compromise was also passed on the same day.
The interest of the Singhs was brought to sale in 193S in execution of a decree obtained against them and was purchased by the plaintiff who insti tuted the presnt suit on 3rd October, 1942, claiming the royalty and cesses payable under the compromise decree for the period from Pous 1345 to Asadh 1349 B.S. from defendants 1 and 2 as the representatives of the Deoshis who entered into the compromise of March, 1923.
In order to appreciate the contentions of the parties, it is necessary to set out the relevant terms of the compro mise decree which are as follows : "The plaintiffs (the Singhs) within two months from this date shall pay Rs. 8,000 as salami to defendant No. 3 (Kumar).
Otherwise all the terms of the compromise Will stand cancelled and the plaintiffs shall not be competent to claim any right to or possession over the.land covered by the patta dated 11th March, 1921.
The patta which defend ant No. 3 executed in favour of the plaintiffs in respect of 5,800 bighas of coal land in village Rahraband shall remain in force, and the plaintiffs will get a decree of declara tion of their right and title to the 500 bighas of coal land in dispute but defendants 1 and 2 (the Deoshis) shall hold possession as tenants.
Besides the terms mentioned below, defendants 1 and 2 shall remain bound by all the remaining terms under which they took settlement of the 500 bighas of coal land from defendant No. 3 under 836 patta and Kabuliyat, and both the defendants 1 and 2 shall possess the same under the plaintiffs from generation to generation and all the terms of the said patta and Kabuliyat shall remain effective and in force between them.
Both the defendants 1 and 2 shall remain bound to pay to the plain tiffs commission at the rate of 2a.
per ton on all sorts of coal instead of 2a.
a ton as stated before in the patta of 5,800 bighas of land settled with the plaintiffs.
The plaintiffs shall pay to defendant No. 3 in future the mini mum royalty of Rs. 6,000 instead of Rs. 8,000 as stipulated in the original patta of 11 th March 1921 and commission at the rate of la.
a ton in place of 2a.
a ton as stipulat ed in the patta of March 21 .
Unless the plaintiffs pay to the defendant No. 3 Rs. 8,000 within 2 months from this day they shall not be competent to take out execution of this decree, nor shall they be competent to take posses sion of the land in dispute.
The defendants 1 and 2 within one month from the date of payment of Rs. 8,000 as aforesaid to defendant No. 3 shall execute a new Kabuliyat in favour of the plaintiff in respect of the modified terms stated above, i.e., on the condition to pay commission at the rate of 2a.
per ton.
In the new patta which defendant No. 3 will execute in favour of the plaintiffs he shall embody the condition that the annual minimum royalty will be Rs. 6,000 instead of Rs. 8,000 and commission will be at the rate of la. 9p.
per ton in place of 2a.
per ton as mentioned in the aforesaid patta.
If the defendant No. 3 does not execute the parts on the aforesaid modified terms in favour 'of the plaintiffs within the time aforesaid and both the defendants 1 and 2 also do not execute a kabuliyat on the aforesaid modified terms, then this very rafanama shall be treated as the parts and kabuliyat, and the plaintiffs in accordance with the terms of the rafanama shall pay to defendant No. 3, Rs. 6,000 only as minimum royalty and commission at the rate of la.
per ton with respect to 5,800 bighas and shall continue to realise commission at the rate of 2a. 6p. per ton from defendants 1 and 2 who shall remain bound to pay the same.
" 837 The answer to the question whether this compromise decree requires registration depends on the legal effect of the changes in the status quo ante of the parties brought about by the document.
A careful analysis reveals the following alterations : (1) In the lease to the Singhs, the rate of royalty or commission was reduced from 2a.
per ton of coal raised to la.
per ton and the minimum royalty was reduced from Rs. 8,000 to Rs. 6,000 while the area of coal land in their khas possession was reduced by 500 bighas. (2) In the lease to the Deoshis the rate of royalty or commission was enhanced from 2a.
per ton to 2a.
per ton and tiffs was made payable to the Singhs.
The Singhs and the Deoshis were brought into a new legal relationship, the former accepting the latter as tenants holding the disputed 500 bighas under them in consideration of the latter agreeing to pay the enhanced royalty to the former. (4) The whole arrangement was made conditional on the Singhs paying Rs. 8,000 to Kumar within 2 months from the date of the compromise, it being expressly provided that the Singhs were not to be entitled to execute the decree or to take possession of the disputed area of 503 bighas which evidently had not till then passed into their possession.
Now, sub section (1) of section 17 of the , enumerates five categories of documents of which regis tration is made compulsory which include" (d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent;".
Sub sec tion (2) however provided that "nothing in clauses (b) and (c) of sub section (1)applies to . (vi) any decree or order of court.
" It may be mentioned in passing that this clause was amended with affect from the 1st April, 1930, by the , so as to exclude from the scope of the exception compromise decrees comprising immovable property other than that which is the subject matter of the suit.
But 838 the amendment cannot affect the document here in question which came into existence in 1923.
Before the amendment, the clause was held to cover even compromise decrees comprising immovable property which was not the subject matter of the suit: [Vide Hemanta Kumari Debi vs Midnapur Zamindari Co. ( ')].
That decision applies to the present case and obviates the objection that because the compromise in question covered also the remaining 5,300 bighas which were not the subject matter of the title suit of 1921, it was outside the scope of the exception in sub section (2), clause (vi).
The only question, therefore, is whether the compromise decree is a "lease" [which expression includes "an agreement to lease" by the definition in section 2 (7)] within the meaning of el.
(d) of sub section (1).
It is obvious that if the compromise decree fails within clause (d) of sub section (1) it would not be protected under clause (vi) of sub section (2) which excepts only documents falling under the categories (b) and (c) of sub section (1).
The High Court was of opinion that, on a proper construction of the terms of the compromise, it did not fall under clause (d).
Mano har Lall J., who delivered the leading judgment, observed: "It was a tripartite agreement embodied in the decree of the court and was, therefore, exempt from registration.
It will be oh.served also that so far as the defendants were con cerned, their possession of the 500 bighas was not inter fered with and they still remained in possession as the lessees, but instead of paying the royalty to the plaintiffs it was agreed between all the parties that the defendants would pay the royalty in future to Shibsaran and Sitcram.
If the matter had stood there, the learned Advocate for the appellant could not have seriously contested the position, but he vehemently argued that when the agreement was not to pay the same amount of royalty or commission as previously agreed to but an altered amount of royalty and commission, the document should be held to fall within the mischief of section 17 (1)(d)of the (1) P.C. 839 .
The answer to this contention is, as I have stated just now, to be found in the Full Bench decision of this court :" [see Charu Chandra Mitra 's case ()].
It was there held that a mere alteration of the rent reserved does not make the transaction a new lease so as to bring it within clause (d)of subsection (1).
We are unable to share this view.
It oversimplifies the compromise transaction which, in our opinion, involves much more than a mere alteration of the royalties stipulated for in the previous pattas executed by Kumar.
Nor can we accept the suggestion of Mr. Chatterjee for the respondents theft the compromise operated as an assignment to the Singhs by Kumar of the latter 's reversion under the "lease granted to the Deoshis and all that the latter did was to acknowledge the Singhs as their landlords and attern to them.
On tiffs view it was said that the transaction would not fall under clause (d), although it would fall under clause (b) but then would be saved by the exception in clause (vi) of sub section (2).
The argument, however, overlooks that Kumar had leased the area of 5,800 bighas to the Singhs by his patta dated 11th March, 1921, and the compromise by providing that the Singhs should pay the reduced royalty of 1a.
per ton in respect of the whole area preserved Kumar 's reversion intact.
He could not therefore be deemed to have assigned any part of his inter est in 5,800 bighas as landlord to the Singhs who continue to hold the entire extent as tenants under him.
What the compromise really did was.
as stated already, to bring the Singhs and the Deoshis into a new legal relationship as underlessor and under lessee in respect of 500 bighas which were the subject matter of the title suit; in other words, its legal effect was to create a perpetual underlease be tween the Singhs and the Deoshis which would clearly fall under clause (d) but for the circumstance that it was to take effect only on condition float the Singhs paid Rs. 8,000 to Kumar within 2 months (1) 840 thereafter.
As pointed out by the Judicial Committee in Hemanta Kumar 's case (1) "An agreement for a lease, which a lease is by the statute declared to include, must, in their Lordships ' opinion, be a document which effects an actual demise and operates as a lease .
The phrase which in the context where it occurs and in the statute in which it is found, must in their opinion relate to some document which creates a present and immediate interest in the land.
" The compromise decree expressly provides that unless the sum of Rs. 8,000 was paid within the stipulated time the Singhs were not to execute the decree or to take possession of the disputed property.
Until the payment was made it was impossible to determine whether there would be any under lease or not.
Such a contingent agreement is not within clause (d) and although it is covered by clause (b). is excepted by clause (vi) of sub section ( '2).
We therefore agree with the conclusion of the High Court though on dif ferent grounds and dismiss the appeal with costs.
Appeal dismisseel.
| An agreement for a lease, which a lease is by the Indian declared to include, must be a document which effects an actual demise and operates as a lease.
It must create present and immediate interest in land.
Where a litigation between two persons A and B who claimed to be tenants under C was settled by a compromise decree the effect of which was to create a perpetual underlease between A and B which was to take effect only on condition that A paid Rs. 8,000 to C within a fixed period: Held, that such a contingent agreement was not "a lease" within el.
(a) of section 17 (t) of the Indian , and even though it was covered by cl.
(b) of the said sec tion it was exempt from registration under el.
(vi) of subs.
(2) of section 17.
Hemanta Kumari Debi vs Midnapur Zamindari Co. (I P.C.) relied on.
|
72 of 1950.
Petition under article 32 of the Constitution of India for a writ of mandamus.
V.K.T. Chari, J.S. Dawdo, Alladi Kuppuswami, and C.R. Pattabhi Raman, for the petitioner.
M.C. Setalvad, Attorney General for India (G. N. Joshi with him) for opposite party Nos. 1 and 2.
G.N. Joshi, for opposite party Nos.
3 to 5 and 7 to 10. 1950.
December 4.
The Court delivered Judgment as follows.
KANIA C.J. This is an application by the holder of one ordinary share of the Sholapur Spinning and Weaving Company Ltd. for a writ of mandamus and certain other reliefs under article 32 of the Constitution of India.
The authorized capital of the company is Rs. 48 lakhs and the paid up capital is Rs. 32 lakhs, half of which is made up of fully paid ordinary shares of Rs. 1,000 each.
875 I have read the judgment prepared by Mr. Justice Mukher jea.
In respect of the arguments advanced to challenge the validity of the impugned Act under articles 31 and 19 of the Constitution of India, I agree with his line of reasoning and conclusion and have nothing more to add.
On the question whether the impugned Act infringes article 14, two points have to be considered.
The first is whether one individual shareholder can, under the circum stances of the case and particularly when one of the re spondents is the company which opposes the petition, chal lenge the validity of the Act on the ground that it is a piece of discriminatory legislation, creates inequality before the law and violates the principle of equal protec tion of the laws under article 14 of the Constitution of India.
The second is whether in fact the petitioner has shown that the Act runs contrary to article 14 of the Con stitution.
In this case having regard to my conclusion on the second point, I do not think it is necessary to pro nounce a definite opinion on the first point.
I agree with the line of reasoning and the conclusion of Mr. Justice Mukherjea as regards the second point relating to the inva lidity of the Act on the ground that it infringes article 14 of the Constitution and have nothing more to add.
In my opinion therefore this petition fails and is dismissed with costs.
FAZL ALI J.
I am strongly of the opinion that this peti tion should be dismissed with costs.
The facts urged in the petition and the points raised on behalf of the petitioner before us are fully set forth in the judgments of my brethren, Sastri, Mukherjea and Das JJ., and I do not wish to repeat them here.
It is sufficient to say that the main grounds on which the Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950 (Act No. XXVIII of 1950), which will hereinafter be referred to as "the Act", has been assailed, is that it infringes three fundamental rights, these being: 876 (1) the right to property secured by article 31 of the Constitution; (2) the right to acquire, hold and dispose of property, guaranteed to every citizen by article 19 (1) (f); and (3) the right to equal protection of the laws, guaran teed by article 14.
It has been held in a number of cases in the United States of America that no one except those whose rights are directly affected by a law can raise the question of the constitutionality of that law.
This principle has been very clearly stated by Hughes J. in McCabe vs Atchison(1), in these words : "It is an elementary principle that in order to justify the granting of this extraordinary relief, the complainant 's need of it and the absence of an adequate remedy at law must clearly appear.
The complainant cannot succeed because someone else may be hurt.
Nor does it make any difference that other persons who may be injured are persons of the same race or occupation.
It is the fact, clearly established, of injury to the complainant not to others which justifies judicial interference.
" On this statement of the law, with which I entirely agree, the scope of the discussion on this petition is greatly restricted at least in regard to the first two fundamental rights.
The company and the shareholders are in law separate entities, and if the allegation is made that any property belonging to the company has been taken possession of without compensa tion or the right enjoyed by the company under article 19 (1) (f) has been infringed, it would be for the company to come forward to assert or vindicate its own rights and not for any individual shareholder to do so.
In this view, the only question which has to be answered is whether the peti tioner has succeeded in showing that there has been an infringement of his rights as a shareholder under articles 31 and 19 (1) (f) of the Constitution.
This question has been so elaborately dealt with by Mukherjea J., that I do not wish to add anything to what he has said in his judg ment, and all that is necessary for me to say is that I adopt his conclusions, (1) 235 u.s. 151.
877 without committing myself to the acceptance of all his reasonings.
The only serious point, which in my opinion, arises in the case is whether article 14 of the Constitution is in any way infringed by the impugned Act.
This article corresponds to the equal protection clause of the Fourteenth Amendment of the Constitution of the United States of America, which declares that "no State shall deny to any person within its jurisdiction the equal protection of the laws".
Professor Willis dealing with this clause sums up the law as prevail ing in the United States in regard to it in these words: "Meaning and effect of the guaranty The guaranty of the equal protection of the laws means the protection of equal laws.
It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction.
It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. 'It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and condi tions both in the privileges conferred and in the liabili ties imposed. ' 'The inhibition of the amendment . was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation '.
It does not take from the states the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis.
Mathematical nicety and perfect equality are not required.
Similarity, not identity of treatment, is enough.
If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed.
One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis."( ') Having summed up the law in this way, the same learned author adds : "Many different classifications (1) Constitutional Law by Prof. Willis, (1st Edition).
p.579. 878 of persons have been upheld as constitutional.
A law apply ing to one person or one class of persons is constitutional if there is sufficient basis or reason for it.
" There can be no doubt that article 14 provides one of the most valuable and important guarantees in the Constitution which should not be allowed to be whittled down, and, while ac cepting the statement of Professor Willis as a correct exposition of the principles underlying this guarantee, 1 wish to lay particular emphasis on the principle enunciated by him that any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed.
The petitioner 's case is that the shareholders of the Sholapur company have been subjected to discrimination visa vis the shareholders of other companies, inasmuch as section 13 of the Act subjects them to the following disabilities which the shareholders of other companies governed by the Indian Companies Act are not subject to: : "(a) It shall not be lawful for the shareholders of the company or any other person to nominate or appoint any person to be a director of the company.
(b) No resolution passed at any meeting of the share holders of the company shall be given effect to unless approved by the Central Government.
(c) No proceeding for the winding up of the company or for the appointment of a receiver in respect thereof shall lie in any court unless by or with the sanction of the Central Government.
" Primafacie, the argument appears to be a plausible one, but it requires a careful examination, and, while examining it, two principles have to be borne in mind : (1) that a law may be constitutional even though it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applica ble to others, 879 that single individual may be treated as a class by himself; (2) that it is the accepted doctrine of the American courts, which I consider to be well founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.
A clear enunciation of this latter doctrine is to be found in Middleton vs Texas Power and Light Company(1), in which the relevant passage runs as follows : "It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.
" The onus is therefore on the petitioner to show that the legislation which is impugned is arbitrary and unreasonable and there are other companies in the country which should have been subjected to the same disabilities, because the reasons which led the Legislature to impose State control upon the Sholapur company are equally applicable to them.
So far as article 14 is concerned, the case of the share holders is dependent upon the case of the company and if it could be held that the company has been legitimately sub jected to such control as the Act provides without violation of the article, that would be a complete answer to the petitioner 's complaint.
Now, the petitioner has made no attempt to discharge the burden of proof to which I have referred, and we are merely asked to presume that there must necessarily be other compa nies also which would be open to the charge of mismanagement and negligence.
The question cannot in my opinion be treated so lightly.
On the other hand, how important the doctrine of burden of proof is and how much harm can be caused by ignor ing it or tinkering with it, will be fully illustrated, by referring to the proceedings in the Parliament in connec tion with the enactment of the (1) ,157.
880 Act, where the circumstances which necessitated it are clearly set out.
I am aware that legislative proceedings cannot be referred to for the purpose of construing an Act or any of its provisions, but I believe that they are relevant for the proper understanding of the circumstances under which it was passed and the reasons which necessitat ed it.
A reference to the Parliamentary proceedings shows that some time ago, a representation was made on behalf of a section of the shareholders of the Sholapur company to the Registrar of Joint Stock Companies in Bombay, against the conduct of the managing agents, and the Government of Bombay was moved to order a special inquiry into the affairs of the company.
For the purpose of this inquiry, two special inspectors were appointed by the Bombay Government and their report revealed "certain astounding facts" and showed that the mill had been grossly mismanaged by the Board of Direc tors and the managing agents.
It also revealed that the persons who were responsible for the mismanagement were guilty of certain acts and omissions which brought them under the purview of the law.
The Bombay Government accept ed the report of the inspectors and instructed the Advocate General of Bombay to take legal proceedings against certain persons connected with the management of the company.
Thereafter, the Government of India was approached by the Provincial Government and requiested to take special action in order to secure the early opening of the mill.
The Government of India found that they had no power to take over the management of a particular mill, unless its working could be ensured through the existing management acting under the direction of a Controller appointed under the Essential Supplies Act, but they also found that a peculiar situation had been created in this case by the managing agents themselves being unable or unwilling to conduct the affairs of the company in a satisfactory and efficient manner.
The Government of India, as a matter of precaution and lest it should be said that they were going to interfere unnecessarily in the affairs 881 of the company and were not allowing the existing provisions of the law to take their own course, consulted other inter ests and placed the matter before the Standing Committee of the Industrial Advisory Council where a large number of leading industrialists of the country were present, and ultimately it was realized that this was a case where the Government could rightly and properly intervene and there would be no occasion for any criticism coming from any quarter.
It appears from the discussion on the floor of the House that the total number of weaving and spinning mills which were closed down for one reason or other was about 35 in number.
Some of them are said to have closed for want of cotton, some due to overstocks, some for want o[ capital and some on account of mismanagement.
The Minister for Indus try, who sponsored the Bill, in explaining what distin guished the case of the Sholapur mill from the other mills against whom there might be charges of mismanagement, made it clear in the course of the debate that "certain condi tions had to be fulfilled before the Government can and should intervene", and he set out these conditions as fol lows : "(1) The undertaking must relate to an industry which is of national importance.
Not each and every undertaking which may have to close down can be taken charge of tempo rarily by Government.
(2) The undertaking must be an economic unit.
If it appears that it is completely uneconomic and cannot be managed at all, there is no sense in Government taking charge of it.
If anything, it will mean the Government will have to waste money which belongs to the taxpayer on an uneconomic unit.
(3) There must be a technical report as regards the condition of the plants, machinery, etc.
which either as they stand, or after necessary repairs and reconditioning can be properly utilised.
(4) Lastly, and this is of considerable importance there must be a proper enquiry held before Government take any action.
The enquiry should show that 113 882 managing agents have so misbehaved that they are no longer fit and proper persons to remain in charge of such an impor tant undertaking.
"(1) It appears from the same proceedings that the Sholapur mill is one of the largest mills in Asia and employs 13,000 workers.
Per shift, it is capable of producing 25 to 30 thousand pounds of yarn, and also one lakh yards of cloth.
It was working two shifts when it was closed down on the 29th August, 1949.
The closure of the mill meant a loss of 25 lakhs yards of cloth and one and a half lakhs pounds of yarn per month.
Prior to 1947, the highest dividend paid by the company was Rs. 525 per share and the lowest Rs. 100, and, in 1948, when the management was taken over by the managing agents who have been removed by the impugned Act, the accounts showed a loss of Rs. 30 lakhs, while other textile companies had been able to show very substantial profits during the same period.
Another fact which is brought out in the proceedings is that the.
managing agents had acquired control over the majority of the shares of the company and a large number of shareholders who were dissatisfied with the management had been rendered powerless and they could not make their voice heard.
By reason of the preponderance of their strength, the managing agents made it impossible for a controller under the Essential Supplies Act to function and they also made it difficult for the company to run smoothly under the normal law.
It was against this background that the Act was passed, and it is evident that the facts which were placed before the Legislature with regard to the Sholaput mill were of an extraordinary character.
and fully justified the company being treated as a class by itself.
There were undoubtedly other mills which were open to the charge of mismanagement, but the criteria adopted by the Government which, in my opinion, cannot be said to be arbitrary or unreasonable, is not applicable (1) parliamentary Debates, Volume III, No. 14; 31st March 1950, pp.2394 5 883 to any of them.
As we have seen, one of the criteria was that a mere allegation of mismanagement should not be enough and no drastic step such as is envisaged in the Act should be taken without there being a complete enquiry.
In the case of the Sholapur mill, a complete enquiry had been made and the revelations which were made as a result of such enquiry were startling.
We are familiar with the expression "police power" which is in vogue in the United States of America.
This expression simply denotes that in special cases the State can step in where its intervention seems necessary and impose special burdens for general benefit.
As one of the judges has pointed out, "the regulations may press with more or less weight upon one than upon another, but they are designed not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good.
"(1) It need not be emphasized that the principles underlying what is known as police power in the United States of America are not peculiar to that country, but are recognized in every modern civilized State.
Professor Willis dealing with the question of classification in exercise of police power makes the following observa tions: "There is no rule for determining when classification for the police power is reasonable.
It is a matter for judicial determination, but in determining the question of reasonableness the Courts must find some economic, political or other social interest to be secured, and some relation of the classification to the objects sought to be accomplished.
In doing this the Courts may consider matters of common knowledge, matters o[ common report, tile history of the times, and to sustain it they will assume every state of facts which can be conceived of as existing at the time Of legislation.
The fact that only one person or one object or one business or one locality is affected is not proof of denial of the equal protection of the laws.
For such (1) Per Field J. in Barbier vs Connally. ; 884 proof it must be shown that there is no reasonable basis for the classification.
" In this particular case, the Government initially took control of the Sholapur Company by means of an Ordinance (Ordinance No. II of 1950), of which the preamble runs as follows : "Whereas on account of mismanagement and neglect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudicially af fected the production of an essential commodity and has caused serious unemployment amongst a certain section of the community; And whereas an emergency has arisen which renders it necessary to make special provision for the proper manage ment and administration of the aforesaid Company; Now, therefore,. . . . " In the course of the Parliamentary debate, reference was made to the fact that the country was facing an acute cloth shortage, and one of the reasons which apparently influenced the promulgation of the Ordinance and the passing of the Act was that the mismanagement of the company had gravely affected the production of an essential commodity.
The facts relating to the mismanagement of this mill were care fully collected and the mischief caused by the sudden clos ing of the mill to the shareholders as well as to the gener al public were fully taken into consideration.
Therefore, it seems to me that to say that one particular mill has been arbitrarily and unreasonably selected and subjected to discriminatory treatment, would be an entirely wrong propo sition.
Article 14 of the Constitution, as already stated, lays down an important fundamental right, which should be closely and vigilantly guarded, but, in construing it, we should not adopt a doctrinaire approach which might choke all benefi cial legislation.
The facts to which I have referred are to be found in a public document, and, though some of them may (1) Constitutional Law by Prof. Willis (1st Edition) p. 580.
885 require further investigation forming as they do part of a one sided version, yet they furnish good prima, facie grounds for the exercise of the utmost caution in deciding this case and for not departing from the ordinary rule as to the burden of proof.
In the last resort, this petition can be disposed of on the simple ground that the petitioner has not discharged the onus which lies upon him, and I am quite prepared to rest my judgment on this ground alone.
I think that the petitioner has failed to make out any case for granting the writs or directions asked for, and the petition should therefore be dismissed with costs.
PATANJALI SASTRI J. This is an application under article 32 of the Constitution seeking relief against alleged infringe ment of certain fundamental rights of the petitioner.
The petitioner is a shareholder of the Sholapur Spinning and Weaving Company, Limited, Sholapur, in tim State of Bombay, (hereinafter referred to as "the Company ").
The authorised share capital of the Company consisted of 1590 fully paid up ordinary shares of Rs. 1,000 each, 20 fully paid up ordinary shares of Rs. 500 each and :32,000 partly paid up redeemable cumulative preference shares of Rs. 100 each, of which Rs. 50 only was paid up.
Of these, the petitioner held one ordinary share in his own name and 80 preference shares which, however, having been pledged with the Bank of Baroda Ltd., now stand registered in the Bank 's name.
The company was doing flourishing business till disputes arose recently between the management and the employees, and in or about August, 1949, the mills were temporarily closed and the company, which was one of the largest producers of cotton textiles, ceased production.
Thereupon, the Gover nor General intervened by promulgating on the 9th January, 1950, an Ordinance called the Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance (No. II ' of 1950), which empowered tim Government of India to 886 take over the control and management of the company and its properties and effects by appointing their own Directors and to delegate all or any of their powers to the Provincial Government.
In exercise of the powers thus delegated, the Government of Bombay appointed respondents 3 to 9 as Direc tors to take charge of the management and administration of the properties and affairs of the company.
Subsequently, on 10th April, '1950, the Ordinance was repealed and was re placed by an Act of Parliament containing similar provisons, namely the Sholapur Spinning and Weaving Company (Emergency Provisions) Act (No. XXVIII of 1950) (hereinafter referred to as the "impugned Act").
The petitioner complains that the impugned Act and the action of the Government of Bombay pursuant thereto have infringed the fundamental rights conferred on him by arti cles 11, 19 and 31 of the Constitution with the result that the enactment is unconstitutional and void, and the inter ference by the Government in the affairs of the company is unauthorised and illegal.
He accordingly seeks relief by way of injunction and mandamus against the Union of India and the State of Bombay impfended as respondents 1 and 2 respec tively in these proceedings and against respondents a to 9 who are now in management as already stated.
The company is irapleaded proforma as the 10th respondent.
Before discussing the issues involved, it is necessary to examine the relevant provisions of the impugned Act in order to see in what manner and to what extent the petition er 's rights have been affected thereby.
The preamble to the repealed Ordinance stated that "on account of mis management and neglect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudicially affected the production of an essen tial commodity and has caused serious unemployment amongst a certain section of the community and that an emergency has arisen which renders it necessary to make special provi sion for the proper management and administration of the aforesaid 887 Company." This preamble was not reproduced in the impugned Act.
Section a empowers the Central Government to appoint as many persons as it thinks fit to be directors of the company "for the purpose of taking over its management and administration.
" Section 4 states the effect of the order appointing directors to be that (1) the old directors shall be deemed to have vacated their office, (2) the contract with the managing agents shall be deemed to have been termi nated, (3) that the properties and effects of the company shall be deemed to be in the custody of the new directors who are to be "for all purposes" the directors of the compa ny and "shall alone be entitled to exercise all the powers of the directors of the company whether such powers are derived from the Companies Act or from the memorandum or articles of association or otherwise.
" Section 5 defines the powers of the new directors.
They are to manage the busi ness of the company "subject to the control of the Central Government" and shall have the power to raise funds offering such security as they think fit, to carry out necessary repairs to the machinery or other property in their custody and to employ the necessary persons and define the necessary conditions of their service.
Section 12 provides for the restoration of the management to directors nominated by the shareholders when the purpose of the Government 's interven tion has been fulfilled.
Section 13 is important and reads thus: "13.
Application of the Companies Act. (1) Notwith standing anything contained in the Companies Act or in the memorandum or articles of association of the company (a) it shall not be lawful for the shareholders of the company or any other person to nominate or appoint any person to be a director of the company; (b) no resolution passed at any meeting of the shareholders of the company shall 'be given effect to unless approved by the Central Government; (c) no proceeding for the winding up of the company or for the appointment of a receiver in respect, thereof shall lie in any Court unless by or with the sanction of the Central Government.
(2) Subject.
888 to the provisions contained in sub section (1) and to the other provisions of this Act.
and subject to such excep tions, restrictions and limitations as the Central Govern ment may, by notified order, specify, the Companies Act shall continue to apply to the company in the same manner as it applied thereto before the issue of the notified order under section 3.
" By section 14 the provisions of the Act are to have effect "notwithstanding anything inconsistent therewith contained in any other law or in any instrument having effect by virtue of any law other than this Act.
" Section 16 provides for delegation of powers to the Govern ment of Bombay to be exercised subject to the directions of the Central Government, and section 17 bars suits or other proceedings against the Central Government or the Government of Bombay or any director "for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of this Act.
" As a result of these provisions all the properties and effects of the company passed into the absolute power and control of the Central Government or its delegate the Gov ernment of Bombay, and the normal functioning of the company as a corporate body came to an end.
The shareholders have been reduced to the position of interested, if helpless, onlookers while the business is carried on against their will and, may be, to their disadvantage by the Government 's nominees.
The declared purpose of this arrangement was, according to the Preamble of the repeated Ordinance to keep up the production of an essential commodity and to avert serious unemployment amongst a certain section of the commu nity.
The question accordingly arises whether the impugned Act.
which thus affects the petitioner and his co sharehold ers, while leaving untouched the shareholders of all other companies, including those engaged in the production of essential commodities, denies to the petitioner the equal protection of the laws under article 14 of the Constitution.
The correct approach to 889 this question is first to see what rights have been con ferred or protection extended to persons similarly situated.
The relevant protection is to be found in the provisions of the Indian Companies Act which regulates the rights and obligations of the shareholders of incorporated companies in India.
Section 21 of the Act assures to the shareholders the protection of the stipulations contained in the memoran dum and articles of association by constituting.
them a binding contract, so that neither the company nor the share holders have the power of doing anything inconsistent there with.
The basic right of the shareholders to have their undertaking managed and conducted by the directors of their own choice is ensured by section 83B. Their right to exer cise control and supervision over the management by the directors by passing resolutions at their general meeting is regulated by various provisions of the Act.
The important safeguard of winding up the company in certain unfavourable circumstances either through court or by the shareholders thems elves voluntarily is provided for in sections 162 and 203.
All these rights and safeguards, on the faith of which the shareholders embark their money in their undertaking, are abrogated by the impugned Act in the case of the share holders of this company alone.
In fact, the Central Govern ment is empowered to exclude, restrict or limit the opera tion of any of the provisions of the Companies Act in rela tion to this company.
It is thus plain that the impugned Act denies to the shareholders of this particular company the protection of the law relating to incorporated joint stock companies in this country is embodied in the Companies Act and is primafacie within the inhibition of article 14.
It is argued, however, that article 14 does not make it incumbent on the Legislature always to make laws applicable to all persons generally, and that it is open to the Legis lature 'to classify persons and things and subject them to the operation of a particular law according to the aims and objects which that law is designed to secure.
In the present case, Parliament, 114 890 it was said, came to the conclusion, on the materials placed before them, that the affairs of the company were being grossly mismanaged so as to result in the cessation of production of an essential commodity and serious unemploy ment amongst a section of the community.
In view if the detriment thus caused to public economy, it was competent for Parliament to enact a measure applicable to this company and its shareholders alone, and Parliament must be the judge as to whether the evil which the impugned Act was designed to remedy prevailed to such an extent in this company as to call for special legislation.
Reliance was placed in support of this argument on certain American decisions dealing with the equal protection clause of the Fourteenth Amendment of the Federal Constitution.
It is, however, unnecessary to discuss those decisions here, for it is undeniable that equal protection of the laws cannot mean that all laws must be quite general in their character and application. ' A legislature empowered to make laws on a wide range of sub jects must of necessity have the power of making special laws to attain particular objects and must, for that pur pose, possess large powers of distinguishing and classifying the persons or things to be brought under the operation of such laws, provided the basis of such classification has a just and reasonable relation to the object which the legis lature has in view.
While, for instance, a classification in a law regulating labour in mines or factories may be based on age or sex, it may not b`e based on the colour of one 's skin.
It is also true that the class of persons to whom a law is made applicable may be large or small, and the degree of harm which has prompted the enactment of a particular law is a matter within the discretion of the law makers.
It is not the province of the court to canvass the legislative judgment in such matters.
But the issue here is not whether the impugned Act was ill advised or not justified by the facts on which it was based, but whether it transgresses the explicit constitutional restriction on legislative power imposed by article 14.
891 It is obvious that the legislation is directed solely against a particular company and shareholders and not against any class or category of companies and no question, therefore, of reasonable legislative classification arises.
If a law is made applicable to a class of persons or things and the classification is based upon differentia having a rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its application is found to affect only one person or thing.
For instance, a law may be passed imposing certain restric tions and burdens on joint stock companies with a share capital of, say, Rs. 10 crores and upwards, and it may be found that there is only one such company for the time being to which the law could be applied.
If other such companies are brought into existence in future the law would apply to them also, and no discrimination would thus be involved.
But the impugned Act, which selects this particular company and imposes upon it and its shareholders burdens and disa bilities on the ground of mismanagement and neglect of duty on the part of those charged with the conduct of its under taking, is plainly discriminatory in character and is, in my judgment, within the constitutional inhibition of article 14.
Legislation based upon mismanagement or other miscon duct as the differentia and made applicable to a specified individual or corporate body is not far removed from the notorious parliamentary procedure formerly employed in Britain of punishing individual delinquents by passing bills of attainder, and should not, I think, receive judi cial encouragement.
It was next urged that the burden of proving that the impugned Act is unconstitutional lay on the petitioner, and that, inasmuch as he has failed to adduce any evidence to show that the selection of this company and its shareholders for special treatment under the impugned Act was arbitrary, the application must fail.
Whilst all reasonable pre sumption must undoubtedly be made in support of the consti tutional validity of a law made by a competent legislature, the circumstances of the present case would seem, to my 892 mind to exclude such presumption.
Hostile discrimination is writ large over the face of the impugned Act and it dis closes no grounds for such legislative intcrvcntion.
For all that appears no compelling public intercsts were involved.
Even the preamble to the original Ordinance was omitted.
Nor did respondents 1 and 2 file any counter statement in this proceeding explaining the circumstances which led to the enactment of such an extraordinary measure.
There is thus nothing in the record even by way of allegation which the petitioner need take steps to rebut.
Supposing, howev er, that the impugned Act was passed on the same grounds as were mentioned in the preamble to the repealed Ordinance, namely, mismanagement and neglect prejudicially affecting the production of an essential commodity and causing seri ous unemployment amongst a section of the community, the petitioner could hardly be expected to assume the burden of showing, not that the company 's affairs were properly man aged, for that is not his case, but that there were also other companies similarly mismanaged, for that is what, according to the respondents, he should prove in order to rebut the presumption of constitutionality.
In other words, he should be called upon to establish that this company and its shareholders were arbitrarily singled out for the impo sition of the statutory disabilities.
How could the peti tioner discharge such a burden ? Was he to ask for an inves tigation by the Court of the affairs of other industrial concerns in India where also there were strikes and lock outs resulting in unemployment and cessation of production of essential commodities? Would these companies be willing to submit to such an investigation ? And even so, how is it possible to prove that the mismanagement and neglect which is said to have prompted the legislation in regard to this company was prevalent in the same degree in other companies ? In such circumstances, to cast upon the petitioner a burden of proof which it is as needless for him to assume as it is impracticable to discharge is to lose sight of the realities of the case.
893 Lastly, it was argued that the constitutionality of a statute could not be impugned under article 32 except by a person whose rights were infringed by the enactment.
and that, inasmuch as there was no infringement of the individ ual right of a shareholder, even assuming that there was an injury to the company as a corporate body, the petitioner was not entitled to apply for relief under that article.
Whatever validity the argument may have in relation to the petitioner 's claim based on the alleged invasion of his right of property under article 31, there can be little doubt that, so far as his claim based on the contravention of article 14 is concerned, the petitioner is entitled to relief in his own right As has been pointed out already, the impugned Act deprives the shareholders of the company of important rights and safeguards which are enjoyed by the shareholders of other joint stock companies in Indian under the Indian Companies Act.
The petitioner is thus denied the equal protection of the laws in his capacity as a sharehold er, and none the less so because the other shareholders of the company are also similarly affected.
The petitioner is thereled to seek relief under article 32 of the Constitu tion.
In this view it becomes unnecessary to consider the questions raised under articles 19 and 31 of the Constitu tion.
In the result]t, I would allow the application.
MUKHERJEA J. This is an application presented by one Chiranjitlal Chowdhuri, a shareholder of the Sholapur Spinning and Weaving Company Limited (hereinafter referred to as the company), praying for a writ of mandamus and certain other reliefs under article 32 of the Constitution.
The company, which has its registered office within the State of Bombay and is governed by the provisions of the Indian Companies Act, was incorporated with an authorised capital of Rs. 48 lakhs divided into 1590, fully paid up ordinary shares of Rs. 100 each, 20 fully paid up ordinary shares of Rs. 500 each and 32,000 partly paid up cumulative preference shares of Rs. 100 each.
The 894 present paid up capital of the company is Rs. 32 lakhs half of which is represented by the fully paid up ordinary shares and the other half by the partly paid up cumulative prefer ence shares.
The petitioner states in his petition that he holds in his own right three ordinary shares and eighty prefercnce shares in the company, though according to his own admission the ,preference shares do not stand in his name but have been registered in the name of the Baroda Bank Limited with which the shares are pledged.
According to the respondents, the petitioner is the registered holder of one single ordinary share in the company.
It appears that on July 27, 1949, the directors of the company gave a notice to the workers that the mills would be closed, and pursuant to that notice, the mills were in fact closed on the 27th of August following.
On January 9, 1950, the Governor General of India promulgated an Ordinance which purported to make special provisions for the proper man agement and administration of the company.
It was stated in the preamble to the Ordinance that "on account of mis management and neglect, a situation has arisen in the af fairs of the Sholapur Spinning and Weaving Company Limited which has prejudicially affected the production of an essen tial commodity and has caused serious unemployment amongst a certain section of the community ", and it was on account of the emergency arising from this situation that the promulga tion of the Ordinance was necessary.
The provisions of the Ordinance, so far as they are material for our present purpose, may be summarised as follows: Under section 3 of the Ordinance, the Central Government may, at any time, by notified order, appoint as many persons as it thinks fit, to be directors of the company for the purpose of taking over its management and administration and may appoint one of such directors to be the Chairman.
Section 4 provides that on the issue of a notified order under section 3 all the directors of the company holding office as such immediately before the issue of the order shall be deemed to have vacated their offices.
and any existing 895 contract of management between the company and any managing agent thereof shall be deemed to have terminated.
The directors thus appointed shall be for all purposes the directors of the company duly constituted under the Compa nies Act and shall alone be entitled to exercise all the powers of the directors of the company.
The powers and the duties of the directors are specified in section 5 and this section inter alia empowers the directors to vary or cancel, with the previous sanction of the Central Government, any contract or agreement entered into between the company and any other person if they are satisfied that such contract or agreement is detrimental to the interests of the company.
Section 10 lays down that no compensation for premature termination of any contract could be claimed by the managing agent or any other contracting party.
It is provided by section 12 that so long as the management by the statutory directors continues, the shareholders would be precluded from nominating or appointing any person to be a director of the company and any resolution passed by them will not be effective unless it is approved by the Central Government.
This section lays down further that during this period no proceeding for winding up of the company, or for appointment of a receiver in respect thereof could be instituted in any court, unless it is sanctioned by the Central Government, and the Central Government would be competent to impose any restrictions or limitations as regards application of the provisions of the Indian Companies Act to, be affairs of the company.
The only other material provision is that contained in section 15, under which the Central Government may, by notified order, direct that all or any of the powers exercisable by it under this Ordinance may be exercised by the Government of Bombay.
In accordance with the provisions of section 15 men tioned above, the Central Government, by notification issued on the same day that the Ordinance was promulgated, delegat ed all its powers exercisable under the Ordinance to the Government of Bombay, 896 On the next day, the Government of Bombay appointed respond ents 3 to 7 as directors of the company in terms of section 3 of the Ordinance.
On the 2nd of March, 1950, the re spondent No. 9 was appointed a director and respondent No. 5 having resigned his office in the meantime, the re spondent No. 8 was appointed in his place.
On the 7th of April, 1950, the Ordinance was repealed and an Act was passed by the Parliament of India, known as the Sholapur Spinning and Weaving Company (Emergency Provisions)Act which re enacted almost in identical terms all the provisions of the Ordinance and provided further that all actions taken and orders made under the Ordinance shall be deemed to have been taken or made under the corresponding provisions of the Act.
The preamble to the Ordinance was not however repro duced in the Act.
The petitioner in his petition has challenged the con stitutional validity of both the Ordinance and the Act.
As the Ordinance is no longer in force and all its provisions have been incorporated in the Act, it will not be necessary to deal with or refer to the enactments separately.
Both the Ordinance and the Act have been attacked on identical grounds and it is only necessary to enumerate briefly what these grounds are.
The main ground put forward by the petitioner is that the pith and substance of the enactments is to take posses sion of and control over the mills of the company which are its valuable assets and such taking of possession of proper ty is entirely beyond the powers of the Legislature. 'The provisions of the Act, it is said, amount to deprivation of property of the shareholders as well as of the company within the meaning of article 31 of the Constitution and the restrictions imposed on the rights of the shareholders in respect to the shares held by them constitute an unjustifia ble interference with their rights to hold property and as such are void under article 19 (1) (f).
It is urged that there was no public purpose for which the Legislature could authorise the taking possession or acquisition of 897 property and such acquisition or taking of possession with out payment of compensation is in violation of the funda mental rights guaranteed by article 31 (2) of the Constitu tion.
It is said further that the enactment denies to the company and its shareholders equality before the law.
and equal protection of laws and thus offends against the provi sions of article 14 of the Constitution.
The only other material point raised is that the legislation is beyond the legislative competency of the Parliament and is not covered by any of the items in the legislative lists.
On these allegations, the petitioner prays, in the first instance.
that it may be declared that both the Act and the Ordinance are ultra vires and void and an injunction may be issued restraining the respondents from exercising any of the powers conferred upon them by the enactments.
The third and the material prayer is for issuing a writ of mandamus, "restraining the respondents 1 to 9 from exercising or purporting to exercise any powers under the said Ordinance or Act and from in any manner interfering with the manage ment or affairs of the company under colour of or any pur ported exercise of any powers under the Ordinance or the Act," The other prayers are not material for our purpose.
Before I address myself to the merits of this applica tion it will be necessary to clear up two preliminary matters in respect to which arguments were advanced at some length from the Bar.
The first point relates to the scope of our enquiry in the present case and raises the question as to what precisely are the matters that have to be inves tigated and determined on this application of the petition er.
The second point relates to the form of relief that can be prayed for and granted in a case of this description.
Article 32 (1) of the Constitution guarantees to every body the right to move this court, by appropriate proceed ing, for enforcement of the fundamental rights which are enumerated in Part 1II of the Constitution.
Clause (2) of the article lays down that the 115 898 Supreme Court shall have the power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by this part.
Thus anybody who complains of infraction of any of the fundamental rights guaranteed by the Constitution is at liberty to move the Supreme Court for the enforcement of such rights and this court has been given the power to make orders and issuue directions or writs similar in nature to the prerogative writs of English law as might be considered appropriate in particular cases.
The fundamental rights guaranteed by the Constitution are available not merely to individual citizens but to corporate bodies as well except where the language of the provision or the nature of the right compels the inference that they are applicable only to natural persons.
An incorporated company, there fore, can come up to this court for enforcement of its fundamental rights and so may the individual shareholders to enforce their own; but it would not be open to an individual shareholder to complain of an Act which affects the funda mental rights of the company except to the extent that it constitutes an infraction of his own rights as well.
This follows logically from the rule of law that a corporation has a distinct legal personality of its own with rights and capacities, duties and obligations separate from those of its individual members.
As the rights are different and inhere in different legal entities, it is not competent to one person to seek to enforce the rights of another except where the law permits him to do so.
A well known illustra tion of such exception is furnished by the procedure that is sanctioned in an application for a writ of habeas corpus.
Not only the man who is imprisoned or detained in confine ment but any person, provided he is not an absolute stranger, can institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment.
899 The application before us under article 32 of the Con stitution is on behalf of an individual shareholder of the company.
Article 32, as its provisions show,.
is not di rectly concerned with the determination of constitutional validity of particular legislative enactments.
What it aims at is the enforcing of fundamental rights guaranteed by the Constitution, no matter whether the necessity for such enforcement arises out of an action of the executive or of the legislature.
To make out a case under this article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular legislature as not being covered by any of the items in the legislative lists, but that it affects or invades his fundamental rights guaranteed by the Constitu tion, of which he could seek enforcement by an appropriate writ or order.
The rights that could be enforced under article 32 must ordinarily be the rights of the petitioner himself who complains I of infraction of such rights and approaches the court for relief.
This being the position, the proper subject of our investigation would be what rights, if any, of the petitioner as a shareholder of the company have been violated by the impugned legislation.
A discussion of the fundamental rights of the company as such would be outside the purview of our enquiry.
It is settled law that in order to redress a wrong done to the company, the action should prima facie be brought by the company itself.
It cannot be said that this course is not possible in the circumstances of the present case.
As the law is alleged to be unconstitutional, it is open to the old directors of the company who have been ousted from their position by reason of the enactment to maintain that they are directors still in the eye of law, and on that footing the majority of shareholders can also assert 'the rights of the company as such.
None of them, however, have come forward to institute any proceeding on behalf of the compa ny.
Neither in form nor in substance does the present application purport to be one made by the company itself.
Indeed, the company 900 is one of the respondents, and opposes the petition.
As regards the other point, it would appear from the language of article 32 of the Constitution that.
the sole object of the article is the enforcement of fundamental rights guaranteed by the Constitution.
A proceeding under this article cannot really have any affinity to what is known as a declaratory suit.
The first prayer made in the petition, n seeks relief in the shape of a declaration that the Act is invalid and is apparently inappropriate to an application under article 32; while the second purports to be framed for a relief by way of injunc tion consequent upon the first.
As regards the third pray er, it has been contended by Mr. Joshi, who appears for one of the respondents, that having regard to the nature of the case and the allegations made by the petitioner himself, the prayer for a writ of mandamus, in the form in which it has been made, is not tenable.
What is argued is that a writ of mandamus can be prayed for, for enforcement of statutory duties or to compel a person holding a public office to do or forbear from doing something which is incumbent upon him to do or forbear from doing under the provisions of any law.
Assuming that the respondents in the present case are public servants, it is said that the statutory duties which it is incumbent upon them to discharge are precisely the duties which are laid down in the impugned Act itself.
There is no legal obligation on their part to abstain from exercising the powers conferred upon them by the impeached enact ment which the court can be called upon to enforce.
These is really not much substance in this argument, for according to the petitioner the impugned Act is not valid at all and consequently the respondents cannot take their stand on this very Act to defeat the application for a writ in the nature of a mandamus.
Any way, article 32 of the Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of particular cases, and the application of the petitioner cannot be thrown out simply on the 901 ground that 'the proper writ or direction has not been prayed for.
Proceeding now to the merits of the case, the first contention that has been pressed before us by the learned Counsel for the petitioner is that the effect of the Shola pur Spinning and Weaving Company Limited (Emergency Provi sions) Act, has been to take away from the company and its shareholders, possession of property and other interests in commercial undertaking and vest the same in certain persons who are appointed by the State, and the exercise of whose powers cannot be directed or controlled in any way by the shareholders.
As the taking of possession is not for any public purpose and no provision for compensation has been made by the law which authorises it, such law, it is said, violates the fundamental rights guaranteed under article 31 of the Constitution.
To appreciate the contention, it would be convenient first of all to advert to the provisions of the first two clauses of article 31 of the Constitution.
The first clause of article 31 lays down that "no person shall be deprived of his property save by authority of law" The second clause provides: "No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken posse sion of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.
" It is a right inherent in every sovereign to take and appropriate private property belonging to individual citi zens for public use. 'this right, which is described as eminent domain in American law, is like the power of taxation, an offspring of political necessity, and it is supposed to be based upon an implied reservation by Govern ment that private property acquired by its 902 citizens under its protection may be taken or its use con trolled for public benefit irrespective of the wishes of the owner.
Article 31 (2) of the Constitution prescribes a two fold limit within which such superior right of the State should be exercised.
One limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for public purpose.
The other condition is that no property can be taken, unless the law which authorises such appropriation contains a provision for payment of compensation in the manner laid down in the clause.
So far as article S1 (2) is concerned, the substantial question for our consideration is whether the impugned legislation authorises any act amounting to acquisition or taking possession of private property within the meaning of the clause.
It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be.
The entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer leaving nothing in the former.
In taking possession on the other hand, the title to the property admittedly remains in the original holder, though he is excluded from possession or enjoyment of the property.
Article 31 (,?) of the Constitu tion itself makes a clear distinction between acquisition of property and taking possession of it for a public purpose, though it places both of them on the same footing in the sense that a legislation authorising either of these acts must make provision for payment of compensation to the displaced or expropriated holder of the property.
In the context in which the word "acquisition" appears in article 31 (2), it can only mean and refer to acquisition of the entire interest of the previous holder by transfer of title and I have no hesitation in holding that there is no such acquisition either as regards the property of the company or of the shareholders in the present case.
The question, therefore, narrows down to this as to whether the legisla tion in 903 question has authorised the taking of possession of any property or interest belonging to the petitioner.
It is argued by the learned Attorney General that the taking of possession as contemplated by article 31 (2) means the taking of possession of the entire bundle of rights which the previous holder had, by excluding him from every part or item thereof.
If the original holder is still left to exercise his possession with regard to some of the rights which were within the folds of his title, it would not amount to taking possession of the property for purposes of article 31 (2) of the Constitution.
Having laid down this proposition of law, the learned Attorney General has taken us through the various provisions of the impugned Act and the contention advanced by him substantially is that nei ther the company nor the shareholders have been dispossessed from their property by reason of the enactment.
As regards the properties of the company, the directors, who have been given the custody of the property, effects and actionable claims of the company, are, it is said, to exercise their powers not in their own right but as agents of the company, whose beneficial interest in all its assets has not been touched or taken away at all.
No doubt the affairs of the company are to be managed by a body of directors appointed by the State and not by the company, but this, it is argued, would not amount to taking possession of any property or interest within the meaning of article 31 (2).
Mr. Chari on the other hand, has contended on behalf of the petitioner that after the management is taken over by the statutory directors, it cannot be said that the company still retains possession or control over its property and assets.
Assuming that this State management was imposed in the interests of the shareholders themselves and that the statutory directors are acting as the agents of the company, the possession of the statutory directors could not, it is argued, be regarded in law as possession of the company so long as they are bound to act in obedience to the dictates of the Central Government and not of the company itself in the administra tion of its affairs.
Possession of an 904 agent, it is said, cannot juridically be the possession of the principal, if the agent is to act not according to the commands or dictates of the principal, but under the direc tion of an exterior authority.
There can be no doubt that there is force in this con tention, but as I have indicated at the outset, we are not concerned in this case with the larger question as to how far the inter position of this statutory management and control amounts to taking possession of the property and assets belonging to the company.
The point for our consider ation is a short one and that is whether by virtue of the impugned legislation any property or interest of the peti tioner himself, as a shareholder of the company, has been taken possession of by the State or an authority appointed under it, as contemplated by article 31 (2) of the Constitu tion.
The petitioner as a shareholder has undoubtedly an interest in the company.
His interest is represented by the share he holds and the share is movable property according to the Indian Companies Act with all the incidence of such property attached to it.
Ordinarily, he is entitled to enjoy the income arising from the shares in the shape of divi dends; the share like any 'other marketable commodity can be sold or transferred by way of mortgage or pledge.
The hold ing of the share in his name gives him the right to vote at the election of directors and thereby take a part, though indirectly, in the management of the company 's affairs.
If the majority of shareholders sides with him, he can have a resolution passed which would be binding on the company, and lastly, he can institute proceedings for winding up of the company which may result in a distribution of the net assets among the shareholders.
It cannot be disputed that the petitioner has not been dispossessed in any sense of the term of the shares he holds.
Nobody has taken the shares away from him.
His legal and beneficial interest in respect to the shares he holds is left intact.
If the company declares dividend, he would be entitled to the same.
He can sell or otherwise dispose of the shares at any 905 time at his option.
The impugned Act has affected him in this way that his right of voting at the election of direc tors has been kept in abeyance so long as the management by the statutory director continues; and as a result of that, his right to participate in the management of the company has been abridged to that extent.
His rights to pass resolutions or to institute winding up proceedings have also been restricted though they are not wholly gone; these rights can be exercised only with the consent or sanction of the Central Government.
In my opinion, from the facts stated above, it cannot be held that the petitioner has been dispossessed from the property owned by him.
I may apply the test which Mr. Chari himself formulated.
If somebody had taken possession of the petitioner 's shares and was clothed with the authority to exercise all the powers which could be exercised by the holder of the shares under law, then even if he purported to act as the petitioner 's agent and exer cise these powers for his benefit, the possession of such person would not have been the petitioner 's possession if he was bound to act not under the directions of the petitioner or in obedience to his commands but under the directions of some other person or authority.
There is no doubt whatsoever that is not the position in the present case.
The State has not usurped the shareholders ' right to vote or vested it in any other authority.
The State appoints directors of its own choice but that it does, not in exercise of the share holders ' right to vote but in exercise of the powers vested in it by the impugned Act.
Thus there has been no dispos session of the shareholders from their right of voting at all.
The same reasoning applies to the other rights of the shareholders spoken of above, namely, their right of passing resolutions and of presenting winding up petition.
These rights have been restricted undoubtedly and may not be capable of being exercised to the fullest extent as long as the management by the State continues.
Whether the restric tions are such as would bring the case within 116 906 the mischief of article 19 (1) (f) of the Constitution, 1 will examine presently; but 1 have no hesitation in holding that they do not amount to dispossession of the shareholders from these rights in the sense that the rights have been usurped by other people who are exercising them in place of the displaced shareholders.
In the view that I have taken it is not necessary to discuss whether we can accept as sound the contention put forward by the learned Attorney General that the word "property" as used in article 31 of the Constitution con notes the entire property, that is to say the totality of the rights which the ownership of the object connotes.
According to Mr. Setalvad, if a shareholder is not deprived of the entirety of his rights which he is entitled to exer cise by reason of his being the owner or holder of the share and some rights, however insignificant they might be, still remain in him, there cannot be any dispossession as contem plated by article 31(2).
It is difficult, in my opinion, to accept the contention formulated in such broad terms.
The test would certainly be as to whether the owner has been dispossessed substantially from the rights held by him or the loss is only with regard to some minor ingredients of the proprietory right.
It is relevant to refer in this connection to an observation made by Rich J. in a Full Bench decision of the High Court of Australia,(1) where the ques tion arose as to whether the taking of exclusive possession of a property for an indefinite period of time by the Com monwealth of Australia under Reg.
54 of the National Securi ty Regulation amounted to acquisition of property within the meaning of placitum 31, section 51, of the Commonwealth Constitution.
The majority of the Full Bench answered the question in the affirmative and the main reason upon which the majority decision was based is thus expressed in the language of Rich J. "Property, in relation to land, is a bundle of rights exercisable with respect to the land.
The tenant of an unencumbered estate in fee simple in possession has the largest possible bundle.
But there is nothing in (1) See Minister of Stain for the Army vs Dalziel, 68 C L.R. p. 261, 907 the placitum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it was expropriat ing.
" It is not, however, necessary for my purpose to pursue the matter any further, as in my opinion there has been no dispossession of the rights of a shareholder in the present case.
Mr. Chari in course of his opening relied exclusively on clause (2) of article 31 of the Constitution.
During his reply, however, he laid some stress on clause (1) of the article as well, and his contention seems to be that there was deprivation of property in the present case in contra vention of the terms of this clause.
It is difficult to see what exactly is the contention of the learned Counsel and in which way it assists him for purposes of the present case.
It has been argued by the learned Attorney General that clause (1) of article 31 relates to a power different from that dealt with under clause (2).
According to him, what clause (1) contemplates is confiscation or destruction of property in exercise of what are known as 'police powers ' in American law, for which no payment of compensation is neces sary.
I do not think it proper for purposes of the present case to enter into a discussion on this somewhat debatable point which has been raised by the learned Attorney General.
In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution makers and the importing of expressions like 'police power ; which is a term of variable and indefinite connotation in American law can only make the task of interpretation more difficult.
It is also not necessary to express any opinion as to wheth er clauses (1) and (2) of article 31 relate to exercise of different kinds of powers or they are to be taken as cumula tive provisions in relation to the same subjectmatter, namely, compulsory acquisition of property.
If the word "deprived" as used in clause (1) connotes the idea of de struction or confiscation of property, obviously no such thing has happened in the present 908 case.
Again if clauses (1) and (2) of article 31 have to be read together and "deprivation" in clause (1) is given the same meaning as compulsory acquisition in clause (2), clause (1), which speaks neither of compensation nor of public purpose, would not by itself, and apart from clause (2), assist the petitioner in any way.
If the two clauses are read disjunctively, the only question that may arise in connection with clause (1) is whether or not the depriva tion of property is authorised by law.
Mr. Chari has raised a question relating to the validity of the legislation on the ground of its not being covered by any of the items in the legislative list and to this question I would advert later on; but apart from this, clause (1) of article 31 of the Constitution seems to me to be altogether irrelevant for purposes of the petitioner 's case.
This leads me to the consideration of the next point raised by Mr. Chari, namely, whether these restrictions offend against the provision of article 19(1)(f) of the Constitution.
Article 19(1) of the Constitution enumerates the dif ferent forms of individual liberty, the protection of which is guaranteed by the Constitution.
The remaining clauses of the article prescribe the limits that may be placed upon these liberties by law, so that they may not conflict with public welfare or general morality.
Article 19(1)(f) guarantees to all citizens ' the right to acquire, hold or dispose of property. ' Any infringement of this provision would amount to a violation of the fundamental rights, unless it comes within the exceptions provided for in clause (5) of the article.
That clause permits the imposition of reasonable restrictions upon the exercise of such righ teither in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
Two questions, therefore, arise in this connection: first, whether the restrictions that have been imposed upon the rights of the petitioner as a shareholder in the company under the Sholapur Act amount to infringement of his.right to acquire, hold or dispose of property within the meaning of article 19(1)(f) of the Constitution and 909 secondly, if they do interefere with such rights, whether they are covered by the exceptions 1aid down in clause (5) of the article.
So far as the first point is concerned, it is quite clear that there is no restriction whatsoever upon the petitioner 's right to acquire and dispose of any property.
The shares which he holds do remain his property and his right to dispose of them is not lettered in any way.
If to 'hold ' a property means to possess it, there is no infringe ment of this right either, for, as I have stated already, the acts complained of by the petitioner do not amount to dispossession of him from any property in the eye of law.
It is argued that 'holding ' includes enjoyment of all benefits that are ordinarily attached to the ownership of a property.
The enjoyment of the fruits of a property is undoubtedly an incident of ownership.
The pecuniary benefit, which a share.
holder derives from the shares he holds, is the dividend and there is no limitation on the petitioner 's right in this respect.
The petitioner undoubtedly has been precluded from exercising his right of voting at the elec tion of directors so long as the statutory directors contin ue to manage the affairs of the company.
He cannot pass an effective resolution in concurrence with the majority of shareholders without the consent or sanction of the Central Government and without such sanction, there is also a disa bility on him to institute any winding up proceedings in a court of law.
In my opinion, these are rights or privileges which are appurtenant to or flow from the ownership of property, but by themselves and taken independently, they cannot be reck oned as property capable of being acquired, held or disposed of as is contemplated by article 19 (1) (f) of the Constitu tion.
I do not think that there has been any restriction on the rights of a shareholder to hold, acquire or dispose of his share by reason of the impugned enactment and conse quently article 19 (1) (f) of the Constitution is of no assistance to the petitioner.
In this view, the other point does not arise for consideration, but I may state here that even if it is conceded for argument 's sake that the 910 disabilities imposed by the impugned legislation amount to restrictions on proprietory right, they may very well be supported as reasonable restraints imposed in the interests of the general public, viz., to secure the supply of a commodity essential to the community and to prevent a seri ous unemployment amongst a section of the people.
They are, therefore, protected completely by clause (5)of article 19.
This disposes of the second point raised by Mr. Chari.
The next point urged on behalf of the petitioner raises an important question of constitutional law which turns upon the construction of article 14 of the Constitution.
It is urged by the learned Counsel for the petitioner that the Sholapur Act is a piece of discriminatory legislation which offends against the provision of article 14 of the Constitu tion.
Article 14 guarantees to all persons in the territo ry of India equality before the law and equal protection of the laws and its entire object, it is said, is to prevent any person or class of persons from being singled out as a special subject of discriminatory legislation.
It is pointed out that the law in this case has selected one particular company and its shareholders and has taken away from them the right to manage their own affairs, but the same treatment has not been meted out to all other companies or shareholders situated in an identical manner.
Article 14 of the Constitution, it may be noted, corre sponds to the equal protection clause in the Fourteenth Amendment of the American Constitution which declares that "no State shall deny to any person within its jurisdiction the equal protection of the laws.
" We have been referred in course of the arguments on this point by the learned Counsel on both sides to quite a number of cases decided by the American Supreme Court, where questions turning upon the construction of the 'equal protection ' clause in the Ameri can Constitution came up for consideration.
A detailed examination of these reports is neither necessary nor prof itable for our present purpose but we think we can cull a few general principles from some of the pronouncements of 911 the American Judges which might appear to us to be consonant with reason and help us in determining the true meaning and scope of article 14 of our Constitution.
I may state here that so far as the violation of the equality clause in the Constitution is concerned, the peti tioner, as a shareholder of the company, has as much right to complain as the company itself, for his complaint is that apart from the discrimination made against the company, the impugned legislation has discriminated against him and the other shareholders of the company as a group vis a vis the shareholders of all other companies governed by the Indian Companies Act who have not been treated in a similar way.
As the discriminatory treat ment has been in respect to the shareholders of this company alone, any one of the shareholders, whose interests are thus vitally affected, has a right to complain and it is immate rial that there has been nodiscrimination inter se amongst the shareholders themselves.
It must be admitted that the guarantee against the denial of equal protection of the laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions.
As has been said by the Supreme Court of America, "equal protection of laws is a pledge of the protection of equal laws( ')," and this means "subjection to equal laws applying alike to all in the same situation(").
" In other words, there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is the same.
I am unable to accept the argument of Mr. Chari that a legislation relating to one individual or one family or one body corporate would per se violate the guarantee of the equal protection rule.
There can certainly be a law applying to one person or to one group of persons and it cannot be held to be (1) Yick Wo vs Hopkins, 118 U.S. at 369 (2) Southern Raliway Company vs Greene, ; ,412.
912 unconstitutional if it is not discriminatory in its charac ter (1).
It would be bad law "if it arbitrarily selects one individual or a class of individuals, one corporation or a class of corporations and visits a penalty upon them, which is not imposed upon others guilty of like delinquency(2).
" The legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a cer tain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary.
It must always rest upon some real and substantial distinction bearing a reasonable and just rela tion to the things in respect to which the classification is made; and classification made without any ' substantial basis should be regarded as invalid(3).
The question is whether judged by this test the im pugned Act can be said to have contravened the provision embodiedin article 14 of the Constitution.
Obviously the Act purports to make provisions which are of a drastic character and against the general law of the land as laid down in the Indian Companies Act, in regard to the admin istration and management of the affairs of one company in indian territory.
The Act itself gives no reason for the legislation but the Ordinance, which was a precursor of the Act expressly stated why the legislation was necessary.
It said that owing to mismanagement and neglect, a situation had arisen in the affairs of the company which prejudicially affected the production of an essential commodity and caused serious unemployment amongst a certain section of the community.
Mr. Chari 's contention in substance is that there are various textile companies in India situated in a simi lar manner as the Sholapur company, against which the same charges could be brought and for the control and regulation of which all the reasons that are mentioned in the preamble to the Ordinance (1) Willis Constitutional Law, p. 580.
(2) Gulf C. & section F.R. Co. vs Ellis. , at 159.
(3) Southern Railway Co. vs Greene, ; , at 412 913 could be applied.
Yet, it is said, the legislation has been passed with regard to this one company alone.
The argument seems plausible at first sight, but on a closer examination I do not think that I can accept it as sound.
It must be conceded that the Legislature has a wide discretion in determining the subject matter of its laws.
It is an accepted doctrine of the American Courts and which seems to me to be well founded on principle, that the presumption is favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a transgression of constitutional principles.
As was said by the Supreme Court of America in Middleton vs Texas Power and Light Company(1), 'It must be presumed that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.
" This being the position, it is for the petitioner to establish facts which would prove that the selection of this particular subject by the Legislature is unreasona ble and based upon arbitrary grounds.
No allegations were made in the petition and no materials were placed before us to show as to whether there are other companies in India which come precisely under the same category as the Sholapur Spinning and Weaving Company and the reasons for imposing control upon the latter as mentioned in the preamble to the Ordinance are applicable to them as well.
Mr. Chari argues that these are matters of common knowledge of which we should take judicial notice.
I do not think that this is the correct line of approach.
It is quite true that the Legislature has, in this instance, proceeded against one company only and its shareholders; but even one corporation or a group of persons can be taken as a class by itself for the purpose of legislation, provided it exhibits some excep tional features which are not possessed by others.
The courts should prima facie (1) 219 u.s. 152 at p. 157.
117 914 lean in favour of constitutionality and should support the legislation if it is possible to do so on any reasonable ground, and it is for the party who attacks the validity of the legislation to place all materials before the court which would go to show that the selection is arbitrary and unsupportable.
Throwing out of vague hints that there may be other instances of similar nature is not enough for this purpose.
We have not even before us any statement on oath by the petitioner that what has been alleged against this particular company may be said against other companies as well.
If there was any such statement, the respondents could have placed before us the whole string of events that led up to the passing of this legislation.
If we are to take judi cial notice of the existence of similar other badly managed companies, we must take notice also of the facts which appear in the parliamentary proceedings in connection with this legislation which leave been referred to by my learned brother, Fazl Ali J. in his judgment and which would go to establish that the facts connected with this corporation are indeed exceptional and the discrimination that has been made can be supported on just and reasonable grounds.
I purpose ly refrain from alluding to these facts or basing my deci sion thereon as we had no opportunity of investigating them properly during the course of the hearing.
As matters stand, no proper materials have been placed before us by either side and as I am unable to say that the legislature cannot be supported on any reasonable ground, I think it to be extremely risky to overthrow it on mere suspicion or vague conjectures.
If it is possible to imagine or think of cases of other companies where similar or identical condi tions might prevail, it is also not impossible to conceive of something" peculiar" or "unusual" to this corporation which led the legislature to intervene in its affairs.
As has been laid down by the Supreme Court of America, "The Legislature is free to recognise degrees of harm and it may confine its restrictions to those cases where the need is deemed to be the clearest"(1).
We should (1) Radics, vs New York, 264 U.S. 915 bear in mind that a corporation, which is engaged in produc tion of a commodity vitally essential to the community, has a social character of its own, and it must not be regarded as the concern primarily or only of those who invest their money in it.
If its possibilities are large and it had a prosperous and useful career for a long period of time and is about to collapse not for any economic reason but through sheer perversity of the controlling authority, one cannot say that the legislature has no authority to treat it as a class by itself and make special legislation applicable to it alone in the interests of the community at large.
The combination of circumstances which are present here may be of such unique character as could not be existing in any other institution.
But all these, I must say, are matters which require investigation on proper materials which we have not got before us in the present case.
In these circum stances I am constrained to hold that the present applica tion must fail on the simple ground that the petitioner made no attempt to discharge the primafacie burden that lay upon him and did not place before us the materials upon which a proper decision on the point could be arrived at.
In my opinion , therefore, the attack on the legislation on the ground of the denial of equal protection of law cannot succeed.
The only other thing that requires to be considered is the argument of Mr. Chari that the law in question is in valid as it is not covered by any of the items in the legis lative list.
In my opinion, this argument has no substance.
What the law has attempted to do is to regulate the affairs of this company by laying down certain special rules for its management and administration.
It is fully covered by item No. 43 of the Union List which speaks inter alia of "incor poration, regulation and winding up of trading corporations.
" The result is that the application fails and is dis missed with costs.
DAS J.
As I have arrived at a conclusion different from that reached by the majority of this Court, I 916 consider it proper, out of my respect for the opinion of my learned colleagues, to state the reasons for my conclusions in some detail.
On January 9, 1950, the Governor General of India, acting under section 42 of the Government of India Act, 1935, promulgated an Ordinance, being Ordinance No. II of 1950, concenrning the Sholapur Spinning and Weaving Company, Limited, (hereafter referred to as the said company).
The preambles and the provisions of the Ordinance have been referred to in the judgment just delivered by Mukherjea J. and need not be recapitulated by me in detail.
Suffice it to say that the net result of the Ordinance was that the managing agents of the said company were dismissed, the directors holding office at the time automatically vacated their office, the Government was authorised to nominate directors, the rights of the shareholders of this company were curtailed in that it was made unlawful for them to nominate or appoint any director, no resolution passed by them could be given effect to without the sanction of the Government and no proceeding for winding up could be taken by them without such sanction, and power was given to the Government to further modify the provisions of the Indian Companies Act in its application to the said company.
On the very day that the Ordinance was promulgated the Central Government acting under section 15 delegated all its powers to the Government of Bombay.
On January 10, 1950, the Government of Bombay appointed Respondents Nos. 3 to 7 as the new directors.
On March 2, 1950, Respondent No. 5 having resigned, Respondent No. 8 was appointed a director in his place and on the same day Respondent No. 9 was also appointed as a director.
In the meantime the new Constitu tion had come into force on January 26, 1950.
On February 7, 1950, the new directors passed a resolution sanctioning a call for Rs. 50 on the preference shares.
Thereupon a suit being Suit No. 438 of 1950 was filed in the High Court of 917 Bombay by one Dwarkadas Shrinivas against the new directors challenging the validity of the Ordinance and the right of the new directors to make the call.
Bhagwati J. who tried the suit held that the Ordinance was valid and dismissed the suit.
An appeal (Appeal No. 48 of 1950) was taken from that decision which was dismissed by a Division Bench (Chagla C.J. and Gajendragadkar J.) on August 29, 1950.
In the meantime, on April 7, 1950, the Ordinance was replaced by Act No. XXVIII of 1950.
The Act substantially reproduced the provisions of the Ordinance except that the preambles to the Ordinance were omitted.
On May 29, 1950, the present petition was filed by one Chiranjitlal Chowdhuri.
The petitioner claims to be a shareholder of the said company holding 80 preference shares and 3 ordinary shares.
The preference shares, according to him, stand in the name of the Bank of Baroda to whom they are said to have been pledged.
As those preference shares are not registered in the name of the petitioner he cannot assert any right as holder of those shares.
According to the respondents, the petitioner appears on the register as holder of only one fully paid up ordinary share.
For the purposes of this application, then, the petitioner 's interest in the said company must be taken as limited to only one fully paid up ordinary share.
The respondents are the Union of India, the State of Bombay and the new directors besides the company itself.
The respondent No. 5 having resigned, he is no longer a director and has been wrongly impleaded as respond ent.
The reliefs prayed for are that the Ordinance and the Act are ultra vires and void, that the Central Government and the State Government and the directors be restrained from exercising any powers under the Ordinance or the Act, that a writ of mandamus be issued restraining the new direc tors from exercising any powers under the Ordinance or the Act or from in any manner interfering with the management of the affairs of the company under colour of or in purported exercise of any powers under the said Ordinance or Act.
918 The validity of the Ordinance and the Act has been challenged before us on the following grounds: (i) that it was not within the legislative competence (a) of the Gover nor General to promulgate the Ordinance, or (b) of the Parliament to enact the Act, and (ii) that the Ordinance and the Act infringe the fundamental rights of the shareholders as well as those of the said company and are, therefore, void and inoperative under article 13.
Re (i) .
The present application has been made by the petitioner under article 52 of the Constitution.
Sub section (1) of that article guarantees the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part [1] of the Constitution.
Sub section (2) empowers this Court to issue directions or orders or writs, including certain specified writs, whichever may be appro priate, for the enforcement of any of the rights conferred by that Part.
It is clear, therefore, that article 32 can only be invoked for the purpose of the enforcement of the fundamental rights.
Article 32 does not permit an applica tion merely for the purpose of agitating the competence of the appropriate legislature in passing any particular enact ment unless the enactment also infringes any of the funda mental rights.
In this case the claim is that the fundamen tal rights have been infringed and, therefore, the question of legislative competence may also be incidentally raised on this application.
It does not appear to me, however, that there is any substance in this point for, in my opinion, entry 33 of List I of the Seventh Schedule to the Government of India Act, 1935, and the corresponding entry 43 of the Union List set out in the Seventh Schedule to the Constitu tion clearly support these pieces of legislation as far as the question of legislative competency is concerned.
Sec tions 83A and 83 B of the Indian Companies Act can only be supported as valid on the ground that they regulate the management of companies and are, therefore, within the said entry.
Likewise, the provisions of the Ordinance and the Act relating to the appointment of directors by the 919 Government and the curtailment of the shareholders ' rights as regards the election of directors, passing of resolutions giving directions with respect to the management of the company and to present a winding up petition are matters touching the management of the company and, as such, within the legislative competence of the appropriate legislative authority.
In my judgment, the Ordinance and the Act cannot be held to be invalid on the ground of legislative incompe tency of the authority promulgating or passing the same.
Re (ii) The fundamental rights said to have been in fringed are the right to acquire, hold and dispose of property guaranteed to every citizen by Article 19(1)(f) and the right to property secured by article 31, In Gapalan 's case (1) 1 pointed out that the rights conferred by article 19 (1) (a) to (e) and (g) would be available to the citizen until he was, under article 21, deprived of his life or personal liberty according to procedure established by law and that the right to property guaranteed by article 19 (1)(f) would likewise continue until the owner was, under article 31, deprived of such property by authority of law.
Therefore, it will be necessary to consider first whether the shareholder or the company has been deprived of his or its property by authority of law under Article 31 for, if he or it has been so deprived, then the question of his or its fundamental right under article 19 (1) (f) will not arise.
The relevant clauses of article 31 run as follows "31.
(1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorisingthe taking of such possession or such acquisition, unless the law provides for compensation for the property taken posses sion of or acquired (1) ; 920 and either fixes the amount of the compensation, or speci fies the principles on which, and the manner in which, the compensation is to be determined and given.
" Article 31 protects every person, whether such ' person is a citizen or not.
and it is wide enough to cover a natu ral person as well as an artificial person.
Whether or not, having regard to the language used in article 5, a corpora tion can be called a citizen and as such entitled to the rights guaranteed under article 19, it is quite clear that the corporation is protected by article 31, for that article protects every "person" which expression certainly includes an artificial person.
The contention of the peitioner is that the Ordinance and the Act have infringed his fundamental right to property as a shareholder in the said company.
Article 31, like article 19(1) (f), is concerned with "property ".
Both the articles are in the same chapter and deal with fundamental rights.
Therefore, it is reasonable to say that the word "property" must be given the same meaning in construing those two articles.
What, then, is the meaning of the word "property"? It may mean either the bundle of rights which the owner has over or in respect of a thing, tangible or intangible, or it may mean the thing itself over or in respect of which the owner may exercise these rights.
It is quite clear that the Ordinance or the Act has not deprived the shareholder of his share itself.
The share still be longs to the shareholder.
He is still entitled to the dividend that may be declared.
He can deal with or dispose of the share as he pleases.
The learned Attorney General contends that even if the other meaning of the word "proper ty" is adopted, the shareholder has not been deprived of his" property" understood in that sense, that is to say he has not been deprived of the entire bundle of rights which put together constitute his "property ".
According to him the" property" of the shareholder, besides and apart from his right to elect directors, to pass resolutions giving directions to the directors and to present a winding up petition, consists in his right to participate 921 in the dividends declared on the profits made by the working of the company and, in case of winding up, to participate in the surplus that may be left after meeting the winding up expenses and paying the creditors.
Those last mentioned rights, he points out, have not been touched at all and the shareholder can yet deal with or dispose of his shares as he pleases and is still entitled to dividends if and when declared.
Therefore, concludes the learned Attorney General, the shareholder cannot complain that he has been deprived of his "property", for the totality of his rights have not been taken away.
The argument thus formulated appears to me to be somewhat too wide, for it will then permit the legisla ture to authorise the State to acquire or take possession, without any compensation, of almost the entire rights of the owner leaving to him only a few subsidiary rights.
This result could not, in my opinion, have been intended by our Constitution.
As said by Rich J. in the Minister for State for the Army vs Datziel (i) while dealing with section 31 (XXXI) of the Australian Constitution "Property, in relation to land, is a bundle of rights exercisable with respect to the land.
The tenant of an unencurnbered estate in fee simple in possession has the largest possible bundle.
But there is nothing in the placi tum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it is expropriating.
" The learned Judge then concluded as follows at p. 286 : "It would in my opinion, be wholly inconsistent with the language of the placitum to hold that whilst preventing the legislature from authorising the acquisition of a citi zen 's full title except upon just terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession indefinitely, on any terms it chooses or upon no terms at all." (1) ; 118 922 In my judgment the question whether the Ordinance or the Act has deprived the shareholder of his "property" must depend, for its answer, on whether it has taken away the substantial bulk of the rights constituting his "property".
In other words, if the rights taken away by the Ordinance or the Act are such as would render the rights left un touched illusory and practically valueless, then there can be no question that in effect and substance the "property" of the shareholder has been taken away by the Ordinance or the Act.
Judged by this test can it be said that the right to dispose of the share and the right to receive dividend, if any, or to participate in the surplus in the case of winding up that have been left to the shareholder are illu sory or practically valueless, because the right to control the management by directors elected by him, the right to pass resolutions giving directions to the directors and the right to present a winding up petition have, for the time being, been suspended ? I think not.
The right still pos sessed by the shareholder are the most important of the rights constituting his "property", although certain privi leges incidental to the ownership have been put in abeyance for the time being.
It is, in my opinion, impossible to say that the Ordinance or the Act has deprived the shareholder of his "property" in the sense in which that word is used in article 19 (1) (f) and article 31.
The curtailment of the incidental privileges, namely, the right to elect directors, to pass resolutions and to apply for winding up may well be supported as a reasonable restraint on the exercise and enjoyment of the shareholder 's right of property imposed in the interests of the general public under article 19 (5), namely, to secure the supply of an essential commodity and to prevent unemployment.
Learned counsel for the petitioner, however, urges that the Ordinance and the Act have infringed the sharehold er 's right to property in that he has been deprived of his valuable right to elect directors, to give directions by passing resolutions and, in case of apprehension of loss, to present a petition for the winding 923 up of the company.
These rights, it is urged, are by them selves "property" and it is of this "property" that the shareholder is said to have been deprived bythe State under a law which does not provide for payment of compensation and which is, as such, an infraction of the shareholder 's funda mental right to property under article 31 (2).
Two ques tions arise on this argument.
Are these rights "property" within the meaning of the two articles I have mentioned ? These rights, as already stated, are, no doubt, privileges incidental to the ownership of the share which itself is property, but it cannot, in my opinion, be said that these rights, by themselves, and apart from the share are "proper ty" within the meaning of those articles, for those articles only regard that as "property" which can by itself be ac quired, disposed of or taken possession of.
The right to vote for the election of directors, the right to pass reso lutions and the right to present a petition for winding up are personal rights flowing from the ownership of the share and cannot by themselves and apart from the share be ac quired or disposed of or taken possession of as contemplated by those articles.
The second question is assuming that these rights are by themselves "property ", what is the effect of the Ordinance and the Act on such "property".
It is nobody 's case that the Ordinance or the Act has autho rised any acquisition by the State of this "property" of the shareholder or that there has in fact been any such acquisi tion.
The only question then is whether this "property" of the shareholder, meaning thereby only the rights mentioned above, has been taken possession of by the State.
It will be noticed that by the Ordinance or the Act these particular rights of the shareholder have not been entirely taken away, for he can still exercise these rights subject 0 course, to the sanction of the Government.
Assuming, however, that the fetters placed on these rights are tantamount to the taking away of the rights altogether, there is nothing to indicate that the Ordinance or the Act has, after taking away the rights from the shareholder, 924 vested them in the State or in any other person named by it so as to enable the State or any other person to exercise those rights of the shareholder.
The Government undoubtedly appoints directors under the Act, but such appointment is made in exercise of the the powers vested in the Government by the Ordinance or the Act and not in exercise of the shareholder 's right.
As already indicated, entry 43 in the Union List authorises Parliament to make laws with respect, amongst other things, to the regulation of trading corpora tions.
There was, therefore, nothing to prevent Parliament from amending the Companies Act or from passing a new law regulating the management of the company by providing that the directors, instead of being elected by the shareholders, should be appointed by the Government.
The new law has undoubtedly cut down the existing rights of the shareholder and thereby deprived the shareholder of his unfettered right to appoint directors or to pass resolutions giving direc tions or to present a winding up petition.
Such depriva tion, however, has not vested the rights in the Government or its nominee.
What has happened to the rights of the shareholder is that such rights have been temporarily de stroyed or kept in abeyance.
The result, therefore, has been that although the shareholder has been for the time being deprived of his "property", assuming these rights to be "property", such "property" has not been acquired or taken possession of by the Government.
If this be the result brought about by the Ordinance and the Act, do they offend against the fundamental rights guaranteed by article 31 ? Article 31 (1) formulates the fundamental right in a nega tive form prohibiting the deprivation of property except by authority of law.
It implies that a person may be deprived of his property by authority of law.
Article 31 (2) prohib its the acquisition or taking possession of property for a public purpose under any law, unless such law provides for payment of compensation.
It is suggested that clauses (1) and (2)o[ article 31 deal with the same topic, namely, compulsory acquisition or taking possession 925 of property, clause (2) being only an elaboration of clause (1).
There appear to me to be two objections to this sug gestion.
If that were the correct view, then clause (1).must be held to be wholly redundant and clause (2), by itself, would have been sufficient.
In the next place, such a view would exclude deprivation of property otherwise than by acquisition or taking of possession.
One can conceive of circumstances where the State may have to deprive a person of his property without acquiring or taking possession of the same.
For example, in any emergency, in order to prevent a fire spreading, the authorities may have to demolish an intervening building.
This deprivation of property is sup ported in the United States of America as an exercise of "police power ".This deprivation of property is different from acquisition or taking of possession of property which goes by the name of "eminent domain" in the American Law.
The construction suggested implies that our Constitution has dealt with only the law of "eminent domain ", but has not provided for deprivation of property in exercise of police powers ' '.
I am not prepared to adopt such construction, for I do not feel pressed to do so by the language used in article 31.
On the contrary, the language of clause (1) of article 31 is wider than that of clause (2), for deprivation of property may well be brought about otherwise than by acquiring or taking possession of it.
I think clause (1) enunciates the general principle that no person shall be deprived of his property except by authority of law, which, put in a positive form, implies that a person may be de prived of his property, provided he is so deprived by au thority of law.
No question of compensation arises under clause (1).
The effect of clause (2) is that only certain kinds of deprivation of property, namely those brought about by acquisition or taking possession of it, will not be permissible under any law, unless such law provides for payment of compensation.
If the deprivation of property is brought about by means other than acquisition or taking possession of it, no compensation is required, provided that such deprivation is by 926 authority of law.
In this case, as already stated, although the shareholder has been deprived of certain rights, such deprivation has been by authority of law passed by a compe tent legislative authority.
This deprivation having been brought about otherwise than by acquisition or taking pos session of such rights, no question of compensation can arise and, therefore, there can be no question of the infraction of fundamental rights under article 31 (2).
It is clear, therefore, that so far as the shareholder is concerned there has been no infringement of his fundamental rights under article 19 (1) (f) or article 31, and the shareholder cannot question the constitutionality of the Ordinance or the Act on this ground.
As regards the company it is contended that the Ordi nance and the Act by empowering the State to dismiss the managing agent, to discharge the directors elected by the shareholders and to appoint new directors have in effect authorised the State to take possession of the undertaking and assets of the company through the new directors appoint ed by it without paying any compensation and, therefore, such law is repugnant to article 31 (2) of our Constitution.
It is, however, urged by the learned Attorney General that the mills and all other assets now in the possession and custody of the new directors who are only servants or agents of the said company are, in the eye of the law, in the possession and custody of the company and have not really been taken possession of by the State.
This argument, however, overlooks the fact that in order that the posses sion of the servant or agent may be juridically regarded as the possession of the master or principal, the servant or agent must be obedient to, and amenable to the directions of, the master or principal.
If the master or principal has no hand in the appointment of the servant or agent or has no control over him or has no power to dismiss or discharge him, as in this case, the possession of such servant or agent can hardly, in law, be regarded as the possession of the company(1).
In this view of the (1) See Elements of Law by Markby.
6th Edition.
Para 371.
p. 192.
927 matter there is great force in the argument that the proper ty of the company has been taken possession of by the State through directors who have been appointed by the State in exercise of the powers conferred by the Ordinance and the Act and who are under the direction and control of the State and this has been done without payment of any compen sation.
The appropriate legislative authority was no doubt induced to enact this law, because, as the preamble to the Ordinance stated, on account of mismanagement and neglect, a situation had arisen in the affairs of the company which had prejudicially affected the production of an essential com modity and had caused serious unemployment amongst a certain section of the community, but, as stated by Holmes J. in Pennsylvania Coal Company vs Mahon(1), "A strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional.
way of paying for the change.
" Here, there fore, it may well be argued that the property of the company having been taken possession of by the State in exercise of powers conferred by a law which does not provide for payment of any compensation, the fundamental right of the company has, in the eye of the law, been infringed.
If the fundamental right of the company has been in fringed, at all, who can complain about such infringement ? Primafacie the company would be the proper person to come forward in vindication of its own rights.
It is said that the directors having been dismissed, the company cannot act.
This, however, is a misapprehension, for if the Act be void on account of its being unconstitutional, the directors appointed by the shareholders have never in law been dis charged and are still in the eye of the law the directors of the company, and there was nothing to prevent them from taking proceedings in the name of the company at their own risk as to costs.
Seeing that the directors have not come forward to make the application on behalf of the company and in its name the question arises whether (1) ; 928 an individual shareholder can complain.
It is well settled in the United States that no one but those whose rights are directly affected by a law can raise the question of the constitutionality of that law.
Thus in McCabe vs Atchison(1) which arose out of a suit filed by five Negros against five Railway Companies to restrain them from making any distinction in service on account of race pursuant to an Oklahoma Act known as ' 'The Separate Coach Law," in uphold ing the dismissal of the suit Hughes J. observed : "It is an elementary principle that in order to justify the granting of this extraordinary relief, the complainants ' need of it and the absence of an adequate remedy at law must clearly appear.
The complaint cannot succeed because some one else may be hurt.
Nor does it make any difference that other persons who may be injured are persons of the same race or occupation.
It is the fact, clearly established, of injury to the complainant not to others which justi fies judicial interference.
" In that case there was no allegation that anyone of the plaintiffs had ever travelled on anyone of the rail roans or had requested any accommodation in any of the sleeping cars or that such request was refused.
The same principle was laid down in Jeffrey Manufacturing Company vs Blagg(2), Hendrick vs MaCyland(3) and Newark Natural Gas and Fuel Company vs The City of Newark(1).
In each of these cases the Court declined to permit the person raising the question of constitutionality to do so on the ground that his rights were not directly affected by the law or Ordinance in ques tion.
On the other hand, in Truax vs Raich(5) and in Bu chanan vs Warley(5) the Court allowed the plea because in both the cases the person raising it was directly affected.
In the first of the two last mentioned cases an Arizona Act of 1914 requiring employers employing more than five workers to employ not less than eighty per cent.
native born citi zens was (1) 235 u.s. 151.
(4) 242 u.s. 403.
(2) 235 u.s. 571.
(5) 239 u.s. 33.
(3) ; (6) 245 u.s. 60.
929 challenged by an alien who had been employed as a cook in a restaurant.
That statute made a violation of the Act by an employer punishable.
The fact that the employment was at will or that the employer and not the employee was subject to prosecution did not prevent the employee from raising the question of constitutionality because the statute, if en forced, would compel the employer to discharge the employee and, therefore, the employee was directly affected by the statute.
In the second of the two last mentioned cases a city Ordinance prevented the occupation of a plot by a colored person in a block where a majority of the residences were occupied by white persons.
A white man sold his property in such a block to a Negro under a contract which provided that the purchaser should not be required to accept a deed unless he would have a right, under the laws of the city, to occupy the same as a residence.
The vendor sued for specific performance and contended that the Ordinance was unconstitutional.
Although the alleged denial of con stitutional rights involved only the rights of coloured persons and the vendor was a white person yet it was held that the vendor was directly affected, because the Courts below, in view of the Ordinance, declined to enforce his contract and thereby directly affected his right to sell his property.
It is, therefore, clear that the constitutional validity of a law can be challenged only by a person whose interest is directly affected by the law.
The question then arises whether the infringement of the company 's rights so directly affects its shareholders as to entitle any of its shareholders to question the constitutional validity of the law infringing the company 's rights.
The question has been answered in the negative by the Supreme Court of the United States in Darnell vs The State of Indi ana(1).
In that case the owner of a share in a Tennessee corporation was not allowed to complain that an Indiana law discriminated against Tennessee corporations in that it did not make any allowance, as it did in the case of Indiana corporations, where the corporation (1) 119 930 had property taxed within the State.
This is in accord with the well established legal principle that a corporation is a legal 'entity capable of holding pro perty and of suing or being sued and the corporators are not, in con templation of law, the owners of the assets of the corpora tion.
In all the cases referred to above the question of constitutionality was raised in connection with the equal protection clause in the Fourteenth Amendment of the American Federal Constitution.
If such be the require ments of law in connection with the equal protection clause which corresponds to our article 14, it appears to me to follow that only a person who is the owner of the property can raise the question of constitutionality under article 31 of a law by which he is so deprived of his property.
If direct interest is necessary to permit a person to raise the question of constitutionality under article 14, a direct interest in the property will, I apprehend, be necessary to entitle a person to challenge a law which is said to infringe the right to that property under article 31.
In my opinion, although a shareholder may, in a sense be interested to see that the company of which he is a shareholder is not deprived of its property he cannot, as held in Darnell vs Indiana(1), be heard to complain, in his own name and on his own behalf, of the infringement of the fundamental right to property of the company, for, in law, his own right to property has not been infringed as he is not the owner of the company 's properties.
An interest in the company owning an undertak ing is not an interest in the undertaking itself.
The interest in the company which owns an undertaking is the "property" of the shareholder under article 31 (2), but the undertaking is the property of the company and not that of the shareholder and the latter cannot be said to have a direct interest in the property of the company.
This is the inevitable result of attributing a legal personality to a corporation.
The proceedings for a writ in the nature of a writ of habeas corpus appear to be somewhat different for the (1) 226 u.
section 338 931 rules governing those proceedings permit, besides the person imprisoned, any person, provided he is not an utter strang er, but is at least a friend or relation of the imprisoned person, to apply for that particular writ.
But that special rule does not appear to be applicable to the other writs which require a direct and tangible interest in the appli cant to support his application.
This must also be the case where the applicant seeks to raise the question of the constitutionality of a under articles 14, 19 and 31.
For the reasons set out above the present petitioner cannot raise the question of constitutionality of the impugned law under article 31.
He cannot complain of any infringement of his own rights as a shareholder, because his "property" has not been acquired or taken possession of by the State although he has been deprived of his right to vote and to present a winding up petition by authority of law.
Nor can he complain of an infringement of the compa ny 's right to property because he is not, in the eye of law, the owner of the property in question and accordingly not directly interested in it.
In certain exceptional cases where the company 's property is injured by outsiders, a shareholder may, under the English law, alter making all endeavours to induce the persons in charge of the affairs of the company to take steps, file a suit on behalf of himself and other shareholders for redressing the wrong done to the company, but that principle does not apply here for this is not a suit, nor has it been shown that any attempt was made by the petitioner to induce the old directors to take steps nor do these proceedings purport to have been taken by the petitioner on behalf of himself and the other shareholders of the.company.
The only other ground on which the Ordinance and the Act have been challenged is that they infringe the the fundamen tal rights guaranteed by article 14 of the Constitution. "Equal protection of the laws", as observed by Day 3.
in Southern Railway Company vs Greene (1), "means subjection to equal laws, applying (1) ; 932 alike to all in the same situation".
The inhibition of the article that the State shall not deny to any person equality before the law or the equal protection of the laws was designed to protect all persons against legislative discrim ination amongst equals and to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation.
It does not, howev er, mean that every law must have universal application, for all persons are not, by nature, attainment or circumstances, in the same position.
The varying needs of different class es of persons often require separate treatment and it is, therefore, established by judicial decisions that the equal protection clause of the Fourteenth Amendment of the Ameri can Constitution does not take away from the State the power to classify persons for legislative purposes.
This classi fication may be on different bases.
It may be geographical or according to objects or occupations or the like.
If law deals equally with all of a certain well defined class it is not obnoxious and it is not open to the charge of a denial of equal protection on the ground that it has no applica tion to other persons, for the class for whom the law has been made is different from other persons and, there fore, there is no discrimination amongst equals.
It is plain that every classification is in some degree likely ' to produce some inequality, but mere production of inequality is not by itself enough.
The inequality produced, in order to encounter the challenge of the Constitution, must be "actually and palpably unreasonable and arbitrary.
" Said Day J. in Southern Railway Company vs Greene(1) : " While reasonable classification is permitted, without doing vio lence to the equal protection of the laws, such classifica tion must be based upon some real and substantial distinc tion, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and the classification cannot be arbitrarily made without any substantial basis.
Arbitrary selection, it has been said, cannot be justified by calling it classification".
Quite conceivably there may be a law 933 relating to a single individual if it is made apparent that, on account of some special reasons applicable only to him and inapplicable to anyone else, that single individual is a class by himself.
In Middieton vs Texas Power and Light Company(1) it was pointed out that there was a strong presumption that a legislature understood and correctly appreciated the needs of its own people, that its laws were directed to problems made manifest by experience and that the discriminations were based upon adequate grounds.
It was also pointed out in that case that the burden was upon him who attacked a law for unconstitutionality.
In Lindsley vs Natural Carbonic Gas Company(2) It was also said that one who assailed the classification made in a law must carry the burden of showing that it did not rest upon any reasonable basis but was essentially arbitrary.
If there is a classi fication, the Court will not hold it invalid merely because the law might have been extended to other persons who in some respects might resemble the class for which the law was made, for the legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist.
If, however, there is, on the face of the stat ute, no classification at all or none on the basis of any apparent difference specially peculiar to any particular individual or class and not applicable to any other person or class of persons and yet the law hits only the particular individual or class it is nothing but an attempt to arbi trarily single out an individual or class for discriminating and hostile legislation.
The presumption in favour of the legislature cannot in such a case be legitimately stretched so as to throw the impossible onus on the complainant to prove affirmatively that there are other individuals or class of individuals who also possess the precise amount of the identical qualities which are attributed to him so as to form a class with him.
As pointed out by Brewer J. in the Gulf, Colorado and Santa Fe 'Railway vs
W.H. Ellis (3), while good faith (1} ; (2) ; (3) 165 U.S. 150. 934 and a knowledge of existing conditions on the part of a legislature was to be presumed, yet to carry that presump tion to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain indi viduals or corporations to hostile and discriminating legis lation was to make the protecting clause a mere rope of sand, in no manner restraining State action.
The complaint of the petitioner on this head is formu lated in paragraph 8 (iii) of the petition as follows : "The Ordinance denied to the company and its sharehold ers equality before the law and equal protection of the laws and was thus a violation of article 14 of the Constitution.
The power to make regulations relating to trading corpo rations or the control or production of industries was a power which consistently with article 14 could be exercised only generally or with reference to a class and not with reference to a single company or to shareholders of a single company.
" The Act is also challenged on the same ground in paragraph 9 of the petition.
The learned Attorney General contends that the petitioner as an individual shareholder cannot complain of discrimination against the company.
It will be noticed that it is not a case of a shareholder complaining only about discrimination against the company or fighting the battle of the company but it is a case of a shareholder complaining of discrimination against himself and other shareholders of this company.
It is true that there is no complaint of discrimination inter se the share holders of this company but the complaint is that the share holders of this company, taken as a unit, have been discrim inated vis a vis the shareholders of other companies.
Therefore, the question as to the right of the shareholder to question the validity of a law infringing the right of the company does not arise.
Here the shareholder is com plaining of the infringement of his own rights and if such infringement can be established I see no reason why the shareholder cannot come within article 32 to vindicate his own rights.
The fact that these proceedings have been taken by 935 one single shareholder holding only one single fully paid up share does not appear to me to make any the least difference in principle.
If this petitioner has, by the Ordinance or the Act, been discriminated against and denied equal protec tion of the law, his fundamental right has been infringed and his right to approach this Court for redress cannot be made dependent on the readiness or willingness of other shareholders whose rights have also been infringed to join him in these proceedings or of the company to take substan tive proceedings.
To take an example, if any law discrimi nates against a class, say the Punjabis, any Punjabi may question the constitutionality of the law, without joining the whole Punjabi community or without acting on behalf of all the Punjabis.
To insist on his doing so will be to put a fetter on his fundamental right under article 32 which the Constitution has not imposed on him.
Similarly, if any law deprives a particular shareholder or the shareholders of a particular company of the ordinary rights of sharehold ers under the general law for reasons not particularly and specially applicable to him or them but also applicable to other shareholders of other companies, such law surely offends against article 14 and any one so denied the equal protection of law may legitimately complain of the infringe ment of his fundamental right and is entitled as of right to approach this Court under article 32 to enforce his own fundamental right under article 14, irrespective of whether any other person joins him or not.
To the charge of denial of equal protection of the laws the respondents in the affidavit of Sri Vithal N. Chandavar kar filed in opposition to the petition make the following reply: "With reference to paragraph 6 of the petition, I deny the soundness of the submissions that on or from the 26th January, 1950, when the Constitution of India came into force the said Ordinance became void under article 13(1) of the Constitution or that the provisions thereof were inconsistent with the provisions of Part III of the said Constitution or for any of the other grounds mentioned in paragraph 8 936 of the said petition.
" In the whole of the affidavit in opposition there is no suggestion as to why the promulgation of the Ordinance or the passing of the Act was considered necessary at all or on what principle or basis either of them was founded.
No attempt has been made in the affidavit to show that the Ordinance or the Act was based upon any principle of classification at all or even that the particu lar company and its shareholders possess any special quali ties which are not to be found in other companies and their shareholders and which, therefore, render this particular company and its shareholders a class by themselves.
Neither the affidavit in opposition nor the learned Attorney General in course of his arguments referred to the statement of the objects and reasons for introducing the bill which was eventually enacted or the Parliamentary debates as showing the reason why and under what circumstances this law was made and, therefore, apart from the question of their admis sibility in evidence, the petitioner has had no opportunity to deal with or rebut them and the same cannot be used against him.
The learned Attorney General takes his stand on the presumption that the law was founded on a valid basis of classification, that its discriminations were based upon adequate grounds and that the law was passed for safeguard ing the needs of the people and that, therefore, the onus was upon the petitioner to allege and prove that the classi fication which he challenged did not rest upon any reasona ble basis but was essentially arbitrary.
I have already said that if on the face of the law there is no classification at all or, at any rate, none on the basis of any apparent difference specially peculiar to the individual or class affected by the law, it is only an instance of an arbitrary selection of an individual or class for discriminating and hostile legislation and, therefore, no presumption can, in such circumstances, arise at all.
Assuming, however, that even in such a case the onus is thrown on the complainant, there can be nothing to prevent him from proving, if he can, from the text of.
the law itself, that 937 it is "actually and palpably unreasonable and arbitrary" and thereby discharging the initial onus.
The Act is intituled an Act to make special provision for the proper management and administration of the Sholapur Spinning and Weaving Company, Limited.
" There is not even a single preamble alleging that the company was being misman aged at all or that any special reason existed which made it expedient to enact this law.
The Act, on its face, does not purport to make any classification at all or to specify any special ' vice to which this particular company and its shareholders are subject and which is not to be found in other companies and their shareholders so as to justify any special treatment.
Therefore., this Act, ex facie, is nothing but an arbitrary selection of this particular compa ny and its shareholders for discriminating and hostile treatment and read by itself.is palpably an infringement of Article 14 of the Constitution.
The learned Attorney General promptly takes us to the preambles to the Ordinance which has been replaced by the Act and suggests that the Act is based on the same consider ations on which the Ordinance was promulgated.
Assuming that it is right and permissible to refer to and utilise the preambles, do they alter the situation ? The preambles were as follows : "Whereas on account of mismanagement and ne glect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudi cially affected the production of an essential commodity and has caused serious unemployment amongst a certain section of the community;And whereas an emergency has arisen which renders it necessary to make special provision for the proper management and administration of the aforesaid compa ny; " The above preambles quite clearly indicate that the justification of the Ordinance rested on mismanagement and neglect producing certain results therein specified.
It will be noticed that apart from these preambles there is no material whatever before us establishing or even suggesting that this company and its shareholders have in fact been guilty of any 938 mismanagement or neglect.
Be that as it may, the only reason put forward for the promulgation of the Ordinance was mismanagement resulting in falling off of production and in producing unemployment.
I do not find it necessary to say that mismanagement and neglect in conducting the affairs of companies can never be a criterion or basis of classifica tion for legislative purposes.
I shall assume that it is permissible to make a law whereby all delinquent companies and 'their shareholders may be brought to book and all companies mismanaging their affairs and the shareholders of such companies may, in the interest of the general public, be deprived of their right to manage the affairs of their companies.
Such a classification made by a law would bear a reasonable relation to the conduct of all delinquent compa nies and shareholders and may, therefore, create no inequal ity, for the delinquent companies and their shareholders from a separate class and cannot claim equality of treatment with good companies and their shareholders who are their betters.
But a distinction cannot be made between the delinquent companies inter se or between shareholders of equally delinquent companies and one set cannot be punished for its delinquency while another set is permitted to continue, or become, in like manner, delinquent without any punishment unless there be some other apparent difference in their respective obligations and unless there be some cogent reason why prevention of mismanagement is more imperative in one instance than in the other.
To do so will be nothing but an arbitrary selection which can never be justified as a permissible classiffication.
I am not saying that this particular company and its shareholders may not be guilty of mismanagement and negligence which has brought about seri ous fall in production of an essential commodity and also considerable unemployment.
But if mismanagement affect ing production and resulting in unemployment is to be the basis of a classification for making a law for preventing mismanagement and securing production and employment, the law must embrace within its 939 ambit all companies which now are or may hereafter become subject to the vice.
This basis of classification, by its very nature, cannot be exclusively applicable to any partic ular company and its shareholders but is capable of wider application and, therefore, the law founded on that basis must also be wide enough so as to be capable of being ap plicable to whoever may happen at any time to fall within that classification.
Mismanagement affecting production can never be reserved as a special attribute peculiar to a particular company or the shareholders of a particular company.
It it were permissible for the legislature to single out an individual or class and to punish him or it for some delinquency which may equally be found in other individuals or classes and to leave out the other individu als or classes from the ambit of the law the prohibition of the denial of equal protection of the laws would only be a meaningless and barren form of words.
The argument that the presumption being in favour of the legislature, the onus is on the petitioner to show there are other individuals or companies equally guilty of mismanagement prejudicially affecting the production of an essential commodity and causing serious unemployment amongst a certain section of the community does not, in such.
circumstances, arise, for the simple reason that here there has been no classification at all and, in any case, the basis of classification by its very nature is much wider and cannot, in it application, be limited only to this company and its shareholders and, that being so, there is no reason to throw on the petitioner the almost impossible burden of proving that there are other companies which are in fact precisely and in all particu lars similarly situated In any event, the petitioner, in my opinion, may well claim to have discharged the onus of showing that this company and its shareholders have been singled out for discriminating treatment by showing that the Act, on the face of it, has adopted a basis of classifica tion which, by its very nature, cannot be exclusively ap plicable to this company and its shareholders but Which may be equally appplicable to other companies 940 and their shareholders and has penalised this particular company and its shareholders, leaving out other companms and their shareholders who may be equally guilty of the alleged vice of mismanagement and neglect of the type referred to in the preambles.
In my opinion the legislation in question infringes the fundamental rights of the petitioner and offends against article 14 of our Constitution.
The result, therefore, is that this petition ought to succeed and the petitioner should have an order in terms of prayer (3) of the petition with costs.
Petition dismissed.
Agent for the petitioner: M.S.K. Aiyengar.
Agent for opposite party Nos. 1 & 2:P.A. Mehta.
Agent for opposite party Nos.
3 to 5 and 7 to 10: Rajinder Narain.
| The Governor General of India, finding that on account of mismanagement and neglect a situation had arisen in the affairs of the Sholapur Spinning and Weaving Company Ltd. which had prejudicially affected the production of an essen tial commodity and had caused serious unemployment amongst a certain section of the community, and that an emergency had thereby arisen which rendered it necessary to make special provision for the proper management and administration of the said company, promulgated an Ordinance, which was subse quently reenacted in the form of an Act of the Legislature called the sholpur Spinning and Weaving Company (Emergency Provisions)Act, 1950, the net result of which was that the Managing Agents of the said company were dismissed, the directors holding office at the time automatically vacated their office, the Government was authorised to appoint new directors, the rights of the shareholders of the company were curtailed in the matters of voting, appointment of directors, passing of resolutions and applying for winding up, and power was also given to the Government to further modify the Indian Companies Act in its application to the company; and in accordance with the provisions of the Ordi nance new directors were appointed by the Government.
A shareholder of the company made an application under article 32 of the Constitution for a declaration that the Act was void and for enforcement of his fundamental rights by a writ of mandamus against the Central Government, the Government of Bombay and the directors, restraining them from exercising any powers under the Act and from interfering with the management of the company, on the ground that the Act was not within the Legislative competence 870 of the Parliament and infringed his fundamental rights guaranteed by articles 19 (1) (f), 31 and 14 of the Constitu tion and was consequently void under article 13.
The company was made a respondent and opposed the petition.
Held per KANIA C.J., FAZL ALI, MUKHERJEA and DAS JJ. (i) that the impugned Act did not infringe any fundamental right of the petitioner under article 31 (1), as if did not deprive the company or the petitioner of any property save under authority of law; (ii) that the impugned Act did not infringe any fundamen tal right guaranteed by article 31 (2.) inasmuch as it did not authorise the "acquisition" of any property of the company or of the shareholders or "the taking possession" of the property of the petitioner, namely, the shares which he held in the company, though he was disabled from exercising some of the rights which an ordinary shareholder in a company could exercise in respect of his shares, such as the right to vote, to appoint directors, and to apply for winding up; and, if the Act had authorised the "taking possession" of the property of the company, the petitioner was not entitled to any relief on that score under article 32; (iii) that, as the Act did not impose any restrictions on the petitioner 's right "to acquire, hold and dispose of" his shares, there was no infringement of article 19 (1) (f); and assuming that the restrictions imposed on the right of voting etc.
were restrictions on the right to acquire, hold or dispose of property within article 19 (1) (f), such restric tions were reasonable restrictions imposed in the interests of the public, namely, to secure the supply of a commodity essential to the community and to prevent serious unemploy ment amongst a section of the people, and were therefore completely protected by cl.
(5) of article 19.
Held also per KANIA C.J., FAZL ALI, and MUKHERJEA JJ.
(PATANJALI SASTRI AND DAS JJ.
dissenting). that though the Legislature had proceeded against one company only and its shareholders, inasmuch as even one corporation or a group of persons can be taken to be class by itself for the purposes of legislation, provided there is sufficient basis or reason for it and there is a strong presumption in favour of the constitutionality/of an enactment, the burden was on the petitioner to prove that there were also other companies similarly situated and this company alone had been discrimi nated against, and as he had failed to discharge this burden the impugned Act cannot be held to have denied to the peti tioner the right to equal protection of the laws referred to in article He and the petitioner was not therefore entitled to any relief under article 32.
Per PATANJALI SASTRI J.
As the impugned Act plainly denied to the shareholders of this particular company the protections of the law relating to incorporated Joint Stock Companies as embodied in the Indian Companies Act.
it was Prima facie within 871 the inhibition of article 14; and, even though when a law is made applicable to a class of persons or things and the classification is based on differentia having a rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its applica tion is found to affect only one person or thing.
since the impugned Act selected a particular company and imposed upon it and its shareholders burdens and disabilities on the ground of mismanagement and neglect of duty on the part of those charged with the conduct of its undertaking no ques tion of reasonable classification arose and the Act was plainly discriminatory in character and within the constitu tional inhibition of article 14.
Whilst all reasonable pre sumptions must undoubtedly be made in favour of the consti tutional validity of a law made competent legislature, no such presumption could be raised in this case as on the face of it the Act was discriminatory and the petitioner could not be called upon to prove that similar mismanagement existed in other companies.
The issue was not whether the impugned Act was ill advised or not justified by the facts on which it was based but whether it transgressed the ex plicit constitutional restriction on legislative power imposed by article 14.
Per DAs J. The impugned Act, ex facie, is nothing but an arbitrary selection of a particular company and its shareholders for discriminating and hostile treatment, and, read by itself, is palpably an infringement of article 14 of the Constitution.
Assuming that mismanagement and neglect in conducting the affairs of a company can be a basis of classification and that such a classification would bear a reasonable relation to the conduct of all delinquent compa nies and shareholders and may therefore create no inequali ty, a distinction cannot be made between the delinquent companies inter se or between shareholders of equally delin quent companies, and one set cannot he punished for its delinquency while another set is permitted to.
continue, or become, in like manner, delinquent without any punishment unless there be some other apparent difference in their respective obligations and unless there be some cogent reason why prevention of mismanagement is more imperative in one instance than in the other.
The argument that the pre sumption being in favour of the Legislature, the onus is on the petitioner to show that there are other individuals or companies equally guilty of mismanagement prejudicially affecting the production of an essential commodity and causing serious unemployment amongst, certain section of the community does not, in such circumstances, arise, for the simple reason that here there has been no classification at all and, in any case, the basis of classification by its very nature is much wider and cannot, in its application, be limited only to this company and its shareholders; and that being so, there is no reason to throw on the petitioner the almost impossible burden of proving that there are other companies which are in fact precisely and in all particulars similarly situated.
In any event the petitioner, 872 may well claim to have discharged the onus of showing that this company and its shareholders have been singled out for discriminating treatment by showing that the Act, on the face of it, has adopted a basis of classification which, by its very nature, cannot be exclusively applicable to this company and its shareholders but which may be equally ap plicable to other companies and their shareholders and has penalised this particular company and its shareholders, leaving out other companies and their shareholders who may be equally guilty of the alleged vice of mismanagement and neglect of the type referred to in the preamble in the Ordinance.
Per PATANJALI SASTRI, MUKHERJEA and DAS JJ.
(KANIA, C.J,, dubitante).
In so far as the petitioner 's rights as a shareholder were curtailed he was entitled to apply for relief under article 30, in his own right on the ground that the Act denied to him the equal protection of the laws and therefore contravened article 14 even though the other share holders did not join him in the application.
Per MUKHERJEA J.
The fundamental rights guaranteed by the Constitution are available not merely to individual citizens but to corporate bodies as well except where the language of the provision or the nature of the right, com pels the inference that they are applicable only to natural persons.
An incorporated company, therefore, can come up to the Supreme Court for enforcement of its fundamental rights and so may the individual shareholders to enforce their own; but as the company and its shareholders are in law separate entities, it would not be open to an individual shareholder to complain of a law which affects the fundamental right of the company except to the extent that it constitutes an infraction of his own rights as well.
In order to redress a wrong to the company the action should prima facie be brought by the company itself.
Article 32 of the Constitution is not directly concerned with the determination of the constitutional validity of particular enactments, what it aims at is the enforcement of fundamental rights guaranteed by the Constitution and to make out a case under the Article it is incumbent on the petitioner to establish not merely that the law complained of is beyond the competence of the Legislature but that it affects or invades his fundamental rights guaranteed by the Constitution, of which he could seek enforcement by an appropriate writ or order.
Under article 32 the Supreme Court has a very wide discre tion in the matter of framing writs to suit the exigencies of particular cases and an application under the article cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for.
In the context in which the word "acquisition" is used in article 31 i2) it means and implies the acquiring of the entire title of the expropriated owner whatever the nature or extent of that right might be, 873 The guarantee against the denial of equal protection of the laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions.
It means only that there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is the same.
Quaere : Whether the word "property" in article 31 means the totality of the rights which the ownership of the property connotes, and whether clause (1) of article 31 contem plates only confiscation or destruction of property in exercise of what are known as police powers in American law for which no compensation is necessary.
DAS J.
The question whether an Act has deprived a person of his "property" must depend on whether it has taken away the substantial bulk of the rights constituting his property.
Where the most important rights possessed by the shareholders of a company are still preserved by an Act even though certain privileges incidental to the ownership of the shares have been put in abeyance, the shareholders cannot be said to have been deprived of their "property" in the sense in which that word is used in article 19(1) (f) and article 31.
If on the face of the law there is no classification at all, or at any rate none on the basis of any apparent dif ference specially peculiar to the individual or class af fected by the law, it is only an instance of an arbitrary selection of an individual or class for discriminating and hostile legislation and, therefore, no presumption can, in such circumstances, arise at all Assuming, however, that even in such a case the onus is thrown on the complainant, there can be nothing to prevent him from proving, if he can, from the text of the law itself, that it is actually and palpably unreasonable and arbitrary and thereby discharging the initial onus.
The right to vote, to elect directors, to pass resolu tions and to present an application for winding up, are privileges incidental to the ownership of a share, but they are not by themselves apart from the share, "property" within the meaning of article 19 (1) (f) and article 31; and even assuming that they are "property" such rights cannot be said to have been acquired or taken possession of by the Govern ment in this case within article 31 (2).
The language of clause (1) of article 31 is wider than that of clause (2), for deprivation of property may well be brought about otherwise than by acquiring or taking possession of it and in such a case no question payment of compensation arises.
FAZAL ALI MUKHERJEA and DAS JJ.
Except in the matter writs in the nature of habsas corpus no one but those whose rights are directly affected by a law can raise the question of the constitutionality of a law and claim relief under article 39.
A corporation being a different entity from the shareholders, a 112 874 share holder cannot complain on the ground that the rights of the company under articles 19 (1) (f) or 31 are infringed.
FAZL ALl J.
A classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must hear a reasonable and lust relation to the things in respect of which it is proposed.
But the presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles.
Though article 14 lays down an important fundamental 'right, which should be closely and vigilantly guarded, a doctri naire approach which might choke all beneficial legislation should not be adopted, in construing it.
i A.K. Gapalan vs The State ([1950] S.C.R. 87), Minister of State for the Army vs Dalziel ; , Yick Wo vs Hopkins , Southern Railway Co. vs Greene ; , Gulf C. & S.F. Co. Ellis ; , Middle ton vs Texas Power and Light & Co. ; , Badice vs New York (264 U.S. Pennsylvania Coal Co. vs Mahon (960 U.S. 3931, McCabe vs Archison ; , Jeffrey Manufactur ing Co. vs Blang , Newark Natural Gas and Fuel Co. vs City of Nework U.S 403), Truax vs Raich (939 U.S. 33), Buchanan vs W 'arley ; Darnell vs The State of Indiana , Lindely vs Natural Carbonic Gas Co. , and Barbier vs Connolly ; referred to.
|
No. LXX of 1949.
Appeal from the judgment of the Allahabad High Court (Verma and Yorke JJ.) dated the 22nd April, 1943.
100 782 M.C. Setalvad, Attorney General for India (Sri Narain And ley, with him), for the appellant.
P.L. Banerjee (H. J. Urnrigal, with him), for the respondents.
November 14.
MLKHERJEA J. This is an appeal against a judjment and decree of a Division Bench of the Allahabad High Court dated April 22, 1943, which reversed on appeal those of the Civil Judge of Basti dated 6th of November 1939.
The suit, out of which the appeal arises, was commenced by the plaintiff, whose successor the present appellant is, to recover a sum of Rs. 11,935 by enforcement of a simple mortgage bond.
The mortgage deed is dated the 8th of March 1926 and was executed by Raja Pateshwari Partap Narain Singh, the then holder of Basti Raj which is an impartible estate governed by the rule of primogeniture, in favour of Bhikhiram Sahu, the father of the original plaintiff Ramdeo, to secure a loan of Rs. 5,500 advanced by the mortgagee on hypothecation of certain immovable properties appertaining to the estate of the mortgagor.
The loan carried interest at the rate of 9 per cent per annum and there was a stipula tion to pay the mortgage money within one year from the date of the bond.
The mortgagor and the mortgagee were both dead at the time when the suit was instituted, and the plaintiff in the action was Ramdeo Sahu, the son and heir of the mortgagee, while the principal defendant was the eldest son of the mortgagor who succeeded to the Basti estate under the rule of primogeniture.
It was stated in the plaint that absolutely nothing was paid by the mortgagor or his succes sor towards the mortgage dues and the plaintiff claimed the principal amount of Rs. 5,500 together with interest at the rate of 9 per cent.
per annum up to the date of the suit.
A number of pleas were taken by the contesting defend ant in answer to the plaintiff 's claim, most of which are not relevant for our present purpose.
The 783 substantial contentions raised by the defendant were of a three fold character.
In the first place, it was urged that the document sued upon was not a properly attested or valid ly registered document and could not operate as a mortgage instrument in law.
The second contention raised was that there was no consideration in support of the transaction, at least to the extent of Rs. 2,000, which was represented by items 3 and 4 of the consideration clause in the document.
The third and the last material defence related to a claim for relief under the United Provinces Agriculturists ' Relief Act.
The trial Judge held in favour of the defendant on the last point mentioned above and negatived his other pleas.
The result was that he made a preliminary decree for sale in favour of the plaintiff for recovery of the principal sum of Rs. 5,500 with interest at certain rates as are sanctioned by the U.P. Agriculturists ' Relief Act; and agreeably to the provisions of that Act the decretal dues were directed to be paid in a number of instalments.
Against this decision, the defendant took an appeal to the High Court of Allahabad which was heard by a Division Bench consisting of Verma and York JJ.
The learned Judges reversed the judgment of the trial Judge and dismissed the plaintiff 's suit on one ground only, viz., that the bond was not attested in the manner required by law and consequently could not rank as a mortgage bond; and as the suit was instituted beyond 6 years from the date of the bond, no money decree could be claimed by the plaintiff.
It is against this judgment that the plaintiff has come up on appeal to this court, and the main contention raised by the learned Attorney General, who appeared in support of the appeal, is that in arriving at its decision on the question of attestation, the High Court approached the matter from a wrong standpoint altogether and on the materi als in the record it had no justification for reversing the findings of the trial court on that point.
The question for our consideration is undoubtedly one of fact, the decision of which depends upon the 784 appreciation of the oral evidence adduced in the case.
In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court.
This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge.
The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a par ticular witness which has escaped the trial Judge 's notice or there is a sufficient balance of improbability to dis place his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact(1).
The gist of the numer ous decisions on this subject was clearly summed up by Viscount Simon in Watt vs Thomas(2), and his observations were adopted and reproduced in extenso by the Judicial Committee in a very recent appeal from the Madras High Court(3).
The observations are as follows: "But if the evidence as a whole can reasonably be re garded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on confliciting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight.
This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration.
Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when (1) Vide Lord Atkin 's observations in W.C. Macdonald vs Fred Latinmer, AI.R. 1929 P.C. 15, 18.
(2) at p. 486.
(3) Vide Saraveeraswami vs Talluri, A.I.R. 785 estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal)of having the witnesses before him and observing the manner in which their evidence is given.
" It is in the light of these observations that we propose to examine the propriety of the decision of the s learned Judges of the High Court in the present case.
It will appear that the mortgage deed besides containing the signature of the executant, purports to bear the signatures of three other persons, two of whom are described as attesting wit nesses and the third one as the scribe.
Harbhajan Lal and Jawala Prasad Tewari purport to have signed the document as attesting witnesses and Jawala Prasad Patwari is the person who has signed it as the scribe.
Jawala Prasad Tewari was admittedly dead when the suit was brought and Harbhajan Lal, the only surviving attesting witness was called on behalf of the plaintiff to prove the execution of the deed as is required under section 68 of the Indian Evidence Act.
Harbhajan Lal stated in the witness box that he did sign the document as a witness and so did Jawala Prasad Tewari, but neither of them signed it in the presence of the mortgagor; nor did the mortgagor sign in their presence.
On this statement being made, the witness was declared hostile and he was allowed to be cross examined by the plaintiff 's Counsel.
He was cross examined by the defendant also and in answer to the questions put to him by the defendant 's lawyer, he stated that he signed the deed at the Collector ate Kutchery, meaning thereby the Bar Library, where he used to sit as a petition writer and the document was taken to him at that place by Bhikhi Ram Sahu, the mortgagee, Ghur Lal, a Karinda of the mortgagor, and Jawala Prasad Patwari, the scribe.
Jawala Prasad Tewari signed the deed after him.
The mortgagor certainly did not come to that place and his signature was already on the deed when the witness signed it.
The details of the defendant 's version relating to execution of this document were given by Jawala Prasad Patwari, who was the principal witness on the 786 side of the defendatnt.
He says that he prepared the draft at the sherista or the office of the Raja Sahib which is outside his Kot or palace.
The draft was prepared under instructions from Bhikhi Ram, the mortgagee.
and Ghur Lal, the Karinda of the mortgagor, both of whom were present when the draft was prepared.
After the draft was fair copied and stamped, the witness signed it as the scribe and then it was taken by Bhikhi Ram and Ghur Lal to the Kot or palace of the Raja for his signature.
After obtaining the Raja 's signa ture, Bhikhi Ram went away to his house and some time later he as well as Bhikhi Ram and Ghur Lal went to the Collector ate Kutchery, where they took the signatures of Harbhajan Lal and Jawala Prasad Tewari.
They then went to the registration office, where the document was presented for registration by Jainarayan Sukul who held a general power of attorney for the Raja.
As against this, there is a completely different version given by the plaintiff himself and his witness Buddhu Lal.
According to the plaintiff, the document was executed and attested at one and the same sitting in the Kot or palace of the Raja; the terms had been settled beforehand between Bhikhi Ram and the mortgagor and on the 8th of November 1926 the plaintiff himself, and not his father, went to the Raja 's palace at about 10 or 11 A.M. in the morning to get the document executed.
He was accompanied by three persons to wit Harbhajan Lal, the deed writer of his father, Buddhu Lal, an old servant of the family, and Jawala Prasad Tewari who was also well known to the plaintiff and was taken to bear witness to the deed.
They found Jawala Prasad Patwari already with the Raja when they reached the Kot.
The draft was prepared by Buddhu Lal at the suggestion of the Raja.
It was the plaintiff 's desire that the final document should be scribed by Harbhajan Lal but as the Raja wanted to oblige Jawala Prasad Patwari, who was the Patwari of Basti proper, the deed was faired out and scribed by Jawala Prasad patwari.
After the Raja had put his signature on the 787 document in the presence of Harbhajan Lal and Tewari, both the latter signed the document in the presence of the Raja.
The subsequent events narrated by the plaintiff relate to the registration of the document and we do not consider them to be material for our present purpose.
This story of the plaintiff is supported materially and on all points by Buddhu Lal, who was an old servant of the family, though he was no longer in service when he deposed in court.
There were thus two conflicting versions placed before the court and each side attempted to substantiate its case by verbal testimony of witnesses.
The trial Judge was to decide which of the two versions was correct and he ac cepted the story of the plaintiff and rejected that of the defendant.
The learned Judges of the High Court in dealing with the appeal do observe, at the beginning of their discussions, that on a question of fact the appellate court should be slow to differ from the conclusions arrived at by the trial Judge who had seen and heard the witnesses; but in their opinion, this rule did not apply to the present case as the trial Judge here did not base his conclusions on the impres sions created in his mind by the witnesses who deposed before him.
What the trial Judge relied upon, it is said, was not the demeanour of the witnesses as index of their credibility but upon the inherent improbability of the circumstances deposed to by the defendant 's witnesses.
It is observed by the High Court that the trial Judge, when he found the defendant 's story to be improbable, should have considered whether or not there were improbable features in the plaintiff 's case also, and whether the evidence of the plaintiff and his servant Buddhu Lal merited credence at all.
The learned Judges of the High Court then proceed to examine and discuss at great length the different reasons put forward by the trial Judge in support of his finding that the defendant 's case was unreliable.
These reasons are held to be inconclusive and unsound and the High Court further found that the plaintiff 's story 788 as narrated by him and his servant is improbable and not worthy of belief.
In our opinion, the High Court 's approach to the case has not been proper and its findings are unsupportable on the materials in the record.
Here was a case where the controversy related to a 'pure question of fact which had to be determined by weighing and appraising of conflicting oral testimony adduced by the parties.
It cannot be denied that in estimating the value of oral testimony, the trial Judge, who sees and hears the witnesses, has an advantage which the appellate court does not possess.
The High Court was wrong in thinking that it would detract from the value to be attached to a trial Judge 's finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses (1).
The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improba bility arising from proved circumstances which, in the opinion of the court, outweighs such finding.
Applying this principle to the present case, we do not think that the High Court was justified in reversing the finding of the trial Judge on the question of attestiation of the document.
In the opinion of the High Court the story narrated by the plaintiff and his servant is untrue, and the main reason given is that it is not at all probable that the plaintiff and not his father Bhikhi Ram was present at the palace of the Raja when the document was executed.
The mortgagor, it is said, was an influential person in the locality occupying a very high social position and it would be indecorous and against Indian customs for a man like Bhikhi Ram not to be personally present when the Raja was going 'to execute a document in his favour.
The learned Judges seem to think that the plaintiff was not really at the spot when the mortgage deed was executed and as Bhikhi Ram was dead, this story was manufactured by the plaintiff in order to Vide the observations of Lord Carson in Nether landsche Handel Maatschappij v, R.M.P. Chettiar Firm and Others, A.I.R 1929 P.O. 202, 205.
789 enable him to prove attestation.
Mr. Banerjee appearing for the defendant respondent went to the length of suggesting that it was only after Harbhajan Lal turned hostile in the witness box and denied that he attested the document that the new story was invented by the plaintiff.
We think that this argument rests on an extremely flimsy basis which does not bear examination.
It may be that the Raja was a man of high social position, but it should be remembered that he was in the position of a borrower and moreover it was not the first time that he was borrowing money from Bhikhi Ram.
As, however, he was the Raja of Basti, the document was executed at his palace and not in the house of the mortgagee and if as the plaintiff says, the terms were already settled between Bhikhi Ram and the Raja and the only thing left was to embody the agreed terms in writing, we fail to see why it was absolutely necessary for Bhikhi Ram to wait upon the mortgagor personally; and why his adult son, who was sufficiently old and experienced in business affairs, could not represent him in the transac tion.
The suggestion of Mr. Banerjee that the new story was invented after the plaintiff had seen Harbhajan Lal giving evidence against him in the witness box is not worthy of serious consideration having regard to the fact that the plaintiff himself stepped into the witness box immediately after Harbhajan Lal had finished his deposition.
It seems to us also that the presence of Harbhajan Lal and Buddbu Lal at the sitting when the mortgage transaction took place was quite a probable and natural thing which cannot give rise to any suspicion.
It appears from the evidence on the record that Harbhajan Lal, who was a pro fessional deed writer, was usually employed for writing deeds of the plaintiff 's father and he figured either as a scribe or as an attesting witness in various documents to which the plaintiff 's father was a party.
It was quite natural for the plaintiff in such circumstances to take Harbhajan Lal alongwith him to the Raja 's palace on the day that the 790 mortgage bond was executed and we see no reason to disbe lieve the plaintiff 's statement that his original intention was to have the deed scribed by Harbhajan Lal.
It is said by the High Court that in the mofussil districts in the United Provinces the Patwari is the person generally em ployed for drafting and scribing deeds.
This cannot mean that all the people in the district of Basti used to have their deeds drafted and scribed by the Patwari.
We have exhibited documents in the records of this case where the name of Harbhajan Lal appears as the scribe; and so far as the plaintiff 's father was concerned, there is no doubt whatsoever that Harbhajan Lal was the scribe ordinarily employed to do his work.
In this case also if Jawala Prasad Patwari had not been present on the spot, the plaintiff would certainly have the document scribed by Harbhajan Lal, as so many documents in favour of the plaintiff 's father had been scribed by this man on previous occasions.
We see nothing improbable in the story that it was out of deference to the wishes of the Raja that the plaintiff consented to the document being scribed by Jawala Prasad Patwari.
As regards Buddhu Lal, it is not disputed that he was an old and a trusted servant of the plaintiff 's family.
That he was trusted in business matters is clear from the fact that his name appears as a witness in the registered receipt (exhibit 10) given by Sheo Balak Ram, to whom a sum of Rs. 500 was paid by Bhikhi Ram under the terms of the dis puted mortgage deed.
We fail to see why it was improbable that Buddhu Lal would accompany the plaintiff to the Raja 's palace on the day of the execution of the document.
The trial Judge relied to some extent upon the fact that the signatures of the executant and Harbhajan Lal were in the same ink in support of his conclusion that Harbhajan Lal signed the document at the place of its execution and not at the Collectorate Kutchery as alleged by him.
Speak ing for ourselves, we do not attach much importance to the similarity in the ink which is after all not a very reliable test; but we do agree wit.h the trial Judge in holding that Harbhajan 791 Lal must have signed the document at the time when it was executed and not afterwards; and it is really inconceivable that an old and experienced deed writer like him did not know the requirements of proper attestation.
On his own evidence he had attested numerous documents and he could not recall.
a single instance where he signed the document in such manner as he did in the present case.
The ' way in which the learned Judges of the High Court have attempted to explain away this part of Harbhajan Lal 's evidence does not appear to be satisfactory.
The other observation made by the High Court in this connection that in this particular province there are many persons who are acquainted with law but do not care to comply with its requirements on account of carelessness, indifference, sloth or over confidence is not relevant and need not be taken seriously.
Whatever that may be, we have no hesitation in holding that Harbhajan Lal knew perfectly well what attestation means in law and he did sign the document as an attesting witness at the Raja 's Kot after the document was executed.
Jawala Prasad Patwari is apparently a man under the control of the defendant and cannot be trusted.
Why Harbha jan Lal did go over to the defendant 's side is a question which may not admit of an easy answer.
The trial Judge seems to be of opinion that it was probably due to the influence exercised by Jawala Prasad Patwari, who is a co villager of Harbhajan.
We think it unnecessary to specu late upon these matters, for in our opinion Harbhajan Lal stands condemned by his own statement in court.
Our conclusion is that the finding of the trial Judge on the question of attestation is perfectly consistent with the circumstances and probabilities of the case and the learned Judge did not omit anything which ought to have been present to his mind in coming to a conclusion.
The evidence on the record taken as a whole fully supports the finding, and in our opinion the High Court has reversed it on totally inade quate grounds.
The result is that the appeal must be allowed and the judgment of the High Court should be 792 set aside.
As the High Court, however, has dismissed the suit only on the ground of non attestation of the mortgage bond and did not consider the other points which were raised before it, the case must go back to that court in order that the other matters, which have been left undecided, may be heard and decided by the learned Judges and the case dis posed of in accordance with law.
The plaintiff appellant is entitled to costs of this hearing as well as the costs of the High Court against defendant No. 1.
Appeal allowed.
| When there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge 's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial judge on a question of fact.
It would not detract from the value to be attached to a trial judge 's finding of fact if the judge does not express ly base his conclusion upon the impressions he gathers from the demeanour of witnesses.
The rule is, however, only a rule of practice and does not mean that the court of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration.
[Where the High Court reversed a finding of fact arrived at by the trial court depending on oral evidence on the ground that the rule that the appellate court should be s1ow to differ from the conclusions arrived at by the trial judge who had seen and heard the witnesses did not apply to the case as the trial judge did not base his conclusions on the impressions created in his mind by the witnesses who deposed before him, but upon the inherent improbability of the circumstances deposed to ,the Supreme Court held that the high court 's approach to the case was not proper and, after weighing the whole evidence in case reversed the finding of the High Court.] W.C. Macdonald vs Fred Latimer (A.I.R. 1929 P.C.15 at p. 18), Watts vs Thomas ([1947] A.C. 484 at p. 486), Sarave eraswami vs Talluri (A.I.R. 1949 P. C. 39.), Nether landsche Handel Maatschappij vs
R.M.P. Chettiar Firm and Others (A.I.R. ,205), referred
|
als Nos.
56 and 57 of 1949.
Appeals from the orders of the High Court of Judica ture at Madras (Wadsworth and Patanjali Sastri JJ.) dated 24th October, 1945, in A.A.O. Nos.
372 of 1943 and 634 of 1944 which were appeals from the orders of the Subordinate Judge of Ellore in E.A. No. 440 of 1937 and C.M.P. No. 152 of 1943 in O.S. No. 87 of 1923.
P. Somasundaram (V. V. Choudhry, with him) for the appellant.
V. Rangachari (K. Mangachari, with him) for the respond ents. 1950.
October 17.
The Court delivered judgment as follows.
FAZL ALI J.
These appeals arise out of an execution proceeding, and the main point to be decided in them is what is the effect of certain provisions of the Madras Agricul turists ' Relief Act (Madras Act IV of 1938, which will hereinafter be referred to as "the Madras Act"), on the rights of the parties.
How this point arises will be clear from a brief statement of the facts of the case.
It appears that in 1908, one Veeresalingam, the husband of the first respondent, borrowed a sum of Rs. 9,000 from one Sitharamayya, and executed a mortgage bond in his fa vour.
Subsequently a suit was 808 instituted by the mortgagee to enforce the mortgage and a final decree in that suit was passed on the 19th August, 1926.
Thereafter, on the 28th October, 1931,the decree holder applied for the execution of the decree by the sale of the mortgaged property.
In 193a, the decree holder transferred the decree to one Sobhanadri, after whose death his son, the appellant before us, was brought on the record as his legal representative in the execution proceedings.
Several years before the assignment of the decree, Veeresa lingam, the defendant, had died and his widow, the first respondent.
was therefore brought on the record as his legal representative.
On the 6th July, 1935, two items of proper ty were sold in execution of the decree and purchased by the decree holder, these being : (1) a village called Tedlam in in West Godavari District; and (2) 4 acres and 64 cents of land in Madepalli village.
The first property was sold for Rs. 21,000 and the second for ' Rs. 1,025.
As, however, the amount due under the decree was only about Rs. 17,860 and odd, the sale of the second property was subsequently set aside and the decree holder deposited into Court the excess amount of about Rs. 3,000 and odd after setting off the decretal amount against the price of the first item of property.
On the 5th August, 1935, the first respondent filed an application under Order XXI, rule 90, and section 47 of the Code of Civil Procedure, to set aside the sale held in July, 1935, alleging certain irregularities in the conduct of the sale.
That application was after several years heard by the Subordinate Judge of Ellore, who by his order dated the 6th March, 1943, dismissed it and directed the sale of the first property to be confirmed and full satisfaction of the decree to be entered.
After about 12 days, i.e., on the 18th March, 1943, the first respondent and the second respondent, who had been adopted by the former on the 12th March, 1936, under the will of her hus band and was subsequently brought on record, filed an appli cation under section 19 of the Madras Act praying for cer tain reliefs under that Act.
This application ' was dismissed on the 22nd March, 1943.
Subsequently, two appeals were filed on behalf 809 of the respondents (who will hereinafter be sometimes re ferred to as judgment debtors), one against the order refus ing to set aside the sale under Order XXI, rule 90 of the Civil Procedure Code, and the other against the order dis missing the application under the Madras Act.
These appeals were heard together by two learned Judges of the Madras High Court and they took the view that the judgment debtors ' application under the Madras Act was maintainable notwith standing the fact that the sale had been confirmed and full satisfaction of the decree recorded, and remitted the case to the trial Court for a finding on the following questions, namely (1) whether the applicants were agriculturists; and (2) if so, what would be the result of applying the provisions of Madras Act IV of 1938 to the decretal debt against them ? So far as regards the judgment debtors ' appeal against the order dismissing their application under Order XXI, rule 90, the Learned Judges were inclined to agree with the trial Court that the sale should stand but declined to pass final orders in the appeal on the ground that "it would seriously prejudice the judgment debtors in the connected application for relief under section 19 of the Madras Act IV of 1938.
" The Subordinate Judge answered the questions referred to him by the High Court on remand as follows : (1) The judgment debtors were not agriculturists and were not therefore entitled to the benefits of the Madras Act;and (2) If they were agriculturists, they were not liable to pay anything under the decree, as, in view of the provisions of the Act, the debt stood discharged on the date of sale.
When however the matter came up before the learned Judges of the High Court, they reversed the first finding of the trial Court and held that the judgmentdebtors were agriculturists within the meaning of the 810 Act, and that the debt stood discharged in view of section 8 (2) of the Act.
At the same time, they held that the sale was not liable to be set aside, and in this view dismissed one of the appeals and allowed the other.
Then followed certain proceedings to which it would have been unnecessary to refer but for the fact that the judgment debtors have attempted to rely on "them in support of one of their preliminary objections to the maintainability of these appeals.
It appears that on the next day after the judgment of the High Court was delivered in the two appeals, counsel for the respondents wrote a letter to the Registrar of the High Court to direct the posting of the two cases 'for being mentioned ' before the Court in order to obtain necessary directions consequent on the orders passed by it in the appeals.
This letter was not placed before the learned Judges until the judgment had been signed by them and ac cordingly the judgment debtors filed two petitions, one being a review petition to the High Court and the other being a petition to the trial Court praying "that the de creeholder may be ordered to pay to the petitioners the purchase money of Rs. 21,000 with interest thereon at 6 per cent.
per annum from the date of sale till the date of payment.
" The trial Court dismissed the latter petition on the ground that it was not maintainable, and the judgment debtors filed an appeal against the order.
The appeal as well as the review petition of the judgment debtors were heard together by the learned Judges who directed the decree holder 's counsel to elect whether his client would deposit the purchase money into Court or have the sale set aside.
The decree holder applied for a short adjournment and ultimately on the 15th November, 1946, his counsel stated that his client wished to retain the property which he had purchased and to pay the purchase money into Court.
Thereupon, he was directed to pay the sum of Rs. 21,000 together with interest within a months from that date.
Subsequently, the appellant (decree holder) having obtained leave to appeal from the High Court preferred 811 these appeals before us.
It may be stated here that along with the application for leave to appeal, the appellant had filed an application for excusing the delay in filing the former application which he accounted for mainly by refer ring to the proceedings for the review of the judgments in the previous appeals to the High Court.
This application was granted and the delay was condoned.
As has been already stated, the main point arising in these appeals relates to the effect of the Madras Act upon this litigation.
That Act was passed and came into effect in 1938, while the execution proceedings were still continu ing.
It will be recalled that the sale took place on the 6th July, 1935; and the application for setting it aside was not disposed of until the 6th March, 1943.
But, strangely enough, the judgmentdebtors did not apply for any relief under the Madras Act during this period, and they made their application only after the sale had been confirmed and satisfaction of the decree had been entered.
How far this belated application affects the right claimed by the judg ment debtors under the Act is one of the questions raised in these appeals, and I shall deal with it after referring to the material provisions of the Act and the findings of the High Court which have given rise to several debatable points.
The sections of the Act which are material for the purpose of these appeals are sections 3, 8 and 19.
Section 3 defines an agriculturist and has a proviso stating that in certain cases a person shall not be deemed to be an agricul turist.
The relevant clause of this proviso, to which I shall also have to advert later, is clause (D) which runs thus : "Provided that a person shall not be deemed to be an 'agriculturist ' if he (D) is a landholder of an estate under the Madras Es tates Land Act, 1908, or of a share or portion thereof in respect of which estate, share or portion any sum exceeding Rs. 500 is paid as peshkash or any sum exceeding Rs. 100 is paid as quit rent, jodi, kattubadi, 812 poruppu or the like or is a janmi under the Malabar Tenancy Act, 1929, who pays any sum exceeding Rs. 500 as land reve nue to the Provincial Government. ' ' The precise question which is said to arise with refer ence to this provision is whether by reason of being the owners of village Tedlam, the judgment debtors should be held to be not entitled to relief under the Act.
The other material sections 8 and 19 run as follows : "8.
Debts incurred before the 1st October, 1932, shall be scaled down in the manner mentioned hereunder, namely: (1) All interest outstanding on the 1st October, 1937, in favour of any creditor of an agriculturist whether the same be payable under law, custom or contract or under a decree of Court and whether the debt or other obligation has ripened into a decree or not, shall be deemed to be dis charged, and only the principal or such portion thereof as may be outstanding shall be deemed to be the amount repay able by the agriculturist on that date.
(2) Where an agriculturist has paid to any creditor twice the amount of the principal whether by way of princi pal or interest or both, such debt including the principal, shall be deemed to be wholly discharged.
(3) Where the sums repaid by way of principal or inter est or both fall short of twice the amount of the principal, such amount only as would make up this shortage, or the principal amount or such portion of the principal amount as is outstanding, whichever is smaller, shall be repayable.
(4) Subject to the provisions of sections 22 to 25, nothing contained in sub sections (1), (2) and (8) shall be deemed to require the creditor to refund any sum which has been paid to him, or to increase the liability of a debtor to pay any sum in excess of the amount which would have been payable by him if this Act had not been passed.
813 Explanation.
Where a debt has been renewed or included in a fresh document in favour of the same creditor, the principal originally advanced by the creditor together with such sums, if any, as have been subsequently advanced as principal shall alone be treated as the principal sum repay able by the agriculturist under this section.
Where ' before the commencement of this Act, a Court has passed a decree for the repayment of a debt, it shall, on the application of any judgmentdebtor who is an agricul turist or in respect of a Hindu joint family debt, on the application of any member of the family whether or not he is the judgment debtor or on the application of the decree holder, apply the provisions of this Act to such decree and shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, amend the decree accordingly or enter satisfaction, as the case may be: Provided that all payments made or amounts recovered, whether before or after the commencement of this Act, in respect of any such decree shall first be applied in payment of all costs as originally decreed to the creditor.
" These sections are material, because in the present case the judgment debtors asked the decree to be amended under section 19 of the Act and they were held to be entitled to relief under section 8.
Having referred to the relevant provisions of the Act, it becomes necessary now to state the main findings of the High Court upon which the decision of this appeal will turn.
These findings are (1) that the sale of Tedlam village, which was held on the 6th July, 1935, and confirmed on the 6th March, 19 13, was a good sale; (2) that by this sale.
the title to the Tedlain village passed to the decree hoMer.
and in hearing the appeal the High Court was justified in proceeding on the footing that the judgment debtors having ceased to be the owners of Tedlam village after its sale, were not 104 814 hit by clause (D) of the proviso to section a of the Act; and (3) that the decree had been satisfied at the date of the sale and the decree holder was liable to repay to the judg ment debtors the full price of the property which was sold.
The main contentions directed against the conclusions arrived at by the High Court are :firstly, that they are self contradictory, because if the sale was an effective sale on the date it was held or confirmed, the decree was also satisfied on that date and the judgmentdebtors were no longer entitled to invoke the provisions of the Madras Act; and secondly, that the view taken by the learned Judges of the High Court that notwithstanding the appeal against the order refusing to set aside the sale they could proceed on the footing that the judgment debtors had ceased to be the owners of Tedlarn village on the date of the sale was un sound in law.
It will first deal with the second point which appears to me to require serious consideration.
The High Court has in my opinion rightly proceeded on the footing that the ownership of Tedlam village would bring the judgment debtors within the mischief of clause (D) of the proviso to section 3 of the Act, and would disentitle them to any relief thereunder.
This view was contested before us on behalf of the judgment debtors on two grounds : (1) that the grant in favour of the ancestor of the judgment debtors did not comprise a whole inam village and what they owned was therefore not an estate under the Madras Estates Land Act (Madras Act I of 1908); (2) that on the date of the application, the judg ment debtxrs were not landholders of village Tedlam because the village was in the possession of a receiver since 1st February, 1937, and the latter was in law the landholder on the crucial date.
None of these contentions however appears to me to have any force.
The first contention was sought to be supported by Exhibit P 1 which is a register of inams and which shows that poramboke or waste lands to the extent of 596 acres had to be deducted from the area 815 of the inam.
The point however has been dealt with very fully and clearly by the learned Subordinate Judge, who has rightly pointed out that it has no force in view of the Madras Estates Land (Amendment) Act, 1945 [Madras Act No. II of 1945].
The second point is equally unsubstantial, be cause it is well settled that the owner of a property does not cease to be its owner merely because it is placed in the hands of a receiver.
The true position is that the receiver represents the real owner whoever he may be, and the true owner does not by the mere appointment of a receiver cease to be a landholder under the Madras Estates Land Act.
I will now revert to the crucial question in the case, viz., whether the learned Judges of the High Court were justified in law in deciding the appeal on the footing that the judgment debtors had ceased to be the owners of Tedlain village and on that account they were not hit by clause (D).
of the proviso to section 3 of the Madras Act.
At this stage, it will be useful to refer to certain provisions of the Civil Procedure Code which directly bear on the question as to when title to immovable property which is sold in execution of a decree is deemed to pass to the purchaser.
One of the provisions is Order XXI, rule 92, which provides that "where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.
" The second rele vant provision is section 65 which runs thus : "Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.
" In Bhawani Kunwar vs Mathurn Prasad Singh(1) the ques tion as to when a mortgagee who has purchased certain vil lages in execution of the decree acquired title to the properties purchased by him directly arose for considera tion, and the Privy Council rightly pointed (1) T.L.R. 816 out that "the sale in execution of the mortgage decree took effect from the actual date of the sale and not from its confirmation." In a simple case, the provisions cited above should settle the controversy, but, in the present case, the matter has been complicated on account of the appeal against the order refusing to set aside the sale under Order XXI, rule 90.
In such a case, generally speaking, the true position seems to be that there is no finality until the litigation is finally determined by the appellate Court.
This principle has been recognized in a number of cases, but it will be enough to cite Chandramani Shaha vs Anarjan Bibi(1).
The headnote of that case runs as follows : "Where a Subordinate Judge has disallowed an applica tion under Order XXI, rule 90, to set aside a sale in execu tion, and has made an order under rule (1) confirming the sale, and an appeal from disallowance has been dismissed by the High Court, the three years ' period provided by the Indian Limitation Act, 1908, Schedule I, article 180, for an application under Order XXI, rule 95.
by the purchaser for delivery of possession runs from the date of the order on appeal; the High Court having under the Code of Civil Proce dure, 1908, the same powers as the Subordinate Judge, the 'time when the sale becomes absolute ', for the purpose of article 180 is when the High Court disposes of the appeal." Under article 180 of the Indian Limitation Act, the period of limitation runs "from the date when the sale becomes absolute.
" If we give a narrow and literal meaning to these words, the period of limitation should be held to run from the date when the original Court of execution confirms the sale.
But, as was pointed out by the Privy Council, the High Court as an appellate Court had the same powers as the trial Court and it is only when the appeal was dismissed by the High Court that the order of the trial Court confirming the sale became absolute.
Till the deci sion of the appellate Court, no finality was attached to the order confirming the sale.
(1) I.L.R. 61 Cal.
g45. 817 It is clear that in this case the same rule would apply to the order recording satisfaction of the decree and to the order confirming the sale.
If the order recording satisfac tion of the decree was not final and remained an inchoate order until the appeal was decided, the order confirming the sale would have the same inchoate character.
This position seems to have been fully conceded in the statement of their case filed on behalf of the respondents in this Court.
It is quite clear that in this case the learned Judges of the High Court have taken up an inconsistent position.
As I have already stated, they have held, for the purpose of allowing one of the appeals, that the judgment debtors were not hit by clause (D)of the proviso to section 3 of the Act because they ceased to be the owners of Tedlain village at the date of the sale in 1935.
If this conclusion is cor rect, it must follow as a matter of logic that the decree was completely satisfied on the date of the sale, because the sale fetched a larger amount than what was payable under the decree and the excess amount was deposited by the de cree holder in Court.
The sale and satisfaction must go together and if finality is to be attached to the sale it should have been held to attach also to the order recording satisfaction of the decree.
It seems clear to me that if the decree had ceased to exist, no relief could be claimed by the judgment debtors under the Madras Act.
On the other hand, if the appeal had to be decided on the footing that the order recording satisfaction of the decree was not final, the same approach should have been made in regard to the effect of the sale.
It is also clear that if the decree was satisfied on the date of sale by the application of the provisions of the Act, the sale could not stand, because how could the property be sold in execution of a decree which had been already satisfied.
Yet, notwithstanding the fact that nothing was due under the decree, the High Court has held that the sale was a good sale and was to stand.
The correct approach to the case would have been to assume for the purpose of the appeals that neither of the orders passed by the 818 Subordinate Judge was final.
On that view, the appeals to the High Court could not have been decided on the footing that the judgment debtors had ceased to be the owners of Tedlain property and were therefore not hit by clause (D) of the proviso to section 3 of the Madras Act.
In my opinion, the judgment of the High Court cannot be sustained, and the appeal s will have to be allowed.
I will now deal very briefly with two preliminary objec tions raised on behalf of the respondents.
The first objec tion is that the application for leave to appeal to his Majesty in Council against the order of the High Court was barred by limitation, inasmuch as the reasons stated in the affidavit filed by the appellant in the High Court in sup port of his application for excusing delay do not consti tute sufficient reason within the meaning of section 5 of the Limitation Act.
The answer to this objection will be found in the facts which have been already narrated.
The delay was caused mainly by reason of the review of the order of the High Court and the High Court considered that there as sufficient reason for condoning the delay.
This Court cannot override the discretion exercised by the High Court and the matter cannot be reopened in these appeals.
The second objection is based on the fact that the decree holder was given a choice by the High Court to elect wheth er he would deposit the purchase money or have the sale set aside, and his counsel told the learned Judges on the 15th November, 1946 that his client wished to retain the property which he had purchased and pay the purchase money in cash.
It is contended that in view of this statement it was not open to the appellant to contend that he need not pay any amount to the judgment debtors.
This objection also is entirely devoid of any substance,because there is nothing on record to show that the appellant has consented to be bound by the order of the High Court and waived his right to appeal against it by reason of the election.
The learned counsel for the respondents also contended that the sale should have been set aside by the 819 High Court because the permission given to the decreeholder on the 16th February, 1934, to bid and set off the decretal amount against the purchase price was confined to an earlier sale and did not extend to the sate which took place on the 16th March, 1935, after the upset price which had been originally fixed was reduced.
Personally, I am inclined to hold that the permission covered the sale in question, but in any case it is difficult to hold on the facts stated that there was any such material irregularity as would vitiate the sale.
The precise argument which is put forward here was advanced in the Courts below but it did not find favour either with the Subordinate Judge or with the High Court.
Besides, the respondents cannot raise the point in these appeals because they have filed no appeal against the order of the High Court upholding the sale.
In these circumstances, I would allow the appeals, set aside the orders of the High Court and restore the order of the learned Subordinate Judge.
There will however be no order as to costs in these appeals.
MUKHERJEA J. I concur in the judgment just now deliv ered by ray learned brother, Fazl Ali J., and there is nothing further which I can usefully add.
CHANDRASEKHARA AIYAR J.
The facts which have cha given rise to these appeals and the questions for decision have been stated in the judgment just now pronounced by my learned brother Fazl Ali J. I wish to add only a few words on the main contention advanced for the respondents by their learned Advocate, Mr. V. Rangachari.
If by reason of the confirmation of sale and satisfac tion of the decree having been entered up, the title to the village had passed indefeasibly to the decreeholder, there was no longer any decree or decree debt to be scaled down.
If, however, the title did not pass, because it was still open to the respondents to attack the Court sale under Order XXI, rule 90, they were landholders of the village and, as such, they would 820 come within the scope of proviso (D) to section 3 of the Madras Agriculturists ' Relief Act, 1938, which enacts that a landholder who holds a village paying more than Rs. 100 as quit rent or jodi is not an agriculturist within the meaning of the Act.
The apparent inconsistency in the view taken by the High Court was recognised, if not conceded, by the learned coun sel.
In one view, there ,,as no longer any decree in respect of which the Agriculturists ' Relief Act could operate; and in the other view, the respondents could not take advantage of the Act, as their ownership of the village precluded them.
Faced with this dilemma, Mr. Rangachari urged a some what ingenious argument.
He contended that though the.
title passed to the decree holder on the confirmation of sale and became vested in him from the date of the sale, the respo dents could still be regarded as having an interest in the village, as the sale was open or liable to challenge and the title 'of the decree holder was inchoate or incomplete.
There is, however, really no support for this position.
On confir mation, the title of the decree holder became absolute or complete.
If the sale was set aside, the title would revest in the judgment debtor.
There is nothing like an equitable title in the decree holder which could be recognised for certain purposes and not recognised for others.
Under the Madras Act, "agriculturist" means "a person who has a saleable interest in any agricultural or horticul tural land or one who holds interest in such land under a landholder as a tenant, ryot or undertenure holder." Section 10, sub clause (i) of the Act provides that the right conferred on an agriculturist to have a debt scaled down will not apply to any person who, though an "agriculturist" as defined in the Act, did not on 1 10 1937 hold an interest in or a lease or sub lease of any land.
After the sale in 1935, the only interest which the judgment debtors had in the village was to have the sale set aside, under the rele vant provisions of the Civil Procedure Code.
This interest is not the interest contemplated by section 3, sub clause (ii) (a) & (b) of the Act which speaks of a 821 saleable interest or interest as a tenant, ryot or underten ure holder.
I agree in the conclusion reached by my learned broth er.
Appeals allowed.
| In execution of a decree obtained on a mortgage a vil lage owned by the mortgagor which was included in the mort gage was sold by the court on the 6th July 1935 and it was purhased by the mortgagee.
An application by the mortgagor under 0 .XXI,.r. 90, C.P.C., for setting aside the sale for irregulrities was dismissed, the sale was confirmed and full satisifiction of the decree was recorded, on the 6th March 1943.
A few days afterwards the mortgagor and his adopted son made an application under section 19 of the Madras Agricul turists ' Relief Act, 1938, praying for relief under the Act, and, as this application also was dismissed they preferred two appeals, one from the order dismissing this application and the other against the order of 6th March 1943 refusing to set aside the sale.
The High Court of Madras held that, as the mortgagor 's village had been sold he did not come within the purview of el.
(i)) of the proviso to 6. 3 of the Madras Agriculturists ' Relief Act and so he was entitled to claim relief under the Act and the debt stood discharged under the provision of the Act, but the Bale was not liable to be set aside; and in accordance with this judgment the decree holder was directed to pay the amount for which the property had been sold with interest thereon: ' Held per FAZL ALl and MUKHERJEA JJ. (i)that the conclu sions arrived at by the High Court were self contradictory because if the sale was effective on the date it was held or confirmed, the decree was also satisfied on that date and the judgementdebtors were no longer entitled to invoke the provisions of the Act; (ii) that the High Court was not justified in law in deciding the appeal on the footing that the judgment debtors ceased to be owners of the village from the date of sale and on that account were not hit by cl.
(D) of the proviso to section 3 of the Act inasmuch as when an appeal is preferred from an order rejecting an application under O.XXI, r. 90, C.P.C., to set aside an execution sale, the sale does not become absolute until the matter is finally decided by the appellate court.
807 Per CHANDRASEKHARA AIYAR J.
After the execution sale in 1935 the only interest which the judgment debtors had in the village was to have the sale set aside under the relevant provisions of the Civil Procedure Code and this interest, not being an interest contemplated by section 3 (ii) (a) & (b) and section 19 (1) of the Act, they were not "agriculturists" and were not entitled to any relief under the Act.
Held also, per FAlL ALl and MUKHERJEA JJ.
A person does not cease to be a land holder of an estate within the mean ing of cl.
(D) to the proviso to section 3 of the Act merely because the estate is placed in the hands of a receiver.
Bhawani Kunwar vs Mathura Prasad Singh (I.L.R. 40 Cal.
89) and Chandramani Shaha vs Anarjan Bibi (I.L.R. 61 Cal. 945) referred Judgment of the Madras High Court reversed.
|
of 1949.
Appeal from a judgment of the High Court of Judicature at Calcutta (Harries C.J. and Chakravarthi J. (dated 30th November, 1948, in Civil Revision Case No. 712 of 1948.
N.C. Sen Gupta (Ajit Kumar Dutta, with him) for the Appellant.
Faiyaz Ali, Advocate General of East Bengal (B. Sen and Noor ud din, with him) for the Respondent.
M. C, Setalvad, Attorney General for India, (section M. Sikri and V.N. Sethi, with him) for the Intervener.
Dec. 4.
The judgment of Kania C.J., Patanjali Sastri j. and Chandrasekhara Aiyar J. was delivered by Patanjali Sastri J. Fazl Ali and Mukherjea JJ.
delivered separate judgments.
PATANJALI SASTRI J.
This is an appeal from a judgment of the High Court of Judicature in West Bengal reversing a finding of the Second Subordinate Judge of 24 Parganas at Alipore that he had jurisdiction to proceed with a suit after substituting the Province of East Bengal (in Pakistan)in the place of the old Province of Bengal against which the suit had originally been brought.
The facts leading to the institution of the suit are not in dispute.
The Bengal Agricultural Income tax Act was passed by the Provincial Legislature of Bengal in 1944.
It applied to the whole of Bengal and purported to bring under charge the agricultural income of, inter alia, "every Ruler of an Indian State." Acting under the provisions of that Act, which came into force on 1st April, 1944, the Income tax Officer, Dacca Range, sent by registered post, a notice to the Manager of the Zemindari Estate called Chakla Roshanabad belonging to the Tripura State but situated in Bengal outside the territories of that State, calling upon him to furnish a return of the total income derived in the 5 previous year from lands in the Estate used for agricultural purposes.
The notice was received by the Manager at Agar talla in Tripura State.
Thereupon, the State, by its then Ruler, Maharaja Sir Bir Bikram Bahadur, instituted the suit in question on 12th June, 1945, against the Province of Bengal and the Agricultural Income tax Officer, Dacca Range, in the Court of the First Subordinate Judge, Dacca, contest ing the validity of the notice and the proposed assessment on the grounds that the "Provincial Legislature of Bengal had no authority to impose tax on any income of an Indian State or its Ruler" and that, in any case, "the Income tax Officer, Dacca Range, had no authority or jurisdiction to issue the said notice to the Manager of the Estate outside British India.
" The cause of action of the suit was alleged to have arisen in the town of Dacca within the jurisdiction of the Court on 28th February, 1945, when the notice was issued.
The reliefs sought were a declaration that the Bengal Agricultural Income tax Act: 1944, in so far as it purported to impose a liability to pay agricultural income tax on the plaintiff as a Ruler of an Indian State was ultra vires and void and that, in any case, the notice served by the Agricultural Income tax Officer, Dacca Range, was void and no assessment could be made on the basis of such notice, and a perpetual injunction to restrain the defendants from taking any steps to assess the plaintiff to agricultural income tax.
Before the defendants filed their written state ments the suit was transferred by the High Court to the Court of the District Judge, 24 Parganas, and was again transferred from that Court to the Court of the Subordinate Judge at Alipore.
The ruler who brought the suit having died, the plaint was amended by the substitution in his place of his son and heir in June 1947, and the suit was pending in that Court when the partition of India took effect on the 15th August, 1947 On 9th December, 1947, the Province of East Bengal filed a petition stating that the Province of Bengal, the original defendant No. 1 in the suit, had ceased to exist with effect from 15th August, 1947, and 6 in lieu thereof two new Provinces, namely, the Province of East Bengal and the Province of West Bengal had come into existence and that, inasmuch as the Province of West Bengal was taking no interest in the suit, it was necessary in the interests of East Bengal that the suit should be contested and that a written statement should be put in on its behalf for such contest.
It was accordingly prayed that the ' delay should be condoned and the written statement which was filed with that petition should be accepted.
In the written statement it was pleaded that inasmuch as the Province of East Bengal was a Province of the; Dominion of Pakistan and that defendant No. 2 was a Revenue officer of that Province, the Court had no jurisdiction to hear the suit or make an order of injunction against the defendants.
It was stated that the Province of East Bengal appeared only to contest the jurisdiction of the Court.
By another written statement filed on the same day defendant No. 2 raised also other pleas in defence but his name was struck off the record at the plaintiff 's instance as not being a necessary party to the suit.
On the 10th December, 1947, the Province of East Bengal was substituted as the defendant in the place of the Province of Bengal which had ceased to exist, and the writ ten statement filed on behalf of the former was accepted.
Thereupon the Subordinate Judge framed a preliminary issue on the question of jurisdiction and, as stated al ready, found it for the plaintiff relying on section 9 of the Indian Independence Act and article 4 of the Indian Inde pendence (Legal Proceedings) Order, 1947.
It may be men tioned in passing that the assessment of the plaintiff was proceeded with by the Agricultural Income tax Officer, Comilla Range (East Bengal), who, by his order dated the 22nd December, 1947, imposed on the plaintiff a tax of Rs. 1,79,848 12 0 for 1944 45 and Rs. 1,34,326 7 0 for 1945 46, but the recovery of the amounts has been deferred under orders of the Court pending the decision on the preliminary issue.
As pointed out by the Federal Court in Midnapore 7 Zemindary Co. Ltd. vs The Province of Bengal and ,Others (1), the orders promulgated on the 14th August, 1947, by the Governor General of India before the partition in exercise of the powers conferred under section 9 of the Indian Independ ence Act, 1947, and containing provisions specially designed to remove the difficulties arising in connection with the transition to the new situation created by the partition are binding on both the Dominion of India and the Dominion of Pakistan.
Among such Orders those relevant to the present controversy are the Indian Independence (Legal Proceedings) Order, 1947, and the Indian Independence (Rights, Property and Liabilities)Order, 1947.
By article 4 of the former Order (1) All proceedings pending immediately before the appointed day in any of the special tribunals specified in col. 1 of the Schedule to this Order shall be continued in that tribunal as if the said Act had not been passed, and that tribunal shall continue to have for the purposes of the said proceedings all the jurisdiction and powers which it had immediately before the appointed day; * * * * (3) Effect shall be given within the territories of either of the two Dominions to any order or sentence of any such Special Tribunal as aforesaid and of any High Court in appeal or revision therefrom as if the order or sentence had been passed by a court of competent jurisdiction in that Dominion; * * * * and by article 12 (2) of the latter Order Where any Province from which property, rights or li abilities are transferred by this Order is, immediately before the transfer a party to legal proceedings with re spect to that property or those rights or liabilities the Province which succeeds to the property, rights or liabili ties in accordance with the provisions of this Order shall be deemed to be substituted for the other Province as a party to those proceedings and the proceedings may continue accordingly.
(1) 8 On the effect of these provisions the learned Judges of the High Court observed: "If this provision [i.e., article 12 (2)] applies to the present case, there can be no doubt that the Province of East Bengal was substituted in the suit for the Province of Bengal by operation of law, and by reason of the Legal Proceedings Order the suit shall continue in the Court of the Second Subordinate Judge, 24 Parganas, as a suit against the substituted defendant.
" With that statement of the position we entirely agree.
The learned Judges, however, proceeded to examine, laying stress on the words "by this Order" in article 12 (2), whether any property, rights or liabilities could be said to have been transferred by the Indian Independence (Rights, Property and Liabilities) Order, 1947, from the Province of Bengal to the Province of East Bengal, and they took the view that neither any property, nor rights, nor liabilities were so transferred under that Order and that, therefore, the con tinuation of the proceedings against the Province of East Bengal, which was now part of an Independent Sovereign State, was governed by the principles of international law and comity of nations, and that, according to those princi ples, East Bengal, being a Province of a sovereign state, could not be sued against its will in the municipal courts of India, with the result that the suit pending in the Court at Alipore must abate.
They also negatived a further con tention raised before them, apparently for the first time, to the effect that by reason of the petition filed on behalf of the Province of East Bengal for acceptance of its written statement condoning the delay involved and also by reason of sundry other proceedings for interim relief sought by the plaintiff which were actively resisted by the Province of East Bengal, that Province must be taken to have submitted to the jurisdiction of the Court.
On behalf of the appel lant, Mr. Sen Gupta challenged the correctness of the deci sion on both points.
Before dealing with these contentions, it will be con venient to dispose of two preliminary points raised by Mr. Faiyaz Ali, Advocate General of East Bengal.
9 In the first place, he submitted that the State of Tripura having since been merged in the Dominion of India and a Chief Commissioner having been appointed to administer its territories, the appeal could no longer be prosecuted by the present Maharaja through his mother as his next friend.
It was, however, represented to us on his behalf that under the agreement of merger the Estate of Chakla Roshanabad was left to the Maharaja as his personal property and it no longer formed part of the territories of the Tripura State.
The Attorney General, appearing on behalf of the Dominion of India, the intervener, confirmed that position.
There is thus no substance in the objection as any formal defect in the proceeding could be set right by suitably amending the cause title.
Mr. Faiyaz Ali next drew our attention to the Pakistan (Indian Independence Legal Proceedings) Order, 1948, promul gated by the Governor General of Pakistan on 13th November, 1948, with retrospective effect from the 15th August, 1947, and pointed out that in view of its provisions any decree that might eventually be passed by the Court at Alipore would receive no effect in Pakistan and that, therefore, it was unnecessary for this Court to decide the question of the jurisdiction of the Alipore Court to proceed with the suit.
We are unable to take that view.
The effect of the Order referred to above on any decree that may eventually be passed in the pending suit may have to be taken note of by the Court trying that suit after hearing arguments on the validity of that Order which is challenged but we are at present concerned only with the question of the jurisdic tion of that Court to try the suit and we cannot at this stage refuse to give our ruling on that question merely because any decree that might be passed in favour of the plaintiff might prove ineffectual.
Turning now to the main question, it is clear that article 12 (2) of the Rights, Property and Liabilities Order applies only to property rights or liabilities which were transferred by the Order from a Province which was a party to legal proceedings 2 10 "with respect to" that property or those rights or liabili ties.
As the suit in question cannot be said to have been instituted with respect to the property transferred, namely, Chakla Roshanabad, the appellant cannot rely upon the trans fer of that property from the Province of Bengal to the Province of East Bengal as part of the territories of Pakistan under the scheme of partition.
Nor was there any transfer of "rights"such as was contemplated under that article, for the only right with respect to which the Prov ince of Bengal could be said to have been a party to the pending proceeding on the facts of this case was the right to tax the agricultural income of the plaintiff under the provisions of the Bengal Agricultural Income tax Act, 1944, and that right was not derived by the Province of East Bengal by transfer under the Rights, Property and Liabili ties Order.
As rightly pointed out by the High Court, the right of taxation under the Bengal Act of 1944 passed to the Province of East Bengal as part of the Sovereign Dominion of Pakistan by virtue of the provisions of section 18(3) of the Indian Independence Act, 1947, which provided that "the law of British India and of the several parts thereof immediate ly before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof, until other provision is made by the laws of the legislature of the Dominion in question or by any other legislature or other authority having power in that behalf.
" The question next arises whether there was a transfer of any "liability" by the Order as contemplated in article 12(2).
Mr. Sen Gupta relied in this connection on article 10 (2) (a) which provides that "where immediately before the appointed day the Province of Bengal is subject to any such liability (i.e., "any liability in respect of an actionable wrong other than breach of contract") referred to in sub section (1)that liability shall, where the cause of action arose wholly within the territories which, as from that day, are the territories of the Province of East Bengal, be a liability of that Province.
" It was contended that the Province 11 of Bengal was, according to the plaintiff 's case, liable to be restrained from proceeding with the illegal and unautho rised assessment on the basis of the notice issued under the Bengal Act of 1944, and that liability, in respect of which the cause of action arose wholly in Dacca (where the as sessment proceeding had been initiated) within the territo ries of the Province of East Bengal, became a liability of that Province.
The High Court rejected this contention on the ground "that article 10(2) is concerned with the liabil ity for an actionable wrong other than breach of contract and it is impossible to say that by serving a notice on the plaintiff under the Bengal Agricultural Income tax Act through one of its officers the Province of Bengal had committed an actionable wrong '.
Assuming that it exceeded its power or acted under an invalid provision of law, the plaintiff may have a declaration to that effect but the Act complained of cannot be said to have been a tortious act.
But even assuming that it was, it is to be remembered that the issue of the notice was an exercise of powers conferred by the Act in relation to the sovereign rights of the Crown and it is elementary that the Crown or the State is not answerable for even negligent or tortious acts of its offi cers done in the course of their official duties imposed by a statute, except where the particular act was specifically directed and the Crown profited by performance . .
No liability for an actionable wrong is thus involved in the suit and Dr. Sen Gupta cannot establish a right to proceed against the Province of East Bengal on the basis that the liability was transferred to that Province under article 10(2) of the Order.
" We are unable to share 'this view.
The learned Judges have placed much too narrow a construction on the phrase "liability in respect of an actionable wrong".
They have assumed that the phrase connotes only a liability for dam ages for a completed, tortious act and that the initiation of what according to the plaintiff was an unauthorised and illegal assessment proceeding by purporting to serve a notice requiring the plaintiff to submit a return of his total agricultural income under section 24 (2) of the Bengal Agricultural 12 Income tax Act, 1944, through an appropriate officer func tioning under that Act, the Province of Bengal had not committed an "actionable wrong".
This, in our opinion, is not a correct view of the matter.
Under section 9(1) (b) of the Indian Independence Act, 1947, the Governor General of British India was directed to make provision by order "for dividing between the new Dominions and between the new Provinces to be constituted under this Act, the powers, rights, property, duties and liabilities of the Governor General in Council or as the case may be of the relevant Provinces which under this Act are to cease to exist", and the Indian Independence (Rights, Property and Liabilities) Order is the only Order by which such provision was made.
The intention being thus to provide for the initial distri bution of rights, property and liabilities as between the two Dominions and their Provinces, a wide and liberal con struction, as far as the language used would admit, should be placed upon the terms of the Order, so as to leave no gap or lacuna in relation to the matters sought to be provided for.
There is no reason, accordingly, why the words "li ability in respect of an actionable wrong" should be under stood in the restricted sense of liability for damages for completed tortious acts.
We consider that the words are apt to cover the liability to be restrained by injunction from completing what on the plaintiff 's case was an illegal or unauthorised act already commenced.
The service of the notice on the plaintiff under section 24(2) of the Bengal Act amounts to much more than a mere threat in the abstract to impose an illegal levy.
It is the actual initiation of an illegal assessment proceeding which, in the normal course, will 'in all probability culminate in an illegal levy of tax.
The failure to make a return as required by the notice would result under section 25(5) of the Act in the Income tax Officer making an ex parte assessment to the best of his judgment and determining the sum payable by the assessee on the basis of such assessment.
Such failure would also expose the plaintiff under section 32(1) of the Act to the impo sition of a penalty which may equal the amount of the tax assessed on him or to a prosecution as for an offence 13 before a Magistrate under section 53 (1), at the option of the Income tax authority.
It is thus plain that the service of a notice requiring a return of income to be furnished for assessment under the Act is a step fraught with serious consequences to the assessee, and if the assessment proposed was illegal and unauthorised by reason of the Act itself being ultra vires in so far as it purported to make the Rulers of Indian States liable to taxation thereunder as contended for by the plaintiff, the service of such notice marked the commencement of a wrongful act against the plain tiff by the Bengal Government under colour of the Act and there can be no doubt that such a wrongful act is actionable in the sense that an action would lie in a civil court for an injunction restraining its completion.
That was the liability to which the Province of Bengal was subject ac cording to the plaintiff 's case at the time when he insti tuted the suit, and that liability, in our opinion, passed to the Province of East Bengal by virtue of article 10 (9.) (a) of the Indian Independence (Rights, Property and Liabil ities) Order, 1947.
There is no question here of the li ability of the Crown for damages for the negligent or tor tious act of its officers.
On the allegations in the plaint, which must, for the purpose of deciding the question of jurisdiction as a preliminary issue, be assumed to be well founded, the Province of Bengal was undoubtedly liable to be sued for an injunction restraining it from proceeding with the assessment and none the less so because the notice was served in purported exercise of powers conferred by the Bengal Act.
The name of the Income tax Officer originally impleaded as the second defendant having been struck off the record, no question in regard to his liability arises.
Reference was made to certain text books where a "tort" is spoken of as an "actionable wrong" and it was suggested that the two expressions are synonymous.
Every tort is undoubtedly an actionable wrong but the converse does not necessarily follow.
Indeed, the words "other than breach of contract" used in article 10 (1) make it plain that the expression "actionable wrong" is used in a wider sense 14 which would have included breach of contract but for those limiting words.
It was said that even assuming that the service of the notice calling for a return of income was a wrongful act, it was not "actionable", as section 65 of the Bengal Act barred suits in civil courts "to set aside or modify any assessment made under this Act".
The short answer to this contention is that the suit in question is not a suit "to set aside or modify an assessment" made under the Act, as no assessment had yet been made when it was instituted, and the subsequent completion of the assessment was made by the Pakistan In come tax authorities on terms agreed to between the parties and sanctioned by the Court.
The decision of the Privy Council in Raleigh Investment Co. Ltd. vs Governor General in Council (1) relied on in support of the contention is distinguishable, as the main relief claimed there was repay ment of the tax alleged to have been wrongfully levied under colour of an ultra vires provision in the Indian Income tax Act.
Their Lordships observed: "In form the relief claimed does not profess to modify or set aside the assessment.
In substance it does, for repayment of part of the sum due by virtue of the notice of demand could not be ordered so long as the assessment stood.
Further, the claim for the declaration cannot be rationally regarded as having any relevance except as leading up to the claim for repayment, and the claim for an injunction is merely verbiage.
The cloud of words fails to obscure the point of the suit.
" The position here is entirely different.
The gist of the wrongful act complained of in the present case is sub jecting the plaintiff to the harassment and trouble by commencing against him an illegal and unauthorised assess ment proceeding which may eventually result in an unlawful imposition and levy of tax.
It was suggested, somewhat faintly, that the cause of action for the suit, though stated in the plaint to have arisen in Dacca, now in the Province of East (1) 15 Bengal, did not arise wholly within the territories of the Province of East Bengal within the meaning of Article 10 (2) (a) inasmuch as the notice calling for a return, though issued from Dacca, was received by the Manager of the Estate at Agartalla in Tripura State.
Assuming that the contention has any substance it is of no assistance to the respondent, for article 10 (2) (c) would then be applicable to the case and the Province of East Bengal would still be liable, though jointly with the Province of West Bengal.
We are therefore of opinion that the Province of East Bengal having succeeded to the liability to which the Province of Bengal was subject immediately before the ap pointed day, the former Province is to be deemed to be substituted for the other Province as a party to the suit and the suit must accordingly continue in the Court of the Subordinate Judge at Alipore, which has jurisdiction to proceed with it under article 4 of the Indian Independence (Legal Proceedings) Order, 1947.
In this view it is unnecessary to consider the question of submission to jurisdiction urged in the alternative by the appellant.
In the result the appeal is allowed, the order of the Court below is set aside and the suit now pending in the Court of the Subordinate Judge at Alipore will be heard and determined by it.
The respondent will pay the appellant 's costs throughout.
FAZL ALI J.
The question to be decided in this appeal is whether the Subordinate Judge 's Court at Alipore in the State of West Bengal, has jurisdiction to try a suit in which the Province of East Bengal was impleaded as a defend ant, after the 15th August,1947 In what circumstances this question has arisen will appear from the facts of the case which may be briefly stated.
In 1944, the Bengal Legislature passed an Act called the Bengal Agricultural Income tax Act, 1944 (Bengal Act IV of 1944), which enabled it to impose a tax on the agricul tural income of various classes 16 of persons including "every Ruler of an Indian State," holding lands within the territory of Bengal.
The appel lant, who is the Ruler of the State of Tripura, holds a zamindary called Chakla Roshanabad Estates, which was situ ated in the Province of Bengal and in the District of Sylhet formerly appertaining to the Province of Assam.
On the 28th February, 1945, the Agricultural Income tax Officer, Dacca Range, issued a notice under section 24 (2) of the Bengal Act to the Manager of the Chakla Roshanabad Estates calling upon him to furnish a return of the appellant 's total agri cultural income for the previous year, derived from lands situated within the Province of Bengal.
On the 12th June, 1945, the appellant instituted a suit in the Court of the Subordinate Judge at Dacca, against the Province of Bengal and the Agricultural Income tax Officer, Dacca Range, claim ing the following reliefs: (1) For a declaration that the Bengal Agricultural Income tax Act, 1944, so far as it imposes a liability to pay agricultural income tax on the plaintiff is ultra vires and void and that the plaintiff ' is not bound by the same.
(2) For a declaration that in any case the notice served by the Agricultural Income tax Officer, Dacca Range, above referred to, is void and of no effect and that no assessment can be made on the basis of that notice.
(3) For a perpetual injunction to restrain the defend ants from taking any steps to assess the plaintiff to agricultural income tax.
On the 15th July, 1945, the suit was transferred to the Court of the Subordinate Judge at Alipore in the District of 24 Parganas, by an Order of the Calcutta High Court.
While the suit was still pending, the new Province of East Bengal, which forms part of the territories of the Dominion of Pakistan, came into existence on the 15th August, 1947, as a result of the Indian Independence Act, 1947, and it appears that the whole of Chakla Roshanabad Estates falls within that Province.
After the creation of the new Province, 17 a petition was filed on the 9th December, 1947, on behalf of the Province of East Bengal, drawing the attention of the Court at Alipore to the fact that the Province of West Bengal, which forms part of the territories of the Dominion of India, was taking no interest in the suit and asking the Court to accept a written statement which was also filed along with the petition, and in which the only plea taken was that the Alipore Court had no jurisdiction to hear the suit or make any order of injunction against the Province of East Bengal or defendant No. 2.
The last paragraph of the written statement was to the following effect: "The Province of East Bengal appears only to contest the jurisdiction of the court and it submits that the suit should be dismissed on that ground.
" Later on, the Province of East Bengal was irapleaded as a defendant in the suit and the name of the Income tax Officer of Dacca was removed from the category of defend ants.
The Subordinate Judge then proceeded to try the question of jurisdiction as a preliminary issue, and decided that by virtue of the provisions of the Indian Independence (Legal Proceedings) Order, 1947, read with section 9 of the Indian Independence Act, 1947, the Court had jurisdiction to try the suit against the new Province.
Thereupon, the respondent (the Province of East Bengal) moved the High Court at Calcutta under section 115 of the Code of Civil Procedure, against the order of the Subordinate Judge, and a Bench of the High Court consisting of Harries C.J. and Chakravarthi J. allowed the application and set aside the order of the Subordinate Judge, giving effect to the objec tion of the respondent that the Court at Alipore was not competent to try the suit against the Province of East Bengal.
One of the points raised on behalf of the appellant before the High Court was that the Province of East Bengal had submitted to the jurisdiction ' of the Subordinate Judge 's Court, but this point was negatived.
The appellant was thereafter granted a certificate under section 205 (1) of the Government of India Act, 1935, and on the basis of it he has preferred this appeal.
18 On a reference to the judgments of the learned Subordi nate Judge and the High Court, it appears that three provi sions were relied upon by the appellant in support of his contention that the Court at Alipore had jurisdiction to try the suit, these being section 9 of the Indian Independ ence Act, 1947, article 4 of the Indian Independence (Legal Proceedings) Order, 1947, [hereinafter referred to as 'the Legal Proceedings Order '], and section 12 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, Therein after referred to as ' the Rights, etc., Order '].
These provisions run as follows : Section 9 of the Indian Independence Act : "The Governor General shall by order make such provi sion as appears to him to be necessary or expedient (a) for bringing the provisions of this Act into effective operation; (b) for dividing between the new Dominions, and be tween the new Provinces, to be constituted under this Act, the powers, rights, property, duties and liabilities of the Governor General in Council or, as the case may be, of the relevant Provinces which, under this Act, are to cease to exist . . " Section 4 of the Legal Proceedings Order : "Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independ ence Act, 1947, (1) all proceedings pending immediately before the appointed day in any civil or criminal court (other than a High Court) in the Province of Bengal, the Punjab or Assam shall be continued in that court as if the said Act had not been passed, and that court shall continue to have for the purposes of the said proceedings all the jurisdiction and powers which it had immediately before the appointed day; (2) any appeal or application for revision in respect of any proceedings so pending in any such 19 court shall lie in the court which would have appellate, or as the case may be revisional, jurisdiction over that court if the proceedings were instituted in that court after the appointed day; and (3) effect shall be given within the territories either of the two Dominions to any judgment, decree, order, or sentence of any such court in the said proceedings, as if it had been passed by a court of competent jurisdiction within that Dominion.
" Section 12 of the Rights, etc.
Order : "(1) Where immediately before the appointed day, the Governor General in Council is a party to any legal proceed ings with respect to any property, rights or liabilities transferred by this Order, the Dominion which succeeds to the property, rights or liabilities in accordance with the provisions of this Order shall be deemed to be substituted for the Governor General in Council as a party to the pro ceedings, and the proceedings may continue accordingly.
(2) Where any Province from which property, rights or liabilities are transferred by this Order is, immediately before the transfer, a party to legal proceedings with respect to that property or those rights or liabilities, the Province which succeeds to the property, rights or liabili ties of this Order shall be deemed to be substituted for the other Province as a party to those proceedings, and the proceedings may continue accordingly.
(3) Any proceedings which, immediately before the ap pointed day, are pending by or against the Secretary of State elsewhere than in the United King dom in respect of any liability of the Governor General in Council or a Prov ince shall, * * * * (b) in the case of proceedings in respect, of the Prov ince of Bengal, the Province of the Punjab, or the Province of Assam, be continued by or against the Province which suc ceeds to the liability . . " The learned Subordinate Judge based his judgment entire ly upon section 4 of the Legal Proceedings 20 Order, but the High Court has pointed out that that Order standing by itself can be of no help to the appellant.
According to the High Court, that section might have enabled the appellant to prosecute his suit against the Province of Bengal, but it could not enable 'him to continue the suit against the new Province without invoking section 12 (2) of the Rights, etc.
Order, which provides among other things that the Province which succeeds to the rights or liabilities of the old Province of Bengal by virtue of that Order shall be deemed to be substituted for the latter as a party to the pending proceedings.
In my opinion, this is the correct view.
It Was urged before us that a Court which had juris diction to try a suit against a party would, by reason of what is provided in section 4 of the Legal Proceedings Order, naturally have jurisdiction to substitute the heir or legal representative of that party.
Generally speaking, this must be so, but, in the present case, the Province of East Bengal which forms part of another sovereign State could not be automatically substituted for the Province of Bengal, unless the substitution was permitted by some provision of the Indian Independence Act or any of the Orders issued thereun der.
The whole case thus rests on the proper construction of section 12(2) of the Rights, etc.
Order.
In the High Court, it was strenuously urged on behalf of the appellant that section 12(2) is fully applicable to the present case on account of certain rights having been transferred to the Province of East Bengal from the old Province of Bengal.
This argument was reiterated in this Court also, but it is obviously untenable, for the reasons set out in the judgment of the High Court.
As has been pointed out by the High Court, section 12 (2) is of no help to the appellant, unless the rights in question were transferred by the Rights, etc.
Order itself.
The learned counsel for the appellant however failed to point out any provision of this Order, by which any of the rights referred to by him had been transferred.
He had therefore to fall back upon an alternative argu ment based on section 10(2) of the same Order; and the point to be decided by this Court has thus 21 crystallized into one simple issue, namely, whether section 10(2) of the Order can be of any avail to the appellant.
Section 10 (2) must be read with section 10 (1), and the material part of these two sub sections runs as follows : "10 (1) Where immediately before the appointed day the Governor General in Council is subject to any liability in respect of an actionable wrong other than breach of con tract, that liability shall, (a) where the cause of action arose wholly within the territories which, as from that day, are the territories of the Dominion of India, be a liability of that Dominion;. (2) Where immediately before the appointed day the Province of Bengal is subject to any such liability as aforesaid, that liability shall, (a) where the cause of action arose wholly within the territories which, as from that day, are the territories of the Province of East Bengal, be a liability of that Prov ince; (b) where the cause of action arose wholly within the territories which, as from that day, are the territories of the Province of West Bengal, be a liability of that Prov ince; and (c) in any other case, be a joint liability of the Provinces of East and West Bengal." * * * * It is quite clear that for the application of section 10(2), it is necessary to show inter alia that the Province of Bengal was subject to a liability in respect of an ac tionable wrong other than a breach of contract.
A reference to any book on tort will show that the words used in sub section
(1) are commonly used to define a tort.
A tort has been defined in Stroud 's Judicial Dictionary, Second Edition, page 2072, as a wrong independent of contract, and it is also so described in the Common Law Procedure Act, 1852 (15 & 16 Vict., c. 76); in Halsbury 's Laws of England and in many textbooks.
The difference between "a wrong independent of contract" and "a wrong other than a 22 breach of contract" is merely verbal and has little signifi cance.
A tort is also often referred to as "an actionable wrong" and the two expressions have been synonymously used by eminent writers including Sir Fredrick Pollock and Pro fessor Burdick of America, who has designated his well known book on the law of torts as "a concise treatise on civil liability for actionable wrongs to person and property".
Whether the expression can be taken to be a complete defini tion of a tort may be questioned, because as Addison has pointed out in his book on torts, "to say that a tort is an actionable wrong leaves undefined the term 'actionable wrong '.
" But there can be no doubt that in legal parlance, the two expressions are assumed to be interchangeable.
There is also another matter to be borne in mind in construing section 10 (2) of the Rights, etc.
Order, and that is the well recognized fact that the primary and most common remedy for a tort is an action for damages.
That this is an important feature of a tort is shown by the fact that in many textbooks an action for damages has been made an inte gral part of the definition of a tort.
A few examples will make this clear.
A tort is defined by Salmond as "a civil wrong for which the remedy is a common law action for unliq uidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation." Professor Winfield, who did not see eye to eye with Salmond on many matters connected with the law of torts, gives the following definition of tortious liability : " Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
" In Underhill 's law of torts, the definition runs as follows : "A tort is an act or omission which is unauthorized by law and independently of contract infringes (i) some absolute right of another, etc., and (ii) gives rise to an action for damages at the suit of the injured party.
" The learned author after attempting to define a tort in this way goes on to state: "A tort is described in the Common 23 Law Procedure Act, 1852, as a wrong independent of contract.
If we use the word 'wrong ' as equivalent to violation of a right recognized and enforced by law by means of an action for damages, the definition is sufficiently accurate, but scarcely very lucid;for it gives no clue to what constitutes a wrong or violation of a right recognized and enforced by law.
It does, however, emphasize the fact that an essential characteristic of a tort is that the appropriate remedy for it is an action for damages.
An act or omission which does not give rise to an action for damages is not a tort.
" It must be recognized that an injunction may also be an appropriate remedy in a limited number of cases, but it is not a remedy of universal application, and no one has yet suggested that it may be treated as an incident of tort.
In the light of the foregoing discussion, it seems to me to be permissible to infer, firstly, that section 10 of the Rights, etc.
Order refers to liability for a tort, and secondly, that what is contemplated there is pecuniary liability such as liability to damages.
The word "liabili ty" has a wider meaning and also a narrower meaning, and the latter would appear to be the appropriate meaning where the word is used in contrast to assets or something which corre sponds to or is in the nature of assets, and where it is used in plural or is preceded by an indefinite article, e.g., when the expression "a liability" is used.
We must remember that the purpose of the Rights, etc.
Order was, among other things, to divide or distribute the rights, property and liabilities of the undivided Province of Bengal between the two new Provinces.
Therefore, the view that the liabilities referred to in section 10 are liabilities capable of being ascertained in terms of money and not liabilities in any abstract or academic sense, is in conso nance with the purpose of the Order as well as the well known fact that for a tort the most common and appropriate remedy is an action for pecuniary damages.
This view is further confirmed by reading section 13 (2) of the Rights, etc.
Order, which runs thus : 24 "Where by virtue of the preceding provisions of this Order either of the Dominions or any Province becomes sub ject to any liability, and it is just and equitable that a contribution towards that liability should be made by the other Dominion, or by another Province, as the case may be, the other Dominion shall make to the Dominion or Province primarily subject to the liability such contribution in respect thereof as, in default of an agreement, may be determined by the Arbitral Tribunal.
" It should be noted that the words "becomes subject to any liability" used in the above provision are practically the words which occur in section 10 of the same Order, and the language of section 13 (2) clearly shows that the word "liabili ty" must have been used in the narrower sense of pecuniary liability, because otherwise no question of contribution towards that liability by the Dominion or Province would arise.
It will be also instructive to refer to Part VII, Chapter III of the Government of India Act, 1935, the head ing of which is "Property, Contracts, Liabilities, and Suits," and upon which the Rights, etc.
Order appears tohave been modeled.
In section 179 of the Government of India Act, 1935, which occurs in this Chapter, the clue to the meaning of the word ' liability. ' is furnished by the provision that "any sum ordered to be paid by way of debt, damages or costs in any such proceedings, and any costs or expenses . . shall be paid out of the revenues of the Federation or the Province, as the case may be . . "I think that it will be quite a fair construction to hold that what is contemplated in section 10 of the Rights, etc.
Order is that the liability referred to therein would be met out of the revenues of the Province concerned.
The construction I have suggested appears to me to represent what the framers of the Order must have intended to convey by the words "liability in respect of an action able wrong", but, lest it should be said that it is too narrow a construction, I shall deal with the matter more fully giving to the words "actionable wrong" and "liability" as wide a meaning as they can 25 bear in a legal context.
Proceeding on this footing, the first question to be asked is: What is a wrong other than a breach of contract ? In answering this question, it is neither possible nor helpful to ignore all that has been said in authoritative textbooks and judgments in dealing with the question of a tort, because the foundation of every tort is a wrong or a wrongful act.
It is true that at one time some of the writers were inclined to think that "there was no English law of tort but there was merely an English law of torts, that is, a list of acts and omissions which under certain conditions were actionable." But, now, the view has considerably broadened, and, generally speaking, it is acknowledged that ' 'torts are infinitely various not limited or confined" (see Chapman vs pickersgill), and that wherever there is an injury by the invasion of a right, a wrong or a tort is committed.
This is often conveyed by the expression injuria sine damnum.
The word "wrong" has been used in sections 17, 18 and 19 of the Code of Civil Proce dure, and the following extract from Mulla 's commentary thereon will show how this word has been construed: "Wrong means a tort or actionable wrong, i.e., an act which is legally wrongful as prejudicially affecting a legal right of the plaintiff.
" Underhill also construes "wrong" in the same sense, because a wrong is, according to him, equivalent to viola tion of a right recognised and enforced by law by means of an action for damages.
I think therefore that in view of all that has been written and said on the subject, it may be safely stated that a wrong must consist of the following elements : (1) There must be an act or omission amounting to an infringement of a legal right of a person or a breach of legal duty towards him; and (2) The act or omission must have caused harm or damage to that person in some way, the damage being either actual or presumed.
These two elements are denoted by two Latin expressions, injuria and damnum.
I have to include (1) [1762] 2 Wils.
146, per Pratt C.J. 4 26 presumed damage under the second head, because in certain cases such as trespass, assault, false imprisonment, etc.
the invasion of a right may be so flagrant that "the law conclusively presumes damage." (See observations of Lord Wright M.R. in Nicholls vs Ely Beet Sugar Factory(1 ).
Such cases are often described as cases of absolute liability or cases where a tort is actionable per se without proof of damage.
Let us then see whether the two elements of an action able wrong are present in this case.
For this purpose, we must examine the best and most plausible statement of the appellant 's case which may be put more or less in the fol lowing way : The issue of a notice, which has been referred to in paragraph S of the plaint calling upon the appellant to furnish a return of his total agricultural income derived from lands situated within the Province of Bengal, was the first step in the initiation of an illegal assessment pro ceeding which was likely to lead to an illegal levy of tax, and the commencement of an illegal proceeding in this manner gave a right of action to the appellant and entitled him to claim an injunction restraining the defendants from complet ing the proceeding.
Such being the position, the case is covered by section 10 of the Order under consideration, the words used there being wide enough to cover liability to be restrained by an injunction from completing an illegal or unauthorized act already commenced.
Consequently, the li ability to be so restrained must be deemed to have been transferred to the Province of East Bengal, by virtue of section 10 of the Rights, etc.
Order.
This may appear to be a plausible way of putting the case, but, when we subject it to a close scrutiny, we find that even on the above statement the true requirements of the material provision are not satisfied.
If we confine ourselves to something which has happened, as opposed to something which may happen in future, that is to say, if we look for an act or omission which must be the foundation of every wrong, we find that all that is said to have happened in this (1) 27 case is the issuing of a notice, which is not some unautho rised or prima facie unlawful act but is an act done trader the authority of a statute and enjoined by it.
It has to be borne in mind that the attack in the plaint is not against the whole Act but all that is contended is that only a par ticular provision of it is ultra vires.
The contention comes to this, that the issuing of a notice against every person other than the Ruler of an Indian State would have been a perfectly legitimate act, but the issuing of a notice against a Ruler is ultra vires.
But that is not enough to constitute a wrong.
What has to be shown is that the issu ing of the notice is a wrongful act, i.e., it amounts to an infringement of some right.
What known right of person or property or any other description it infringes is not at all clear; nor has that been stated in the pleadings.
It is conceded that there has been no assessment and no realiza tion of any tax and it could not also be disputed that it was open to the appellant to show to the assessing authority that he was not assessable at all.
To say that a notice is the first step , in the initiation of an illegal assessment proceeding, does not carry the matter further, but it would seem to be merely a piece of verbiage used to obscure the fundamental weakness of the appellant 's case.
Construing "wrong" as it should be construed, the essential thing to find out is in what way a right has been infringed or there has been a breach of duty.
It is the appellant 's own case that the suit is for a threatened or apprehended wrong, but that very expression shows that the suit has been brought before the alleged wrong was committed.
The other element of a wrong, namely, that the person should have sustained some harm or injury, is also wanting in this case.
It is not the case of the appellant that the notice has in any way caused any actual damage to him.
Nor is it suggested that this is one of those cases in which damage should be presumed.
All that is said is that the notice was likely to entail trouble and harassment to the appellant, but that by itself will not constitute a wrong.
28 The matter may be tested in another way.
As Underhill points out," an act or omission which does not give rise to an action for damages is not a tort.
" To the same effect is the following observation in Salmond 's Law of Torts: " No civil injury is to be classed as a tort unless the appropriate remedy for it is an action for damages.
Such an action is an essential characteristic of every true tort.
" Again, Professor Winfield says that an action for unliqui dated damages is the one sure test of tortious liability and has cited cases where this statement has received judicial approval.
I think these statements will be equally true if we drop the word "tort" and substitute the words" actionable wrong" in its place.
It follows that one of the tests of an actionable wrong is that while other remedies also may be open to the plaintiff, an action for damages is the primary remedy for it.
Can the appellant in this case maintain a suit for damages on the allegations made by him in his plaint? As I have already stated, a reference to the plaint shows that no damages has been either alleged or claimed and it has also not been stated that the appellant is entitled to any damage.
In Rogers vs Rajendro Dutt(1)the Privy Council stated that "it is essential to an action in tort that the act complained of should be legally wrongful as regards the party complaining; that is, it must prejudi cially affect him in some legal right.
" Again, it was ob served in Kali Kischen Tagoor vs Jodoo Lal Mullick(2) that"there may be, where a right is interfered within ju ria sine damno sufficient to found an action; but no action can be maintained if there is neither damnum nor injuria.
" It seems to me therefore that in the absence of the two elements to which I have referred, no case for liability in respect of an actionable wrong has been made out, and it is wholly inappropriate to invoke section 10 of the Rights, etc.
Order in the present case.
It appears that the whole of the appellant 's arguments has been woven round the following two matters : (1) 8 Moore 's I.A. 103 at p. 135.
(2) 6 I.A. 190.
29 (1) Injunction is a recognized form of action; and (2) Injunction has been asked for in the present Case, in connection with something which is said to be likely to culminate in a wrong.
The situation as envisaged is however very different from what is contemplated in section 10 of the Rights, etc.
Order, which is liability for an actionable wrong and not liability for something which may become a wrong in future.
It is to be remembered that there are two words used in the section, viz., actionable and wrong.
The mere fact that a matter is actionable will not bring the case within the four corners of ' section 10 of the Order, unless all the elements of a wrong are established.
I think it will be appropriate at this stage to say a few words about the remedy by way of an injunction in cases where an actionable wrong is said to have been committed.
It cannot be disputed that injunction is one of the remedies in certain cases of torts.
As Addison has pointed out, "the origin of ' the remedy by way of an injunction is to be found in the inadequacy of the legal remedy by way of damages in many of the more serious wrongs, such as continuing tres passes and nuisances, where a wrongful act has been done and there was an intention to continue doing it.
(See Addison 's Law of Torts, 8th Edn. 111).
Injunction will also be granted to prevent a threatened injury or wrong, if it can be shown that the threatened act if carried into execution will lead to violation of a right and such will be the inevitable result.
As was pointed out in an English case, the interfer ence of the court in these cases is rounded on its jurisdic tion to give relief in the shape of preventive justice in order to protect properties and rights from that which, if completed, would give a right of action.
These two cases in which an injunction may be issued stand on two different footings, and the liability to an injunction does.
not necessarily and always amount to "liability in respect of an actionable wrong".
The two liabilities may possibly coin cide where there is a continuing wrong and the injunction is intended to stop its 30 continuance.
But, as I have already stated, where no wrong has been committed, it would require considerable straining of the meaning of familiar legal expressions to say that "liability in respect of an actionable wrong" is identical with "liability to an injunction in respect of an apprehend ed wrong".
"Liability in respect of an actionable wrong" means liability when an actionable wrong has been committed.
It cannot mean liability to be prevented from a wrong which is apprehended.
Nor can the liability which is contemplated in section 10 of the Rights, etc.
Order be created by the mere filing of a suit in which an injunction is claimed.
I should like to refer here to section 176 (1) of the Government of India Act, 1935, which provides as follows : "The Federation may sue or be sued by the name of the Federation of India and a Provincial Government may sue or be sued by the name of the Province, and, without prejudice to the subsequent provisions of this chapter, may, subject to any provisions which may be made by Act of the Federal Legislature or a Provincial Legislature enacted by virtue of powers conferred on the Legislature by this Act, sue or be sued in relation to their respective affairs in like cases as the Secretary of State in Council might have sued or been sued if this Act had not been passed.
" This section is divisible into two parts.
The first part states as to which authority should be named as a plaintiff or as a defendant in a suit brought by or against the Crown or the Government, and the second part deals with cases in which the Federal or the Provincial Government may sue or be sued.
To understand the latter provision, the section is to be read with section 65 of the Government of India Act, 1858, and section 32 of the Government of India Act, 1915.
Section 65 of the Act of 1858 enacted that "the Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate; and all persons and bodies politic shall and 31 may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary of State in Council of India as they could have done against the said Company." (East India Co.).
The same provision is substantially made in section 32 of the Act of 1915.
Such being the law, the question has been posed in a number of cases from very early days as to whether, and, if so, in what cases, the Secretary of State would be liable for a wrong or a tort committed by the servants of the Crown, and it has now been definitely held that he may be liable in certain cases.
So far as the present discussion is concerned, the following three points which emerge from a careful perusal of a large number of cases bearing on the subject, seem to be material : (1) The principles of the law of torts have been con sistently applied in all cases dealing with the liability of the Secretary of State for wrongs committed by the serv ants or agents of the crown or the Government.
(2) It is settled law that the Secretary of State cannot be held liable for wrongs committed by the servants of the Crown in the performance of duties imposed by the Legisla ture: [See Shivabhajan vs Secretary of State for India(1).
James Evans vs Secretary of State(2).
Tobin vs Reg(3).
Ross vs Secretary of State(4), in which this principle is fully explained and the reasons upon which it is based, are clear ly set out].
(3) It is also well settled that where a statute spe cially authorizes a certain act to be done by a certain person, which would otherwise be unlawful or actionable, no action will lie for the doing of the act.
On these principles, it would appear that neither the Agricultural Income tax Officer, who has now been dismissed out of action, nor the Province of East Bengal, could be said to be subject to a liability in respect of an action able wrong, assuming that an actionable wrong has been committed.
It must (1) I.L.R. (3) ; (2) A.I.R. 1920 Lah. 364.
(4) I.L.R. 32 however be stated that this conclusion rests on the.
as sumption that my construction of an actionable wrong is correct.
It was contended that in deciding the present appeal, we must assume all the facts stated in the plaint to be correct and therefore assume that the Bengal Act is ultra vires and the notice issued was without authority.
I have already pointed out that the whole Act is not attacked, but only one single provision thereof is said to be ultra vires, and I shall show later, when I deal with section 65 of the Bengal Act, that even the assumption we are asked to make will not bring the case within section 10 of the Rights, etc.
Order.
Mr. Setalvad, the learned Attorney General of India, who intervened on behalf of the Union of India in the ap peal, supported the judgment of the High Court on three main grounds, which may be summed up as follows : (1) that the words used in section 10 of the Rights, etc.
Order do not cover this case, because here no wrong has been actually committed and a threatened wrong is different from an actual wrong; (2) that section 65 of the Bengal Agricultural Income tax Act is a bar to the suit; and (3) that the present suit must in any event end in an infructuous decree and should not be allowed to be pursued.
I have already dealt with the first point, and wish simply to add that the point which is now pressed is not specifically raised in the Memorandum of Appeal presented in this Court, nor is there any trace of it in the Statement of Case filed by the appellant.
The point which is mentioned in the Memorandum of Appeal and the Statement of Case is that section 12 of the Rights, etc.
Order is applicable to the present case, because certain rights have been trans ferred from the old Province of Bengal to the Province of East Bengal.
There is however no mention of section 10 of the Order, nor is it stated that liability to an injunction brings the case within that 33 section.
Thus, a notable feature of the case is that almost every argument which was advanced in the courts below is to be discarded, and we are asked to base our decision on a point, which is not urged in the Statement of the Case, and which, in accordance with the rules of practice of this Court, cannot ordinarily be entertained.
The second point urged by Mr. Setalvad is based on section 65 of the Bengal Act, which runs as follows : "No suit shall be brought in any Civil Court to set aside or modify any assessment made under this Act, and no prosecution, suit or other proceeding shall lie against any officer of the Crown for anything in good faith done or intended to be done under this Act." Strictly speaking, this section does not apply to the present case, as there has yet been no assessment and ex facie the appellant 's suit cannot be regarded as a suit to set aside or modify any assessment.
Mr. Setalvad however contends that this section must be read with the decision of the Privy Council in Raleigh Investment Co. vs Governor General in Council(1).
That was a case under the Indian Incometax Act, 1922, the provisions of which are similar to the provisions of the Bengal Act and which contains a sec tion (section67) which is almost identical in terms with section 65 of the latter Act.
In that case, an assessee paid under protest the tax assessed on him and then brought a suit for the following reliefs : (a) a declaration that certain provisions of the Income tax Act on which the assessment was based were ultra vires and so the assessment was illegal; (b) an injunction restraining the.
Income tax Depart ment from making the assessments in future; (c) repayment of the sum assessed.
It was strongly contended upon the facts of the case that section 67 of the Income tax Act had no application, but it was held by the Privy Council that "though in form the relief claimed did not profess to (1) 5 34 modify or set aside the assessment, in substance it did,because the repayment could not be ordered so long as the assessment stood ' '.
It was further held that an as sessment made under the machinery provided by the Act, if based on a provision subsequently held to be ultra vires was not a nullity but a mistake of law in the course of its exercise.
Lastly, it was held that the Act contained machin ery which enabled an assessee to raise the question whether or not a particular provision of the Act bearing on the assessment made upon him was ultra vires and that jurisdic tion to question the assessment otherwise than by use of the machinery expressly provided by the Act appeared to be inconsistent with the statutory obligation to pay 'arising by virtue of the assessment.
The material part of the judgment on the last point runs as follows : "In construing the section it is pertinent in their Lord ships ' opinion, to ascertain whether the Act contains machinery which enables an assessee effectively to raise in the Courts the question whether the particular provision of the Income tax Act bearing on the assessment made is or is not ultra vires.
The presence of such machinery, though by no means conclusive, marches with a construction of the section which denies an alternative jurisdiction to enquire into the same subject matter.
The absence of such machinery would greatly assist the appellant on the question of con struction and, indeed, it may be added that, if there were no such machinery and if the section affected to preclude the High Court in its ordinary civil jurisdiction from considering a point of ultra vires, there would be a serious question whether the opening part of the section, so far as it debarred the question of ultra vires being debated, fell within the competence of the Legislature.
In their Lordships view it is clear that the In come tax Act, 1922, as it stood at the relevant, date,did give the assessee the right effectively to raise inrelation to an assessment made upon him the question whether or not a provision in the Act was ultra vires.
Under section 30, an assessee whose only ground of complaint was that effect had been given in the assessment 35 to a provision which he contended was ultra vires might appeal against the assessment.
If he were dissatisfied with the decision on appeal the details relating to the procedure are immaterial the assessee could ask for a case to be stated on any question of law for the opinion of the High Court and, if his request were refused, he might apply to the High Court for an order requiring a case to be stated and to be referred to the High Court .
It cannot be doubted that included in the questions of law which might be raised by a case stated is any question as to the validity of any taxing provision in the Income tax Act to which effect has been given in the assessment under review.
Any decision of the High Court upon that question of law can be reviewed on appeal.
Effective and appropriate machinery is therefore provided by the Act itself for the review on grounds of law of any assessment.
It is in that setting that section 67 has to be construed.
In conclusion their Lordships would observe that the scheme of the Act is to set up a particular machinery by the use of which alone total income assessable for income tax is to be ascertained.
The income tax exigible is determined by reference to the total income so ascertained and only by reference to such total income.
Under the Act (section 45) there arises a duty to pay the amount of tax demanded on the basis of that assessment of total income.
Jurisdiction to ques tion the assessment otherwise than by use of the machinery expressly provided by the Act would appear to be inconsist ent with the statutory obligation to pay arising by virtue of the assessment.
The only doubt, indeed, in their Lord ships ' mind, is whether an express provision was necessary in order to exclude jurisdiction in a civil Court to set aside or modify an assessment.
" The authority of this decision was not questioned before us, but it was pointed out firstly that the present suit is not hit by the first part of section 65 of the Bengal Act, which refers only to suits to set aside or modify any as sessment, and secondly, that if the case is not covered by section65, the decision of the Privy Council, which was based on the construction of section 36 67 of the Income tax Act, is not applicable.
Mr. Setalvad, replying to the first contention, has urged that we must not look merely to the letter of the section but to the princi ple underlying it, and he has particularly referred us to the fact that, strictly speaking, the reliefs claimed in the above mentioned case do not fall within the letter of sec tion 67 of the Income tax Act and hence the Privy Council observed in that case: "In form the relief claimed does not profess to modify or set aside, the assessment.
In sub stance it does .
The cloud of words fails to obscure the point of the suit.
" However that may be, it seems to me that the Privy Council in arriving at their decision, were influenced not only by the language of section 67 of the Income tax Act but also by the complete machinery furnished by that Act for dealing with all questions arising in regard to the assessment, including the question of ultra vires as would appear from the fact that while laying down that there was no jurisdiction to question the assessment except by use of the machinery expressly provided by the Act, their Lord ships added: "The only doubt, indeed, in their Lordships ' mind, is whether an express provision was necessary in order to exclude jurisdiction in a civil court to set aside or modify an assessment." think that, for the purpose of understanding the full scope of section 65, we must read not only the first part of the section which bars suits to set aside or modify an assessment, but also its latter part which provides that "no suit or other proceeding shall lie against any officer of the Crown for anything in good faith. intended to be done under this Act." The latter part of the section clearly excludes the jurisdiction of the court to prevent the Income tax Officer from proceeding With an assessment which has already been started.
Reference may here be made to Secretary of State vs Meyyappa Chetti ar(1) where it was held that the expression "intended to be done" signified futurity so as to preclude suits for injunction in respect of proceedings 'intended ' to be taken by the Income tax Officer.
It is true that in terms the provision concerns the Income tax Officer only, but it (1) I1946] , at 352.
37 could hardly have been the intention of the Legislature that though that Officer is not liable to be restrained from proceeding with an assessment, the provision which ensures such a result may be rendered nugatory by permitting an injunction to be claimed against the Provincial Government or the State.
In my opinion, it will be a strange construc tion of the section to hold that although it bars suits to modify or set aside an assessment and though it bars all proceedings to restrain the Officer who is making the as sessment from proceeding with it, yet it leaves it open to a party to stop an assessment by claiming an injunction against the Provincial Government or the State instead of the Officer concerned.
There is no reference to the Provincial Government or the State at all in the first or the second part of the section, but the section as a whole concerns only with excluding the jurisdiction of the civil court in regard to certain acts done or intended to be done in connection with the assessment of agricultural income tax, and, on a fair construction, it must be held to bar all suits in connection with such assessment.
In urging his third point, the learned Attorney General relied on an Ordinance passed by the Governor General of Pakistan on the 13th November, 1948, section 2 whereof runs as follows : "No judgment, decree, order or sentence referred to in paragraph (3) of Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, shall affect the legislative or executive right or authority of the Central or any Provin cial Government of Pakistan and where such right or authori ty has been at issue, the judgment, decree, order or sen tence shall be invalid and inoperative subject to any decision that may be obtained from a competent court, of the Province concerned.
" It was pointed out that by reason of this Ordinance, any decree which may be obtained in the present suit would be wholly infructuous and in this view this was a meaningless litigation which should not be allowed to continue.
There is force in this argument, 38 but the point need not be pursued, as, in my opinion, the first two points raised by the Attorney General are suffi cient to meet the principal contention advanced by the appellant.
The question of submission to jurisdiction appears to me to be unarguable upon the facts stated, and it was not seriously argued before us.
The Province of East Bengal did intervene and apply for permission to file a written state ment, but the only statement made by it was that the Court had no jurisdiction to proceed with the suit.
It cannot therefore be held that it had submitted to the jurisdiction of the Court.
I have tried to deal with the question posed in this appeal in all its material aspects, but it can, I think, be disposed of on the simple ground that the mere issuing of a notice under section 4 of the Bengal Agricultural Income tax Act by the Agricultural Income tax Officer cannot be held to be an actionable wrong, because no right known to law can be said to have been infringed thereby.
One of the recognized tests of an actionable wrong is that, while other remedies may also be open to the person to whom the wrong is done, he can always maintain an action for damages, on the principle that every injury imports damage.
I am however certain that no action for damages can be maintained on the allegations made by the appellant in his plaint.
I think that the entire argument urged on behalf of the appellant has been sufficiently answered by the High Court in the following passage, which appears to me to sum up the legal position accurately and concisely : "Nor was Dr. Sen Gupta right in relying on article 10 (2) for the transfer of liabilities.
That Article is con cerned with liability for an actionable wrong other than breach of contract and it is impossible to say that by serving a notice on the plaintiff under the Bengal Agricul tural Income Tax Act through one of its officers, the Prov ince of Bengal had committed an actionable wrong.
Assuming it exceeded its powers or acted under an invalid provision of law, the plaintiff may have a declaration to that effect, but the 39 act complained of cannot be said to have been a tortious act.
But even assuming it was, it is to be remembered that the issue of the notice was in exercise of powers conferred by the Act in relation to the Sovereign rights of the Crown and it is elementary that the Crown or the State is not answerable for even negligent or tortious acts of its offi cers done in the Course of their official duties imposed by statute, except where the particular act was specifically directed and the Crown profited by its performance.
There is no such allegation in the plaint in the present case.
The plaintiff could not therefore have sued the Province of Bengal for an actionable wrong and the suit actually brought is not a suit of that character.
It is a suit for ,certain declarations and an injunction and does not seek to make the Province liable for any actionable wrong in any way.
No liability for an actionable wrong is thus involved in the suit and Dr. Sen Gupta cannot establish a right to proceed against the Province of East Bengal on the basis that the liability was transferred to that Province under article 10 (2) of the Order.
" In the result, I would dismiss this appeal with costs.
MUKHERJEA J I agree with my learned brother Patanjali Sastri J. that this appeal should be allowed and I would desire to indicate briefly the reasons that have weighed with me in coming to a conclusion different from that ar rived at by the learned Judges of the Calcutta High Court.
All the material facts in relation to this case have been set out with elaborate fullness in the judgment of the High Court and I deem it quite unnecessary to state them over again.
The whole controversy centers round the point as to whether the suit which was instituted by the plaintiff appellant against the Province of Bengal, as it was prior to the 15th of August, 1947, and which is still pending in the Court of the Subordinate Judge at Alipore can be continued against the Province of East Bengal which has come into existence, as a part of the Dominion of Pakistan, upon the 40 partition of Bengal under the Indian Independence Act; and whether the court of the Subordinate Judge of Alipore which is a court in the Dominion of India has any jurisdiction to proceed with and try such suit.
The Subordinate JUdge decided these questions in favour of the plaintiff appellant basing his decision entirely upon article 4 (1) of the Indian Independence (Legal proceedings) Order, 1947, read with section 9 of the Indian Independence Act.
The High Court in revision ' set aside the order of the Subordinate Judge holding inter alia that neither article 4 (1) of the Legal Proceedings Order nor article 12 (2) of the Indian Independence (Rights, Property and Liabilities) Order, 1947, could confer upon the plaintiff any right to continue the suit against the Province of East Bengal.
The Alipore Court, it has been held, has no jurisdiction to proceed with the suit and no jurisdiction has been conferred upon it by reason of the Province of East Bengal appearing in the suit and putting in a written statement only for the purpose of challenging the competency of the court to try the same.
It is the propriety of this decision that has been challenged before us in this appeal.
The first point that requires consideration is whether article 4 (11 of the Legal Proceedings Order has any appli cation to the facts of the present case.
In my opinion, the answer to this question must be in the negative and the view taken by the High Court on this point seems to me to be perfectly sound and unassailable.
The Legal Proceedings Order as well as several other orders dealing with various constitutional matters affecting the two Dominions which were to come into being on and from the 15th of August, 1947, were promulgated by the Governor General of India just on the previous day, that is to say, the 14th of August, 1947, in pursuance of section 9 (1) of the Indian Independence Act which made it a duty on the part of the Governor General to make suitable provisions for removing the difficulties arising in connection with the transition to the new constitutional order.
As the two 41 Dominions came into existence under the Indian Independence Act passed by the British Parliament and these orders were made by the Governor General of India in exercise of the authority conferred upon him by the Independence Act, there cannot be any doubt that the provisions of these orders are fully binding on India as well as the Dominion of Pakistan; and they being provisions made to be applicable only for the transitional period, the question does not really arise as to whether or not they are in strict conformity with the principles of International Law which would ordinarily govern the relations between two sovereign States.
Article 4(1) of the Legal Proceedings Order is worded as follows: "Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independ ence Act, 1947, (1) all proceedings pending immediately before the appointed day in any civil or criminal court (other than a High Court) in the Province of Bengal, the Punjab or Assam shall be continued in that court as if the said Act had not been passed, and that court shall continue to have for the purposes of the said proceedings all the jurisdiction and powers which it had immediately before the appointed day.
" The clause of the article is couched in very wide lan guage and under it all proceedings pending in any civil or criminal court in the Province of Bengal, the Punjab or Assam immediately before the 15th of August, 1947, would continue as before and be heard and tried by the courts before which they are pending irrespective of the fact that such proceedings might relate to persons or property situat ed in the other Dominion.
I agree with the High Court in holding that comprehensive though the provision is, by itself it can render no assistance to the plaintiff appel lant.
The suit was commenced here by the plaintiff against the old Province of Bengal as the party defendant and against 42 that defendant the suit may be continued if the plaintiff so chooses under article 4(1) of the Legal Proceedings Order mentioned above.
But this would be of no benefit or advan tage to the plaintiff for what he wants is to proceed against the Province of East Bengal which is a part of the Dominion of Pakistan as a substituted defendant in place of the Province of Bengal.
Dr. Sen Gupta argues that if the court has jurisdiction to continue the suit, this would necessarily carry with it the power to make proper orders for substitution as the court considers necessary.
But such substitution could be made only under the ordinary provi sions of law which regulate the conduct of such suits.
There is no provision of any municipal law which contemplates or authorises the substitution of one sovereign state for another in a pending suit.
If, therefore, the plaintiff wants to proceed against the new Province of East Bengal, he must find warrant for it in some of the provisions made by the Governor General of Indian exercise of the powers vested in him under the Indian Independence Act.
Admittedly there is no such provision in the Legal Proceedings Act and reli ance is, therefore, placed by the plaintiff upon article 12 (2) of the Rights, Property and Liabilities Order, 1947, which is in the following terms : "Where any Province from which property, rights or liabilities are transferred by this Order is, immediately before the transfer, a party to legal proceeding with re spect to that property or those rights or liabilities, the Province which succeeds to the property, rights or liabili ties in accordance with the provisions of this Order shall be deemed to be substituted for the other Province as a party to those proceedings, and the proceedings may con tinue accordingly.
It is not disputed that in order to attract the opera tion of this provision, it is incumbent upon the plaintiff to show that the right or liability to which his suit re lates has been transferred from the Province of Bengal, as it existed prior to the 15th of August, 1947, 43 to the Province of East Bengal in Pakistan in accordance with the provisions of this Order.
To establish this, reli ance was placed on behalf of the plaintiff upon several provisions of the Rights, Property and Liabililies Order, 1947, and none of his contentions in this respect were accepted as sound by the learned Judges of the High Court.
In this court Dr. Sen Gupta took his stand on a two fold ground.
He argued in the first place that for the purpose of invoking the aid of article 12(2) of the Rights, Proper ty ' and Liabilities Order it is not necessary that the transfer of the right and liability to which the proceeding relates should take place under any of the specific articles enumerated in the Order.
It would be enough according to him, if there is a transfer by or under any machinery which the Order sets up or authorises What he says is that as the Province of East Bengal is proceeding to assess and levy agricultural income tax upon the plaintiff in respect of a period anterior to 15th of August, 1947, the right to do so can vest in the Province either under an agreement between the two Dominions or the two Provinces or on the basis of an award by an arbitral tribunal as contemplated by article 3 of the Rights, Property and Liabilities Order.
In either case it would amount to transfer of rights under the provi sions of the Order and would attract the operation of arti cle 12(2).
This argument is manifestly unsound and cannot be ac cepted.
If the right referred to by the learned Counsel means the fight to impose tax on agricultural income earned within its territory, the State of Pakistan did not acquire such right by transfer from the Province of Bengal.
It is a right inherent in sovereignty itself which the Dominion of Pakistan got under the Indian Independence Act.
Again if the right has been created by the Bengal Agricultural In come tax Act, the Province of East Bengal would certainly be entitled to avail itself of the provisions of that Act under section 18(3) of the Independence Act.
Apart from this, Dr. Sen Gupta has not referred us to any agreement between the two Dominions or the two Provinces or to the decision of any arbitral tribunal 44 under which the right in dispute in the present case was transferred to the Province of East Bengal.
This contention must therefore fail.
I have now to consider the other argument on this point advanced by the learned Counsel that the liability of the Province of Bengal in respect to the cause of action upon which the plaintiff 's suit had been rounded became a liabil ity of the Province of East Bengal under the provision of article 10(2) of the Rights, Property and Liabilities Order.
It is not disputed that if this contention succeeds, the plaintiff would be entitled to the benefit of clause (2) of article 12 of the Order.
Clause (2) of article 10 has to be read with clause (1) of that article and taking the two clauses together the provision of article 10(2) would stand thus : "Where immediately before the appointed day the Province of Bengal is subject to any liability in respect of an actionable wrong other than a breach of contract, the li ability shall (a) when the cause of action arose wholly within the territory which as from that day are the territories of the Province of East Bengal be a liability of that Province.
" If the allegations made by the plaintiff in the plaint are assumed to be correct, the Province of Bengal was liable to be restrained from proceeding to levy agricultural income tax upon the plaintiff which was illegal, as being imposed by a statute which so far as it affected the plain tiff was unconstitutional and void.
The question is whether this can be said to be a liability in respect of an action able wrong other than a breach of contract within the meaning of that expression occurring in article 10 set out above.
It may be noted here that the rights and liabilities arising out of contracts have been dealt with in articles 8 and 9 of the Order.
The High Court took the view that the expression "actionable wrong other than a breach contract" is synonymous with 'tort '.
It has held that the act com plained of cannot be a tortious act and 45 even if it is so, no action would lie upon it, it being an established proposition of law that the State is not answer able for any tortious acts of its officers done in the course of official duties imposed by a Statute.
It seems to me that the learned Judges have attached a narrow and some what restricted meaning to the words of the Article men tioned above and that the plain language of the provision read in the light of the context would demand and justify a wider and more liberal interpretation.
In my opinion, there can be an actionable wrong which does not arise out of a breach of contract and at the same time does not answer to the description of a 'tort ' as it is understood in English law; and if the plaintiff 's allegations are correct, it is an actionable wrong precisely of that type which we have in the present case.
The word "wrong" in ordinary legal language means and signifies "privation of right".
An act is wrongful it infringes the legal right of another, and "actionable" means nothing else than that it affords grounds for action in law.
Ordinarily, the word "injury" is used in the same sense of actionable wrong, while "damage in contrast with injury means loss or harm occurring in fact whether actionable as injury or not"(1).
In English law "tort" is a species of civil injury and so is a breach of contract; but it is not quite correct to say that the two together exhaust all forms of actionable wrongs known to English law.
It is true that a tort is often described as wrong independent of contract.
As a legal definition this description, as I shall show presently, is not quite accurate and unless taken with certain limitations is apt to be misleading.
It is well known that in England the principles of modern law of contract and tort emerged solely out of the intricacies of the old "Forms of Action '" under which they lay buried for ages.
The injuries which in modern law are described as torts were remedied in early time by certain writs, known as writs of trespass (1) Vide the observation of Viscount Simon in Crofter etc.
Company Ltd vs Vetch ; , 442. 46 and trespass on the case.
The latter was more elastic than the former and was capable of being adapted to new circum stances and to new types of injuries.
There was no clear line of demarcation in those days between contractual and tortious liability and in fact tile aCtiOn of "assumpsit" which was the method of enforcing simple contracts was a variety of action on the case and was made use of for recov ery of compensation from a party who failed to perform his agreement on the ground that such failure amounted to a wrong in the nature of deceit(1).
When the principles of substantive law gradually extri cated themselves from the entanglements of for realistic procedure, a distinction was drawn between liability for breach of contract and that for tort.
In a breach of con tract the right violated owes its origin to the agreement of the parties while in tort the right infringed is one created by tile general law of the land.
From about the middle of the 19th century the assumption current in England was that all civil causes of action must be rounded either on con tract or on tort and all injuries which were not breaches of contract would come under the category of torts.
This as sumption as Sir Frederick Pollock observes has no historical foundation to rest upon(2).
In 1852 the Common Law Proce dure Act was passed and a tort was described in the Act as "a wrong independent of contract".
It cannot be denied that this mode of expression became very common in legal par lance; but as more than one modern writer on the law of torts have pointed out, the words in such description would have to be interpreted in a particular way and with certain limitations; taken literally it would not be a correct statement of law.
It has been observed by Underhill in his "Law of Torts" that a description like this would be accurate in law if the word "wrong" is taken in the restricted and technical sense as equivalent to "violation of a right (1) Vide Pollock on Contract, 12th Edition, p. 111; Winfield on Tort pp, 3 4 (4th Edition).
(2) Vide Pollock 's Article on Tort, Encyc.
Vol.22, p. 307.
47 recognised and enforced by law by means of an action for damages".
Taken in this form, the definition though it gives no clue as to what constitutes a wrong, certainly does lay stress on the essential characteristic of a tort, viz., that the appropriate remedy f9r it is an action for damages(1).
It is really this characteristic that differen tiates a tort from other forms of civil injury or actionable wrong even though the latter are unconnected with any con tract.
There may be other remedies besides damages avail able to the plaintiff against a tortfeasor in the shape of restitution, injunction etc.
, but no "civil injury" as Salmond observes "can be classed as tort unless the appro priate remedy for it is an action for damages.
Such an action is an essential characteristic of every true tort.
"(2) Other remedies like injunction or restitution can be claimed by the plaintiff but it is solely by virtue of a right to damages that the wrong complained of can be regard ed as a tort.
By way of illustration the author points out that a public nuisance is not to be deemed a tort, because the civil remedy by way of injunction may be obtained at the suit of the Attorney General.
A refusal to perform a statu tory duty is not a tort if the remedy is by way of mandamus.
Nor would any wrong be regarded as a tort if the remedy is not an action for unliquidated damages but for a liquidated sum of money.
A breach of trust is certainly an actionable wrong independent of contract and the beneficiaries can claim compensation if the trustee has misappropriated trust property; but as the claim cannot be for unliquidated damages, it is not regarded as a tort(3).
According to Salmond, the reason for this exclusion is purely historical as a breach of trust or any other equitable obligation was considered to be within the special jurisdiction of equity courts.
It is interesting to observe that although the difference between equitable and common law jurisdiction is not existent at the present day, the old rule is still applied (1) Vide Underbill 's Law of Torts.
16th Edn., p. 4.
(2) Vide Salmond 's Law of Torts, 10th Edn., pp. 7 & 8.
(3) Vide Winfield 's Law of Tort, p. 11 48 to demarcate the boundary of the law of torts in English common law.
Thus tort is a civil injury other than a breach of contract which is capable of sustaining an action for unliq uidated damages in a court of law.
If the appropriate remedy is not a claim for unliquidated damages but for injunction or some other relief, it would not rank as a tort though all the same it would be an actionable wrong.
By way of illustration I may refer to the case of Halsey vs Brotherhood(1) which was decided by Sir George Jessel.
Both the plaintiff and defendant in this case were engineers and held patents for the manufacture of certain types of engines.
The plaintiff brought an action against the de fendant alleging that the latter had threatened to bring legal proceedings against several persons who were actual or intending purchasers of engines from the plaintiff assert ing that the engines manufactured by the plaintiff were infringements of the defendant 's patent.
There was a claim for damages and also for injunction.
It was held by Sir George Jessel that the plaintiff could not claim damages on the basis of slander of title, as he nowhere alleged that the defendant 's statements or representations were not bona fide.
But even though the statements had been made in good faith, the plaintiff would be entitled to an injunction against the defendant if he succeeded in proving that the latter 's allegations of infringement were not true.
As no proper case for injunction on this basis was made in the claim, the action was dismissed; but liberty was given to the plaintiff to bring an action in the proper form claiming an injunction to restrain the defendant from threatening the plaintiff 's customers.
This threat to customers was thus held to be an actionable wrong but as the remedy was injunc tion and not damages, it was not a tort in the legal sense of the term.
In the case before us the act of the Province of Bengal complained of by the plaintiff is not a tort according to the technical rules (1) 49 of English law, but is certainly an actionable wrong as it can be sued upon in a court of law and remedied in an effective manner.
The appropriate remedy for the wrong is not unliquidated damages which is essential in a tort but an injunction restraining the defendant from proceeding with the illegal assessment or from realising the amount assessed if assessment has actually taken place.
If, as the plaintiff alleges, the relevant provision of the Bengal Agricultural Income tax Act, under which the plaintiff is sought to be assessed, is illegal and ultra vires, the issuing of the notice by the Income tax Officer is certainly the first and the essential step in the commis sion of the wrongful act which furnishes a sufficient cause of action for the suit.
As this is not a case of tort, the principle of law, according to which a state is not liable to any damages for tortious acts of its servants, cannot be invoked as a bar to the suit.
A remedy by way of injunction can be claimed against a State or Province unless the act complained of amounts to an 'act of State ' in its strict sense and is not purported to be done in exercise of the powers conferred upon the Government by any municipal law.
As the avowed object of the Rights, Property and Liabilities Order is to distribute and adjust as far as possible the rights, properties and liabilities between the two Dominions which were to come into being under the Indian Independence Act, the language of the Order should be construed as liber ally as possible, and there is no warrant for putting an interpretation upon the words used more restricted than they would bear in English law.
It is argued that article 10(2) (a) does not apply to this case as the cause of action did not wholly arise within the territory of the Province of East Bengal.
The argument does not impress me at all.
The notice was issued by the Income tax Officer of Dacca which is in Pakistan territory though it was received by the plaintiff 's manager at Agarta la which was outside British India at that time.
In any event, the Province 50 of East Bengal cannot escape liability on this ground.
It would be jointly liable with the Province of West Bengal under article 10(2) (c) of the Rights, Property and Liabili ties Order.
In view of my decision on this point, the other question raised by Dr. Sen Gupta as to whether the defendant submit ted to the jurisdiction of the Alipore Court or not does not fall for determination.
The learned Attorney General, who intervened on behalf of the Union of India, put forward certain additional grounds in support of the order made by the learned Judges of the High Court.
One of the points raised by him is that section 65 of the Bengal Agricultural Income tax Act con stitutes a bar to the suit which, therefore, should not be allowed to 'continue.
The other material point is that the suit cannot but result in an infructuous decree, and conse quently there is no justification for allowing it to pro ceed.
It is pointed out that an Ordinance has been passed by the GovernorGeneral of Pakistan on the 13th of November, 1948, under which "no judgment, decree or order referred to in paragraph 3 of Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, shall, in any way, affect the legislative or executive right or authority of the Central or any Provincial Government of Pakistan and where such authority or right has been at issue, the judgment, decree or order shall be invalid and inoperative".
The first point has been dealt with by my learned brother Patan jali Sastri J. in his judgment and I concur with him in holding that section 65 of the Bengal Agricultural Income tax Act has no application to the present case.
The second point, I must say, embarrassed me to some extent and if the effect of the Ordinance is, as has been stated by the learned Attorney General, a doubt may legitimately arise whether it would be worthwhile for the plaintiff to proceed with the suit and whether it would not be more to his advan tage to seek relief in the court of Dacca.
But as this point was not raised before the High Court and the question whether an Ordinance of this character could override the provisions of the 51 Orders passed by the Governor General of India under the Indian Independence Act has still to be decided, I refrain from expressing any opinion on this point.
In the result, the appeal, in my opinion, should be allowed and I concur in the order which has been made by my learned brother Patanjali Sastri, J. Appeal allowed.
Agent for the Appellant: R.R. Biswas.
Agent for the Respondent: P.K. Bose.
Agent for the Inervener: P. A, Mehta.
| The Income tax officer, Dacca, acting under the Bengal Agricultural Income tax Act, 1944, sent by registered post a notice to the Manager of an Estate belonging to the Tripu ra State but situated in Bengal, calling upon the latter to furnish a return of the agricultural income derived from the Estate during the previous year.
The notice was received by the Manager in the Tripura State.
The State, by its then Ruler, instituted a suit in June, 1946, against the Province of Bengal and the Income tax Officer, in the court of the Subordinate Judge of Dacca for a declaration that the said Act in so far as it purported to impose a liability to pay agricultural income tax on the plaintiff was ultra vires and void, and for a perpetual injunction to restrain the defend ants from taking any steps to assess the plaintiff.
The suit was subsequently transferred to the Court of the Subor dinate Judge of Alipore.
The partition of India under the Indian Independence Act took place on the 158h August 1947, and the 2 Province of East Bengal in which the Estate was situated, was substituted as a defendant in the place of the Province of Bengal on an application made by it, and in its written statement it contended that the court of Alipore which was situated in West Bengal had no jurisdiction to proceed with the suit.
The High Court of Calcutta, reversing the order of the Subordinate Judge of Alipore held that the provisions of the Indian Independence (Legal Proceedings) Order, 1947, and the Indian Independence (Rights, Property and Liabili ties)Order, 1947, did not apply to the case and, as the matter was accordingly governed by the rules of internation al law, the court of Alipore had no jurisdiction to proceed with the suit: Held per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and CHANDRASEKHARA AIYAR JJ.
(FAZL ALI J. concurrinG) The suit was not one with respect to any property transferred to East Bengal by the Indian Independence (Rights, Property and Liabilities) Order, 1947, nor was it a suit in respect of any "rights" transferred by the said Order, inasmuch as the Province of East Bengal obtained the right to levy income tax not by means of any transfer under the said Order, but by virtue of sovereign rights which were preserved by section 18 (3) of the Indian Independence Act, 1947, and article 12 (2) of the said Order had no application to the case.
Held per KANIA C.J., PATANJALI SASTRI, MUKHERJEA AND CHANDRASEKHARA AIYAR J.J. (FAZL ALI J, dissenting.) (i) Since the object of the Indian Independence (Rights, Property and Liabilities) Order, 1947, was to provide for the initial distribution of rights, properties and liabili ties as between the two Dominions and their Provinces, a wide and liberal construction, as far as the language used would admit, should be placed upon the Order, so as to leave no gap or lacuna in relation to the matters sought to be provided for.
The words "liability in respect of an action able wrong" should not therefore be understood in the re stricted sense of liability for damages for completed acts, but so as to cover the liability to be restrained by injunc tion from completing what on the allegations in the plaint are illegal or unauthorised acts which have been commenced.
As the Province of Bengal was, on the: allegations in the plaint, liable to be restrained from proceeding with an illegal assessment, that liability was, accordingly, a liability in respect of "an actionable wrong other than breach of contract" with in the meaning of article 10 (2) (a) of the above said Order; and, as the cause of action arose wholly in Dacca within the Province of East Bengal, that liability passed to the province of East Bengal under article 10 (2) (a), the latter must be deemed to be substituted as a party to the suit and the suit must continue in the court of the Subordinate Judge of Alipore, under Art.4 of the Indian Independence (Legal Proceedings) Order, 1947.
(ii) Assuming that the cause of action did not wholly arise 3 in Decca, article 10 (9.) (c) would apply and the Province of East Bengal would still be liable, though jointly with the Province of West Bengal.
(iii) As the suit was not one "to set aside or modify any assessment made under the Act", section 65 of the Bengal Agricultural Income tax Act, 1944, had no application and the suit was therefore one in respect of an "actionable" wrong within the moaning of article 10 (2) (a).
Per FAZL ALI J.
The words "liability in respect of an actionable wrong other than breach of contract" in article 10 of the Indian Independence (Rights, Property and Liabili ties) order 1947, refer to liability capable of being ascer tained in terms of money such as liability for damages for tort and not liability in any abstract or academic sense.
Even if a meaning, as wide ' as they can bear in a legal context, is given to the words "actionable wrong" and "liability" two elements are necessary to constitute an actionable wrong, namely, (i) an act or omission amounting to an infringement of a legal right of a person or breach of duty towards him, and (ii) damage or harm resulting there from.
The mere issuing of a notice under section 4 of the Bengal Agricultural Income tax Act, 1944, by the Income tax Officer is not an actionable wrong because no right known to law is infringed thereby and no action for damages can be main tained in respect of such an act, even assuming that the Income tax Officer had exceeded his powers or acted under an invalid provision of law.
No "liability for an action able wrong" was thus involved in the suit and no liability in respect of such a wrong could therefore be said to have been transferred to the Province of East Bengal within the meaning of article 10 (2.) of the said Order so as to entitle the plaintiff to continue the suit against the Province of East Bengal under article 10 (2).
For the purpose of understanding the full scope of section 65 of the Bengal Agricultural Income tax Act, 1944 it is necessary also to read the latter part which provides that no suit or other proceeding shall lie against any officer of the Crown for anything in good faith done or intended to be done under the Act.
" The latter part of the section clearly excludes the jurisdiction of the courts to prevent the Income tax Officer from proceeding with an assessment which has been started and the section must on a fair construction be held to bar all suits in connection with such assessment whether against the State or an Income tax Officer of the State.
If, therefore, no suit or action lies, there cab be no liability for an actionable wrong.
[The nature of actionable wrongs and torts discussed.] Judgment of the Calcutta High Court reversed.
|
No. 10 of 1950.
Appeal from a Judgment of the High Court of Judicature at Bombay (Chagla C.J. and Tendolkar J.) dated 29th March, 1950, in Suit No. 24 of 1950.
December 20.
The Court delivered Judgment as follows: FAZL ALI J.
I have read the judgment prepared by my brother, Mahajan J., and generally agree with his conclu sions and reasonings, but, having regard to 54 the importance of the points raised, I wish to add a short judgment of my own.
There are really three questions to be decided in this appeal, and they are as follows : (1) Whether the Bombay City Civil Court Act, 1948 (Act XL of 1948), is ultra vires the Legislature of the State of Bombay; (2) Whether in any event section 4 of the above Act is ultra vires the State Legislature; and (3) Whether the Bombay High Court has jurisdicion to try the suit.
The first and the third questions have been answered by the High Court in favour of the appellant and the second question has been answered in favour of the respondents.
In this Court, the appellant attacked the judgment of the High Court in so far as it concerns the second question, whereas the first respondent attacked it in so far as it concerns the first and the third questions.
The Bombay City Civil Court Act purports to create in additional civil court for Greater Bombay having jurisdic tion to try, receive and dispose of all suits and other proceedings of a civil nature not exceeding a certain value, subject to certain exceptions which need not be referred to here.
It was contended on behalf of the respondents that the Act is ultra vires the Legislature of the State of Bombay, because it confers jurisdiction on the new court not only in respect of maters which the Provincial Legislature is compe tent to legislate upon under List II of the 7th Schedule to the Government of India Act, 1935, but also in regard to matters in respect of which only the Central or Federal Legislature can legislate under List I (such as, for in stance, promissory notes, which is one of the subjects mentioned in entry 28 of List I).
To understand this argu ment, it is necessary to refer to entry 53 of List , entries 1 and 2 of List II and also entry 15 of List II.
These entries run as follows : Entry 53, List I : 55 "Jurisdiction and powers of all courts except the Feder al Court, with respect to any of the matters in this List . ." Entries 1 and 2, List II : "1 . the administration of justice;constitution and organisation of all courts except the Federal Court . " "2. Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this List . " Entry 15, List III : "Jurisdiction and powers of all courts except the Feder al Court, with respect to any of the matters in this List.
" The respondents ' contention may appear at the first sight to be a plausible one, but, in my opinion, it is not well founded in law.
For the purpose of correctly deciding the question raised, we must first try to understand the meaning of the following items in entry 1 of List II, "administration of justice, constitution and organization of all courts except the Federal Court.
" A reference to the three Legislative Lists shows that "administration of jus tice" is entirely a provincial subject on which only the Provincial Legislature can legislate.
The same remark ap plies to "constitution and organization of all courts except the Federal Court.
" The expression "administration of jus tice" has a wide meaning, and includes administration of civil as well as criminal justice, and in my opinion entry 1 in List II, which I have quoted, is a complete and self contained entry.
In this entry, no reference is made to the jurisdiction and powers of courts, because the expressions "administration of justice" and "constitution and organi zation of courts", which have been used therein without any qualification or limitation, are wide enough to include the 'power and jurisdiction of courts, for how can justice be administered if courts have no power and jurisdiction to administer it, and how can courts function without any power or jurisdiction.
Once this fact is clearly 56 grasped, it follows that, by virtue of the words used in entry 1 of List II, the Provincial Legislature can invest the courts constituted by it with power and jurisdiction to try every cause or matter that can be dealt with by a court of civil or criminal jurisdiction,and that the expression "administration of justice" must necessarily include the power to try suits and proceedings of a civil as well as criminal nature, irrespective of who the parties to the suit or proceeding or what its subject matter may be.
This power must necessarily include the power of defining, enlarging, altering, amending and diminishing the jurisdiction of the courts and defining their jurisdiction territorially and pecuniarily.
The question then arises as to the exact meaning of entry 2 of List II and entry 53 of List I, which are said to militate against the above construction.
These entries, in my opinion, confer special powers on Provincial and Central Legislatures, as opposed to the general power conferred on the Provincial Legislature by entry 1 of List II, the spe cial powers being the logical consequence or concomitant of the power of the two Legislatures to legislate with regard to the matters included in their respective Legislative Lists.
The effect of these entries is that while legislating with regard to the matters in their respective Legislative Lists, the two Legislatures are competent also to make provisions in the several Acts enacted by them, concerning the jurisdiction and powers of courts in regard to the subject matter of the Acts, because otherwise the legisla tion may not be quite complete or effective.
The words used in entry 2 of List II and entry 53 of List I are wide enough to empower the two Legislatures to legislate negatively as well as affirmatively with regard to the jurisdiction of the courts in respect of the matters within their respective legislative ambits.
In other words, they can exclude or bar the jurisdiction of the courts in regard to those matters, and they can also confer special jurisdiction on certain courts.
They can also, apart from the general power which the courts usually exercise, confer power on the courts to 57 pass certain special orders, instances of which I shall give later.
In this connection, reference may be made to section 9 of the Code of Civil Procedure, which provides that "the Courts shall have jurisdiction to try all suits of a civil nature ' excepting suits of which their cognizance is either expressly or impliedly barred.
" This section obviously postulates among other things the barring of the jurisdiction of the civil courts by Legislatures with respect to particular classes of suits of a civil nature, and the statute book abounds in instances in which the jurisdiction of the civil courts is barred under Acts passed by the Central and Provincial Legislatures.
There are also many Acts providing that any suit or proceed ing concerning the subjects matters of those Acts shall be triable by the court or courts specified therein.
Such provisions are to be found in a number of Acts enacted both prior to and after the enactment of the Government of India Act, 1935, and there can be no doubt that the British Par liament while enacting that Act was fully aware of the existing legislative practice obtaining in this country as well as of the fact that the provisions in question were sometimes necessary and therefore it empowered the Central and Provincial Legislatures to make them under entry 53 of List I and entry 2 of List II, respectively.
This, in my opinion, is the true meaning of these entries, and it also explains why a separate entry was necessary enabling the two Legislatures to legislate with regard to the power and jurisdiction of the courts in respect of the subject matters mentioned in the three Legislative Lists.
But for an express provision like that made in the entries referred to above, the two Legislatures might not have been able to confer special jurisdiction on the courts in regard to the matters set out in the Legislative Lists, nor could they have been able to bar the jurisdiction of the ordinary courts in regard to them, however necessary or desirable such a course might have appeared to them.
8 58 It should be noted that the words used in these entries are: "jurisdiction and power".
"Power" is a comprehensive word, which includes all the procedural and substantive powers which may be exercised by a court, but the full significance of the use of the word in the context can be grasped only by reading a large number of local and special Acts in which power has been given to Courts to pass certain special and unusual orders.
For example, section 13 of the Indian , provides that " where any person is convicted of an offence punishable under any rule made under clauses . the Court by which he is convicted may direct that the aircraft or arti cle or substance, as the case may be, in respect of which the offence has been committed, shall be forfeited to His Majesty.
" Reference may also be made to section 24 of the Indian Arms Act, 1878, which provides that "when any person is convicted of an offence punishable under this Act, committed by him in respect of any arms, ammunition or military stores, it shall be in the discretion of the convicting Court or Magistrate further to direct that the whole or any portion of such arms, ammunition or mili tary stores, and any vessel . . . shall be confiscated." (See also section 10 of the [Act I of 1944], and section 13 of the Food Adul teration Act, 1919 [Bengal Act VI of 1919], which are in similar terms, and the various Acts relating to money lend ers and money lending which confer special power on the courts of reopening several kinds of transactions for the relief of debtors.) It seems to me that the word "power" was added to the word "jurisdiction", in entry 53 of List I, entry 2 of List II, and entry 15 of List III, in order to enable the two Legislatures to grant special powers like those I have mentioned to the courts which are to deal with the subject matter of any special legislation.
A reference to the Acts passed after the enactment of the Government of India Act, 1935, will show that 59 special provisions with regard to the jurisdiction of courts have been made even after the passing of that Act, in a large number of Central and local Acts.
Confining ourselves to the Acts passed by the Bombay Legislature, since we are concerned here with one of such Acts, we find that in The Bombay Probation of Offenders Act, 1938 (Bombay Act No. XIX of 1938), section a empowers the following courts "to exer cise powers under the Act, (a) the High Court, (b) a Court of Session, (c) a District Magistrate, (d) a Sub Divisional Magistrate, (e) a salaried Magistrate . " Similarly, in the Bombay Agricultural Produce Markets Act, 1939, sec tion 23 provides that "no offence under this Act . shall be tried by a Court other than that of a Presidency Magistrate, or a Magistrate of the First Class or a Magis trate of the Second Class specially empowered in this be half.
" Section 11 of the Bombay Cotton Control Act, 1942, provides that "no criminal court inferior to that of a Presidency Magistrate or a Magistrate of the Second Class shall try any offence under this Act".
Section 19 of the Bombay Sales of Motor Spirit Taxation Act, 1946, and section 5 of the Bombay Harijan Temple Entry Act, 1947, are provi sions which exclude the jurisdiction of courts under certain circumstances.
Similar instances may be multiplied from the Acts of the Central Legislature and other Provincial Legis latures, but, in my opinion, the instances I have quoted are sufficient to show (1) that the practice which prevailed before the Government of India Act has continued even after its enactment, and (2) that the words "jurisdiction and powers" have been consistently construed to bear the meaning which I have attributed to them.
The interpretation which is sought to be put on the entries by the respondent is in my opinion open to the following objections : (1).It involves the curtailment of the meaning of the expression "administration of justice" in such a way as to rob it of its primary content the jurisdiction and powers of the court, without which justice cannot be administered.
60 (2) It makes it necessary to read entry 2 of List II as part of entry 1 of the same List, though it has been sepa rately numbered as an independent entry.
This is opposed to the scheme followed in the three Legislative Lists, which seems to be that each particular entry should relate to a separate subject or group of cognate subjects, each subject or group of subjects being independent of the others (subject only to incidental overlapping).
The construction suggested by the respondents makes it necessary to assume that though according to their line of reasoning the words "jurisdiction and powers of courts, etc.
" occurring in entry 2 of List II should have been put in entry 1 of the same List, being intimately connected with the subject of "admin istration of justice and the constitution and organization of courts", it was without any apparent reason numbered separately and made an independent entry.
(3) The suggested construction would exclude from the jurisdiction of the Provincial Courts a large number of matters which normally come before courts exercising civil or criminal jurisdiction and, if it is accepted, the courts will not be able to function in the fullest sense unless both the Provincial and Central Legislatures have by piece meal legislation or otherwise exhausted their power of legislating on all the subjects comprised in Lists II and I respectively.
Even after they have exhausted such power, the courts will not be able to deal with important matters, such as contracts, transfer of property, arbitration, wills and succession, criminal law, etc., which are subjects mentioned in List III, until one of the two Legislatures has legislated in regard to those subjects, which raises two important questions: (1) Which of the two Legislatures has to do it first; and (2) How is the conflict to be avoided ? That the construction put by the respondents will lead to anomalous results which could not have been within the contemplation of the British Parliament while enacting the Government of India Act, 1935, may be illustrated by one or two examples.
Reference 61 might here be made to entry 26 of List I, which deals with "carriage of passengers and goods by sea or by b air.
" It should be supposed that if any of the goods carried by air are lost and a suit is instituted in regard to them, the suit will be triable by the court having jurisdiction over the matter under the Civil Procedure Code, subject to any special legislation on the subject by the Central Legisla ture, in spite of the fact that the carriage of goods and passengers by sea or by air is a subject mentioned in List I.
But, on the view propounded before us by the respondent, the Provincial civil courts will not be competent to try such a suit, unless they are empowered to do so by the Central Legislature.
In order to show to what absurd result this doctrine may be pushed, and in order to avoid the criticism of taking for granted what is in controversy, we may take a very extreme example, because the soundness of the respondents ' contention can be tested only by trying to find out what would happen if we were to stretch it to the utmost limit to which it can be stretched.
Entry 13 in List I is: "the Banaras Hindu University and the Aligarh Muslim University." Under entry 53 of List I, the Central Legisla ture has power to legislate in regard to the jurisdiction and powers of courts in respect of the subject matter of entry 13.
It may therefore be supposed, having regard to the wide language used in entry 13, that it is open to the Central Legislature to enact that suits in which these Universities are concerned as plaintiff or as defendant, will be triable only by the particular court mentioned in the enactment concerned and that no other court shall have jurisdiction in regard to such suits, It is difficult to think that until such a legislation is made, a court which would otherwise be the proper court, has no jurisdiction to try any suit in which one of these Universities is a party, no matter what the subject matter of the suit may be.
I am certain that the framers of the Government of India Act did not contemplate such a result.
We all know that at the date when the Government of India Act, 1935, was passed, there were in existence 62 in the different Provinces a large number of courts of law and the administration of justice throughout the Provinces was in the hands of these provincial courts.
The civil courts in the Province used to try all suits and proceedings of a civil nature which are triable under section 9 of the Civil Procedure Code, and the criminal courts used to try all criminal cases which are triable under the Code of Criminal Procedure.
The jurisdiction and power of the courts were not confined to cases in regard to the subjects stated in List II, nor were they debarred from dealing with cases relating to matters which have been assigned to List I.
The jurisdiction of the courts depended in civil cases on a "cause of action" giving rise to a civil liability, and in criminal cases on the commission of an offence, and on the provisions made in the two Codes of Procedure as to the venue of the trial and other relevant matters.
It seems to me that the Government of India Act, 1935, did not contem plate any drastic change in the existing system of adminis tration of justice, but what it contemplated was that that system should continue subject to future legislation by the proper Legislature; Central or Provincial, barring the jurisdiction of courts or conferring jurisdiction or power on special courts with regard to the matters included in the appropriate Legislative Lists, should there be any occasion for such special legislation.
Under the Govern ment of India Act, 1935, every Province became more or less an autonomous unit with a complete machinery for administer ing justice to the fullest extent.
In my opinion, there is nothing in the Act of 1935 to show that there was any inten tion on the part of its framers to affect the machinery so drastically as to confine it to the administration of a mere partial or truncated kind of justice relating only to mat ters specified in List II.
Mr. Setalvad, the ]earned Attorney Genera], who ap peared on behalf of the appellant, in supporting the im pugned Act, argued before us that for the purpose of decid ing this appeal, we might also refer to entry 4 List III.
His contention was that the impugned 63 Act having had the assent of the Governor General, it would be permissible to see what powers the Provincial Legislature could exercise under Lists II and III taken together.
If the course which he suggests is adopted, then the subjects on which the Provincial Legislature can legislate would be: (1) administration of justice; (2)constitution and organiza tion of courts; and (3) civil procedure, including all matters included in the Code of Civil Procedure at the date of the passing of the Government of India Act, 1935.
One of the matters included in the Civil Procedure Code is the jurisdiction of courts, Section 9 of the Code provides, as I have already stated, that the courts shall have jurisdic tion to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
There are are also provisions in the Code dealing with the territorial and pecuniary jurisdiction of the courts.
The three entries will thus cover exactly the field which is covered by item 14 of section 92 of the Canadian Constitution which comprises the following matters: "administration of justice in the Provinces, including constitution, maintenance and organization of provincial courts both of civil and criminal jurisdiction including procedure in civil matters in those courts.
" It has been held in Canada that the words referred to above include the power and jurisdiction of courts, and, under that item, the provincial Legislature can confer the widest power on the courts.
It seems to me that the approach suggested by the learned Attorney General is useful for testing whether entry 2 of List II was intended to be treated as the sole and only basis of the power of the Provincial Legislature to confer jurisdiction on the provincial courts and whether it was really the intention of the British Parliament to empower the Provincial Legislature to confer jurisdiction of only such a limited character as can be conferred on the provin cial courts under entry 2 of List II, if that entry is treated as a self sufficient entry.
In my opinion, the correct view is to hold that it is not necessary to call into aid either entry 4 of List III or any of the 64 provisions of the Canadian Constitution in this case, and that the words "administration of justice; constitution and organization of courts" are by themselves sufficient to empower the Provincial Legislature to invest a new court with all the power which has been conferred upon it by the impugned Act.
It is of course open to the Central Legisla ture to bar the jurisdiction of the new court by a special enactment with regard to any of the matters in List I, but so long as such jurisdiction is not barred, the court will have jurisdiction try all suits and proceedings of a civil nature as enacted in the Act in question.
I think that if the Provincial Legislature had merely enhanced the pecuniary jurisdiction of any of the existing civil courts there could have been no objection to that course.
Why then should there, be any objection when, instead of investing one of the existing courts with power to try suits and proceedings of a civil nature not exceeding a certain amount, the Legis lature has created a new court and invested it with the same power.
Perhaps, it will be simpler to deal at this stage with the third question, namely, whether the Bombay City Civil Court has jurisdiction to try a suit based on a promissory note.
So far as this point is concerned, the respondent bases his contention on entries 28 and 33 of List I. Entry 28 relates to "cheques, bills of exchange, promissory notes and other like instruments".
Entry 53, as already stated, relates to "jurisdiction and powers of courts with respect to any of the matters in List I." It is contended on behalf of the respondent that the effect of these two entries, when they are read together, is that no court can try a suit relating to a promissory note, unless it is invested with the jurisdiction to try such a suit by the Central Legisla ture by virtue of the power given by entry 53 of List I. The question so raised is covered by the answer to the first question, and I shall only add that the answer already given to that question finds some support in the case of Prafulla Kumar Mukherjee and Others vs Bank of Commerce Limited Khulnal (1), in which the arguments of the (1) [1947] F.C.R.28.
65 respondents before the Privy Council proceeded on the same lines as the arguments of the respondents before us.
The question raised in that case was as to the validity of the Bengal Money lenders ' Act, 1940, which limited the amount recoverable by a money lender on his loans and interests on them, and prohibited the payments of sums larger than those permitted by the Act.
The validity of the Act was questioned by the respondent Bank in certain suits brought by them to recover loans and interests alleged to be due on promisso ry notes executed by the appellants borrowers as well as in suits brought by the debtors claiming relief under the Act.
The argument put forward on behalf of the Bank was that the Bengal Legislature by the impugned Act had attempted to legislate on subjects expressly forbidden to it and expressly and exclusively reserved for the Federal Legislature, that is to say, in relation to promissory notes and banking, which are reserved for the Federal Legislature exclusively, under entries 28 and 38 respectively of List I.
On the other hand, the arguments put forward on behalf of the appellants was that the impugned Act was in pith and substance legislation dealing with money lending and that in so far as it dealt with promissory notes or banking that was only incidental or ancillary to the effective use of the admitted legislative powers of the Provincial Legislature to deal with money lending. 'This argument of the appellants was substantially accepted by the Privy Council.
The second point raised on behalf of the respondent relates to the validity of section 4 of the Act, which runs as follows : "Subject to the exceptions specified in section 3, the Provincial Government, may by notification in the Official Gazette, invest the City Civil Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature, arising within the Greater Bombay and of such value not exceeding Rs. 25,000 as may be specified in the notification.
" 9 66 It is contended that this section is invalid, because the Provincial Legislature has thereby delegated its legis lative powers to the Provincial Government which it cannot do.
This contention does not appear to me to be sound.
The section itself shows that the provincial Legislature having exercised its judgment and determined that the new Court should be invested with jurisdiction to try suits and pro ceedings of a civil nature of a value not exceeding Rs. 25,000, left it to the Provincial Government to determine when the Court should be invested with this larger jurisdic tion, for which the limit had been fixed.
It is clear that if and when the new court has to be invested with the larger jurisdiction, that jurisdiction would be due to no other authority than the Provincial Legislature itself and the court would exercise that jurisdiction by virtue of the Act itself.
As several of my learned colleagues have pointed out, the case of Queen vs Burah (1), the authority of which was not questioned before us, fully covers the contention raised, and the impugned provision is an instance of what the Privy Council has designated as conditional legislation, and does not really delegate any legislative power but merely prescribes as to how effect is to be given to what the Legislature has already decided.
As the Privy Council has pointed out, legislation conditional on the use of particular powers or on the exercise of a limited discretion entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing, and in many instances it may be highly convenient and desirable.
Examples of such legislation abound in England, America and other countries.
As some of the American Judges have remarked, "there are many things upon which wise and useful legislation must depend which cannot be known to the law making power and must therefore be the subject of enquiry and determination outside the halls of legislation (Field vs Clark (2).
Mr. Setalvad, the learned Attorney General who appeared on behalf of the appellant, contended that in this country even delegated legislation is (1) 3 A.C. 889.
(2) ; , 67 permissible, but I do not consider it necessary to go into that question, because the principle enunciated in Queen vs BUrah(1) is sufficient to dispose of the contention raised here.
I think that the present case stands well outside what was laid down by the Federal Court in Jitendranath Gupta vs The Province of Bihar,(2) as two of my colleagues who were parties to the majority decision in that case have pointed out.
In the result, this appeal is allowed.
PATANJALI SASTRI J.
This appeal raises the important ques tion of the constitutional validity of the Bombay City Civil Court Act, 1948 (hereinafter referred to as the Act) and though I concur in the conclusion reached by the majority of my learned brothers I wish to state precisely the reasons which lead me to that conclusion.
The first respondent brought the suit in the High Court at Bombay on its orginal side for recovery of Rs. 11,704 from the second respondent on promissory notes.
Notwithstanding that the jurisdiction of the High Court to try suits cog nisable by the City Civil Court was barred under section 12 of the Act and the pecuniary limit of the jurisdiction of the latter court had been enhanced from Rs. 10,000 to Rs. 25,000 by a notification issued by the Provincial Government under section 4 of the Act, it was stated in the plaint that the High Court had jurisdiction to try the suit because the Act as well as the said notification was ultra vires and void.
In view of the constitutional issues thus raised, the State of Bombay, the appellant herein was on its own motion, made a party defendant.
The High Court (Chagla C.J. and Tendolkar J.) held (1) the Act was intra vires, but (2) that section 4 which autho rised the Provincial Government to enhance the jurisdiction of the City Court up to the limit of Rs. 25,000 amounted to a delegation of legislative power, and as such, was void and inoperative, with the result that the suit, which ex ceeded Rs. 10,000 in (1)5 I.A. 178.
(2) 68 value and was not cognisable by the City Court apart from the impeached notification, was held to have been property laid in the High Court.
Both these findings have been challenged before us as erroneous, the first by the first respondent and the second by the appellant.
On the first point, learned counsel for the first re spondent urged that section 100 of the Government of india Act, 1935, read with entries 53 of List I, 2 of List II and 15 of List III, the relevant parts of which are in identical terms, namely, "jurisdiction and powers of all courts except the Federal Court with respect to any of the matters in this List", conferred power on Legislatures in British India to make laws with respect to jurisdiction of courts only in relation to matters falling within their respec tive legislative fields, and that, therefore, the expres sions "administration of justice" and "constitution and organisation of courts" in entry 1 of List II, although they might be wide enough, if that entry stood alone, to include the topic of "jurisdiction and powers of courts", should not be construed in that comprehensive sense as such construc tion would give no effect to the limiting words in entry 2 which would then become meaningless indeed if those expres sions in entry 1 included the power to legislate with re spect to jurisdiction also, there would be no need for entry 2, while, on the other hand, without including such power, they would still have ample content, as various other mat ters relating to administration of justice and constitu tion of courts would have to be provided for, The scheme disclosed by the three separate entries in identical terms in the three lists was said to be this: The, Provincial Legislatures were to have the power of constituting courts and providing for administration of justice, but the power to invest the courts with jurisdiction was to rest with the Federal Legislature in respect of the matters mentioned in List I and with the Provincial Legislature in respect of the matters mentioned in List Ii, while both the Federal and the Provincial Legislatures were to have such power with respect to 69 the matters mentioned in List III subject to the provisions of section 107.
It was, therefore, submitted that the Act, in so far as it purported to provide by section 3 that the City Civil Court established thereunder "shall have juris diction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding Rs. 10,000 in value and arising within Greater Bombay" (with certain exceptions not material here) was ultra vires the Provincial Legislature, constituting as it did a direct invasion of the Federal field marked out by entry 53 of List I.
As all the three entries dealt with the same topic of jurisdiction and powers of courts, there was no room, it was said, for the application of the doctrine of incidental enroachment.
The argument is not without force.
The Bombay High Court in Mulchand vs Raman (1), which was followed by the learned Judges in the present case, and the Attorney General who adopted the same line before us, invoked the doctrine of pith and substance in answer to the argument on behalf of the respondent.
But that doctrine, while it often furnishes the key to the solution of problems arising out of the distribution of overlapping legislative powers in a Federal system, is not of much assistance in meeting the difficulty in finding any usefulness in entry 2 if under entry 1 the Provincial Legislature were intended to have the power to legislate generally with respect to the jurisdiction and powers of courts.
The greater power must include the less.
A similar difficulty in construing entry 4 of List III and entry 2 of List II arose in Stewart vs Brojendra Kishore (2) and led a Division Bench of the Calcutta High Court to construe the expression "civil procedure" occurring in the former entry in a "limited sense" as excluding jurisdiction and powers of courts.
After referring to the decision of the Judicial Committee in In re Marriage Reference(3) where "marriage ,and divorce" in the Dominion List was construed as excluding matters relating to the "solemnisation of marriage (1) 51 B.L.R. 86.
(3) 628 (2) A.I.R. 1939 Cal.
628 70 in the province" because the latter topic was specifically included in the Provincial List, the learned Judges ob served: "The position is similar here. 'Civil procedure ' in the Concurrent Legislative List must be held to exclude matters relating to jurisdiction and powers of courts since special provision is made for those matters elsewhere in the lists." "To hold otherwise", they pointed out, "would be completely to wipe out the second entry in the Provincial Legislative List." Learned counsel for the first respondent strongly relied on that decision and suggested that, if it had been brought to the notice of the learned Judges in Mulchand vs Raman (1), their decision might well have been the other way.
On the other hand, the Attorney General submitted that there could be no question of conflict between two entries in the same list and that the natural meaning of one should not be restricted simply because of the presence of the other.
He placed reliance on the following observations of Gwyer C.J. in Aliqa Begum 's case (4) "It would be practi cally impossible for example to define each item in the Provincial List in such a way as to make it exclusive of every item in that list and Parliament seems to have been content to take a number of comprehensive categories and to describe each of them by words of broad and general import.
I think, however, that none of the items in the lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it.
" These observations were, however, made to support the conclusion that the power to legislate with respect to" collection of rents" under entry 21 of List II includes the power to legislate with respect to any limitation on the power of a landlord to collect rents, that is to say, with respect to the remission of rents as well, and that, therefore, the United Provinces Regularisation of Remissions Act, 1933, was intra vires.
General observations made in such context (4) ,134 71 do not answer the objection that the wider construction of entry 1 would deprive entry 2 of all its content and reduce it to useless lumber.
I am therefore, of opinion that the words" ' administration of justice" and "constitution and organisation of courts" occurring in entry 1 must be under stood in a restricted sense excluding from their scope "jurisdiction and powers of courts" dealt with specifically in entry 2.
This does not, however, compel the conclusion that it is beyond the competence of the Provincial Legislature to confer general jurisdiction on courts constituted by it, for, if entry 1 does not by itself enable the legislature to do so, entry 2 certainly does when read with entry 1.
It should be remembered and this is what the argument for restricting the legislative power of provinces in regard to jurisdiction overlooks that "administration of justice" is one of the matters mentioned in List II itself.
The Provin cial Legislature, therefore, is competent under entry 2 to legislate conferring jurisdiction on courts with respect to administration of justice, that is to say, general juris diction to administer justice by adjudicating on all matters brought before them, except, of course, matters excluded expressly or by implication either by an existing law con tinued in force or by a statute passed by the appropriate legislature under the entries in the three Lists relating to jurisdiction and powers of courts.
In other words, though "administration of justice" in entry 1 does not authorise legislation with respect to jurisdiction and powers of courts, the legislative power under entry 2 in regard to the tatter topic, which can be legitimately exercised" with respect to any of the matters in this List," can be exer cised with respect to administration of justice, one of the matters comprised in that List, with the result that the subject of general jurisdiction is brought within the autho rised area of provincial legislation.
This view thus leaves a field in which entry 2 could apply.
When once the Provincial Legislature is found competent to make a law with respect to the general jurisdiction of courts, the apparent conflict with the 72 central legislative power under entry 53 of List I can be resolved in a given case by invoking the doctrine of pith and substance and incidental encroachment.
For, that rule, though not of much assistance in construing entries 1 and 2 which occur in the same List II, has its legitimate applica tion in ascertaining the true character of an enactment and attributing it to the appropriate list where the Federal and the Provincial Lists happen to overlap.
Accordingly, if the Legislature of Bombay was, in conferring jurisdiction on the City Civil Court to hear and determine all suits of a civil nature, really legislating on a subject which was within the ambit of its legislative power, and if in doing so, it encroached on the forbidden field marked off by entry 53 of List 1, the encroachment should be taken to be only inciden tal.
It may be that such encroachment extends to the whole of that field, but that is immaterial, as pointed out by the Judicial Committee in the Khulna Bank case(1).
One of the questions their Lordships put to themselves in that case was "Once it is determined that the pith and substance is money lending, is the extent to which the federal field is invaded a material matter?" Answering the question in the negative their Lordships observed: "No doubt it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating between de grees of invasion, but for the purpose of determining what is the pith and substance of the impugned Act.
Its provi sions may advance so far into the federal territory as to show that its true nature is not concerned with provincial matters, but the question is not, has its trespassed, more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not money lending but promissory notes or banking ? Once that question is determined, the Act falls on one or the other side of the line and can be seen as valid or invalid accord ing to its true content".
In answering the objection that that view does not give sufficient effect to the words of precedence used in section 100 of the Government of (1) [1947] F.C.R.28.
73 India Act as between the three Lists, their Lordships went on to say "No doubt where they come in conflict List I has priority over Lists III and II, and List III has priority over List II; but the question still remains priority in what respect? Does the priority ' of the Federal Legislature prevent the Provincial Legislature from dealing with any matter which may incidentally affect any item in its list or in each case has one to consider what the substance of an Act is and whatever its ancillary effect, attribute it to the appropriate list according to its true character ? In their Lordships ' opinion the latter is the true view.
" The test for determining whether in pith and substance a particular enactment falls within one list or another is further elucidated in a passage quoted with approval from Lefroy 's Treatise on Canadian Constitutional Law in the judgment of the Federal Court in the Bank of Commerce case(1).
"It seems quite possible" says the learned writer, summarising the effect of the Privy Council decisions on the point "that a particular Act regarded from one aspect might be intra vires of a Provincial Legislature and yet regarded from another aspect might also be intra vires of the Domin ion Parliament.
In other words, what is properly to be called the subject matter of an Act may depend upon what is the true aspect of the Act.
The cases which illustrated this principle show.
by 'aspect ' here must be understood the aspect or point of view of the legislator in legislating the object, purpose and scope of the legisla tion.
The word is used subjectively of the legislator rather than objectively of the matter legislated upon.
" Applying that test there can be little doubt that the im pugned Act must, in its pith and substance, be attributed to List II.
as the legislators of Bombay were certainly not conferring on the new court, which they were constituting under the Act, jurisdiction with ' respect to any of the matters in List I. They were, as section 3 clearly indi cates constituting a new court, the Bombay City Civil Court, and investing it with the (1) [1944] F.C.R.126,139. 10 74 general jurisdiction to try all suits of a civil nature within certain.
pecuniary and territorial limits, and if they were acting, as I have endeavoured to show, within the scope of the legislative power conferred on them under entry 2 read with entry 1 of List II, it seems immaterial that the enactment, so far as one aspect of jurisdiction, namely, its conferment, is concerned, encroaches practically on the whole of the federal field marked out by entry 53 of List I. The encroachment, however, would still leave ample room for the exercise by the Centre of its legislative power under entry 53 in regard to other aspects of jurisdiction and powers of courts.
This view is strongly reinforced by a consideration of the legislative practice prevailing in this country prior to the passing of the Government of India Act, 1935.
That it is legitimate to have regard to legislative practice in deter mining the scope of legislative powers has been recognised in decisions of high authority (e.g., Croft vs Dunphy) (1), It had long been the practice in this country to constitute and organise courts with general jurisdiction over all persons and matters subject only to certain pecuniary and territorial limitations, and to confer special jurisdiction limited to certain specified cases or matters either on the ordinary courts in addition to their general jurisdiction or on tribunals set up to deal with such matters exclusively.
The various Provincial Civil Court Acts as well as the provisions of the Civil and Criminal Procedure Codes invest the courts, both civil and criminal, with general jurisdic tion, that is to say, power to adjudicate in respect of all persons and all matters except those that are specifically excluded or brought within the cognisance of tribunals with special or limited jurisdiction extending only to those matters.
The grading of the courts too in their heirarchy has reference to the pecuniary and territorial limits rather than to the nature and kind of the subject matter which they are empowered to deal with.
It is reasonable to presume that this system of organisation of courts in (1) ,165 75 British India was known to the framers of the Government of India Act, 1935, and it cannot be readily supposed that they wanted to introduce a radical change by which the power of constituting courts and providing for administration of justice is to be vested in the Provincial Legislatures, while jurisdiction has to be conferred by piecemeal legisla tion by the Federal and Provincial Legislatures with respect to specific matters falling within their respective legisla tive fields which are by no means capable of c]ear demarca tion.
The constitutional puzzles which such a system is likely to pose to the legislatures no less than to the courts and the litigant public in the country whenever a new court is constituted in finding out by searching through the legislative lists, whether jurisdiction to deal with a particular matter or power to make a particular order is validly conferred by the appropriate legislature must make one pause and examine the relevant provisions of the Govern ment of India Act to see if there is anything in them to compel the acceptance of so novel a system.
After giving the matter my careful consideration, I am convinced that both the language of the provisions and the antecedent legislative practice support the conclusion that the Provin cial Legislatures which have the exclusive power of consti tuting and organising courts and of providing for the admin istration of justice in their respective provinces, have also the power of investing the courts with general juris diction.
On the question whether section 4 of the Act operates as a delegation of legislative power, I entirely agree with the reasoning and conclusion of my learned brother Das who has said all I wish to say in his judgment which I have had the advantage of reading, and, like him, I reserve the larger question raised by the Attorney General as to how far it is open to the legislatures in this country, while acting within their authorised areas, to delegate their legislative powers to other agencies.
I find it no more necessary in the present case to decide that point than in Jatindranath 76 Gupta 's case(I) where I preferred to rest my decision on a narrower ground.
It follows that the High Court has no jurisdiction :0 hear and determine the first respondent 's suit and I agree that the appeal should be allowed.
MAHAJAN J. This is an appeal from the judgment of the High Court of Judicature at Bombay dated the 29th March, 1950, in Suit No. 240 of 1950, holding that section 4 of the Bombay City Civil Court Act (Bombay Act XL of 1948) is ultra vires the Provincial Legislature.
The facts are that on the 6th February, 1950, the first respondent presented a plaint to the Prothonotary and Senior Master of the High Court for filing a summary suit against the second respondent to recover a sum of Rs. 11,704 24 alleged to be due under promissory notes.
This suit was instituted in the High Court, in contravention of a notifi cation dated the 20th January, 1950, issued under section 4 of the City Civil Court Act, under which suits up to the pecuniary limit of Rs. 25,000 could be heard only by the City Civil Court, and not by the High Court.
As the question of jurisdiction was of importance, the matter was referred to the sitting Judge in Chambers.
On 23rd February, 1950, the learned Judge admitted the plaint holding that section 4 of the Act was ultra vires the Provincial Legislature and the notification issued under it was consequently inopera tive and that the High Court had jurisdiction to hear the suit.
The first respondent thereupon took out summons for judgment against the second respondent.
On the application of the AdvocateGeneral, the State of Bombay was impleaded as defendant at this stage and the proceedings were trans ferred to a Division Bench of the High Court.
The Division Bench upheld the view of the Judge in Chambers and returned the cause to him for disposal on the merits.
The State of Bombay, dissatisfied with this decision, has preferred the present appeal.
(1) 77 Two questions have been canvassed in this appeal: (1) whether the City Civil Court Act is ultra vires the legisla ture of the Province of Bombay in so far as it deals with the jurisdiction and powers of the High Court and City Civil Court with respect to matters in List I of the Seventh Schedule of the Government of India Act, 1935; and (2) whether section 4 of the Act is void as it purports to delegate to the Provincial Government legislative authority in the matter of investing the City Civil Court with ex tended jurisdiction.
Bombay Act of 1948 came into force on 10th May, 1948.
It was considered expedient to establish an additional civil court for Greater Bombay presumably with the object of relieving congestion of work on the original side of the Bombay High Court.
Sections 3, 4 and 12 of the Act are in these terms : "3.
The State Government may, by notification in the Official Gazette, establish for the Greater Bombay a court, to be called the Bombay City Civil Court.
Notwithstanding anything contained in any law, such court shall have juris diction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding ten thousand rupees in value, and arising within the Greater Bombay, except suits or proceedings which are cognisable (a) by the High Court as a Court of Admiralty or Vice Admiralty or as a Colonial Court of Admiralty, or as a Court having testamentary, intestate or matrimonial jurisdiction, or (b) by the High Court for the relief of insolvent debt ors, or (c) by the High Court under any special law other than the Letters Patent, or (d) by the Small Cause Court: Provided that the State Government may, from time to time, after consultation with the High Court, by a like notifica tion extend the jurisdiction of the City Court to any suits or proceedings which are cognisable by the High Court as a court having testamentary or 78 ntestate jurisdiction or for the relief of insolvent debt ors.
Subject to the exceptions specified in section a the State Government may by notification in the Official Ga zette, invest the City Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature arising within the Greater Bombay and of such value not exceeding twenty five thousand rupees as may be specified in the notification.
Notwithstanding anything contained in any law, the High Court shall not have jurisdiction to try suits and proceedings cognisable by the City Court: Provided that the High Court may, for any special rea son, and at any stage remove for trial by itself any suit or proceeding from the City Court.
" On the second question the High Court held that section 4 of the Act was inoperative as it purported to delegate the law making powers of the legislature to an outside authority and hence the notification issued in pursuance of it had no effect whatsoever and did not take away the jurisdiction of the High Court to try the present suit.
On the first ques tion the High Court placed reliance on its own earlier decision in Mulchand Kundanmal Jagtiani vs Raman Hiralal Shah(1), and held that the Act was intra vires the Bombay Legislature.
The appellant assails the correctness of the decision of the High Court on the second point and supports the decision on the first point.
The first respondent, on the other hand, while supporting the decision of the High Court on the second question, challenges its correctness in regard to the first question.
The learned Attorney General contends that the High Court placed an erroneous construc tion on sections 3 and 4 of the Act; that reading the two sections together the effect is that the legislature has set up the City Civil Court with an initial jurisdiction of Rs. 10,000 and has placed an outside limit of Rs. 25,000 on its pecuniary jurisdiction and that it (1) 79 has left to the discretion of the Provincial Government the determination of the circumstances under which this exten sion of the pecuniary jurisdiction between Rs. 10,000 to Rs. 25,000 is to take place.
It was said that section 4 is in the nature of a conditional legislation and that under it no legislative function has been delegated to the Provincial Government.
The learned Chief Justice in the court below disposed of this contention with the following,observations: "I am also conscious of the fact that an Act must be construed in a manner which would reconcile its differ ent sections but with the best of intention in the world I do not see how it is possible to read sections 3 and 4 together so as to come to the conclusion for which the AdvocateGeneral contends.
To my mind it is patent that the Legislature never applied its mind to the question as to whether the new court which it was setting up should have a jurisdiction higher than that of Rs. 10,000.
It never passed any judgment on that question.
It never laid down any policy with regard to that question and section 4 is not a section which merely directs the Provincial Government to carry out the policy laid down by the legislature . but it is a section which confers upon the Provincial Gov ernment the power to confer jurisdiction upon the Court, or in other words, it is a section which entitled the Provin cial Government to lay down its policy as to whether the new Court should have the increased jurisdiction up to twenty five thousand rupees.
" I find it difficult to accept this view.
Without apply ing its mind to the question as to whether the new Court which it was setting up should have a jurisdiction higher than Rs. 10,000, how could the legislature possibly enact in section 4 that the pecuniary jurisdiction of the new court would not exceed Rs. 25,000.
The fixation of the maximum limit of the court 's pecuniary jurisdiction is the result of exercise of legislative will, as without arriving at this judgment it would not have been able to determine the out side limit of the pecuniary jurisdiction of the new 80 court.
The policy of the legislature in regard to the pecuniary jurisdiction of the court that was being set up was settled by sections 3 and 4 of the Act and it was to the effect that initially its pecuniary jurisdiction will be limited to Rs. 10,000 and that in future if circumstances make it desirable and this was left to the determination of the Provincial Government it could be given jurisdiction to hear cases up to the value of Rs. 25,000.
It was also determined that the extension of the pecuniary jurisdiction of the new court will be subject to the provisions contained in the exceptions to section 3.
I am therefore of the opinion that the learned Chief Justice was not right in saying that the legislative mind was never applied as to the conditions subject to which and as to the amount up to which the new court could have pecuniary jurisdiction.
All that was left to the discretion of the Provincial Government was the determination of the circumstances under which the new court would be clothed with enhanced pecuniary jurisdiction.
The vital matters of policy having been determined, the actual execution of that policy was left to the Provincial Government and to such conditional legislation no exception could be taken.
The section does not empower the Provincial Government to enact a law as regards the pecuniary jurisdic tion of the new court and it can in no sense be held to be legislation conferring legislative power on the Provincial Government.
In Queen vs Burah(1), section 9 of Act XXII of 1869, which was a piece of legislation analogous to section 4 of the City Civil Court Act, was held intra vires by their Lordships of the Privy Council.
By the 9th section power was conferred on the Lieutenant Governor of Bengal to deter mine whether the Act or any part of it should be applied to certain districts.
In other words, authority to extend the territorial limits of the operation of the statute was conferred on the Lieutenant Governor and such extension had the result of depriving the High Court of its jurisdiction in those areas and of conferring jurisdiction in respect to them (1) 5 I.A. 178.
81 on the commissioner.
Objection was taken as to the validity of section 9 on the ground that it was legislation delegat ing legislative power and was therefore void, Their Lord ships negatived this contention and held that section 9 was intra vires the Governor General 's power to make laws and was a piece of conditional legislation.
That was a case of an extension of territorial limits within which an Act of the Legislature was to be in force, whereas the present is a case of extension of pecuniary limits of a court 's jurisdic tion.
In principle, there seems no difference between the two cases and the present case is therefore within the rule of the decision in Queen vs Burah(1).
Their Lordships in holding section9 intra vires made the following observations : "Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant Governor (large as they undoubtedly are) as if, when they were exer cised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Gover nor, General in Council.
Their whole operation is, directly and immediately, under and by virtue of this Act (XXII of 1869) itself.
The proper Legislature has exercised its judgment as to place, person, laws, powers, and the result of that judgment has been to legislate conditionally as to all these things.
The conditions having been fulfilled, the legislation is now absolute.
Where plenary powers of legis lation exist as to particular subjects, whether in an Impe rial or in a Provincial Legislature, they may (in their Lordships ' judgment) be well exercised, either absolutely or conditionally.
Legislation, conditional on the use of particular powers, or on the exercise of a limited discre tion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many cir cumstances.
it may be highly convenient.
The British Stat ute Book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when consti tuting the (1) 5 I A. 178, 11 82 Indian Legislature, contemplate this kind of conditional legislation as within the scrape of the legislative powers which it from time to time conferred.
certainly used no words to exclude it.
" These observations appositely apply to the legislative provision contained in section 4 of the impugned Act.
The true distinction is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.
Objection may be taken to the former but not to the latter.
Reference in this connection may also be made to the decision of the Supreme Court of America in Field vs Clark(1) wherein referring to Locke 's case(2) the following observations were made : "To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the Legislature of the power to act wisely for the public wel fare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to fully know.
" The proper distinction the court said was this: "The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends make, its own action depend.
To deny this would be to stop the wheels of government.
There are many things upon which wise and useful legislation must depend which cannot be known to the law making power, and, must there fore, be a subject of inquiry and determination outside of the halls of legislation.
" The High Court in support of its view placed considera ble reliance on the decision of the Federal Court in Jatin dra Nath Gupta vs The Province of Bihar(3) and it was con sidered that the present case fell1 within the ambit of the rule therein laid down.
It seems to me that the decision in the Bihar case has no application to the case in hand.
The Federal Court there was (1) 143 U.S.649.
(3) [1949] F.C.R.595.
(2) 72 Pa.491.
83 dealing with an Act which contained the following provisions in section 1, sub section (3) : "The Act shall remain in force for a period of one year from the date of its commencement: Provided that the Provincial Government may, by notifi cation, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification.
" In connection with this proviso I said in my judgment in that case that the power conferred therein was much larger than was conferred on the Lieutenant Governor in Queen vs Burah(1) inasmuch as it authorised the Provincial Government to modify the Act and also to re enact it.
It was pointed out that "distinction between delegation of power to make the law which necessarily involves a discretion as to what it shall be, and conferring discretion or authority as to its execution to be exercised Under and in pursuance of the law is a true one and has to be made in all cases where such a question is raised.
" The following observations made by me there pointedly bring out the distinction between the two cases : "The proviso which has been assailed in this case.
judged on the above test, comes within the ambit of delegat ed legislation, and is thus an improper piece of legislation and is void.
To my mind, it not only amounts to abdication of legislative authority by the Provincial Legislature, it goes further and amounts to setting up a parallel Legisla ture for enacting a modified Bihar Maintenance of Public Order Act and for enacting a provision in it that that Act has to be enacted for a further period of one year.
A careful analysis of the proviso bears out the above conclu sion.
It may be asked what does the proviso purport to do in terms and in substance ? The answer is that it empowers the Provincial Government to issue a notification saying (1) 5 I.A. 178.
84 that the Provincial Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification .
Modification of statute amounts to re enacting it partially.
It involves the power to say that certain parts of it are no longer parts of the statute and that a statute with X sections is now enact ed with Y sections.
In the act of modification is involved a legislative power as a discretion has to be exercised wheth er certain parts of the statute are to remain law in future or not or have to be deleted from it.
The power to modify may even involve a power to repeal parts of it.
A modified statute is not the same original statute.
It is a new Act and logically speaking, it amounts to enacting a new law.
" I have not been able to follow how these observations concerning the Bihar statute could be relied upon by the High Court in support of its decision in respect 10 the invalidity of section 4 of the Bombay City Civil Court Act.
The two provisions are not analogous in any manner whatsoev er and that being so, no support can be derived by the respondent from this decision.
In the concluding portion of his judgment under appeal the learned Chief Justice observed as follows: " Now applying once more these tests to the City Civil Court Act, we find that the Legislature in the exercise of its legislative power has set up a Civil Court with a limit ed jurisdiction under section 5 of the Act.
It has not set up a court with jurisdiction higher than ten thousand rupees.
Having set up a court of limited jurisdiction it has given to the Provincial Government under section 4 the power to center upon that court a higher jurisdiction up to twen ty five thousand rupees.
Now this power which is conferred upon the Provincial Government is a power which could only have been exercised by the Legislature itself.
" It seems to me that the above observations are based on a construction of sections 3 and 4 of the Act which these sections cannot legitimately bear.
As already observed.
the Legislature set up a Civil Court for Greater 85 Bombay and decided that, to start with, it will have pecuni ary jurisdiction up to Rs. 10,000.
It also decided at the same time that it would also have jurisdiction up to Rs. 25,000 as soon as circumstances, necessitate it the Provin cial Government was constituted the judge of those circum stances.
What the limit of that jurisdiction was to be was in unmistakeable terms enacted in section 4 of the Act.
It was not left to the will of the Provincial Government to confer on that court any pecuniary jurisdiction that it liked to confer upon it.
It would be by force of the legis lative power of section 4 that the City Civil Court will be vested with enhanced jurisdiction but that vesting cannot take place till a notification is issued by the Provincial Government.
It is conditional on that event only.
For the reasons given above, in my judgment, the High Court was in error in holding that section 4 of the City Civil Court Act was void and ultra vires the Provincial legislature.
In this view the notification issued under section 4 must be held to be effective.
That being so, it is unnecessary to go into the question raised by the learned Attorney General that assuming that section 4 of the Act was delegation of legislative power, it was still valid.
The next question to decide is whether the Act is ultra vires the Bombay Legislature.
In order to appreciate Mr. Seervai 's contention on this point it is necessary to set out some of the provisions of the Government of India Act, 1935.
relevant to the enquiry.
These are contained in sec tion 100.
and in the Seventh Schedule in entries 28 and 53 of List I, entries 1 and 2 of List II, and entries 4 and 15 of List III.
They are in these terms: Sec.
(1) Notwithstanding anything in the two next succeeding sub sections, the Federal Legislature, has, and a Provincial Legislature has not power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act (hereinafter called the "Feder al Legislative List.") 86 (2) Notwithstanding anything in the next succeeding sub section, the Federal Legislature, and, subject to the pre ceding subsection, a Provincial Legislature also, have power to make laws with respect to any of the matters enumerated in List III in the said Schedule (hereinafter called the "Concurrent Legislative List.") (3) Subject to the two preceding sub sections, the Provin cial Legislature has, and the Federal Legislature has not, power to make laws for a Province or any part thereof with respect 10 any of the matters enumerated in List II in the said Schedule (hereinafter called the" Provincial Legis lative List.") (4) The Federal Legislature has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof.
List I. 23.
Cheques, bills of exchange, promissory notes and other like instruments.
Jurisdiction and powers of all courts, except the Federal Court, with respect to any of the matters in this list and, to such extent as is expressly authorized by Part IX of this Act, the enlargement of the appellate jurisdic tion of the Federal Court, and the conferring thereon of supplemental powers.
List II.
Public order (but not including the use of His Majesty 's naval, military or air forces in aid of the civil power); the administration of justice; constitu tion and organization of all courts, except the Federal Court, and fees taken therein; preventive detention for reasons connected with the maintenance of public order; persons subject to such detention.
Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list; procedure in Rent and Revenue Courts.
List III.4.
Civil Procedure, including the Law of Limitation and all matters included in the Code of Civil Procedure at the date of the passing of this Act; the recovery in a Governor 's Province or a Chief 87 Commissioner 's Province of claims in respect of taxes and other public demands, including arrears of land revenue and sums recoverable as such, arising outside that Province.
Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list.
Mr. Seervat contends that section 3 of the impugned Act is void because it directly trenches on the exclusive legis lative powers of the Centre conferred on it by List I of the Seventh Schedule inasmuch as 'it confers jurisdiction on the new court in respect to all cases of a civil nature.
The expression "all cases of a civil nature" presumably brings within the ambit of the Act suits in respect to subjects contained in List I.
He urged that the three simi lar entries in the three is, name]y, entry 53 in List I, entry 2 in List II and entry 15 in List III indicated that in respect to the subjects covered by the three fields of legislation demarcated for the two Legislatures the Parlia ment empowered each of them respectively to make laws in respect to jurisdiction and power of courts and that in view of the provisions of section 100 of the Constitution Act the Provincial Legislature had no power to make any law confer ring jurisdiction on courts in respect to subjects covered by List I.
In other words, the Federal Legislature alone could legislate on the jurisdiction and powers of a court in regard to the subjects in List I. Similarly in respect of subjects contained in the Provincial List, jurisdiction and power of courts could only be determined by a law enacted by the Provincial Legislature and that in respect of items contained in List III, both Legislatures could make laws on the subject of jurisdiction and powers of courts.
It was said that the exceptions and the proviso to section 3 of the City Civil Court Act in dear terms disclosed that jurisdic tion in respect to the subjects on which the Provincial Legislature had no competence to legislate was also con ferred on the new court.
Section '12 of the Act by which the High Court was deprived of all jurisdiction on matters that fell 88 within the jurisdiction of the City Civil Court was assailed on similar grounds.
In regard to the legislative power conferred under entry I of List 11 on the Provincial Legis lature it was contended that this wide power stood limited by the three entries above mentioned and that under it legislation could only be made to the extent of establishing and organizing courts but no legislation under it was per missible in respect to the powers of those courts.
The learned Attorney General, on the other hand, con tends that the Act is intra vires the Bombay Legislature under entry 1 of List II and under entries 4 ' and 15 of List III, it having received the assent of the Governor General.
It was urged that the Provincial Legislature had exclusive legislative power on the subject of administration of jus tice and constitution and organization of all courts and that this power necessarily included the power to make a law in respect to the jurisdiction of courts established and constituted by it and that the impugned legislation in pith and substance being on the subject of administration of justice, it could not be held ultra vires even if it trenched on the field of legislation of the Federal Legisla ture.
In regard to entry 53 of List I, entry 2 of List II and entry 15 of List II of the Schedule, it was said that these conferred legislative power on the respective Legisla tures to confer special jurisdiction on established courts in respect of particular subjects only if it was considered necessary to do so.
In other words the argument was that the Provincial Government could create a court of general jurisdiction legislating under entry 1 of List II and that it was then open to both the Central and the Provincial Legislatures to confer special jurisdiction on courts in respect to particular matters that were covered by the respective lists.
In my opinion, the contention of the learned Attorney General that the Act is intra vires the Bombay Legislature under entry 1 of List If is sound and I am in respectful agreement with the view expressed by the Chief Justice of Bombay on this point in Mulchand Kundanmal Jagtiani vs Raman Hiralal 89 Shah (1).
The learned Chief Justice when dealing with this point said as follows: "If, therefore, the Act deals with administration of justice and constitutes a court for that purpose and confers ordi nary civil jurisdiction upon it, in my opinion, the legis lation clearly falls within the legislative competence of the Provincial Legislature and is covered by item 1 of List 11 of Schedule 7.
That item expressly confers upon the Provincial Legislature the power to legislate with regard to the administration of justice and the constitution and organization of all courts except the Federal Court.
It is difficult to imagine how a court can be constituted without any jurisdiction, and if Parliament has made the adminis tration of justice exclusively upon the Provincial Legisla ture the power to constitute and organize all courts, it must follow, that the power is given to the Provincial Legislature to confer the ordinary civil jurisdiction upon the courts to carry on with their work.
Item 2 of List II deals with jurisdiction and power of all courts except the Federal Court with respect to any of the matters in this list, and Mr. Mistree 's argument is that item 1 is limited and conditioned by item 2 and what he contends is that the only power that the Provincial Legislature has is undoubted ly to create courts, but to confer upon them only such jurisdiction as relates to items comprised in List II.
I am unable to accept that contention or that interpretation of List 11 in Schedule 7.
Each item in List 11 is an independ ent item, supplementary of each other, and not limited by each other in any way.
Item 1 having given the general power to the Provincial Legislature with regard to all matters of administration of justice and with regard to the constitution and organization of all courts, further gives the power to the Legislature to confer special juris diction, if needs be, and special power, if needs be, to these courts with regard to any of the items mentioned in List 11.
It is impossible to read item 2 as curtailing (1) 12 90 and restricting the very wide power with regard to adminis tration of justice given to the Provincial "Legislature under item 1.
Similarly in List I the Federal Legislature has been given the power under item 53 to confer jurisdic tion and power upon any court with regard to matters falling under any of the items in that list, and, therefore, it would be competent to the Federal Legislature to confer any special jurisdiction or power which it thought proper upon any court with regard to suits on promissory notes or mat ters arising under the Negotiable Instruments Act. ".
It seems to me that the legislative power conferred on the Provincial legislature by item 1 of List II has been con ferred by use Of language which is of the widest amplitude (administration of justice and constitution and organization of all courts).
It was not denied that the phrase employed would include within its ambit legislative power in respect to jurisdiction and power of courts established for the purpose of administration of justice.
Moreover, the words appear to be sufficient to confer upon the Provincial Legis lature the right to regulate and provide for the whole machinery connected with the administration of justice in the PrOvince.
Legislation on the subject administra tion of justice and constitution of courts of justice would be ineffective and incomplete unless and until the courts established under it were clothed with the jurisdiction and power to hear and decide causes.
It is difficult to visua lise a statute dealing with administration of justice and the subject of constitution and organization of courts without a definition of the jurisdiction and powers of those courts, as without such definition such a statute would be like a body without a soul.
To enact it would be an idle formality.
By its own force it would not have power to clothe a court with any power or jurisdiction whatsoever.
It would have to look to an outside authority and to another statute to become effective.
Such an enactment is, so far as I know, unknown to legislative practice and history.
The Parliament by making administration of justice a provin cial subject 91 could not be considered to have conferred power of legisla tion on the Provincial Legislature of an ineffective and useless nature.
Following the line of argument taken by Mr. Mistree before the High Court of Bombay, Mr. Seervai stren uously contended that the only legislative power conferred on the Provincial Legislature by entry 1 of List II was in respect to the establishment of a court and its constitution and that no legislative power was given to it to make a law in respect to jurisdiction and power of the court estab lished by it.
The argument, logically analysed, comes to this: that a statute will contain the name of the court, the number of its judges, the method of their appointment, the salaries to be drawn by them and it will then stop short at that stage and will not include any provision defining the powers of the tribunal or its other jurisdiction and that the court so constituted could acquire jurisdiction only when a law was made relating to its jurisdiction and powers by the Federal Legislature under entry 53 of List I, by the Provincial Legislature under entry 2 of List II and by either Legisla ture under entry 15 of List III.
The learned counsel con tended that this peculiar result was the natural consequence of a federal constitution with divided powers, and that entries 53, 2 and 15 of the three respective lists limit and curtail the wide power conferred on the Provincial Legisla ture by item 1 of List II.
It is difficult to accede to this contention because it would amount to holding that though the Provincial Legislature under item 2 of List II has been given the widest power of legislation in the matter of administration of justice and constitution and Organiza tion of courts and though that field has been demarcated for it as its exclusive field of legislation, yet all that it can do, acting within that field, is merely to establish a court without any competency to function and that in can only become an effective instrument for administering jus tice by laws enacted elsewere or under powers conferred under other items of the different lists.
I am unable to read items 53, 2 and 15 of the three respective 92 lists as imposing limitations on legislative power con ferred on the Province by item 1 of List II.
Such a con struction of the Act would not only do violence to the plain language of item 1 of List II but would be contrary to its scheme under which administration of justice was made a provincial subject.
It is significant that no other Legis lature has been given the power to bring into existence a court.
A court without powers and jurisdiction would be an anomaly as it would not be able to discharge the func tion of administration of justice and the statute estab lishing such a court could not be said to be a law on the subject of administration of justice.
It is a fundamental principle of the construction of a constitution that every thing necessary for the exercise of powers is included in the grant of power.
Everything necessary for the effective execution of power of legislation must therefore be taken to be conferred by the constitution with that power.
It may be observed that in exercise of legislative power under item 1 of List 11 a provincial Legislature can alter the constitu tion of the existing courts, can abolish them, reorganize them and can establish new courts.
If the construction contended for by Mr. Seervai is accepted, then the existing courts re established or re organised by the provincial Legislature would not be able to function till legislation under item 53 of List I, under item 2 of List II or item 15 of List III also simultaneously was made.
I do not think that such a result was in the contemplation of parliament.
Mr. Seervai with some force argued that it full effect is given to the comprehensive phraseology employed in item 1 of List II, then it would result in making the provisions of item 2 of List II, of item 53 of List I and item 15 of List III nugatory.
in other words, if the provincial Legislature could bring into existence a court of general jurisdiction which could hear all causes on subjects concerning which legislative power was divided in the three lists, then the conferment of legislative power on the Federal Legislature under item 53 of List 1, on the provincial Legislature under item 2 in List II and on both the Legislatures under 93 item 15 of List III was purposeless.
In my opinion, this argument is not a valid one and the premises on which it is based are not sound.
The three lists of subjects contained in Schedule 7 have not been drawn up with any scientific precision and the various items in them overlap.
The point kept in view in drawing up the lists was to see that all possible power of legislation was included ,within their ambit.
By making administration of justice a provincial subject and by conferring on the Provincial Legislature power to legislate on this subject and also on the subject of constitution and organization of courts, Parliament conferred on that Legislature an effective power which included within its ambit the law making power on the sub ject of jurisdiction of courts.
The Provincial Legislature could therefore bring into existence a court with general jurisdiction to administer justice on all matters coming before it within certain territorial and pecuniary limits, subject of course to the condition that such general juris diction may be expressly or impliedly taken away by the provisions of other laws.
The Parliament having divided the field of legislation between the two Legislatures, naturally thought that as a corollary or a necessary consequence of this division of legislative power it was necessary to provide by way of a complementary provision a legislative power specifically on the two Legislatures in respect to the jurisdiction and powers of courts on subjects which were within their exclusive legislative field.
If a Legislature could exclusively legislate in respect to particular sub jects, as a necessary consequence it should also have the power to legislate in respect to jurisdiction and power of the court dealing with that subject.
It is this power that has been conferred by entries 53, 2 and 15 above mentioned on the two Legislatures.
Entries 42 and 99 of List I, entries 37 and 42 of List II and entries 25 and 36 of List III are of a similar consequential character.
The respective Legislatures are therefore competent to confer special powers on courts and can create special jurisdic tions acting under those powers in respect to 94 their divided fields of legislation.
Instances of confer ment of powers and jurisdiction on courts to hear cases on particular subjects were well known to Parliament.
Such powers had been conferred on different courts in respect of testamentary and intestate jurisdiction, admiralty jurisdic tion, under the Indian Companies Act, under the Succession Act, Guardians and Wards Act and under the various.
Rent Acts and Acts dealing with relief of indebtedness.
In view of the division of powers in respect to different subjects, power was given under item 53 of List I, item 2 of last II and item 15 of List III to the different Legislatures when dealing with those subjects also to legislate on the ques tion of jurisdiction and powers of the courts.
This confer ment of legislative power to create special jurisdiction in respect to particular subjects does not in any way curtail the legislative power conferred on the Provincial Legisla ture under item 1 of List II.
As soon as special legisla tive power under item 53 of List I, under item 2 of List II and item 15 of List III is exercised, the causes that arise in respect to those subjects would then only be heard in jurisdictions created by those statutes and not in the courts of general jurisdiction entrusted with the normal administration of justice.
In the language of section 9 of the Code of Civil Procedure, jurisdiction of the general courts will then become barred by those statutes.
I am therefore of the opinion that under item 1 of List II the Provincial Legislature has complete competence not only to establish courts for the administration of justice but to confer on them jurisdiction to hear all causes of a civil nature, and that this power is not curtailed or limit ed by power of legislation conferred on the two Legislatures under items 53, 2 and 15 of the three lists.
On the other hand, these three items confer on the respective Legisla tures power to legislate when dealing with particular sub jects within their exclusive legislative field to make laws in respect of jurisdiction and powers of courts that will be competent to hear causes relating to those subjects; in other words, this is a power of creating special 95 jurisdictions only.
This interpretation of the entries in the lists is not only in accordance with the scheme of the statute but it harmonizes the different entries in the lists and does not make any of them nugatory and in effective.
The interpretation contended for by Mr. Seervai would reduce the power of the Provincial Legislature under item 1 to almost nothingness.
The crux of the case is whether item 1 of List 11 should be given a limited construction which makes it nugatory or whether a limited construction is to be placed on items 53, 2 and 15 of the three lists.
I have no hesitation in holding that both in the light of principles of construction of statutes and principles of legislation, the course to adopt is the one that I have indicated above.
Finally, it was contended that section 12 of the Act in any case was a void piece of legislation as it deprived the High Court of its jurisdiction even in respect to subjects contained in List I of the Seventh Schedule.
In view of the construction that I have placed on item 1 of List II this argument has no force.
If the Legislature has power to bring into existence a court and confer jurisdiction and power on it, a fortiori it has power to take away the jurisdic tion and power that already exist in other courts.
More over, the Bombay City Civil Court Act in section a has excepted from the jurisdiction of the new court all cases which the High Court can hear under any special law.
Spe cial law has been defined as a law applicable to a particu lar subject.
If under List 1 of the Seventh Schedule the Federal Legislature by any law determines that a case has to be heard by the High Court, section 5 will not affect the jurisdiction of that court in any manner whatsoever.
The result, therefore, is that the Bombay City Civil Court Act is a statute which is wholly within the legisla tive field of the Province under item 1 of List II and its validity cannot be affected even if it incidentally trenches on other fields of legislation.
It is not a statute dealing with any of the subjects mentioned in List I and therefore it cannot be said that the 96 Provincial Legislature has in any way usurped the power demarcated for the Centre.
In view of this conclusion I think it unnecessary to pronounce any opinion on the other points raised by the learned Attorney General.
For the reasons given above I allow the appeal preferred by the Government of Bombay and set aside the decision of the High Court holding that section 4 of the City Civil Court Act (XL of 1948) is void.
In the circumstances of the case I leave the parties t9 bear their own costs of the appeal.
MUKHERJEA J.
In my opinion this appeal should be allowed and I concur substantially in the line of reasoning adopted by my learned brother Mahajan J. in his judgment.
Having regard to the constitutional importance of the questions raised in this case, I would desire to add some observations of mine own.
There are really two questions which require considera tion in this appeal.
The first is whether section 4 of the Bombay City Civil Court Act, 1948, is void and inoperative by reason of its amounting to a delegation of legisltive powers by the Provincial Legislature to the Provincial Government of Bombay.
The Bombay High Court has answered this question in the affirmative and it is entirely upon this ground that the judgment appealed against is based.
The propriety of this decision has been challenged by the learned Attorney General who appeared on behalf of the State of Bombay in support of this appeal.
On the other hand, Mr. Seervai, appearing on behalf of the respondents, has not only attempted to repel the contention ad vanced by the learned Attorney General, but has sought to support the judgment appealed against on another and a more comprehensive ground which, if accepted, would make the entire Bombay City Civil Court Act a void piece of legisla tion, as being an encroachment by the Provincial Legislature upon the field of legislation reserved for the Centre under List I of Schedule 7 to the Government of India Act, 1935.
97 As regards the first point, I agree that the contention of the appellant is sound and must prevail.
I have no hesi tation in holding that the Legislature in empowering the Provincial Government to invest the City Court, by notifica tion, with jurisdiction of such value not exceeding Rs. 25,000 as may be specified in the Notification, has not delegated its legislative authority to the Provincial Gov ernment.
The provision relates only to the enforcement of the policy which the Legislature itself has laid down.
The law was full and complete when it left the legislative chamber permitting the Provincial Government to increase the pecuniary jurisdiction of the City Court up to a certain amount which was specified in the Statute itself.
What the Provincial Government is to do is not to make any law; it has to execute the will of the Legislature by determining the time at which and the extent to which, within the limits fixed by the Legislature, the jurisdiction of the court should be extended.
This is a species of conditional legis lation which comes directly within the principle enunciated by the Judicial Committee in The Queen vs Burah(1), where the taking effect of a particular provision of law is made to depend upon determination of certain facts and conditions by an outside authority.
The learned Judges of the Bombay High Court in coming to their decision on the point seem to have been influenced to some extent by the pronouncement of the Federal Court in Jatindranath Gupta vs Province of Bihar(2), and the learned.
Counsel for the respondents naturally placed reliance upon it.
I was myself a party to the majority decision in that case and expressed my views in a separate judgment.
I do not think that there is anything in my judgment which lends support to the contention which the respondents have put forward.
I stated expressly in course of, my Judgment on the authority of the well known American decision in Locke 's appeal(3) that a legislature may not (1) 5 I.A. 178.
(3) 13 American Reports 716.
13 98 delegate its powers to make law but "it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend "; and that the inhibition against delegation does not extend to legislation which is complete in itself, though its operation is made to depend upon contingencies the ascertainment of which is left to an external body.
The subject matter of dispute in the Bihar case was the validity of a proviso engrafted upon section 1, subsection (3) of the Bihar Maintenance of Public Order Act.
The sub section laid down that the Act would remain in force for a period of one year from the date of its commencement.
The proviso then added "that the Provincial Government may, by notification on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification." Mr. Seervai would have been probably right in invoking the decision in that case as an authority in his favour if the proviso simply empowered the Provincial Government, upon compliance with the condi tions prescribed therein, to extend the duration of the Act for a further period of one year, the maximum period being fixed by the Legislature itself.
The proviso, however, went further and authorised the Provincial Government to decide at the end of the year not merely whether the Act should be continued for another year but whether the Act itself was to be modified in any way or not.
It was conceded by the learned Counsel appearing for the Province of Bihar that to authorise another body to modify a statute amounts to in vesting that body with legislative powers.
What the learned Counsel contended for, was that the power of modification was severable from the power of extending the duration of the statute and the invalidity of one part of the proviso should not affect its other part.
To this contention my answer was that the two provisions were inter related in such a manner in the statute that one could not be severed from the other.
99 Obvious]y, the facts of this case are quite different, and all that I need say with regard to my pronouncement in Jatindranath Gupta 's case is that the principle upon which that case was decided is not applicable and cannot be at tracted, to the present case.
I may state here that a question in the broad form as to whether a Provincial Legislature exercising its legislative powers within the limits prescribed by the Imperial Parlia ment in the Government of India Act, 1935, could delegate its legislative functions in any manner to an outside au thority as it thought proper, was neither raised nor decided in Jatindranath Gupta 's case.
The learned Attorney General has not very properly invited any final decision on that point in the present case and I would refrain from express ing any opinion upon it. ' The second point appears to be of some complexity and it was decided by the Bombay High Court adversely to the re spondents on the basis of an earlier pronouncement of the same Court in Mulchand vs Raman(1).
The arguments of Mr. Seervai are really directed at assailing the correctness of this earlier decision which the learned Judges held to be binding on them in the present case.
The contention of Mr. Seervai, in substance, is, that the Bombay City Civil Court Act, which is a piece of provincial legislation, is ultra vires the legislature inasmuch as it purports to endow the City Court, which it brings into existence, with jurisdic tion to receive, try and dispose of "all suits and other proceedings of a civil nature" with certain exceptions that are specified in the different sub sections of section 8.
What is said is that the expression "all suits of a civil nature" is wide enough to include suits in respect to mat ters specified in List I of the Seventh Schedule of the Constitution Act with regard to which the Central Legisla ture alone is competent to confer jurisdiction on courts under entry 53 of the said List.
It is argued that so far as the Provincial Legislature is concerned, it may empower all courts (except the Federal Court) with jurisdiction in respect to any of the matters in the Provincial List.
(1) 100 and it may also be capable of exercising like powers in regard to subjects enumerated in the Concurrent List as provided for in article 15 of List III, subject to the conditions laid down in section 107 of the Act.
But as the scope of section 3 of the Bombay City Civil Court Act is not limited to matters in Lists II and III only and its language can embrace subjects coming under List I as well, and fur thermore as the different subjects both within and outside the provincial and concurrent fields dealt with by section 3 are inextricably, intertwined and not capable of severance or demarcation, the whole Act must be held to be ultra vires.
In answer to this, it has been urged by the learned Attorney General that amongst the subjects included in Item 1 of the Provincial List are "the administration of justice and constitution and organization of all courts except the Federal Court", and these expressions obviously include within their ambit the conferring of general jurisdiction to hear and decide cases upon courts which are set up by the Provincial Legislature, and without which they cannot func tion as courts at all. 'It is said that Item 2 of the Provincial List which mentions "jurisdiction and powers of all courts except the Federal Court with respect to any of the matters in this List" does not in any way limit or curtail the ordinary connotation of the ,expressions "admin istration of justice and constitution of courts" as used in Item I of the said List referred to above.
It cannot be disputed that the words "administration of justice" occuring in Item 1 of the Provincial List, unless they are limited in any way, are of sufficient amplitude to confer upon the Provincial Legislature the right to regulate and provide for the whole machinery connected with the administration of justice.
Section 92, of the North America Act deals with the exclusive powers of the Provincial Legis latures and clause (14) of the section speaks of "the admin istration of justice in the Provinces" as including "the constitution, maintenance and organization of Provincial Courts.
" In interpreting this provision of the constitution it has been held in North America that the words 101 "constitution, maintenance and organization of courts" plainly include the power to define the jurisdiction of such courts territorially as well as in other respects(2).
Mr. Seervai argues that this might be the normal meaning of the words if they stood alone.
But if Items 1 and 2 of the Provincial List are read together, the conclusion cannot be avoided that the expressions "administration of justice and constitution of courts" do not include "jurisdiction and powers of courts" which are separately dealt with under Item 2.
To find out, therefore, the extent of powers of the Provincial Legislature in respect conferring jurisdic tion upon courts, the relevant item to be looked to is not Item 1 but Item 2 of the Provincial List.
The contention in this form seems to me to be plainly unacceptable.
I agree with Mr. Setalvad that the different topics in the same Legislative List should not be read as exclusive of one another.
As was observed by Sir Maurice Gwyer in The United Provinces vs Atiqa Begum(1), "the sub jects dealt with in the three Legislative Lists are not always set out with scientific definition.
It would be practically impossible for example to define each item in the Provincial List in such a way as to make it exclusive of every other item in that List, and Parliament seems to have been content to take a number of comprehensive categories and to describe each of them by a word of broad and general import .
I think that none of the items in the List is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it.
" As there can be no question of conflict between two items in the same List, there is no warrant for restricting the natural meaning of one for the simple reason that the same subject might in some aspect come within the purview of the other.
The difficulty, however, arises when we come to entry 53 of List I.
Under this entry, it is the Central (1) Re County Courts of British, Columbia 21 S.C.R. 446.
(2) at p. 134. 102 Legislature that has been given the power of legislating in regard to jurisdiction and powers of all courts except the Federal Court in respect to any of the matters in List L The difficulty that one is confronted with, is that if Item 1 of the Provincial List is taken to empower the Provincial Legislature to invest a court with jurisdiction with respect to all subjects no matter in whichever List it might occur, a clear conflict is bound to arise between Item 1 of the Provincial List and Item 53 of the Central List; and a Provincial legislation trespassing upon the exclusive field of the Centre would be void and inoperative under section 100 of the Constitution Act.
This being the posi tion, a way would have to be found out to avoid the conflict.
As the Privy Council observed in the case of the Citizens Insurance Company of Canada vs Parsons(2) "it could not have been the intention that a conflict should exist and in order to prevent such a result the two sections must be read together and the language of the one interpreted and where necessary modified by the other." Mr. Seervai suggests that the proper way of reconciling this apparent conflict would be to read the words "adminis tration of justice and constitution of courts" occurring in entry 1 of the Provincial List as exclusive of any matter relating to jurisdiction of courts.
The Provincial Legisla ture can only set up or constitute courts but their juris diction or power of deciding cases must be derived from the Central or the Provincial Legislature or, from either of them in accordance with the subjects to which such juris diction relates.
The Provincial Legislature can endow the court with jurisdiction in respect to any matter in List II and the Central Legislature can do the same with regard to subjects specified in List I. So far as matters in the Concurrent List are concerned, either of the Legislatures can make provisions in respect of them subject to the condi tions laid down in section 107 the Constitution Act.
(2).A.C. ,96 at p. 109.
103 This argument, though apparently plausible, cannot, in my opinion, be accepted as sound.
It is to be noted that the right to set up courts and to provide for the whole machinery of administration of justice has been given exclu sively to the Provincial Legislature.
Under section 101 of the North America Act, the Parliament of Canada has a re serve of power to create additional courts for better admin istration of the laws of Canada but the Indian Constitution Act of 1935 does not give any such power to the Central Legislature.
Courts are to be established by the Provincial Legislature alone.
The word 'court ' certainly means a place where justice is judicially administered, The appointment of Judges and officers or the mere setting apart of a place where the Judges are to meet, are not sufficient to consti tute a court.
A court cannot administer justice unless it is vested with jurisdiction to decide cases and "the consti tution of a court necessarily includes its jurisdiction.
"(1) If Mr. Seervai 's contention is accepted, the result will be that when a Provincial Legislature estab lishes a civil court, it can only be invested with jurisdic tion to decide cases in respect to matters coming within the Provincial List.
Such court can have no power to decide cases relating to any matter which is enumerated in List I so long as the appropriate Legislature does not confer upon it the requisite authority.
Thus an ordinary Provincial Court established to decide civil suits would be entitled to entertain all money claims but not a claim on a promissory note; nor could it entertain a suit for recovery of corpora tion tax, for Negotiable Instruments and corporation tax are subjects of the Central List.
This certainly was not the scheme of the Constitution Act.
In my opinion, the proper way to avoid a conflict would be to read entry 1 of the Provincial List, which contains the only provision relating to constitution of courts and administration of justice, along with the group of three entries, viz., entry 53 of List I, entry 2 of List II and entry 15 of List III with which it is supposed to be in conflict, (1) Vide Clement 's Canadian Consitution, 3rd Edn., p. 527, 104 and to interpret the language of one by that of the other.
Entry 1 of List II uses the expressions "administration of justice and constitution of all courts" in a perfectly general manner.
No particular subject is specified to which the administration of justice might relate or for which a court might be constituted.
It can, therefore, be legitimately interpreted to refer to a general jurisdiction to decide cases not limited to any particular subject.
The other three items on the other hand relate to particular matters appearing in the three Lists and what they contem plate is the vesting of jurisdiction in courts with regard to such specific items only.
In one case the jurisdiction is 'general ' as is implied in the expression "administration of justice", while in the other three the jurisdiction is 'particular ' as limited to particular matters and hence exclusive.
I agree with my learned brother Patanjali Sastri J. that one approved way of determining the scope of a legislative topic is to have regard to what has been ordi narily treated as embraced within that topic in the legisla tive practice of the country(2); and if that test is ap plied, the interpretation suggested above would appear to be perfectly legitimate.
The distinction between general and particular jurisdiction has always been recognised in the legislative practice of this country prior to the passing of the Constitution Act of 1935 and also after that.
There have been always in this country civil courts of certain classes and categories graded in a certain manner according to their pecuniary jurisdiction and empowered to entertain and decide all suits of a civil nature within particular localities.
Particular jurisdiction again have been conferred on some one or the other of these courts to try cases relating to certain specified matters.
Thus there have been special jurisdictions created for insolvency, probate or guardianship proceedings, for deciding disputes relating to compulsory acquisition of land and for dealing with cases arising under the Rent Acts or the different legislations passed in recent years (2) vide Croft vs Dunphy.
105 for scaling down exorbitant rates of interest or giving relief to rural debtors.
Similar instances may be cited with regard to conferring of special jurisdiction in criminal cases.
There will be no difficulty in interpreting in a proper manner the different entries in the Legislative Lists re ferred to above if this distinction between general and special jurisdiction is kept in view.
The entire scheme of the Constitution Act of 1935 is to vest the power of estab lishing courts upon the Provincial Legislature.
The Provin cial Legislature can endow the courts which it sets up with general jurisdiction to decide all cases which, according to the law of the land, are triable in a court of law, and all these powers can be exercised under entry I of List II.
If the Central Legislature or the Provincial Legislature chooses to confer special jurisdiction on certain courts in respect to matters enumerated in their appropriate legisla tive lists, they can exercise such powers under the three entries specified above.
But the exercise of any such powers by the Central Government would not m any way conflict with the powers exercisable by the Provincial Legislature under entry 1 of List II.
The expression 'general ' must always be understood as being opposed to what is 'special ' or exclu sive.
If the Central Legislature vests any particular juris diction upon a court in respect to a Central matter, that matter would cease to be a general matter and consequently the court having general jurisdiction would no longer deal with that, but the general jurisdiction of such courts would not be affected thereby.
The contents of general jurisdic tion are always indeterminate and are not susceptible of any specific enumeration.
In this view, I do not think that it would be at all necessary to invoke 'the pith and substance ' doctrine in avoiding the possibility of incidental encroach ment by the Provincial Legislature upon Central subjects in regard to conferring jurisdiction upon courts.
If the expression 'jurisdiction ' in entry 53 of List I means and refers to special jurisdiction only, there cannot be even an incidental encroachment upon such special jurisdiction 14 106 by reason of the conferring of general jurisdiction upon courts by the Provincial Legislature under entry 1 of List II.
As I have said already what is 'special ' or made so, will automatically cease to be in the category of what is 'general ' and no question of a conflict would at all arise.
It may be pointed out in this connection that in the Canadian Constitution also, the general scheme is to carry on administration of justice throughout Canada through the medium of provincial courts.
Subject to the residuary power reserved to the Dominion Parliament under section 101 of the North America Act, the Constitution has assigned to the provinces the exclusive power in relation to administration of justice including the maintenance, constitution and organization of courts.
There is no limitation in any provincial court along the line of division that exists between matters within the legislative competence of the Dominion Parliament and of the Provincial Legislative Assemblies (1).
There is indeed no such thing as Entry 53 in List I of the Indian Act in the Canadian Constitution, but there are judicial pronouncements to the effect that the Dominion Parliament can impose jurisdiction on provincial courts over Dominion subjects (2).
It may be that the British Parliament in framing the legislative topics in the Government of India Act of 1935 in regard to administration of justice and jurisdiction of courts wanted to adopt the Canadian model with such modifications as they considered necessary.
It is, however, immaterial to speculate on these matters.
For the reasons given above, I am of the opinion that the decision of the Bombay High Court in Mulchand vs Raman(3) is correct, and the contention of Mr. Seervai should fail.
In the result, the appeal is allowed and the judgment of the High Court is set aside.
DAS J: I agree that this appeal should be allowed.
In view of the importance of the questions raised in (1) Vide Clement 's Canadian Constitution p. 526.
(2) Vide Lefroy 's Canada 's Federal system p. 541, (3) 107 this appeal, I consider it right to state 'my reasons for coming to that conclusion.
The salient facts, as to which there is no dispute, are as follows: On May 10, 1948, the Provincial Legislature of Bombay passed Act No. XL of 1948, called the Bombay City Civil Court Act, 1948.
It was passed with a view "to estab lish an additional Civil Court for Greater Bombay.
" The provisions of that Act which will be relevant for the pur poses of the present appeal may now be set out: "1.
(2) It shall come into force on such date as the Provincial Government may, by notification in the Official Gazette, appoint in this behalf.
The Provincial Government may, by notification in the Official Gazette, establish for the Greater Bombay a Court, to be called the Bombay City Civil Court.
Notwith standing anything contained in any law, such Court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding ten thousand rupees in value, and arising within the Greater Bombay, except suits or proceedings which are cognizable (a) by the High Court as a Court of Admiralty or Vice Admiralty or as a Colonial Court of Admiralty, or as a Court having testamentary, intestate or matrimonial jurisdiction, or (b) by the High Court for the relief of insolvent debt ors, or (c) by the High Court under any special law other than the Letters Patent, or (d) by the Small Cause Court: Provided that the Provincial Government may, from time to time, after consultation with the High Court, by a like notification extend the jurisdiction of the City Court to any suits or proceedings of the nature specified in Clauses (a) and (b).
Subject to the exceptions specified in section 3, the Provincial Government may, by notification in the Offi cial Gazette, invest the City Court with jurisdiction to receive, try and dispose of all suits and 108 other proceedings of a civil nature arising within the Greater Bombay and of such value not exceeding twenty five thousand rupees as may be specified in the notification.
Notwithstanding anything contained in any law, the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court: Provided that the High Court may, for any special rea son, and at any stage, remove for trial by itself any suit or proceeding from the City Court.
" The Act received the assent of the Governor General about the same time.
It came into force on August 16, 1948, by a notification issued by the Provincial Government and published in the Official Gazette.
Simultaneously with the passing of the above Act the Bombay Legislature also enacted Act (XLI of 1948) called the Bombay High Court Letters Patent Amendment Act, 1948.
By section3 of that Act Clause 12 of the Letters Patent was amended by adding the following words: "Except that the said High Court shall not have such Original jurisdiction in cases falling within the jurisdic tion of the Small Cause Court at Bombay or the Bombay City Civil Court.
" Shortly after the passing of the above Acts, the validi ty of the Bombay City Civil Court Act (XL of 1948) was challenged in Mulchand Kundanmal Jagtiani vs Raman Hiralal Shah(1), a suit on promissory notes filed in the Original side of the High Court.
A Division Bench of the Bombay High Court (Chagla C.J. and Bhagwati J.), on September 2, 1948, held that the Act was well within the legislative competence of the Provincial Legislature and was not ultra vires.
Leave was given to the plaintiff in that suit under section 205 of the Government of India Act, 1935, to appeal to the Federal Court but no such appeal appears to have been filed.
On January 20, 1950, the Provincial Government of Bombay issued the following notification No. 2346/5 in the Official Gazette: (1) A,I.R. 1949 Bom.
197; 109 "In exercise of the powers conferred by section 4 of the Bombay City Civil Court Act, 1948 (Bombay, Act XL of 1948), the Government of Bombay is pleased to invest, with effect from and on the date of this notification, the City Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding twen ty five thousand rupees in value, and arising within the Greater Bombay subject, however, to the exceptions specified in section a of the said Act.
" On February 6, 1950, the first respondent Narothamdas Jethabhai presented a plaint before the Prothonotary of the Bombay High Court for recovery of Rs. 11,704 5 4 with further interest due by the second respondent Aloysious Pinto Phillips upon three several promissory notes.
In paragraph 4 of this plaint it was expressly pleaded that the High Court had jurisdiction to receive, try and dispose of that suit because (1)the Bombay City Civil Court Act, 1048, was ultra vires and (2) at least section 4 of that Act and the notification issued thereunder were ultra vires.
Having some doubts as to whether in view of the notification issued 1 by the Provincial Government under section 4 of the Act the plaint could be admitted in the High Court, the Prothon otary placed the matter under the rules of the Court before Bhagwati J. who was then the Judge in Chambers.
By his judgment delivered on February 23, 1950, Bhagwati J. held that section 4 of the Act and the notification issued there under were ultra vires and void and that the High Court, therefore, had jurisdiction to entertain the suit.
The plaint was accordingly received and admitted.
The first respondent thereupon took out a summons under the rules of the Court for leave to sign judgment against the second respondent.
The State of Bombay was, on its own application, added as a party to the suit.
The matter was put up before a Division Bench (Chagla C.J. and Tendolkar J.) for trial of the following issues: 110 "(1) Whether Act XL of 1948 is ultra vires of the Legis lature of the State of Bombay.
(2) Whether,Section 4 of Act XL of 1948 is in any event ultra rites of the Legislature of the State of Bombay.
(3) Whether the Government of Bombay Notification 'No. 2346/5 dated 20th January, i1950, is ultra vires, void and inoperative in law.
(4) Whether this Court has jurisdiction to try the suit.
The larger point involved in issue No. 1 having been concluded by the earlier decision of the Division Bench in Mulchand Kundanmal Jagtiani vs Raman Hiralal Shah(1) that issue was answered in the negative without any argument but leave was reserved to the first respondent to contest the correctness of that earlier decision in this Court.
The Division Bench in agreement with Bhagwati J. held that by section 4 of the Act the Provincial Legislature did not itself legislate but delegated the power of legislation to the Provincial Government which it had no power to do and, therefore, section 4 and along with it the notification No. 2346/5 issued thereunder were ultra vires, void and inoperative.
Accordingly they answered issues Nos.
(2), (3) and (4)in the affirmative and sent the summons for judgment back to the learned Judge taking miscellaneous matters to dispose it of on merits.
The State of Bombay has now come up before us in appeal from this decision of the High Court.
The Advocate General of Madras has intervened in support of this appeal and for maintaining the validity of the Madras City Civil Court Act (VII of 1892) section 3A of which inserted in 1935 by way of amendment is in identical terms with section 4 of the Bombay Act except that the amount of the value was fixed at Rs. 10,000 in section 3A of the Madras Act instead of Rs. 25,000 fixed in section 4 of the Bombay Act.
The distinction between conditional legislation and delegation of legislative power has been well known (1) 51 Bom L R.86 111 ever since the decision of the Privy Council in R.v. Burah(1) and the other Privy Council cases cited in the judgments of the High Court.
It is firmly established that conditional legislation is not only permissible but is indeed in many cases convenient and necessary.
The difficul ty which confronts the Courts is in ascertaining whether a particular provision of a Statute constitutes a conditional legislation as explained in the decisions of the Privy Council.
In the present case the High Court, on a construc tion of section 4 of the Bombay City Civil Court Act, came to the conclusion that it was not an instance of conditional legislation at all.
The use of the word "invest" in section 4 was considered by the High Court to be very significant and the difference between the language in section 3 and that in section 4 appeared to them to be very marked and striking.
According to the High Court while by section a the Legislature itself set up a Court with a particular pecuniary jurisdiction, under section 4 the Legislature itself did not invest the Court with any higher jurisdiction but left it to the Provincial Government to exercise the function which the Government of India Act laid down should be exercised by the Provincial Legislature.
The learned Chief Justice expressed the view that the Legislature never applied its mind to the question as to whether the new Court which it was setting up should have a jurisdiction higher than that of Rs. 10,000, and that section 4 was not a sec tion which merely directed the Provincial Government to carry out the policy laid down by the Legislature, but that it was a section which conferred upon the Provincial Govern ment the power to confer jurisdiction upon the Court.
Then, after referring to R.V. Baruha(1) and several other cases and purporting to apply the tests laid down in the decisions to the Act the learned Chief Justice concluded that the Legislature in the exercise of its legislative power had set up a Civil Court with a limited jurisdiction under section a of the Act, that it had not set up a Court with a jurisdiction higher than ten thousand rupees and (1) L.R 5 I. A. 178.
112 that, having set up a Court of, limited jurisdiction, it had given to the Provincial Government under section 4 the power to confer upon that Court a higher jurisdiction up to twenty five thousand rupees.
This power, which was con ferred upon the Provincial Government was according to the Chief Justice, a power which could only have been exercised by the Legislature itself.
I am unable to accept the afore mentioned construction of sections 3 and 4 of the Act.
As I have already said, the High Court rounded their conclusions principally on the observations of their Lord ships of the Privy Council in R.v. Burah(1) and certain other Privy Council cases.
It will be useful, therefore, to analyse the Privy Council decision in R.v. Burah(1).
In 1869 the Indian Legislature passed an Act (No. XXII of 1869) purporting, first, to remove a district called Garo Hills from the jurisdiction of the Courts of civil and criminal jurisdiction and from the law prescribed for such Courts by Regulations and Acts and, secondly, to vest the administra tion of civil and criminal justice, within the same territo ry, in such officers as the Lieutenant Governor of Bengal might, for the purpose of tribunals of first instance, or of reference and appeal, from time to time appoint.
The Act was to come into operation on such day as the Lieutenant Governor of Bengal should, by notification in the Calcutta Gazette, direct.
The 8th section authorised the Lieuten ant Governor of Bengal by notification in the Calcutta Gazette to extend to the said territory, any law or any portion of any law then in force in other territories sub ject to his government or which may thereafter be enacted by the Council of the Governor General or of himself.
The 9th section of that Act provided: "The said Lieutenant Governor may from time to time, by notification in the Calcutta Gazette, extend mutatis mutan dis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills, as for the time being forms part of British India, (1) L.R. 5 I.A. 178.
113 Every such notification shall specify the boundaries of the territories to which it applies.
" On October 14, 1871, the Lieutenant Governor of Bengal issued a notification in exercise of the powers conferred on him by section 9 extending the provisions of that Act to the territory known as the Khasi and Jaintia Hills and excluded therefrom the jurisdiction of the Courts of civil and crimi nal justice.
The respondent Burah and another person having been convicted by the Deputy Commissioner of the Khasi and Jaintia Hills of murder and sentenced to death, which was later on commuted to transportation for life, they from jail sent a petition of appeal against their conviction.
The provisions of Act XXII of 1869 having been extended, by notification under section 9, to the Khasi and Jaintia Hills, the High Court would have no jurisdiction to enter tain the appeal, unless section 9 and the notification were ultra rites and void.
The majority of the Judges of the Full Bench constituted for considering the question took the view that section 9 was really not legislation but was an in stance of delegation of legislative power.
The Crown ob tained special leave to appeal to the Privy Council.
In summarising the effect of the provisions of sections 1 to 8 of that Act on Garo Hills Lord Selborne who delivered the judgment of the Privy Council observed at page 194 that the Governor General in council had determined, in the due and ordinary course of legislation, to remove a particular district from the jurisdiction of the ordinary Courts and offices, and to place it under new Courts and offices, to be appointed by and responsible to the Lieutenant Governor of Bengal leaving it to the Lieutenant Governor to say at what time that change should take place, that the Legisla ture had determined that, so far, a certain change should,take place, but that it was expedient to leave the time, and the manner, of carrying it into effect to the discretion of the Lieutenant Governor and also, that the laws which were or might be in force in the other territo ries subject to the same Government were such as it might be fit and proper to apply to this 15 114 district also, but that, as it was not certain that all those laws, and every part of them, could with equal conven ience be so applied, it was expedient, on that point also, to entrust a discretion to the LieutenantGovernor.
His Lordship then proceeded to state the true meaning and effect of the provisions of section 9: "This having been done as to the Garo Hills, what was done as to the Khasi and Jaintia Hills? The Legislature decided that it was fit and proper that the adjoining dis trict of the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing Courts, and brought under the same provisions with the Garo Hills, not neces sarily and at all events, but if and when the Lieutenant Governor should think it desirable to do so; and that it was also possible that it might be expedient that not all, but some only, of those provisions should be applied to that adjoining district.
And accordingly the Legislature en trusted for these purposes also, a discretionary power to the Lieutenant Governor.
" Finally, his Lordship concluded at p. 195: "Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the LieutenantGovernor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor General in Council.
Their whole operation is, directly and immediately, under and by virtue of this Act XXII of 1869 itself.
The proper Legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things.
The conditions having been fulfilled, the legisla tion is now absolute.
Where plenary powers of legislation exist as to particular subjects, whether in an imperial or in a provinciall Legislature, they may, in their Lordships ' judgment be well exercised, either absolutely or condition ally.
Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrust ed by the Legislature to persons in whom it places confi dence, 115 is no uncommon thing; and, in many circumstances, it may be highly convenient.
" If the reasonings underlying the observations of the ' Bombay High Court were correct then on those very reasonings it could be held in Burah 's case(1) that while in enacting sections 1 to 8 the Legislature had applied its mind and laid down its policy as to the exclusion of the Garo Hills from the jurisdiction of the Courts the Legislature did not apply its mind and did not lay down any policy as to the exclusion of the Khasi and Jaintia Hills rom the jurisdic tion of the Courts but had left it to the Lieutenant Gover nor to do what it alone could do.
This construction quite clearly did not find favour with the Privy Council.
The Privy Council by construction spelt out of the very language section 9 that the Legislature itself had decided that it was fit and proper that the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing Courts and brought under the same provisions as applied to the Garo Hills, not necessarily and at all events but if and when the LieutenantGovernor should think it desirable to do so and accordingly entrusted a discretionary power to the Lieutenant Governor.
Adopting the same method of construc tion and adopting the language of Lord Selborne it may well be said that in enacting section 3 the Legislature itself has determined, in the due and ordinary course of legisla tion, to establish an additional Court of civil jurisdiction with jurisdiction to entertain suits and other proceedings arising within the Greater Bombay of the value up to Rs. 10,000 leaving it, by section 1 (2), to the Provincial Government to say at what time that change should take place.
Likewise, it may be said that in enacting section 4 the Legislature itself has decided that it is fit, and proper to extend the pecuniary jurisdiction of the new Court, not necessarily and at all events or all at once but if and when the Provincial Government should think it de sirable to do so and accordingly entrusted a discretionary power to the Provincial Government.
It is entirely wrong to say that the (1) L.R. 5 I.A. 178.
116 Legislature has not applied its mind or laid down any poli cy.
Indeed, the very fact that the extension of pecuniary jurisdiction should not exceed twenty five thousand rupees, that the extension should be subject to the exceptions specified in section 3 clearly indicate that the Legislature itself has decided that the extension of the pecuniary jurisdiction of the new Court should be made, not necessarily or at all events or all at any one time but when the Provincial Government may consider.
it desirable to do so and while entrusting a discretionary power with the Provincial Government to determine the time for investing such extended jurisdiction on the new Court, the Legislature itself has also prescribed the limits of such extension.
The efficacy of the Act of extension of jurisdiction is, there fore, not due to any other legislative authority than that of the Legislature itself.
The expression "invest" does not appear to me to have any special significance.
It only implies or indicates the result of the fulfilment of the condition which the Legislature itself laid down.
To use the language of Lord Selborne the extension of jurisdiction is directly and immediately under and by virtue of this very Act itself.
Here there is no effacement of the Legislature, no abdication of the legislative power.
On the contrary, the proper Legislature has exercised its judgment as to the possible necessity for the extension of the pecuniary juris diction of the new Court and the result of that judgment has been to legislate conditionally as to such extension and that the condition having been fulfilled by the issue of the notification by the Provincial Government the legislation has now become absolute.
In my judgment the construction put upon sections 3 and 4 by the High Court was erroneous and cannot be supported either on principle or on authority.
When properly construed in the light of the observations and decision of the Privy CounCil in R.v. Burah(1) as indi cated above section 4 does not amount to a delegation of legislative power at all but constitutes what is known as conditional legislation.
(1) L.R. 5 I.A 178.
117 Reliance was placed by the High Court on the decision of the Federal Court of India in Jatindra Nath Gupta vs Prov ince of Bihar (1) in support of their conclusions.
That case was concerned with the question of the validity of the proviso to section 1 (3)of the Bihar Maintenance of Public Order Act (V of 1947).
Section 1 (a) provided that the Act should remain in force for a period of one year from the date of its commencement.
The relevant part of the proviso was in the following terms: "Provided that the Provincial Government may, by notifi cation, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification.
" Three of the learned Judges held that the proviso and the notification thereunder were ultra vires and void They laid particular emphasis on the power given to the Provin cial Government to make any modification in the Act when extending its life as indicating that it was a delegation of legislative power.
Another learned Judge did not decide this point but agreed to set aside the order of detention on another ground not material for our present purpose and the remaining learned Judge took a different view of the effect of the proviso and held that it was a conditional legisla tion within the meaning of the decision in R., vs Burah(2).
I do not find it necessary, for the purposes of the present appeal, to express any view as to the correctness of the decision of the Federal Court in that case.
Assuming, but without deciding, that the entrustment with the Provincial Government of the power to extend the life of an Act with such modifications as the Provincial Government in its unfettered discretion thought fit to make was nothing but a delegation of legislative powers, there is no such power of modification given to the Provincial Government by section 4 of the Bombay City Civil Court (1) A.I.R. 1949 F.C. 175, (.2) L.R. 5 I.A. 178.
and, therefore, that decision of the Federal Court can have no application to the case before us.
The learned Attorney General wants to go further and contend that under the Government of India Act, 1935, it was permissible for the Legislatures, Central or Provincial, while acting within their respective legislative fields, to delegate their legislative powers.
In the view I have ex pressed above, namely, that section 4 of the Bombay City Civil Court Act, 1948, does not involve any delegation of legislative power, I do not consider it necessary, on this occasion, to go into that question and I reserve my right to consider and decide that question including the question of the correctness of the decision of the Federal Court in Jatindra Nath Gupta 's case(1) on that point as and when occasion may arise in future.
Learned counsel for the first respondent then raises before us the larger question as to whether the Bombay City Civil Court Act, 1948, as a whole was or was not within the legislative competence of the Provincial Legislature of Bombay.
Legislative powers were by section 100 of the Gov ernment of India Act, 1935, distributed amongst the Federal and the Provincial Legislatures.
Under that section the Federal Legislature had, and the Provincial Legislature had not, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to that Act.
Likewise, the Provincial Legislature had, and the Federal Legislature had not, power to make laws the Province with respect to my of the matters enumerated in List II in that Schedule.
It will be noticed that 'the section, while af firmatively giving legislative power with respect to certain matters to one Legislature, expressly excluded the legisla tive power of the other Legislature with respect to those matters.
Lastly, section 100 gave concurrent power of legis lation to the Federal as well as to the Provincial Legisla ture with respect to matters enumerated in List III in that Schedule.
Section 107 of that Act made provision for resolv ing the inconsistency, if any, between a Provincial law and a Federal law or the existing Indian (1) A.I.R. 1949 F.C. 175 119 law with respect to any of the matters in the Concurrent List (i.e., List III).
Turning now to the three lists we find several entries relating to Courts, the relevant por tions of which are as follows : List I. Entry 53: Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list .
List II.
Entry 1: . . the administration of justice, constitution and organisation of all Courts, except the Federal Court, and fees taken therein; .
Entry 2: Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list; procedure in Rent and Revenue Courts.
List III.
PART 1.
Entry 2: Criminal Procedure, including all matters included in the Code of the Criminal Procedure at the date of the passing of this Act.
Entry 4: Civil Procedure, including the law of Limita tion and all matters included in the Code of Civil Procedure at the date of the passing of this Entry 15: Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list.
Learned Attorney General urges that entry 1 in List II clearly indicates that administration of justice had been expressly made a provincial subject and that it was only the Provincial Legislature which could make laws with respect to administration of justice.
The next steps in the argument are that there could be no administration of justice unless Courts were constituted and organised, that the constitution and organisation of Courts would be meaningless enterprises for the Provincial Legislatures to indulge in, unless the Courts so constituted and organised were 120 vitalised by being invested with jurisdiction and powers to receive, try and determine suits and other proceedings.
The argument, therefore, is that entry 1 in List II by itself gave power to the Provincial Legislature not only to consti tute and organise Courts but also to confer jurisdiction and powers on them.
The learned Attorney General relies on Jagtiani 's case(1) and points out that under entry 1 admin istration of justice was entirely a provincial responsibili ty and the Provincial Legislature was authorised to make laws with respect to administration of justice.
Administra tion of justice, so the argument ' proceeds, is inseparable from Courts and Courts without jurisdiction is an incompre hensible notion.
The conclusion sought to be established.
therefore, is that under entry 1 alone of List II the Provincial Legislature had power to make a law not merely constituting a new Court but, investing such new Court with general jurisdiction and powers to receive, try and deter mine all suits and other proceedings.
If entry 1 in List II stood alone and entry 53 in List I, entry 2 in List II and entry 15 in List HI were not in the Seventh Schedule, the argument would have been unanswerable.
In Section 92 of the British North America Act, 1867, there was no separate provision authorising the making of laws with respect to jurisdiction and powers of Courts and, therefore, the au thority to make laws with respect to the jurisdiction and powers of Courts had of necessity to be found in and spelt out of the words ' 'administration of justice" occurring in section 92 (14) of that Act.
There is, however, no such pressing or compelling necessity for giving such wide and all embracing meaning to the words "administration of jus tice" in entry 1 of List 11.
The expression "administration of justice" may be an expression of wide import and may ordinarily, and in the absence of anything indicating any contrary intention, cover and include within its ambit several things as component parts of it, namely, the consti tution and organisation of Courts, jurisdiction and powers of the Courts and the laws to be administered by the Courts.
But the legislative (1) 51 Bom.
L.B. 86.
121 practice in England as well as in India has been to deal With these topics separately in legislative enactments: see for example Indian High Courts Act 1861.
(24 and 25 Vic., c. 104) sections 2 and 19; Government of India Act, 1935, sections 220 and 223, the Letters i Patent of the Bombay High Court, 1865, and also the different Civil Courts Acts.
Of these, one topic, namely, "constitution and organisa tion of Courts" had been expressly included in entry 1 of List II in addition to "administration of justice", a fact of some significance which must be noted although I do not say that the inclusion of the words "constitution and organ isation of all Courts" in entry 1 of List II by itself and in the absence of anything else cut down the generality of the meaning of the expression "administration of justice" which preceded those words, for such a construction may militate against the principle laid down by the Privy Coun cil in Meghraj vs Allah Rakhia(1).
Further, entry 2 in List II would have been wholly unnecessary if the expression "administration of justice" in entry 1 in List II were to be given the wide meaning contended for by the learned Attor neyGeneral, for if under entry 1 ' in List II the Provincial Legislature had plenary powers to make laws conferring on, or taking away from, Courts, existing or newly constituted, 0jurisdiction and powers of the widest description, such power would also include the lesser power of conferring jurisdiction and powers with respect to any of the matters enumerated in List II, such as is contemplated by entry 2 in List II.
The greater power would certainly have included the lesser.
I do not say that the presence of entry 2 in List II by itself cut down the ambit of the expression "administration of justice" in entry 1, for if there were only entries 1 and 2 in List II and there were no entries like entry 53 in List I and entry 15 in List III, it might have been argued with some plausibility that in framing the two entries in the same list not much care was bestowed by the draftsman to prevent overlapping and that as (1) L.R. 74 I.A. 12, at p.20 16 16 122 both the entries in one and the same list gave legislative power to the same Legislature the overlapping caused no confusion or inconvenience and that it was not necessary, therefore, to construe entry 1 of List II as cut down by entry 2 in the same List.
The important thing to notice is that the topic of "jUrisdiction and powers of Courts" had not been included in entry 1 in List II along with the topic of "constitUtion and organization of Courts", but the legislative powers with respect to the topic of "jurisdic tion and powers of the Courts" had been distributed between the Federal and the Provincial Legislatures in the manner set forth in entry 53 in List I, entry 2 in List II and entry 15 in List III.
The inclusion of "constitution and organisation of Courts" as a separate item in entry 1 in List II, the omission of the topic of "jurisdiction and powers of Courts" from entry 1 and the deliberate distribu tion of powers to make laws with respect to jurisdiction and powers of Courts with respect to the several matters speci fied in the three lists clearly indicate to my mind that the intention of Parliament was not, by entry 1 in List II by itself, to authorise the Provincial Legislature to make any law with respect to the jurisdiction and powers of Courts.
In my judgment, entry 1 in List II cannot be read as at all giving any power to the Provincial Legislature to confer any jurisdiction or power on any Court it might constitute or organise under that entry and that the expressions "admin istration of justice" and "constitution and organisation of Courts" occurring in entry 1 in List II should be read as exclusive of "the jurisdiction and powers of Courts" the powers of legislation with respect to which were distributed under entry 53 in List I, entry 2 in List II and entry 15 in List III.
Such a construction will be consonant with the principle of construction laid down by, the Privy Council in the case of In re Marriage Legislation in Canada(1).
It is next said that entry 1 in List II gave general powers to the Provincial Legislature to make laws (1) 123 conferring general jurisdiction and powers on Courts consti tuted by it under that entry while entry 53 in List I, entry 2 in List II and entry 15 in List III conferred special powers on the Federal and Provincial Legislatures to make laws conferring special jurisdiction and powers with respect to matters specified in their respective Lists.
As I have already pointed out, if entry 1 in List II conferred plenary powers on the Provincial Legislature to make laws with respect to jurisdiction and powers of Courts in widest terms, entry 2 in List II would be wholly redundant, for the wider power itself would include the lesser power.
Further,the very concession that entry 53 in List 1, entry 2 in List II and entry 15 in List III gave special powers to the Legislature to confer special jurisdiction and powers necessarily amounts to an admission that the powers conferred on the Provincial Legislature by entry 1 in List II were exclusive of the powers conferred under entry 53 in List I, entry 2 in List II and entry 15 in List III, for if entry 1 in List II gave power to the Provincial Legislature to make laws conferring general jurisdiction of the widest kind which included jurisdiction and powers with respect to all matters specified in all the Lists, then the utility of entry 53 in List I, entry 2 in List II and entry 15 in List III as giving special powers to make laws conferring special jurisdiction would vanish altogether.
Special power to confer special jurisdiction would be meaningless if it were included in the general power also.
This circumstance by itself should be sufficient to induce the Court to assign a limited scope and ambit to the power conferred on the Pro vincial Legislature under entry 1 in List II.
We, there fore, come back to the same conclusion that entry 1 in List II should be construed and read as conferring on the Provin cial Legislature all powers with respect to administration of justice and constitution and organisation of Courts minus the power to make laws with respect to the jurisdiction and powers of Courts.
It is pointed out that under entry 1 in List II it was only the Provincial Legislature which alone could 124 constitute and organise a new Court and if that entry did not empower the Provincial Legislature to vest in such new Court the general jurisdiction and power to re ceive, try and dispose of all kinds of suits and other proceedings, then no new Court of general jurisdiction could be established at all.
As will be seen hereafter, the Provincial Legislature has, under entry 2 in List II, power to make laws conferring wide general jurisdiction and powers on a newly constituted Court and consequently a forced construction need not be placed on entry 1 in List II.
It is said that if the Provincial Legislature could not, under entry 1 in List II, confer jurisdiction on a new Court set up by under that entry, the result would have been that the Provincial Legislature would have had to set up a new Court by one law made under entry 1 of List II without conferring on it any jurisdiction whatever and would have had to make another law with respect to ' the jurisdic tion and powers of such Court.
I see no force in this, for the Provincial Legislature could by one and the same law have set up a Court under entry 1 in List II and vested in the Court jurisdiction and powers with respect to any of the matters specified in List II and, subject to section 107 of the Act, with respect to any of the matters enumerated in List III.
It is wrong to assume that the Provincial Legisla ture could not make one law under both entry 1 and entry 2 in List II and entry 15 in List III at one and the same time.
A good deal of argument was advanced before us as to the applicability of the doctrine of pith and substance and, indeed, the decision of the Bombay High Court in Jagtiani 's case was practically rounded on that doctrine.
Shortly put, the argument, as advanced, is that under entry 1 in List II the Provincial Legislature had power to make laws with respect to administration of justice; that, therefore, the Provincial Legislature had power, under entry 1 itself, to make laws conferring general jurisdiction and powers on Courts constituted and organised by it under that entry; that if in making such law 125 the Provincial Legislature incidentally enroached upon the legislative field assigned to the Federal Legislature under entry 58 in List I with respect to the jurisdiction and powers of Court with respect to any of the matters specified in List I, such incidental encrochment did not invalidate the law, as in pith and substance it was a law within the legislative powers.
In my judgment, this argu ment really begs the question.
The doctrine of pith and substance postulates, for its application, that the impugned law is substantially within the legislative competence of the particular Legislature that made it, but only inciden tally encroached upon the legislative field of another Legislature.
The doctrine saves this incidental en croachment if only the law is in pith and substance within the legislative field of the particular Legislature which made it.
Therefore, if the Provincial Legislature under entry 1 had power to vest general jurisdiction on a newly constituted Court, then if the law made by it incidentally gave jurisdiction to the Court with respect to matters specified in List I the question of the applicability of the doctrine of pith and substance might have arisen.
I have already pointed out that, on a proper construction, entry 1 of List II did not empower the Provincial Legislature to confer any jurisdiction or power on the Court and the ex pression "administration of justice" had to be read as covering matters relating to administration of justice other than jurisdiction and powers of Court and, if that were so, the discussion of the doctrine of pith and substance does not arise at all.
I find it difficult to support the rea sonings adopted by the Bombay High Court in Jagtiani 's case.
The argument as to the applicability of the doctrine of pith and substance to the impugned Act can, however, be well maintained in the following modified form: Under entry 2 in List II the Provincial Legislature had power to make laws with respect to the jurisdiction and powers of Courts with respect to any of the matters enumerated in List II; that "administration of justice" in entry 1 is one of the matters in 126 List II; that, therefore, the Provincial Legislature had power to confer the widest general jurisdiction on any new Court or take away the entire jurisdiction from any existing Court and there being this power, the doctrine of pith and substance applies.
It is suggested that this argument cannot be formulated in view of the language used in entry 2 in List II.
It is pointed out that entry 2 treats "any of the matters in this List" as subject matter "with respect to" which, i.e., "over" which the Court may be authorised to exercise jurisdiction and power.
This construction of entry 2 is obviously fallacious, because jurisdiction and powers of the Court "over" administration of justice as a subject matter is meaningless and entry 2 can never be read with entry 1.
This circumstance alone shows that the words ' 'with respect to" occurring in entry 2 in List 11 when applied to entry 1 did not mean "over" but really meant "relating to" or "touching" or "concerning" or "for" admin istration of justice, and so read and understood, entry 2, read with entry 1 in List 11, clearly authorised the Provin cial Legislature to make a law conferring on or taking away from a Court general jurisdiction and powers relating to or touching or concerning or for administration of justice.
This line of reasoning has been so very fully and lucidly dealt with by my brother Sastri J. that I have nothing to add thereto and I respectfully adopt his reasonings and conclusion on the point.
This argument, in my opinion, resolves all difficulties by vesting power in the Provincial Legislature to confer general jurisdiction on Courts consti tuted and organised by it for effective administration of justice which was made its special responsibility.
Any argument as to deliberate encroachment that might have been rounded on the Proviso to section 3 of the Act which ena bled the Provincial Government to give to the City Court even Admiralty jurisdiction which was a matter in List I has been set at rest by the amendment of the Proviso by Bombay Act XXVI of 1950.
The impugned Bombay Act may, in my judg ment, be well supported as a law made by the Provincial Legislature under 127 entry 2 read with entry 1 in List II and I hold accordingly.
I, therefore, concur in the order that this appeal be al lowed.
In the view I have taken, it is not necessary to discuss the contention of the learned Attorney General that the Bombay City Civil Court Act may be supported as a piece of legislation made by the Provincial Legislature of Bombay under entry 4 read with entry 15 in Part I of List III and I express no opinion on that point.
Appeal allowed.
| The Bombay City Civil Court Act of 1948, an Act passed by the Provincial Legislature of Bombay, provided by section 3 that the Provincial Government may, by notification in the official Gazette, establish for the Greater Bombay a court to be called the Bombay City Civil Court, and that this court shall, notwithstanding anything contained in any law, have jurisdiction to receive, try ' and dispose of all suits and other proceedings of a civil nature nob exceeding Rs. 10,000 in value arising within Greater Bombay except certain kinds of suits which were specified in the section.
Section 4 of the Act provided that subject to the exceptions speci fied in 8. 3 the Provincial Government may, by notification in the official Gazette, invest the City Civil Court with jurisdiction to 52 receive, try and dispose of all suits and other proceedings of civil nature arising within the Greater Bombay and of such value not exceeding Rs. 25,000 as may be specified in the notification.
Section 12 barred the jurisdiction of the Bombay High Court to try suits and proceedings cognizable by the City Civil Court.
In exercise of the powers conferred by section 4 the Provincial Government invested the City Civil Court with jurisdiction to receive, try and dispose of all suits and proceedings of a civil nature not exceeding Rs. 25,000 in value.
The first respondent instituted a suit in the High Court of Bombay for recovery of Rs. 11,704 on the basis of a promissory note, contending that the Provincial Legislature had no power to make laws with respect to juris diction of courts in regard to suits on promissory notes which was a matter covered by item 53 of List I, and the Bombay City Civil Court Act of 1948 was therefore ultra vires.
It was further contended on his behalf that in any event section 4 of the Act was invalid as it involved a delega tion of legislative powers to the Provincial Government and that the suit was therefore cognisable by the High Court.
Held by the Full Court. (i) that the impugned Act was a law with respect to a matter enumerated in List II and was not ultra vires; (ii)that, as the legislature had exercised its judgment and determined that the City Civil Court should be invested with pecuniary jurisdiction up to Rs. 9,5,000 and all that was left to the discretion of the Provincial Government was the determination of the conditions under which the court should be invested with the enhanced juris diction, section 4 did not involve any delegation of legislative powers but was only an instance of conditional legislation and was not ultra vires or invalid on this ground; (iii) inasmuch as the impugned Act was in pith and substance a law with respect to a matter covered by List II, the fact that it incidentally affected suits relating to promissory notes (a subject falling within items 28 and 53 of List I) would not affect its validity and the suit was accordingly not cognisable by the High.
Court.
Per FAZL ALI, MEHR CHAND MAHAJAN and MUKHERJEA JJ.
The power of the Provincial Legislature to make laws with re spect to "administration of justice" and "constitution and organisation of all courts" under item 1 of List II is wide enough to include the power to make laws with regard to the jurisdiction of courts established by the Provincial Legis lature; the object of item 53 of List I, item 9, of List II and item 15 of List III is to confer special powers on the Central and the Provincial Legislatures to make laws relat ing to the jurisdiction of courts with respect the particu lar matters that are referred to in Lists I and II respec tively and the Concurrent List, and these provisions do not in any way curtail the power of Provincial Legislature under Item I of List II to make laws with regard to juris diction of courts and to confer jurisdiction on courts established by it to try all causes of a civil nature sub ject to the power of the Central and 53 Provincial Legislatures to make special provisions relating to particular subjects referred to in the Lists.
Per PATANJALI SASTRI and DAS JJ.
The words" adminis tration of justice" and "constitution and organisation of all courts" in item 1 of List II must be understood in a restricted sense excluding from their scope "jurisdiction and powers of courts" as the latter subject is specifically dealt with in item 2 List II.
Item 1 of List II does not therefore by itself authorise legislation with respect to jurisdiction and powers of courts, and the legisltive power under item 9.
in regard to "jurisdiction 'and powers of courts ", which can legitimately be exercised with respect to any of the matters in List II, can be exercised with respect to administration of justice as this is one of the matters enumerated in that List, with the result that the subject of general jurisdiction of courts is brought within the authorised area of provincial legislation; and as the Provincial Legislature is thus competant to make a law with respect to the general jurisdiction of the court, the apparent conflict with the central legislative power under item 53 of List I can be resolved by invoking the doctrine of pith and substance and incidental encroachment.
[The legislative practice which prevailed in India before 1935 was relied on in this case in support of the view that the Provincial Legislatures had power under the constitution of 1935 to invest courts constituted by them with general pecuniary jurisdiction].
Quaere: Whether it was not open to the Legislatures of India under the Government of India Act of 1935 to delegate their legislative powers to other agencies.
Queen vs Burah (59.
A 178).applied.
Jatindra Nath Gupta vs Province of Bihar distinguished.
Mulchand Kundanmmal Jagtiani vs Raman (51 Born.
L.R. 86 :, United Provinces vs Atiqa Begum Prafulla Kumar Mukherjea and Others vs Bank of Commerce, Khulna referred
|
Appeal No. 59 of 1950.
Appeal from a Judgment of the High Court of Judicature at Calcutta (Harries C.J. and Chatterjea J.) dated 9th September, 1949, in a reference under section 66 (2) of the Indian Income tax Act, 1922.
(Reference No. 8 of 1949).
M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the appellant.
section Mitra (B. Banerjee, with him) for the respondents.
December 21.
The Judgment of the Court was deliv ered by KANIA C.J.
This is an appeal from the judgment of the High Court at Calcutta (Harries C.J. and Chatterjea J.) pronounced on a reference made to it by the Income tax Tribunal under section 66 (2) of the Indian Income tax Act.
The relevant facts are these.
The respondents are a private limited company which was brought into existence to float various companies including cotton mills.
In November, 1932, the Basanti Cotton Mills Ltd. was incorporated and the respondents were appointed their managing agents.
Their remuneration was fixed at a month ly allowance of Rs. 500 and a commission of 3 per cent.
on all gross sales of goods manufactured by the Mills Company.
The fixed monthly allowance was liable to be increased in the event of the capital of the company being increased.
The details are immaterial.
It ap pears that certain hundis were drawn by one of the direc tors of the respondent company, acting in the capacity of the managing agents of the Mill Company, in the name of the Mill Company and the same were negotiated to others.
The Nath Bank Ltd. claimed payment of these hundis.
The Mill Company repudiated its liability as it appeared from the books of the Mill Company that they had not the use of the sum of Rs. 1 80,000 claimed by the Nath Bank Ltd. under the hundis.
The Nath Bank Ltd. instituted four suits 1011 against the Mill Company, in two of which the respondent company were party defendants.
The Mill Company was advised to settle the suits and the respondent company entered into an agreement with the Mill Company, the material part of the terms of which runs as follows : "Memorandum of Agreement made between the Calcutta Agency Limited of the one part and Basanti Cotton Mills Ltd. of the other part.
WHEREAS the Nath Bank Limited demanded from the Mills the payment of the sum of Rs. 1,80,000 and interest thereon AND WHEREAS the said Mills repudiated their liability in respect thereof as it appeared from the books of the said Mills that the said Mills did not have the use of the said sum of Rs. 1,80000 or any part thereof AND WHEREAS the said Nath Bank Ltd. thereupon instituted four suits in High Court being suit Nos.
1683, 1720, 1735 and 1757 of 1939 for the said aggregate sum of Rs. 1,80,000 and the interest thereon AND WHEREAS the said Mills have been advised to settle the said suits amicably AND WHEREAS the Calcutta Agency Limited by its Directors, S.N. Mitter or S.C. Mitter, having been and being still the Managing Agents of the said Mills have undertaken to reimburse the said Mills in respect of the decrees to be made in the said four suits in the manner hereinafter appearing NOW THESE PRESENTS WITNESS AND IT IS HEREBY AGREED AND DECLARED (i) That out of the commission of 3% payable by the said Mills to the said Agency under Regulation 131 of the Arti cles of Association of the Company, the Company shall have paramount lien on and deduct and set off a moiety thereof against any payment which the said Mills may make in respect of the decrees or any of them and/or costs of the said suits.
(ii) The said moiety shall be one half of the commis sion so payable less such sum as the Directors of the Mills may from time to time allow to be deducted.
" Under the said agreement, the respondent company paid to the Mill Company Rs. 22,500made up of 1012 Rs. 18,107 as principal and Rs. 4,393 as interest in the accounting year.
The assessee company claimed this before the Income tax Appellate Tribunal as a deduction permitted under section 10 (2) (xv) of the Indian Income tax Act.
The relevant part of that section runs as follows : "10.
(1) "The tax shall be payable by an assessee under the head 'Profits and gains of business, profession or vocation ' in respect of the profits or gains of any busi ness, profession or vocation carried on by him ' (2) Such profits or gains shall be computed after making the following allowances, namely : (xv) any expenditure (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of such business, profession or vocation.
In the statement of the case submitted by the Tribunal after reciting the fact of the incorporation of the company and the terms of the compromise mentioned above, the argu ments urged on behalf of the assessee company have been recapitulated.
The first argument was that under the first proviso to section 7 of the Indian Income tax Act, this payment was liable to be exempted.
The Tribunal rejected that argument.
On the reference, the High Court also reject ed the same and it was not presented before us.
The next argument of the respondents was that in respect of Rs. 22,500 it was entitled to exemption under section 10(2) (xv) of the Income tax Act on the ground that the payment was an expenditure which was not in the nature of a capital expend iture or personal expenses of the applicant company but was an expenditure laid out wholly and exclusively for the purpose of its business.
They urged that if the applicant company did not agree to pay this amount, Basanti Cotton Mills Ltd. could have brought a suit against the company to realise this amount due on the hundis which would 1013 have exposed the applicant company to the public and in order to save themselves from the scandal and maintain the managing agency they agreed to 'the deduction of of certain amounts from the managing agency commission due to it and thereby brought it within the principles of the decision of Mitchell vs
B.W. Noble Ltd.(1) The Tribunal found as facts: (1) 'I?hat the applicant company agreed to pay off the decretal amount from the remuneration which they are enti tled to get from the Basanti Cotton Mills.
(2) The decree was passed against the applicant company evidently for certain misfeasance committed by its directors and the applicant company agreed to pay it off from its remunera tion.
(3) The books of account of Basanti Cotton Mills Ltd. would show that they were paying the applicant company in full its remuneration and the books of the applicant company also show that it was entitled to its remuneration in full.
(4) In the circumstances the Tribunal held that the expendi ture was not laid out wholly and exclusively for the purpose of carrying on the business.
(5) Besides, the Tribunal was of the opinion that in this case it was not a revenue ex penditure at all.
As the payment had to be made towards liquidation of the decretal amount the Tribunal held, in the circumstances of this case, that it was a capital payment.
On behalf of the respondent it was argued in the further alternative that the Privy Council decision in Raja Bijoy Singh Dudhuria 's case(2) would cover the present case.
That contention was rejected by the Tribunal.
This statement of the case prepared by the Incometax Tribunal and submitted to the High Court for its opinion was perused by the parties and they had no suggestions to make in respect of the same.
The statement of the case was thus settled with the knowledge and approval of the parties.
When the matter came before the High Court, Mr. Mitra, who argued the case for the present respondents, as shown by the judgment of the High Court, urged as follows: " If the applicant company had not agreed to pay the amount mentioned ; 1014 in the aforesaid agreement, then the Basanti Cotton Mills Ltd. would have sued the company for the realisation of the amounts due on the hundis and it seems that there would have been no defence to the action.
This would have subjected the applicant company to the danger of public exposure and in order to save itself from the scandal and in order to main tain the managing agency, the applicant company agreed to deduct certain amounts from the managing agency commission and therefore such expenditure came within section 10(2)(xv) of the Act." The High Court thereafter noticed several cases including Mitchell 's case(1) and towards the close of the judgment delivered by Chatterjea J. observed as follows: "In this case it is clear that the agreement was entered into with a view to avoid the publicity of an action against the managing agents and consequent exposure and scandal andin order to maintain the managing agency so that the company could carry on its business as before.
The payment in question did not bring in any new assets into existence nor in my opinion can it properly be said that it brought into existence an advantage for the enduring benefit of the company 's trade.
The Appellate Tribunal observed that the decree was evidently passed against the appellant compa ny forcertain misfeasance by its directors and the appellant company agreed to pay it off from its remuneration .
The object of the agreement was to enable the company to remove a defect in carrying on the business of the company and to earn profits in its business.
Therefore this case is covered by the judgment of the Court of Appeal in Mitchell ' scase(1) . "Applying this line of reasoning the High Court differed from the conclusion of the Tribunal and allowed the deduction to the respondent company under sec tion 10(2) (xv) of the Income tax Act, as claimed by the respondents.
The Commissioner of Income tax, West Bengal, has come in appeal to us.
Now it is clear that this being a claim for exemption of an amount, contended to be an expenditure falling under section 10(2)(xv), the burden of proving the (1) ; 1015 necessary facts in that connection was on the assessee, it being common ground that the commission was due and had become payable and was therefore the business income of the assessee company liable to be taxed in the assessment year.
The jurisdiction of the High Court in the matter of income tax references is an advisory jurisdiction and under the Act the decision of the Tribunal on facts is final, unless it can be successfully assailed on the ground that there was no evidence for the conclusions on facts recorded by the Tribu nal.
It is therefore the duty of the High Court to start by looking at the facts found by the Tribunal and answer the questions of law on that footing.
Any departure from this rule of law will convert the High Court into a fact finding authority, which it is not under the advisory jurisdiction.
The statement of the case under the rules framed under the Income tax Act is prepared with the knowledge of the parties concerned and they have a full opportunity to apply for any addition or deletion from that statement of the case.
If they approved of that statement that is the agreed statement of facts by the parties on which the High Court has to pronounce its judgment.
In the present case the parties perused the statement of case and as disclosed by the note made at the end of it had no suggestions to make in respect thereof.
It is therefore clear that it was the duty of the High Court to start with that statement of the case as the final statement of facts.
Surprisingly, we find that the High Court, in its judgment, has taken the argument of Mr. Mitra as if they were facts and have based their conclusion solely on that argument.
Nowhere in the statement of the case prepared by the Tribunal and filed in the High Court, the Tribunal had come to the conclusion that the payment was made by the assessee company to avoid any danger of public exposure or to save itself from scandal or in order to maintain the managing agency of the appellant company.
The whole conclusion of the High Court is based on this unwar ranted assumption of facts which are taken only from the argument of counsel for the present respondents before 1016 the High Court.
The danger of failing to recognise that the jurisdiction of the High Court in these matters is only advisory and the conclusions of the Tribunal on facts are the conclusions on which the High Court is to exercise such advisory jurisdiction is illustrated by this case.
It seems that unfortunately counsel for the respondents caught hold of Mitchell 's case(1) and basing his argument on the circum stances under which a payment could be described as a busi ness expenditure falling within the terms of section 10 (2) (xv), argued that the facts in the present case were the same.
Instead of first ascertaining what were the facts found by the Tribunal in the present case, the process was reversed and the procedure adopted was to take Mitchell 's case(1) as the law and argue that the facts in the present case covered the situation.
1n our opinion this is an entirely wrong approach and should not have been permitted by the High Court.
The High Court fell into a grave error in omitting first to ascertain what were the facts found in the case stated by the Tribunal.
The High Court overlooked that in Mitchell 's case(1) the whole discussion started with a quotation from the case stated by the Commissioners as the facts of the case.
A scrutiny of the record in the present case shows that before the Income tax Officer the assessees claimed only a deduction of the interest of Rs. 5,582 as a permissible deduction under section 10 (2) (iii) of the Income tax Act.
That claim was rejected by the Income tax Officer.
When the matter went to the Assistant Income tax Commissioner it was argued that the Income tax Officer was in error in not allowing the deduction of interest and was also wrong in not allowing the entire sum of Rs. 22,500 as a deduction on the ground that portion of the income (viz., Rs. 22,500) should be treated as not earned or deemed to be earned by the assessees at all, having regard to the decision of the Privy Council in Raja Bijoy Singh Dudhuria 's case(2) The first paragraph of the order of the Appellate Assistant Commis sioner contains the following 1017 statement : " In disallowing this (interest) c]aim the Income tax Officer was following the decision of my prede cessor in his order dated the 18th March 1942 in Appeal No. 1 C 11 of 1941 42.
My predecessor observed: "Nothing is in evidence to show that the managing agency company had sur plus money and such money was invested or that there was any need to borrow.
Thus the need to borrow is not established.
There is no doubt that money was borrowed but unless it can to proved that the borrowing is for the purpose of the business and the loan was used in the business, the interest cannot be allowed under section 10(2)(iii).
" The second objection raised before the Appellate Assist ant Commissioner was in these terms : " That the Income tax Officer should have allowed the said sum of Rs. 22,500 as allowable expenditure being allocation of a sum out of the revenue receipt before it became income in the hands of the assessee.
" The wording of the objection and the argument noticed in the order of the Appellate Assistant Commissioner show that the contention was that this sum should be treated as not having become the income of the assessee at all because it was deducted at the source by the Mill company.
Reliance was placed for this contention on Raja Bijoy Singh Dudhuria 's case(1).
The contention was rejected.
At the third stage, when the assessee urged his contentions before the Income Tax Appellate Tribunal, he thought of urging as an argument that this was a permissible deduction under section 10 (2)(xv) because of the principles laid down in Mitchell 's case(2).
No evidence, it appears, was led before the Income Tax Tribunal, nor has the Tribunal recorded any findings of fact on which the principles laid down in Mitch ell 's case(2) could be applied.
The Tribunal 's conclusions of facts were only as summarized in the earlier part of the judgment.
It is therefore clear that the necessary facts required to be established before the principles laid down in MiZchell 's case( '2) could be applied, have not been found as facts in the present case at any stage of the proceedings and the High Court was in error (1) (2) ; 130 1018 in applying the principles of Mitchell 's case(1) on the assumption of facts which were not proved.
The High Court was carried away, it seems, by the argument of the coun sel and through error accepted the argument as facts.
Indeed, if it had noticed the contention urged before the Income tax Officer it would have seen at once that the argument was in a measure conflicting with that contention which was based on the footing of Rs. 1,80,000 being a loan to the assessee on which it had to pay interest, which was sought to be deducted under section 10 (2) (iii) of the Income tax Act.
In our opinion, therefore, this appeal should be allowed on the simple ground that the facts neces sary to be established by the respondents to support their claim for exemption under section 10(2)(xv)of the Indian Income tax Act have not been established at any stage of the proceedings and therefore they are not entitled to the deduction claimed.
The appeal is therefore allowed with costs here and before the High Court.
| The jurisdiction of the High Court in the matter of mooroetax references is an advisory jurisdiction and under the Incometax Act the decision of the Appellate Tribunal on facts is final unless it can be successfully assailed on the ground that thoro was 1009 no evidence for the conclusions on facts recorded by the Tribunal.
It is therefore the duty of the High Court to start by looking at the facts found by the Tribunal and answer the questions of law on that footing.
It is not proper to depart from this rule of law as it will convert the High Court into a fact finding authority, which it is not, under the advisory jurisdiction.
As the statement of tile Case prepared by the Appellate Tribunal in accodance with the rules framed under the In come tax Act is prepared with the knowledge of the parties concerned and they have full opportunity to apply for any addition or deletion from that statement, if they have approved of the statement made by the Tribunal, it is the agreed statement of facts by the parties on which the High Court has to pronounce its judgment. ' The High Court would be acting improperly if it takes the arguments one of the counsel for the assessee as if they were facts and bases its conclusion on those arguments.
One of the directors of the assessee company, acting in the capaci ty of managing agents of certain ,Mills, had drawn some hundis in the name of the Mills, and as the Mills repudiated liability, suits were filed on the hundis against the Mills and the assessees.
The assessees thereupon agreed to reim burse the Mills by permitting the latter.
to deduct a moiety of the commission payable to them under the agreement of managing agency, against payments which the Mills may have to make under the decrees.
In their assessment to income tax the assessees claimed that the amounts so deducted should be excluded from their assessable income as business expendi ture under section 10 (2,) (xv) of the incometax Act.
The Appel late Tribunal found that the assessees had agreed to pay off the decree amount from the remuneration due to them, that the decree was passed against them evidently for some mis feasance committed by their directors, that the books of both companies showed that the assesssea were paid their remuneration in full, and that the expenditure was not therefore laid out for the purpose of carrying on the busi ness, and also that, as the payment was made for the liqui dation of a debt, it was not a revenue expenditure.
In the High Court the assessees ' counsel argued, relying on the case of Mitchell vs B. W. Noble Ltd.(1), that the payments were matie by the assessees to avoid the publicity of an action against them and the consequent exposure and less of reputation as a managing agency company, and as such the payments were deductible as business expenditure.
The High Court accepted this argument and reversed the decision of the Tribunel.
Held, that the High Court acted wrongly in accepting the arguments of the assessees ' counsel as if they were proved facts and basing its decision on them; and, as the facts necessary to support the claim for exemption under section 10 (2) (xv) had not been established at any stage of the case, the assessees were not entitlecl to the deduction claimed.
(1) ; 129 1010 Judgment of the Calcutta High Court reversed.
|
No. 71 of 1949.
Appeal from a judgment and decree of the High Court of Judicature at Bombay dated 11th April, 1947, (Sir Leonard Stone C.J. and Chagla J.) in Appeal No. 39 of 1946 reversing the judgment and decree of Bhagwati J., dated 27th March, 1946, in Civil Suit No. 1373 of 1944 of the said High Court in its Original Jurisdiction.
Rang Behari Lal (Rajeswar Nath Nigam, with him) for the appellants.
M.C. Setalvad (Ram Ditta Mal and B. Sen, with hirn) for the respondents.
December 21.
The Court delivered judgment as follows : KANIA C.J. This is an appeal from a judgment of the High Court at Bombay.
Although the record is heavy and many points were argued in the trial court and in the court of appeal at Bombay, the important point argued before us is only one.
The appellants (plaintiffs) are a firm of commission agents in Bombay.
The respondents (defendants) 982 were their constituents.
Accounts between the parties in respect of their dealings were made up and settled up to the 30th of October, 1943.
Piecegoods and yarn continued to be purchased and consigned by the plaintiffs to the defendants joint family firm thereafter.
One bale of piecegoods was purchased and despatched in November, 1943.
In January, 1944, restrictions were imposed against the consignment of piecegoods and/or yarn outside Bombay by rail without.
obtaining the necessary previous permit from the Textile Commissioner at Bombay.
On or about the 8th February, 1944, Mohanlal of the defendants ' joint family firm came to Bombay and the plaintiffs purchased on their behalf 278 bales of piecegoods.
Ninetyfour out of those were despatched accord ing to the defendants ' instructions.
The plaintiffs, accord ing to the defendants ' instructions, applied for and ob tained permit to consign several more bales.
On the permits being issued they were despatched on 14th February, 1944, to destinations given by the defendants.
On the 10th April, 1944, the plaintiffs, after obtaining the necessary permits, despatched more bales as directed by the defendants.
The dispute between the parties relates to the remaining 92 bales which were stored in godown No. 424, Baroda Street, Argyle Road, Bombay, pending the receipt of permit for consigning the same On the 14th April, 1944, there occurred a big explosion in the Bombay harbour which destroyed several immovable proper ties and godowns with moveable property covering a large area near the port.
Fires were caused by the explosion and they also caused considerable destruction of moveable and immoveable properties.
These 92 bales purchased by the plaintiffs on account of the defendants were also destroyed either by the fire or the explosion.
The plaintiffs filed a suit to recover the price of these 9 '2 bales from the de fendants on the ground of the agent 's right to indemnity.
The defendants contended that the plaintiffs were their pucca adatiyas, that the property in the goods did not pass to them and that they were not liable for the price 983 till delivery of the goods was given to them.
In the alter native, in para.
4 of their written statement, they pleaded that when Mohanlal of the defendants ' firm was in Bombay and the plaintiffs stated that the goods could not be railed until permits were obtained, it was agreed between the plaintiffs and the defendants that the defendants were to pay annas four per bale per month to the plaintiffs for insurance charges and the goods were thus to remain insured till despatched according to their instructions.
In para graph 21 of their written statement, they contended that if their plea that the plaintiffs were pucca adatiyas was not accepted.
and the plaintiffs were held to be their commis sion agents, the plaintiffs were guilty of negligence and misconduct in the business of agency, as in spite of specific instructions and agreement they bad failed to insure the goods.
They contended that owing to this negli gence and misconduct the plaintiffs were not entitled to the indemnity claimed.
In the alternative they contended that the plaintiffs were liable to make good the loss caused to the defendants by their failure to insure the said bales.
They contended that they were entitled to set off this loss against the claim for the price.
They also counterclaimed the same amount if their set off was not allowed.
On these pleadings the parties went to a hearing.
Issue to covered the defendants ' plea about the plaintiffs ' negligence and misconduct in not insuring the 92 bales and the counter claim arising therefrom.
Numerous witnesses were called before the trial court and the learned judge after considering their demeanour and hearing their evidence came to the conclusion that the plaintiffs ' witnesses were unreliable, except when they were corroborated by documentary evidence.
He also disbelieved the defendants ' evidence.
He held that the agreement to insure the goods was not proved and passed a decree in favour of the plaintiffs.
On appeal, differing from the view of the trial court, the appeal court held that instruc tions were given by Mohanlal to insure the goods and that 984 the agreement was proved.
In thus differing from the trial court 's decision, they accepted the well recognised princi ple to give full weight to the trial judge 's observations about the witness.
They however found that on the documents the view of the learned trial judge was not correct.
In doing so, they principally relied on statements of account sent by the plaintiffs to the defendants in respect of bales purchased in February, 1944, and despatched by them out of the lot of 278 bales previously and where the plaintiffs had charged the defendants insurance premia at the rates men tioned in the defendants ' written statement.
They rejected the plaintiffs ' explanation, which was accepted by the trial judge, that these entries were foolishly made out of cupidity by the plaintiffs.
After a brief discussion in which this point was halt ingly urged before us, the learned counsel for the plain tiffs did not very properIy dispute this conclusion of the appeal court.
In our opinion, the finding of the appeal court, having regard to the documents, was correct.
That left for decision the important question of damages to which the respondents were entitled.
Before the appel late court in Bombay, it was conceded by the respondents ' counsel that the insurance which was to be effected by the appellants under the agreement was on the usual terms of fire insurance policies prevalent in Bombay.
Clause 7 of that form of policy, inter alia, provided as follows : "Unless otherwise expressly stated in the policy, this insurance does not cover. (h) any loss or damage occasioned by or through or in consequence of explosion but loss or damage by explosion of gas used for illuminating or domestic purposes in a building in which gas is not generated and which does not form part of any gaswork will be deemed to be lost by fire within the meaning of this policy " The appellants urged that granting that they were in default and had committed a breach of duty in not 985 insuring the goods according to the instructions or the agreement, the respondents could not recover anything from them due to damage arising from the explosion, because the policy of fire insurance, if taken out, would not have given to the respondents the money claimed by them.
For this purpose they relied on a statement n Mayne on Damages, (11th Ed.) at page 592, as follows : "Therefore if an agent is ordered to procure a policy of insurance for his principal and neglects to do it, and yet the policy, if procured, would not have entitled the princi pal, in the events which have happened, to recover the loss or damage, the agent may avail himself of that as a complete defence.
" In the present case, after the explosion considerable discussion about the liability of the insurance companies under their policies of fire insurance and the liability of Government for alleged negligence in unloading high explosives from a ship on the docks appears to have taken place.
On the 1st of July, 1944, the Governor General pro mulgated the Bombay Explosion (Compensation) (Ordinance, 1944.
The preamble to that Ordinance runs as follows: " Whereas an emergency has arisen which makes it neces sary to provide for and regulate the payment of compensation for. damage to property due to, or arising out of, the explosions and fires which occurred in the Bombay Docks on the 14th April, 1944, to restrict litigation in connec tion with the said explosions and fires and to make certain other provisions in connection therewith.
" The other relevant provisions may be also noticed at this stage.
Uninsured property was defined to mean property which was not covered whether wholly or partially by any policy of fire, marine or miscellaneous insurance at the time of the explosion.
After providing for the procedure according to which compensation may be claimed and dealt with by the Claims Committee to be set up under the Ordi nance and an appeal and review from their decision, section 14 provided as follows : 986 14.
"Subject to the provisions of this Ordinance, there shall be paid by the Central Government compensation for explosion damage to property being (a) damage caused by fire to property insured whether wholly or partially at the time of the explosion against fire under a policy (other than a policy of marine insur ance) covering fire risk, or damage caused by blast without fire intervening to property insured whether wholly or partially at the time of the explosion under a pollcy (other than a policy of marine insurance) covering fire and explo sion risks, of an amount equal to the proved loss, or (b) damage caused by blast without fire intervening to property insured whether wholly or partially at the time of the explosion against fire under a policy (other than a policy of marine insurance) covering fire risk but not explosion risk, of an amount equal to 871/2 per centum of the proved loss, to the holder of the policy of insurance covering the damaged property, or if he is deceased, to his legal representatives.
Section 15 provided for contribution by the insurers towards the payment of amounts to be paid under the Ordi nance.
Section 18 of the Ordinance runs as follows : 18.
(1) Nothing in this Ordinance shall prevent the recovery of compensation for death or personal injury under the (V/11 of 1923), or under any policy of life insurance or against personal accident or under any other contract or scheme providing for the payment of compensation for death or personal injury, or for damage toproperry under any policy ' of marine or miscel laneous insurance.
(2) Save as provided in sub section (1), no person shall have, or be deemed ever to have had, otherwise than under this Ordinance any right whether in contract or in tort or otherwise to any compensation or damages for any death, personal injury or damage to or loss of any property, rights or interests, due to or in any way arising out of the explo sion; and no suit or other 987.
legal proceedings for any such compensation or damages shall, save as aforesaid, be maintainable in any Court against the Crown or the Trustees of the Port of Bombay or the Municipal Corporation of the City of Bombay or against any servants or agents of the Crown or of the said Trustees or Municipal Corporation or againt any other person whomso ever; and no act or omission which caused or contributed to the explosion shall be deemed to have been done or omitted to be done otherwise than lawfully.
(3) No suit, prosecution or other legal proceeding whatsoever shall lie against any person for anything in good faith done or ordered to be done in combating or mitigating the effects of the explosion, or for anything in good faith done or intended to be done in pursuance of this Ordinance or any rules or orders made thereunder.
" It is common ground that in respect of uninsured merch andise fifty per cent.
compensation was to be paid under the Ordinance.
The appellants have recovered that amount and have now agreed to give credit of the same to the re spondents.
The dispute is in respect of the remaining fifty per cent.
It is not disputed that if the goods had been insured, under section 14 of the Ordinance, full compensa tion would have been recovered by the appellants and become payable to the respondents.
The appellants ' contention is two fold.
Firstly, that if they had insured the goods the ordinary fire insurance policy would not have covered the risk and therefore al though they had committed a breach of the agreement or been negligent in their duty as agents, they were not liable to pay anything more to the respondents.
In the alternative it was argued on their behalf that the intervention of Govern ment in passing this Ordinance could not increase or add to the liability of the appellants for the breach of contract or breach of duty and therefore they were not liable to pay the compensation which would have been receivable by the respondents if the goods had been 988 insured.
The second contention is that the counterclaim of the respondents is barred under section 18 (2) o[ the Ordi nance.
In the Indian Contract Act, sections 211 and 212 provide for the consequences of an agent acting otherwise than according to his duty towards the principal.
Under section 211 when an agent conducts the business of the principal otherwise than according to the directions given by the principal, ii any loss be sustained he must make it good to his principal and if any profit accrues he must account for it.
In Smith vs Lascelles(1), it was held that if an agent was instructed to insure goods and neglected to do so he was liable to the principal for their value in the event of their being lost.
Section 212 of the Indian Con tract Act provides as follows : "An agent is always bound to act with reasonable dili gence and use such skill as he possesses; to make compensa tion to his principal in respect of the direct consequences of is own neglect, want of skill or misconduct, but not in respect of loss or damage which are indirectly or remotely caused by such neglect, want of skill or misconduct.
" These sections make it clear that in case of the agent 's negligence he is liable to make good the damage directly arising from his neglect but not indirectly or remotely caused by such neglect or misconduct.
The question there fore is whether in the present case the claim of the re spondents based on the neglect or misconduct can be stated to be a direct consequence of such neglect or misconduct or is only indirectly or remotely caused by such neglect.
Two positions can be visualized as arising from the appellants ' neglect in this case.
The appellants could be treated either as insurers themselves or can be considered as having agreed to cause the goods insured by a recognised insurance company on the usual fire insurance policy terms.
In Tickel vs Short(2), the Lord Chancellor shortly stated the proposition of law in these terms : " The rule of equity is, that if an order (1) ; (2) 2 Ves.
Sen, 239.
989 is sent by a principal to a factor to make an insurance; and he charges his principal, as i[ it was made; if he never in fact has made that insurance, he is considered as the insur er himself" If therefore, as in the present case, the appel lants were given instructions to insure the goods and they charged the respondents as if they had insured the goods, the law would throw upon them the liability of an insurer as if they stood in the position of insurers, i.e., the Court will then be entitled in equity to proceed on the footing as if an insurance had been effected by the appellants and the goods stood covered under a fire insurance policy.
Whatever consequences follow from that position must be accepted and enforced in a court of equity against the appellants.
Proceeding on that line of reasoning under section 14 of the Ordinance the only thing which is required to be considered is whether the goods were covered by a fire insurance policy.
The terms of the policy are immaterial.
If, therefore, the appellants are considered as having insured the goods and are precluded from saying that the goods were not covered by a fire insurance policy, the loss arising from the fact that the goods were not so covered is a direct consequence of their neglect and they must make it good.
That will make them liable to pay what was claimed by the respondents.
If, however, it is considered that they were not them selves insurers but that they had agreed only to keep the goods insured under a policy of insurance of a recognised insurance company on the usual fire insurance policy terms, the question is whether the damages claimed by the respond ents directly flow from their neglect of duty in not being able to produce such a fire insurance policy.
Our attention has been drawn to an instructive judgment which makes the distinction between direct and remote damages clear.
In In Re An Arbitration between Polemis & another and Furness Withy & Co. Ltd.(1) there is a discussion on this point in the judgment of Banks L.J.
He drew attention to the obser vations of Lord Sumner in Weld Blundell vs 990 Stephens (1), who observed as follows: "What are natural, probable and necessary consequences ? Everything that hap pens, happens in the order of nature and is therefore natu ral.
Nothing that happens by the free choice of a thinking man is necessary except in the sense of pre destination.
To speak of probable consequences is to throw everything upon the jury.
It is tautologous to speak of effective cause or to say that damages too remote from the cause are irrecover able, for an effective cause is simply that which causes, and in law, what is ineffective or too remote is not a cause at all.
I still venture to think that direct cause is the best expression. . .
What a defendant ought to have anticipated as a reasonable man is material when the question is whether or not he was guilty of negligencee that is, of want of due care according to the circumstances; This however goes to capability, not to compensation.
" Banks L.J., after noticing the above observations, stated as follows : " Under these circumstances I consider that it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated.
The appellants ' junior counsel sought to draw a distinction between the anticipation of the extent of damage resulting from a negligent act, and the anticipation of the type of damage resulting from such an act. .
I do not think that the distinction can be admitted.
Given the breach of duty which constitutes the negligence, and given the duty damage as a direct result of that negligence, the anticipations of the person whose negligent act has produced the damage appear to me to be irrelevant," The question of what is remoteness of damages in a case of negligence has been reviewed in detail in a recent deci sion of the House of Lords in Monarch Steamship Co. Ltd. vs Karlshamns Oljefabriker(2).
In that case the question arose in respect of damages due to the late delivery of goods shipped for a port in Sweden, but which ship, owing to its unseaworthiness, was delayed in its voyage and owing to the outbreak of war (1) (2) , 991 under orders of the British Admiralty, was directed not to proceed to the Swedish port but ordered to discharge the cargo at Glasgow.
The assignees of the bills of lading from the shippers had to forward the goods in neutral ships chartered for the purpose to the Swedish port.
A war risks clause in the charterparty exonerated the owners of the vessel in the event of compliance with any orders given by the government of the nation under whose flag the ship sailed, as to destination delivery or otherwise.
The hold ers of the bills of lading claimed the re transport charges from Glasgow to the Swedish port.
It was contended that these damages were too remote.
The House of Lords rejected the contention.
In the speech of Lord Wright most of the relevant authorities have been reviewed and the ratio decidendi has been set out.
In Hadley vs Baxendale (1) Alderson B., giving the judgment of the CoUrt, thought that the proper rule in such a case consisted of two alternatives.
He said: "Where two parties have made a contract which one of them has broken the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it." In the opinion of Lord Wright this in truth gives effect to the broad general rule of the law of damages that a party injured by the other party 's breach of contract "is entitled to such money compensation as will put him in the position in which he would have been but for the breach." This rule was stated by Lord Blackburn in Livingstone vs Rawyards Coal Co. (2) as follows : "Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, (1) ; (2) , 39. 992 or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.
" The 'rule stated by Alderson B. has consistently been accepted as correct;the only difficulty has been in applying it.
The distinction drawn is between damages arising naturally (which means in the normal course of things) and cases where there were special and ex traordinary circumstances beyond the reasonable prevision of the parties.
The dis tinction between these types is usually described in English Law as that between generaland special damages; the latter are such that if they are not communicated it would not be fair or reasonable to hold the defendant responsible for losses which he could not be taken to contemplate as likely to result from his breach of contract.
Viscount Haldane L.C. in The British Westinghouse Electric & Manufacturing Co. Ltd. v, The Underground Electric Railways Co. of London (1), on the question of damages said :In some of the cases there are expressions as to the principles governing the measure of general damages which at first sight seem difficult to harmonize.
The apparent discrepancies are, however, mainly due to the varying nature of the particular questions submitted for decision.
The quantum of damage is a question of fact, and the only guidance the law can give is to lay down general principles which afford at times but scanty assistance.in dealing with particular cases.
The Judges who give guidance to juries in these cases have necessarily to look at their special character, and to mould, for the purposes of different kinds of claim, the expression of the general principles which apply to them and this is apt to give rise to an appearance of ambiguity. .It was necessary to balance loss and gain and no simple solution was possi ble.
" The House of Lords in Liesbosch (Owners) vs Edison (Owners) (2) has stated at page 463 that it is impossible to lay down any universal formula.
The dominant rule of law is the principle of restitutio in integrum and subsidiary rules can only be justified if (1) 689.
(2) ; , 993 they give, effect to that rule.
(The italics are mine).
In Smith, Hogg & Co. Lid.
vs Black Sea & Baltic General Insurance Co. Ltd. (1), the loss of a vessel occurred through the negligence of the master operating on conditions of unseaworthiness existing since the com mencement of the voyage.
The loss was held to be caused by the breach of the warranty of seaworthiness and recoverable accordingly.
There was an exception of negligence.
At page 1005 in the judgment of that case it is stated "no distinction could be drawn between cases where the negligent conduct of the master is a cause and cases where any other cause, such as perils of the sea, is a co operating cause.
A negligent act is as much a co operating cause if it is a cause at all.
, as an act which is not negligent.
" What was then being emphasized was that a voluntary act (negligent or not) of a human agent is not generally an independent or new cause for this purpose which breaks the chain of causation, as it is called, so as to exclude from consideration the causal effect of the unsea worthiness.
In that case it was held that the unseaworthi ness created in the vessel instability which, combined with negligence of the master, caused the loss.
No new law was laid down in that case.
Similarly in The Standard Oil Co. o[ New York vs Clan Line Steamers Ltd. C"), the vessel capsized because the master not being instructed by his owners as to the peculiarities of a turret ship, so handled her that she capsized.
That loss was immediately due to perils of the sea which overwhelmed her when she capsized, liability for which was excepted, but the dominant cause was her unseaworthiness in that her master, though ' otherwise efficient, was inefficient in not being aware of the special danger.
In general, all the authorities are in agreement in this respect and embody the same rule.
TIm shipowner, of course, under the familiar general rule, is debarred by his breach of duty from relying on the specific exception.
Though he would not be liable for the conse quences caused by the specific excepted peril or the acci dent alone if he (1)[1940] A.G. 997.
(2) 994 were not in default, though the unseaworthiness existing at the commencement Of the voyage might not be operative or known until the time when the accident occurs, yet then the breach of the warranty operates directly as a cause and, indeed, a dominant cause.
Causation in law does not depend on remoteness or immediacy in time," These observations meet the appellants ' contention about the Government Ordinance intervening to fix the damages.
They show that such inter vention does not break the chain of causation, nor does it make the loss, i.e., damages, remote.
The statement of law in Mayne on Damages quoted above, only reproduces the prin ciple of law stated by Lord Blackburn in Livingstone vs Rawyards Coat Company(1).
Bearing in mind this state of the law itappears clear that in the present case it was the duty of the appellants to insure the goods, as they had agreed to do.
Once miscon duct is admitted or proved, the fact that the Ordinance did not exist and could not have been in the contemplation of the parties is irrelevant for deciding the question of liability.
The liability was incurred by reason of the breach of their duty and the appellants made themselves liable to pay damages.
The measure of damages was the loss suffered by the respondents on account of the goods not being insured.
The next point to be decided is what differ ence the promulgation of the Ordinance makes in the liabili ty of the appellants.
The relevant provisions are noted above.
The scheme of the Ordinance clearly is, as stated in the preamble, to provide for and regulate the payment of compensation and to prevent litigation, amongst other things.
It is thus a comprehensive legislation which re places the rights of parties either under the policy of insurance against insurance companies, or on the ground of negligence against Government by the owners of the goods, as also claims by insurance companies against Government.
The validity of this legislation is not challenged.
Section 18 gives it a retrospective effect.
Therefore the Ordinance only (1) 995 substitutes a new basis for assessing compensation for the ordinary basis for assessing unliquidated damages.
The compensation under the Ordinance is payable on proof of the existence of a fire insurance policy irrespective of the terms of the policy.
The non recovery of half the amount of the respondents ' claim from the Government under the Ordi nance because of the absence of a fire insurance policy, thus directly arises from the neglect of the appellants to insure the goods, as they had been instructed to do or agreed to do and which in fact they represented that they had done.
In our opinion, these are not indirect or remote damages.
The contention that under the policy of insurance the assured could not have recovered anything for loss caused by the fire due to explosion cannot be accepted.
Firstly, this contention of the assured 's inability to receive any compen sation because of clause 7 of the form of common policy was not raised in the trial court.
No issue was raised in re spect thereof and no arguments in support or against it were heard.
It was suggested for the first time, as appears from the judgment of Chagla J., in the court of appeal.
The assumption that because of clause 7 of the policy no insur ance company would have paid the loss cannot be assumed to be necessarily and unquestionably sound and in view of the terms of the Ordinance not capable of being determined.
There appears no reason under the circumstances to proceed as if an adverse decision on the interpretation of the policy had been given against the respondents and to hold the appellants free from liability for not recovering half the value of the goods which could have been recovered if the goods had been insured (irrespective of the terms on which the policy stood) as agreed to be done by them.
I do not think when the relations between the parties are of a principal and an agent and the agent is found to have com mitted a breach of his duty, it is correct to take a narrow view of the situation.
The agent chose to gamble in not insuring the goods and desired to charge the agreed premia, on the footing that the goods were covered by insurance.
If so, he must take the 996 consequences of his default.
The argument that their li ability as an agent who had agreed to insure should be ascertained as on the date of the explosion is no answer to the claim of the respondents.
The position would be this.
Assuming that the appellants had insured the goods on the terms of the usual fire insurance policy. the respondents could ask them either to assign the policy to the respond ents or to file a suit against the insurance company con tending that the fire, and not the explosion, was the; cause of the loss and was covered by the policy of insurance.
Before the Court could decide the rights of the parties, the Ordinance promulgated by the Governor General prevented the decision of the dispute, but the Government undertook to pay the loss on the footing that the policy covered the risk.
Tile misconduct gave rise to the liability to make good the damage and to put the respondents in the same position in which they would have been if their goods had beeen insured.
On behalf of the appellants it was urged that because of the Government intervention in issuing the Ordinance they were sought to be made liable under a new liability.
Their liability has been and exists on the basis that a fire insurance policy existed, as they were instructed to insure the goods and which they represented they had done.
The liability arises not because of the Ordinance but because of the breach of their duty in failing to insure, which has taken place apart from the Ordinance and which is not af fected by the Ordinance.
The utmost that they could urge is that the extent of their liability arising from their mis conduct was not anticipated by them when they agreed to perform their duty.
That however is no defence in law if the damages directly flow from the breach of duty.
The Ordinance only quantifies the damages instead of leaving the unliqui dated damages to be assessed in the usual way.
The Ordi nance lays down the yardstick for fixing the damages under different circumstances, which cover all alternative situa tions, and the liability for failure to insure must now be measured by the new basis.
It does not create any new li ability.
997 The appellants ' contention on this point therefore must be rejected.
The only other point urged before us was based on the construction of section 18 of the Ordinance.
It was argued on behalf of the appellants that apart from what could be recovered under clause (1) of section 18, the Ordinance extinguished all right, whether in contract or tort or otherwise, to any compensation or damage for loss of an), property due to, or in any way arising out of, the explosion and provided that no suit or other legal proceedings for any such compensation or damages shall, save as aforesaid, be maintainable in any court against the Crown or against any other person whatsoever.
It was urged that in establishing their claim, the respondents must plead the right to recover the amount due to explosion and that was barred under sec tion 18 (2).
In our opinion, this contention is unsound.
The appellants have filcd this suit to recover the price of the goods on the ground of indemnity.
The respondents ' answer is that the appellants are not entitled to the indem nity because they are guilty of a breach of duty in the business of the agency.
They contend that they would be liable to pay for the goods only if the appellants give them the goods or deliver the same according to their instruc tions.
They counterclaim that if the appellants are unable to give them the goods, they must pay them the value there of.
The appellants plead by way of defence to the counter claim that the goods were destroyed without any neglect on their part by fire caused by the explosion and therefore they were not liable.
The respondents ' rejoinder is that they had asked the appellants to insure the goods and if the appellants had not failed in their duty they would have reimbursed the respondents.
The appellants then plead that even if they had insured the goods the respondents could not have recovered anything from the insurance companies.
It is in reply to this contention that the respondents say that the appellants ' liability to recover money from the insur ance company on the terms of the usual fire insurance policy is irrelevant 998 because they could have recovered the money if they had insured in fact, irrespective of the terms of the policy, under the Ordinance.
The respondents are not thus claiming to recover money from the appellants otherwise than under section 18 (1) of the Ordinance.
Their cause of action is the misconduct of the agent in the business of agency and is quite different.
It is not for compensation arising from explosion.
It was argued that damages formed part of the cause of action of the respondents in framing the counterclaim and therefore section 18 (2) stood in the way of the respond ents.
The contention is unsound because the cause of action is completed by the averment that there was a duty or agree ment to insure, that there was a failure to perform that duty, that loss had occasioned to the respondents because of the failure to perform the duty and the appellants were therefore liable for the breach of the duty.
The quantum of damages is not a part of the cause of action.
It is a matter to be ascertained by the court according to well laid down principles of law.
The result is that the appeal fails and is dismissed with costs.
PATANJALI SASTRI J.
I regret I am unable to agree with the judgment just delivered by my Lord which I have had an opportunity of reading.
As the facts of the case have been fully stated in that judgment it is unnecessary to re state them here.
The main question arising for determination is what damages are the appellants liable to pay to the respondents for their failure to insure the respondents ' goods which were destroyed by fire caused by the big explosions which occurred in the Bombay Docks on 14th April, 1944 ? The goods had been purchased by the appellants in Bombay as the commission agents of the respondents and were left in their godowns pending their despatch to the respondents ' place of business.
It was found by the appellate bench of the Court below that the appellants had agreed to keep 'the goods insured against fire while in their custody 999 and had debited the respondents in their books with the insurance charges.
A suggestion was made in the course of the arguments before us that the appellants agreed to be the insurers themselves, but the findings of the appellate bench leave no room for doubt that all that the appellants agreed to do was to procure a policy of fire insurance in the ordinary or common form and subject to the conditions usual ly stipulated in that form of policy.
This is also made clear by the concession of the respondents ' counsel in the court below that "he was only relying on the agreement to the extent that the insurance was to be effected against fire on an ordinary fire insurance policy".
It is common ground that one of the general conditions in that form of policy is that "it does not cover" among others any loss or damage occasioned by or through or in consequence of explo sion".
Relying on that condition, it was contended for the appellants that even if they had effected an insurance on the goods according to the agreement, the loss of the goods by fire caused by the explosion would have been an excluded loss for which no damages could have been claimed from the insurer and that, therefore, the respondents would not be entitled to recover from the appellants anything more than nominal damages for failure to insure.
This contention must, in my opinion, prevail.
As pointed out by Mr. Mayne in his Treatise on Damages (p. 591, 11th Edition) "When the agent can show that under no circumstances could any benefit to the principal have followed from obedience to his orders, and therefore that disobedience to them has produced no real injury, the action will fail.
There fore, if an agent is ordered to procure a policy of insurance for his principal, and neglects to do it, and yet the policy, if procured, would not have entitled the principal, in the events which have happened, to recover the loss or damage, the agent may avail himself of that as a complete defence." A complication, however, is introduced by an Ordinance promulgated by the Governor General known as the Bombay Explosion (Compensation) 1000 Ordinance (No. 32 of 1944) which came into force on 1st July, 1944.
The preamble states ',Whereas an emergency has arisen which makes it necessary to provide for and regulate the payment of compensation for. . damage to property due to, or arising out of, the explosions and fires which occurred in the Bombay Docks on 14th April, 1944, to re strict litigation in connection with the said explosions. ".
By section 2 "the explosion" is defined as meaning "the explosions which occurred in the Bombay Docks on 14th April, 1944, and the fire.
which ensued there from.
" An "explosion damage" is defined as "damage which occurred, whether accidentally or not, as the direct result of the explosion. " "Uninsured proPerty means "pro perty which was not covered whether wholly or partially by an policy of fire, marine or miscellaneous explosion" Section 14 insurance at the time of tile 1 . . so far as it is material here, provides that "there shall be paid by the Central Government compensation for explosion damage to property, being damage caused by fire to property insured whether wholly or partially at the time of the explosion against fire under a policy covering fire risk. of an amount equal to the proved loss.
"Section 15 provides for coutribution to Government by insurance compa nies.
Section 16 provides for compensation for such damage to uninsured property on a certain scale mentioned in that section.
Section 18(2) enacts, subject to certain exccep tions not material here, "no person shall leave, or be deemed ever to have had, otherwise than under this Ordinance any right, whether in contract or in tort or otherwise to any compensation or damages for any. or damages to or loss of any property, rights or interests.
due to or in any way arising out of the explosion; and no suit or other legal proceedings for any such compensation or damages shall, save as aforesaid.
be maintainable in any court against the Crown. or against any servants or agents of the Crown . or against any other person whomsoever; and no act or omis sion which caused or contributed to the explosion shall be deemed to have been done or omitted to be done otherwise than lawfully.
" 1001 It is admitted that the appellants recovered from the Central Government under section 16 nearly one half of the value of the goods destroyed by fire while in their custody as compensation fox ' the loss of the respondents ' goods and have given credit to the respondents in their ac counts for the amount thus received.
The dispute now re lates to the respondents ' claim to the balance of the value of the goods as damages for the appellants ' failure to keep them insured according to the agreement between the parties as the full value of the goods and have been obtained from the Government under section 14 without regard to any ex cepted risk if only they had been insured against fire.
The scheme of the Ordinance appears to be that the Government, instead of having probably to fight out numerous law suits for compensation for loss or damage to property based upon alleged negligence of their officers in having allowed the explosion to take pleace, undertook to pay an amount equal to the "proved loss" in cases of loss or damage to goods which had been insured against fire, etc.
and smaller amounts for loss or damage to uninsured goods, putting an end, at the same time, to all rights to compensation or damages arising out of the explosion, and barring all suits or legal proceedings for the same.
On the basis of these provisions it was contended on behalf of the respondents that the appellants, by reason of their failure to keep the goods insured, were liable under the law to place the respondents, who had suffered the loss, in the same position as if the appellants had performed their agreement or carried out the instructions of the respondents.
Learned counsel for the respondents based the claim on the neglect of duty on the part of the appellants as commission agents in carrying out the instructions of their principals, and relied on the provisions of section 212 of the Indian Contract Act, which provides, inter alia, that an agent is bound "to make compensation to his princi pal in respect of the direct consequence of his own neglect, want of skill or misconduct, but not in respect of loss or damage which are indirectly or remotely 1002 caused by such neglect, want of skill or misconduct.
" On the other hand, it was urged on behalf of the appellants that the question had to be determined on the basis of a breach of contract for the consequences of which provision is made in section 73 of the Indian Contract Act.
That section says that "when a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which natural ly arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote or indirect loss or damage sustained by reason of the breach.
" I do not think that it makes much difference, so far as the assessment of general damages is concerned, whether the default of the appellants is treated as a breath of contract between two contracting parties or a neglect of duty by agents in failing to carry out the instructions of their principal.
Although the Indian Contract Act makes separate provisions for the consequences in each case, the rule laid down as to measure of damages is s the same, namely, the party in breach must make compen sation in respect of the direct consequences flowing from the breach and not in respect of loss or damage indirectly or remotely caused, which is also the rule in English common law.
The rule is based on the broad principle of restitutio in integrum, that is to say, that the party who has suffered the loss should be placed in the same position, as far as compensation in money can do it, as if the party in breach had performed his contract or fulfilled his duty.
That principle was once carried to its utmost logical, if gro tesque, result as in an old English case to which Willes J. referred in British Columbia Saw Mill Co. vs Nettleship(1): ' ' Where a man going, g to be married to an heiress, his horse having cast a shoe on the journey, em ployed a blacksmith who did the work so unskilfully that the horse was lamed, and the rider not having (1) L. L. , 508 1003 arrived in time the lady married another; and the blacksmith was held liable for the loss of the marriage.
" And the learned Judge warned "We should inevitably fall into a similar absurdity unless we applied the rules of commonsense to restrict the extent of liability for the breach of a contract of this sort." The commonsense point of view was thus put by Lord Wright in Liesbosch, Dredger vs Edison S.S. (Owners)(1): ,, The law cannot take account of everything that follows a wrongful act; it regards some subsequent matters as outside the scope of its selection because 'it were infinite for the law to judge the cause of causes, ' or consequence of consequences.
Thus the loss of a ship by collision due to the other vessel 's sole fault may force the shipowner into bankruptcy and that again may involve his family in suffering, loss of education or opportunities in life, but no such loss could be recovered from the wrongdo er.
In the varied web of affairs the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons.
" These considera tions have led the courts to evolve the qualifying rules of remoteness subject to which alone the broad principle of restitutio in integrum now finds its application.
Applying these principles to the facts of the present case, what is the position ? The respondents lost their go ods by fires arising out of the explosion presumably due to the negligent conduct of the Government 's officers or serv ants at the docks.
Even if the appellants had taken out a fire insurance policy in ordinary form it would not have covered the loss, for fire due to explosion would be an excepted peril.
So, the appellants ' failure keep the goods insured produced no direct consequence for which damages could in law be claimed.
It is true enough to say that if the appellants had taken out a fire policy covering the goods, the respondents could have obtained the full value of the goods from the Government.
But did the respondents ' inability to recover such full value from the Government arise directly or naturally in the usual course ; 1004 of things out of the appellants ' failure to insure? I think not, since independent and disconnected events had to occur to produce the result, viz., the Government 's scheme of compensation embodied in the Ordinance, the agreement with the Insurance Companies regarding their contribution, and the consequent distinction made between insured and unin sured property in providing compensation for their loss.
Suppose the fire was caused by an explosion due to the negligence of a private individual.
The respondents would have their remedy by suing him for damages.
But if he was insolvent, could the respondents ' inability to recover damages from him be a direct and natural consequence of the appellants ' failure to insure ? Surely not, for even if the appellants had insured the goods according to their agree ment with the respondents, the latter would be in no better position.
Here, the Government, presumably being satisfied, or at any rate apprehending, that the explosion was due to the negligence of their servants, got the Ordinance passed providing for payment of compensation by the Government on the terms stated therein and at the same time putting an end to all rights to recover compensation save as provided in the Ordinance and barring all suits and other proceedings for that purpose.
As any claim to compensation against the Government must be based upon the negligence of their serv ants, the Government took no note of excepted risks in insurance policies and undertook liability to pay full compensation in case of all insured property, doubtless because, under an arrangement with certain Insurance Compa nies the Government obtained a proportionate contribution as provided for in section 15, though on the hypothesis of their servants ' negligence their liability in law would be the same in respect of insured and uninsured property.
if the Ordinance had provided for partial compensation in both cases, as it would probably have done if the Insurance Companies had not agreed to come into the scheme with their contributions, the respondents could have no claim to recov er the balance from the appellants, 1005 notwithstanding that the supposed direct causal connection between the appellants ' default and the respondents ' loss would still be there.
The truth is there was no such con nection and it was because of the provisions of the Ordi nance which made a distinction between insured and uninsured property in the matter of compensation for explosion damage, and barred rights and remedies under the general law in relation theretto, that the respondents were unable to recover the balance of the value of their goods destroyed by fire.
But such inability cannot be regarded as flowing naturally or directly from the appellants ' default.
It was suggested that the provisions of the Ordinance must be taken to have displaced the ordinary rules of law as to remoteness of damage, as section 18 (2) extinguished, retrospectively from the date of the explosion, all rights and remedies under the general law for obtaining compensa tion for explosion damage and substituted the rights therein provided.
The substituted right to compensation, so far as the Government and insured property were concerned, was not subject to any restrictive conditions in the policies, and therefore, it was claimed, the measure of damages in this case must be determined irrespectively of the existence of the clause excluding "explosion" from the scope of the common form of policy.
The argument is, m my opinion, more ingenious than sound.
The short answer to it is that the Ordinance did not purport to displace or supersede any rule of law as to measure of damages or to amend or abrogate any terms in insurance.
policies.
There is nothing in the Ordinance to indicate that the clause excepting explosion contained in the fire insurance policies issued in Bombay should be deemed to be null and void.
As already stated, the Government, having accepted liability for explosion damage, were not really concerned with the restrictive conditions in the policies.
Their liability did not arise out of such policies.
In view of certain Insurance Compa nies having agreed to contribute a certain proportion, the Government undertook liability 1006 to pay full compensation for loss of insured property regardless of the terms o[ insurance, which had no relevance to the liability which they assumed.
To suggest, in such circumstances, that the clause excepting explosion risk in all fire policies issued in common form in Bombay was legis latively abrogated is, in my opinion, extravagant and far fetched.
The respondents ' goods were destroyed when the explosion occurred on the 14th April, 1944, and on that date they could have recovered nothing except perhap snominal damages for the appellants ' failure to insure the goods as they agreed to do.
It is difficult to see how by virtue of the Ordinance passed more than two months later, their claim against the appellants, which the re spondents themselves are contending is not in any way af fected by the provisons of the Ordinance, could become enlarged.
The next contention raised on behalf of the apellants before us relates to the maintainability of the respondents ' coun ter claim The contention is based upon section 18 (2) of the Ordinance which provides that "no suit or other legal proceedings for any such compensation or damages" (i.e., compensation or damages for any damage to or loss of any property, rights or interests due to or in any way arising out of the explosion)"shall, save as aforesaid" (exception snot material here) "be maintainable in any court against the Crown . . or against any other person whoms oever. ".
The learned Chief Justice in the Court below makes no reference in his judgment to this contention, but Chagla J. repelled it thus.
"Now, in my opinion, the defendants ' claim does not arise out of the explosion nor is it in any way due to the explosion.
The plaintiffs have filed the suit as agents on an indemnity and the defendants ' answer is that they were entitled to set off against the amounts due to the plaintiffs, the loss incurred by them by reason of the fact that the plaintiffs as the defendants ' agents did not carry out the defendants ' instructions.
If the plaintiffs ' claim on the indemnity does not arise out of the explosion equally so does the defendants ' set 1007 off not so arise.
The defendants ' cause of action is fail ure by the plaintiffs to carry out their instructions and that cause of action has nothing whatever to do with the explosion '".
With all respect I find it difficult to follow this reasoning.
The appellants ' claim on the indemnity does not certainly arise out of the explosion, for their case is that they purchased the goods in question paying the price on the respondents ' instructions, and they claim to recover the price so paid notwithstanding the destroction of the goods by fire for which they say they were in no way respon sible.
But the basis of the respondents ' counter claim is quite different.
They say that if the appellants had kept the goods insured according to the agreement, they (the respondents) could have recovered the full value of the goods from the Government under section 14 of the Ordinance, and the appellants, having failed to do so, are liable to pay by way of damages the balance of the value of the goods.
It is a little difficult to see how it could be said that the respondents ' claim "does not arise out of the explosion nor is it in any way due to the explosion".
The bar under section 18 is not based upon the nature of the cause of action for the suit or proceeding barred, but upon the damage or loss of property having been "due to or in any way arising out of" the explosion.
Indeed, the respondents appear to my mind to be in a dilemma in regard to this point.
They must necessarily say, in order to have been able to claim the full value of the goods from the Government if they had been insured, that the damage to the goods was "explosion damage to property, being damage caused by fire to property insured whether wholly or partially at the time of the explosion against fire under a policy covering fire risk".
For, unless they said that, no claim could be made against the Government under section 14, and so the very basis of their claim against the appellants that, but for the appellants ' neglect of duty, the respondents could have recovered the full value of the goods from the Govern ment, would fail.
But if they had to say that the goods were lost by explosion damage within the meaning 1008 of section 14, it seems to me, they would be bringing them selves under the bar of section 18 (2).
The respondents cannot therefore claim that the loss of the goods was explo sion damage within the meaning of the Ordinance so as to bring the case within section 14 and at the same time con tend that the loss was not "due tO or did not in any way arise out of the explosion" in order to avoid the bar under section 18.
Both section 14 and section 18 have in view the physical cause for the loss or damage to property for which compensation is claimed and not the cause of action in relation to the person against whom relief is sought.
The respondents cannot, in my opinion, be allowed to take up inconsistent positions in order to bring themselves within the one and to get out of the other.
I would therefore allow the appeal and dismiss the counter claim.
DAS J. agreed with the Chief Justice.
Appeal dismissed.
Agent for the respondents:/. N. Shroff.
| The plaintiffs who were commission agents purchased piecegoods according to defendant 's instructions and stored a portion of the goods in a godown in Bombay pending receipt of a permit from the Government authorities for consigning the same to the defendants.
Before the goods could be despatched, a big explosion occurred in the Bombay Harbour and the goods stored were destroyed either by the fire or the explosion.
A few months later the Governor General promulgated the Bombay Explosion (Compensat,ion) Ordinance, 1944, which provided, inter alia, (i) that the Government shall pay a compensation of 50 per cent.
of the damage caused in respect of uninsured goods, and the entire damage in respect of insured goods; and (ii) that no person shall have or be deemed ever to have had, otherwise than under the Ordinannce any rights whether in contract or in tort or otherwise to any compensation for damage to or loss of property arising out of the explosion and no suit or other legal proceeding for any such compensation or damage shall be maintainable in any civil courts.
The plaintiffs re ceived 50 per cent of the value of the destroyed goods as they 980 were not insured, and, alleging that as agents they had the right to be indemnified by the defendants, sued the latter for recovery of the remaining 50 per cent of the value of the goods.
The defendants pleaded, and it was found as a fact, that they had instructed the plaintiffs, and the latter had agreed, to insure the goods but had omitted to do so, and they claimed that inasmuch as they would have been entitled to receive the full value of the goods as compensa tion under the Ordinance if the plaintiffs had insured, they were entitled to set off or counter claim the value of the goods as damages caused to them by the neglect or breach of duty of the plaintiffs.
Held per KANIA C.J. and DAS J. (PATANJALI SASRI J. dissenting). (i) As full compensation under the Ordinance was payable on proof of the existence of a fire insurance policy irrespective of the terms of the policy, and the non recovery of half the value of the goods from the Govern ment under the Ordinance was due to the obsence of a fire insurance policy, the loss to the defendants arose directly from the neglect or breach of duty of the plaintiffs to insure the goods as they had been instructed and agreed to do; intervention of the Ordinance did not break the chain of causation or make the loss remote or indirect; the Ordinance did not create any new liability but only quantified the damages; and the fact that it did not exist at the time of the explosion and could not have been in the contemplation of the parties was irrelevant for deciding the question of liability; (ii) the plea of the defendants was not barred by the Ordinnance inasmuch as their cause of action against the plaintiffs was misconduct of the latter in the business of their agency, and this cause of action was completed by the averment that there was a dnty or agreement to insure, that there was failure to per.
form that duty and that the fail ure had caused damage to the defendants, and the quantum of the damages was not a part of the cause of action.
Per PATANJALI SASRI J. (i) The defendants ' inability to recover the full value of the goods from the Government under the Ordinance did not arise directly and naturally in the usual course of things from the plaintiffs ' failure to insure, but from independent and disconnected events, name ly, the Government 's scheme for compensation, embodied in the Ordinance, the agreement with the insurance companies regarding contribution and the consequent discrimination made by the Government between insured and uninsured goods.
The Ordinance did not, displace the ordinary rules of law as to remoteness of damage or amend or abrogate any terms in the fire insurance policies and it was further difficult to see how by virtue of an Ordinance passed some months after the explosion, the right to damages could become enlarged.
The broad principle of restitutio in integrum upon which the assessment of the quantum of damages is based cannot be carried to its utmost logical results but must be qalified by the rule of remoteness 981 (ii) The bar under the Ordinance was not based upon the nature of the cause of action but upon the damage or loss being "due to or in any way arising out of" the explosion and the claim of the defendands was clearly barred.
In any event the defendants cannot be allowed to claim that the loss of the goods was explosion damage so as to bring the case under section 14 and at the same time contend that the loss was not due to or did not in any way arise out of the explo sion in order to avoid the bar under section 18.In re an Arbitration between Polemis and Another and Furness Withy & Co. Ltd. , Weld Blundell vs Stephens , Monarch Steamship Co. Ltd. vs Karlshamns Oljefabriker , Hadley vs Baxendale (9 exhibit Livingstone vs Rawyards Coal Co. , British Westinghouse Electric and Manufactur ing Co. Ltd. vs Underwood Electric Railways Co., London , Liesbosch (owners) vs Edison (owners) ; , Smith Hogg & Co. Ltd. vs Black Sea and Baltic General Insftrance Co. Ltd. , Standard Oil Co. of New York vs Clan Line Steamers Ltd. [1924] A.G. 100 referred to.
|
eal No. XXXIV of 1950.
Appeal by special leave from an Award of the All India Industrial Tribunal (Bank Disputes) Bombay, dated 1st Janu ary, 1950.
The facts of the case are set out in the judg ment.
Dr. Bakshi Tek Chand (Veda Vyas and S.K. Kapur, with him) for the appellant.
B. Sen for the respondents.
Alladi Krishnaswami Aiyar (Jindra Lal, with him) for the Union of India. 1950.
May 26.
The Court delivered judgment as follows : KANIA C.J I have read the judgments prepared by Messrs. Fazl Ali, Mahajan and Mukherjea JJ.
461 in this case.
As the views in those judgments in respect of the nature of the duties and functions of the Industrial Tribunal do not show agreement I consider it necessary to add a few words of my own.
In my opinion, the functions and duties of the Indus trial Tribunal are very much like those of a body discharg ing judicial functions, although it is not a Court.
The rules framed by the Tribunal require evidence to be taken and witnesses to be examined, cross examined and re exam ined.
The Act constituting the Tribunal imposes penalties for incorrect statements made before the Tribunal.
While the powers of the Industrial Tribunal in some respects are different from those of an ordinary civil Court and it has jurisdiction and powers to give reliefs which a civil Court administering the law of the land (for instance, 'ordering the reinstatement of a workman) does not possess in the discharge of its duties it is essentially working as a judicial body.
The fact that its determination has to be followed by an order of the Government which makes the award binding, or that in cases where Government is a party the legislature is permitted to revise the decision, or that the Government is empowered to fix the period.
of the opera tion of the award do not, to my mind, alter the nature and character of the functions of the Tribunal.
Having consid ered all the provisions of the Act it seems to me clear that the Tribunal is discharging functions very near those of a Court, although it is not a Court in the technical sense of the word.
The next question is whether under article 136 the Court has jurisdiction to entertain an application for leave to appeal against the decision of such a body.
It is not dis puted that the Court has power to issue writs of certiorari and prohibition in respect of the work of the Tribunal.
The only question is whether there is a right of appeal also.
In my opinion the wording of article 136 is wide enough to give jurisdiction to the Court to entertain an application for leave to appeal, although it is obvious that having regard to the nature of the functions of the Tribu nal, this Court will be very reluctant to entertain such an application.
462 As regards the merits, I do not think this is a case in which I would admit the appeal.
The aggrieved parties may apply for redress by adopting other appropriate proceedings.
The appeal therefore should be dismissed with costs.
FAZL ALl J.
The important question to be decided in this case is whether the present appeal lies at all to this Court.
The question is not free from difficulty, but on the whole I am inclined to think that 'the appeal does lie.
It is fully recognized that the scope article 136 of the Constitution is very wide, but the significance of the language used in the section can be appreciated only by comparing it with the articles which precede it.
Article 132 deals with the appellate jurisdiction of the Supreme Court in cases involving a substantial question of law as to the interpretation of the Constitution, and the words used in that article are: "appeal. from any judgment, decree or finalorder." Article 133 deals with appeals in civil matters and the same words are used here also.
Arti cle 134 deals with appeals in criminal matters, and the words used in it are: "appeal. from any judgment, final order or sentence." In article 136, the words "judg ment" and "decree," which are used in articles 132 and 133 are retained.
Similarly, the words "judgment" and "sen tence" occurring in article 134 are also retained.
But the expression "final order" becomes "order," and, instead of the High Court, reference is made to "any court.
" Cer tain other words are also used in the article which seem to me to have a special significance, these being "determina tion," "cause or matter" and "tribunal.
" It is obvious that these words greatly widen the scope of article 136.
They show that an appeal will lie also from a determination or order of "any tribunal" in any cause or matter.
Can we then say that an Industrial Tribunal does not fall within the scope of article 136 ? If we go by a mere label, the answer must be in the affirmative.
But we have to look further and see what are the main functions of the Tribunal and how it proceeds to discharge those functions.
This is necessary because 463 I take it to be implied that before an appeal can.
lie to this Court from a tribunal it must perform some kind of judicial function and partake to some extent of the charac ter of a Court.
Now there can be no doubt that the Industrial Tribunal has, to use a well known expression, "all the trappings of a Court" and performs functions which cannot but be regarded as judicial.
This is evident from the rules by which the proceedings before the Tribunal are regulated.
It appears that the proceeding before it commences on an application which in many respects is in the nature of a plaint.
It has the same powers as are vested in a civil Court under the Code of Civil Procedure when trying a suit, in respect of discovery, inspection, granting adjournment, reception of evidence taken on affidavit, enforcing the attendance witnesses, compelling the production of documents, issuing commissions, etc.
It is to be deemed to be a civil Court within the meaning of sections 480 and 482 of the Criminal Procedure Code, 1898.
It may admit and call for evidence at any stage of the proceeding and has the power to administer oaths.
The parties appearing before it have the right of examination, cross examination and re examination and of addressing it after all evidence has been called.
A party may also be represented by a. legal practitioner with its permission.
The matter does not rest there.
The main function of this Tribunal is to adjudicate on industrial disputes which implies that there must be two or more parties before it with conflicting cases, and that it has also to arrive at a conclusion as to how the dispute is to be ended.
Prima facie, therefore, a Tribunal like this cannot be excluded from the scope of article 136, but before any final conclu sion can be expressed on the subject certain contentions which have been put forward on behalf of the respondents have to be disposed of.
The first contention is that the Industrial Tribunal cannot be said to perform a judicial or quasi judicial function.
since it is not required to be guided by any recognized substantive law in deciding disputes 464 which come before it.
On the other hand, in deciding industrial disputes, it has to override contracts and create rights which are opposed to contractual rights.
In these circumstances, it is said that the very questions which arose before the Privy Council in Moses vs
Parker Ex parte Mose (1) arise in this case, these questions being : (1) How can the propriety of the Tribunal 's decision be tested on appeal, and (2) What are the canons by which the appellate Court is to be guided in deciding the appeal ? Their Lordships of the Privy Council undoubtedly felt that these were serious questions, but they had no hesitation in saying that "if it were clear that appeals ought to be allowed.
such difficulties would doubtless be met somehow.
" This, in my opinion, is a sufficient answer to the difficul ty raised.
The Tribunal has to adjudicate in accordance with the provisions of the .
It may sometimes override contracts, but so can a Court which has to administer law according to the Bengal or Bihar Money lenders Act, Encumbered Estates Act and other similar Acts.
The Tribunal has to observe the provisions of the special law which it has to administer though that law may be dif ferent from the law which an ordinary Court of justice administers.
The appellate Court, therefore, can at least see that the rules according to which it has to act and the provisions which are binding upon it are observed, and its powers are not.exercised in an arbitrary or capricious manner.
The second contention, which is a more serious one, is that the adjudication of the Tribunal has not all the at tributes of a judicial decision, because the adjudication cannot bind the parties until it is declared to be binding by the Government under section 15 of the Industrial Dis putes Act.
It is said that the adjudication is really in the nature of an advice or report which is not effective until made so by the Government.
It appears that a similar objection was raised in Rex vs Electricity Commissioner 's, London Electricily ' (1) Joint Committee Co. (1920) Ex Parte (1) for the purpose of deciding whether a writ of certiorari should be Issued in the circumstances of the case but was dis.
posed of in these words : "It is necessary, however, to deal with what i think was the main objection of the Attorney General.
In this case he said the Commissioners come to no decision at all.
They act merely as advisers.
They recommend an order embodying a scheme to the Minister of Transport, who may confirm it with or without nodifications.
Similarly the Minister of Trans port comes to no decision.
He submits the order to the Houses of Parliament, who may approve it with or without modifications.
The Houses of Parliament may put anything into the order they please, whether consistent with the Act of 1919, or not.
Until they have approved, nothing is decided, and in truth the whole procedure, draft scheme, inquiry, order, confirmation, approval, is only part of a process by which Parliament is expressing its will, and at no stage is subject to any control by the Courts.
It is unnecessary to emphasize the constitutional importance of this contention. .
In the provision that the final decision of the Commissioners is not to be operative until it has been approved by the two Houses of Parliament I find nothing inconsistent with the view that in arriving at that decision the Commissioners themselves are to act judicially and within the limits prescribed by Act of Parliament, and that the Courts have power to keep them within those limits.
It is to be noted that it is the order of the Commissioners that eventually takes effect; neither the Minister of Trans port who confirms, nor the Houses of Parliament who approve, can under the statute make an order which in respect.
of the matters in question has any operation.
I know of no author ity which compels me to hold that a proceeding cannot be a judicial proceeding subject to prohibition or certiorari because it is subject to confirmation or approval, even where the approval has to be that of the Houses of Parlia ment.
The authorities are to the contrary. ' ' (1) 466 It is well known that a writ of certiorari can issue only against an order of a judicial or quasi judicial tribu nal and if it is permissible for the High Court to.
issue a writ of certiorari against an Industrial Tribunal, which fact was not seriously disputed before us, I find it diffi cult to hold that the tribunal does not come with in the purview of article 136.
If a subordinate Court acts in excess of its jurisdiction or assumes a jurisdiction which it does not possess, the appellate Court can always interfere and do what is contemplated to be done by a writ of certiorari.
It is to be noted that under section 15 of the , in cases where the appropriate Govern ment is not a party to the dispute, all that the Government has to do on receiving the award of the Tribunal is to declare it to be binding and to state from what date and for what period it will be binding.
Section 15.(2) is mandatory and it provides: "On receipt of such award, the appropriate Government shall by order in writing declare the award to be binding. . " Thus the Government cannot alter, or cancel, or add to the award, but the award must be declared to be binding as it is.
In substance, therefore, the adjudication of the Tribunal amounts to a final determination of the dispute which binds the parties as well as the Government.
Our attention was however drawn to the proviso to section 15 (2), which runs as follows: "Provided that where the appropriate Government is a. party to the dispute and in its opinion it would be inexpe dient on public grounds to give effect to the whole or any part of the award, it shall on the first available opportu nity lay the award together with the statement of its rea sons for not making a declaration as aforesaid before the Legislative Assembly of the Province, or where the appropri ate Government is the Central Government, before the Central Legislative Assembly, and shall, as soon as may be, cause to be moved therein a resolution for the consideration of the 467 award, and the Legislative Assembly may, by its resolution, confirm, modify, or reject the award.
" This proviso was relied upon by the respondents to show that the right to appeal from the award could not have been contemplated in any case.
But the Act itself makes a dis tinction between cases in which the Government is a party and those in which the Government is not a party.
The proviso relates to a very special type of case and as at present advised I do not wish to express any opinion as to whether an appeal lies to this Court or not in such a case, but, in my judgment, where the Government has only to de clare the award to be binding, an appeal shall lie.
It is necessary here to say a few words as to the scope of the appeal.
As was pointed out by this Court in Pritam Singh vs The State(1), the power under article 136 of the Constitution being a special power is to be exercised only in special cases.
The rule so laid down is bound to re strict the scope of the appeal in practice in almost all the cases which fall under article 136.
But in some cases a limitation will be imposed on the scope of the appeal by the very nature of the case and of the tribunal from which an appeal is sought to be brought, and a case under the Indus trial Disputes Act seems to be an example of such a case.
Dealing now with the merits of the appeal, I am not prepared to hold that this is a proper case for interference with the adjudication of the Tribunal.
The power of this Court was invoked by the appellants on four grounds.
These grounds have been elaborately examined by Mahajan J. and two of them have been pronounced to be wholly inadequate for justifying our interference.
My view with regard to these two grounds is identical with that of Mahajan J. and I do not wish to add to what he has already said on the subject.
The remaining two grounds also are, in my opinion, wholly insufficient to justify the exercise of our special power under article 136.
One of these grounds is that the award of the Tribunal is based on no evidence whatsoever.
I do not, however, find that this ground (1) ; 60 468 was urged in this form in the application for special leave to appeal to this Court.
All that was intended to be urged was that the appellants wanted to adduce evidence but were not allowed to do so.
From the decision of the Tribunal however, it appears that the evidence that was shut out related to one isolated point only and the Tribunal might well have been justified in not allowing evidence to be admitted on a point which in its opinion had no direct bearing on the issue before them.
After hearing the re spondents on this particular point, I am not disposed to hold that the Tribunal has committed such an error as would justify the interference of this Court.
The last ground urged is that the award has been signed by only two members of the Tribunal though it originally consisted of three persons and though the entire hearing of the dispute had taken place before all the three persons.
This objection does not appear to me to be fatal to the jurisdiction of the Tribunal, because under section 8 of the Act it is not obligatory on the Government to appoint a new member to fill a vacancy if one of the members ceases to be available at any time during the proceedings.
Under that section, if the Chairman ceases to be available, the Govern ment must appoint his successor, whereas if a member ceases to be available the Government may or may not appoint any one to fill his place.
In the present case, our attention was drawn to some correspondence which shows that one of the members was called upon to act as a member of another Tribu nal and the award in question was pronounced after informing the Government of the procedure which the Chairman and the remaining members intended to adopt.
In the view I have taken, this appeal must fail, and I would accordingly dismiss it with costs.
MAHAJAN J. This is an appeal by special leave from the determination of an industrial dispute by the Industrial Tribunal appointed under Ordinance VI of 1949.
Bharat Bank Limited, Delhi, the appellant, is a company registered under the Indian Companies Act.
469 Its employees made certain demands and as a result of an unfavourable response from the bank it appears that they struck work on the 9th March, 1949.
The bank in its turn served notices on them to resume work and proceeded to discharge a number of them between the 19th March and 24th March as they failed to do so.
The Central Government constitued a Tribunal consisting of three persons for the adjudication of industrial disputes in banking companies under section 7 of the (XIV of 1947), The disputes mentioned in schedule II of the notifi cation were referred under section 10 of the Act to this Tribunal.
Item 18 of this schedule reads as follows : "Retrenchment and victimization (Specific cases to be cited by employees).
" The dispute under this item between the Bharat Bank and its employees was heard by the Tribunal at Delhi and its award was made on the 19th January, 1950.
It was published in the Government of India Gazette dated 4th February, 1950, and was declared to be binding for a period of one year.
The award of the Tribunal was signed by two out of its three members.
A preliminary objection was raised on behalf of the Central Government as well as on behalf of the respondents that this Court had no jurisdiction to grant special leave to appeal against the determination of an Industrial Tribu nal inasmuch as it did not exercise the judicial powers of the State and that its determination was not in the nature of a judgment, decree or order of a Court so as to be ap pealable.
This being the first case in which special leave was granted from the determination of an Industrial Tribu nal, it is necessary to examine the provisions of the Con stitution dealing with this matter and if possible, to define the limits of the jurisdiction of this Court under article 136.
This article is in these terms : "(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order m any cause or matter passed 470 or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
" The article occurs in Chapter IV of Part V of the Consti tution: "The Union Judiciary.
" Article deals with the establishment and constitution of the Supreme Court.
Article 131 confers original jurisdiction on this Court in certain disputes arising between the Government of India and the States etc.
Articles and 133 deal with the appellate juris diction of the Court in appeals from High Courts within the territory of India in civil matters.
By article 134 limited right of appeal in criminal cases has been allowed.
The Judicial Committee of the Privy Council which was the high est Court of appeal for India prior to 10th October, 1949, was not a Court of criminal appeal in the sense in which this Court has been made a Court of criminal appeal under article 134.
It could only entertain appeals on the crimi nal side in exercise of the prerogative of the King.
Article 135 empowers this Court to hear all appeals which under existing laws could be heard by the Federal Court of India.
By the Abolition of Privy Council Jurisdiction Act, 1949,which came into force on the 10th October, 1949, all the powers that were possessed by the Judicial Committee of the Privy Council in regard to cases or matters arising in India became exercisable by the Federal Court of India whether those powers were exercisable by reason of statutory authority or under the prerogative of the King.
The powers of the Judicial Committee were conferred upon it by the Judicial Committee Act, 1844 (7 & 8 Vict., C. 69).
Appeals lay to His Majesty in Council from judgments, sentences, decreesor orders of any Court of justice within any British colony or possession abroad.
Closely following article 135 which confers all the powers of the Judicial Committee on the Supreme Court comes article 136.
The language employed in this article is very wide and is of a comprehensive character.
Powers given 471 are of an overriding nature.
The article commences with the words "Notwithstanding anything in this Chapter.
" These words indicate that the intention of the Constitution was to disregard in extraordinary cases the limitations contained in the previous articles on this Court 's power to entertain appeals.
These articles dealt with the right of appeal against final decisions of High Courts within the territory of India.
Article 136, however, overrides that qualification and empowers this Court to grant special leave even in cases where the judgment has not been given by a High Court but has been given by any Court in the territory of India; in other words, it contemplates grant of special leave in cases where a Court subordinate to a High Court has passed or made any order and the situation demands that the order should be quashed or reversed even without having recourse to the usual procedure provided by law in the nature of an appeal, etc.
The word "order" in article 136 has not been qualified by the word "final.
" It is clear, therefore, that the power to grant special leave under this article against an order of a Court could be exercised with respect to interlocutory orders also.
Another new feature introduced in article 136 is the power given to grant special leave against orders, and determinations etc.
of any tribunal in the territory of India.
This word did not find place in the Judicial Committee Act, where the phrase used was "a Court of jus tice.
" It is the introduction of this new expression in article 136 that has led to considerable argument as to its scope.
Another expression that did not find place in the Judicial Committee Act but has been introduced in article 136 is the word "determination." A question has been raised as to the meaning to be given to these words in the article.
On the one hand, it was contended that the words "determina tion" and "tribunal" were introduced in the article in order to bring within the scope of the applellate jurisdiction of this Court all orders of tribunals of different varieties and descriptions.
On the other hand, it was said that the words "determination" and "tribunal" were added in the article by way of abundant caution and 472 the intention was that if a tribunal exercised the judicial powers of the State and the decision was passed in the exercise of that power, this Court as the highest judicial Court in the Republic would have power, if it considered, necessary in the ends of justice, to grant special leave.
Clause (2) of article 136 excludes the jurisdiction of this Court in respect of military Courts.
or Tribunal.
It is interesting to observe that in articles 138, 139 and 140 the Constitution has conferred powers on Parliament for further enlargement of the powers of this Court.
Two points arise for determination in this case: (1) whether the word "tribunal" in this article has been used in the same sense as "Court," or whether it has been used in a wider sense, and (2) whether the word "determination" in the article includes within its scope the determinations made by Industrial Tribunals or other similarly constituted bodies or whether it has reference only to determinations of a Court or a tribunal of a purely judicial character.
It was conceded by the learned counsel appearing for the Cen tral Government, Mr. Alladi Krishnaswami Aiyar, that if any tribunal, whether administrative, domestic or quasi judi cial, acts in excess of its jurisdiction, then it can be controlled by the High Courts under the powers conferred on them by article 226 by the issue of a writ of certiorari.
It was said that if the Industrial Tribunal in this case could be proved to have trespassed beyond the limits 0 its statutory jurisdiction, then the remedy lies elsewhere and not by a petition of special leave under article 136.
Mr. Alladi 's contentions may be briefly summarized as follows: (1) The expression "tribunal " means seat of a judge, or a court of justice.
Its necessary attribute is that it can give a final judgment between two parties which carries legal sanction by its own force.
That the word "tribunal" in juxtaposition to the word "court" could only mean a tribunal 'which exercised judicial functions of the State and did not include within its ambit a tribunal which had quasi judicial or administrative powers.
(2) The kinds of orders against which special leave to appeal could be given under article 136 473 have to be of the same nature as passed by a Court , ' in other words, it was said that unless there was a judicial determination of a controversy between two parties, the order would not be appealable.
That in the case of an Industrial Tribunal what gives binding force to the award is the declaration of the government, that the spark of life to it is given by that declaration and without that, the award of the Tribunal is lifeless and has no enforceability and hence cannot be held to be of an appealable nature.
It was further said that in cases between the Government and its employees, by the procedure prescribed in the Act the award could also be rejected, and that being so, by its own deter mination a tribunal could not impose a liability or affect rights.
Dr. Bakshi Tek Chand, appearing for the bank, on the other hand argued that whenever a tribunal, whether exercis ing judicial or quasi judicial functions, determined a matter in a judicial manner, then such a determination is within article 136.
It was said that an Industrial Tribunal has no administrative or executive functions, that its duty is to adjudicate on an industrial dispute, i.e., to act as a Judge, on certain kinds of disputes between employers and employees and that its functions are of a judicial nature, though the ambit of the powers conferred is larger than that of an ordinary Court of law inasmuch as it can grant reliefs which no Court of law could give, but that is because of the powers conferred on it by law.
It was argued that the plain words of the article should not be given a narrow meaning when the intention of the Constitution was to confer the widest power on this Court.
It was further contended that as between private employers and employees and even in certain cases between Government and its employees the decision of the Tribunal was binding on the Government and Government had no power either to affirm, modify or reject it.
All that it was authorised to do was to announce it and by its declaration give it enforceability; that fact, howev er, could not affect the question of appealability of the determination under article 136.
It was finally argued that powers should be exercised by this Court wherever there is a miscarriage 474 of justice by a determination of any tribunal and that if the intention of the Constitution by use of the word "tribunal"was in the same sense as "court," then it was not necessary to import it in article 136, because all tribunals that exercise judicial functions fall within the definition of the word "court" though they may not have been so de scribed.
After considerable thought I have reached the conclusion that the preliminary objection should be overruled.
I see no cogent reasons to limit the plain words of the statute and to place a narrow interpretation on words of widest ampli tude used therein.
In construing the articles of the Con stitution it has always to be remembered that India has been constituted into a sovereign democratic republic in order to ensure justice to all its citizens.
In other words, the foundations of this republic have been laid on the bedrock of justice.
To safeguard these foundations so that they may not be undermined by injustice occurring anywhere this Court has been constituted.
By article S2 of the Constitu tion the Court is empowered to see that the fundamental rights conferred on the citizens by the Constitution are not in any way affected.
By article 136 it has been given overriding power to grant special leave to appeal against orders of courts and tribunals which go against the princi ple of natural justice and lead to grave miscarriage of justice.
The exercise of these, powers could only have been contemplated in cases which affect the rights of people living within the territory of India in respect of their person, property or status.
The question, therefore, for consideration is whether the jurisdiction conferred by use of unambiguous phraseology and by words which have a plain grammatical meaning and are of the widest amplitudeshould be limited and restricted on considerations suggested by Mr. Alladi.
The construction suggested by the learned counsel, if accepted, would in the first instance make the use of certain words in the article unnecessary and redundant and would run counter to the spirit of the Constitution.
It must be presumed that the draftsmen of the Constitution knew well the fact that there were a number of tribunals consti tuted in this country 475 previous to the coming into force of the Constitution which were performing certain administrative, quasi judicial or domestic functions, that some of them had even the trap pings of a Court but in spite of those trappings could not be given that description.
It must also be presumed that the Constitution makers were aware of the fact that the highest Courts in this country had held that all tribunals that discharged judicial functions fell within the definition of the expression "Court.
" If by the use of the word "tribu nal" in article 136 the intention was to give it the same meaning as "Court," then it was redundant and unnecessary to import it in the article because, by whatever name de scribed, such a tribunal would fall within the definition of the word "Court.
" The word "Court" has a well known meaning in legislative history and practice.
As pointed out in Halsbury 's Laws of England, the word "Court" originally meant the King 's Palace but subsequently acquired the meaning of (1) a place where justice was admin istered, and (2) the person or persons who administer it.
In the Indian Evidence Act it is defined as including all judges and magistrates and all persons except arbitrators legally authorized to take evidence.
This definition is by no means exhaustive and has been framed only for the pur poses of the Act.
There can be no doubt that to be a Court, the person or persons who constitute it must be entrusted with judicial functions, that is, of deciding litigated questions according to law.
However, by agreement between parties arbitrators may be called upon to exercise judicial powers and to decide a dispute according to law but that would not make the arbitrators a Court.
It appears to me that before a person or persons can be said to constitute a Court it must be held that they derive their powers from the State and are exercising the judicial powers of the State.
In R.v.
London County Council (1), Saville L.J. gave the following meaning to the word "Court" or "judicial authori ty" : (1) [1931]2K.B. 215.
61 476 "It is not necessary that it should be a Court in the sense that this Court is a Court, it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court if it is a tribuna which has to decide rightly after hearing evidence and opposition.
" As pointed out in picturesque language by Lord Sankey L.C. in Shell Co. of Australia vs Federal Commissioner of Taxation(1), there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power.
It seems to me that such tribunals though they are not full fledged Courts, yet exercise quasi judicial functions and are within the ambit of the word "tribunal" in article 136 of the Constitution.
It was pointed out in the above case that a tribunal is not necessarily a Court in this strict sense because it gives a final decision, nor because it hears witnesses oath nor because two or more contending parties appear before it between whom it has to decide, nor because it gives deci sions which affect the rights of subjects nor because there is an appeal to a Court, nor because it is a body to which a matter is referred by another body.
The intention of the Constitution by use of the word "tribunal" in the article seems to have been to include within the scope of article 136 tribunals adorned with similar trappings as Court but strictly not coming within that definition.
Various defi nitions of the phrase "judicial power" have been given from time to time.
The best definition of it on high authority is the one given by Griffith C.J. in Huddart, Parker & Co. vs Moorehead(2), wherein it is defined as follows : "The words 'judicial power ' as used in section 71 the Constitution mean the power which every sovereign author ity must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.
The exer cise of this power does not begin [19311 A. C. 275.
(2) ; , 357. 477 until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
" It was conceded that a tribunal constituted under the , exercises quasi judicial powers.
That phrase implies that a certain content of the judicial power of the State is vestedit and it is called upon to exercise it.
An attempt was made to define the words "judicial" and "quasi judicial" in the case of Cooper vs Wilson (1).
The relevant quotation reads thus : "A true judicial decision presupposes an existing dis pute between two or more parties, and then involves four requisites : (1) The presentation necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties, and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.
A quasi judicial decision equally presup poses an existing ' dispute between two or more parties and involves (1) and (2), but does not necessarily involve (3) and never involves (4).
The place of (4)is in fact taken by administrative action, the character of which is determined by the Minister 's free choice.
" The extent of judicial power exercised by an ]industrial Tribunal will be considered hereinafter in the light of the observations cited above.
Reference was made to certain passages from Professor Allen 's book on Law and Order, Chapter IV, page 69, where mention is made of the kinds of administrative tribunals functioning in various countries today.
Porter on Adminis trative Law, 1929 Edn., (1) , at p. 340.
478 page 194, was also relied upon.
There can be no doubt that varieties of administrative tribunals and domestic tribunals are known to exist in this country as well as in other countries of the world but the real question to decide in each case is as to the extent of judicial power of the State exercised by them.
Tribunals which do not derive authority from the sovereign power cannot fall within the ambit of article 136.
The condition precedent for bringing a tribu nal within the ambit of article 136 is that it should be constituted by the State.
Again a tribunal would be outside the ambit of article 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties.
Tribunals, however, which are found invested with certain functions of a Court of justice and have some of its trappings also would fall within the ambit of article 136 and would be subject to the appellate control of this Court whenever it is found neces sary to exercise that control in the interests of justice.
It is now convenient to consider whether a tribunal constituted under the , exer cises all or any one of the functions of a Court of justice and whether it discharges them according to law or whether it can act as it likes in its deliberations and is guided by its own notions of right and wrong.
The phrase "industrial dispute" has been defined in section 2 clause (k) of the Act as follows : "any dispute or difference between employers and em ployees, or between employers and workmen, or between work men and workmen, which is connected with the employment or non employment or the terms of employment or with the condi tions of labour, of any person.
" Such a dispute concerns the rights of employers and employees.
Its decision affects the terms of a contract of service or the conditions of employment.
Not only may the pecuniary liability of an employer be considerably affect ed by the adjudication of such dispute but it may even result in the imposition of punishments on him.
It may adversely 479 affect the employees as well.
Adjudication of such a dis pute affects valuable rights.
The dispute and its result can always be translated in terms of money.
The point for decision in the dispute usually is how much money has to pass out of the pocket of the employer to the pocket of the employee in one form or another and to what extent the right of freedom of contract stands modified to bring about indus trial peace.
Power to adjudicate on such a dispute is given by section 7 of the statute to an Industrial Tribunal and a duty is cast on it to adjudicate it in accordance with the provisions o Act.
The words underlined clearly imply that the dispute has to be adjudicated according to law and not in any other manner.
When the dispute has to be adjudicated in accordance with the provisions of the Act, it follows that the tribunal has to adhere to law, though that law may be different from the law that an ordinary Court of justice administers.
It is noteworthy that the tribunal is to consist of experienced judicial officers and its award is defined as a determination of the dispute.
The expression "adjudication" implies that the tribunal is to act as a judge of the dispute; in other words, it sits as a Court of justice and does not occupy the chair of an administrator.
It is pertinent to point out that the tribunal is not given any executive or administrative powers.
In section 38 of the Act power is given to make rules for the purpose of giving effect to the provisions of the Act.
Such rules can provide in respect of matters which concern the powers and procedure of tribunals including rules as to the summoning of witness es, the production of documents relevant to the subject matter and as to appearance of legal practitioners in pro ceedings under this Act.
Rule 3 of these rules provides that any application for the reference of an industrial dispute to a tribunal shall be made in form (A) and shall be accompanied by a statement setting forth, inter alia, the names of the parties to the dispute and the specific matters of dispute.
It is in a sense in the nature of a plaint in a suit.
In rule 13 power is given to administer oaths.
Rule 14 provides as follows : "A tribunal may accept, admit or call for 480 evidence at any stage of the proceedings before it and in such manner as it may think fit.
" Rule 17 provides that at its first sitting the tribunal is.
to call upon the parties to state their case.
In rule 19 provision has been made for proceedings ex parte.
Rule 21 provides that in addition to the powers conferred by sub section (3) of section 11 of the Act, a tribunal shall have the same powers as are vested in a civil Court under the Code of Civil Procedure when trying a suit, in respect of the following matters, namely, (a) discovery and inspection; (b) granting of adjournment; (c) reception of evidence taken on affidavit; and that the tribunal may summon and examine suo motu any person whose evidence appears to it to be material.
It further says that the tribunal shall be deemed to be a civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 189S. Rule 21 says that the representatives of the parties, appearing before a tribunal, shall have the right of examination, cross exami nation and re examination and.
of addressing the Court or Tribunal when all evidence has been called.
In rule 30 it is provided that a, party to a reference may be represented by a legal practitioner with the permission of the tribunal and subject to such conditions as the tribunal may impose.
In section 11 (3) it is laid down that a tribunal shall have the same powers as are vested in a civil Court under the Code of Civil Procedure when trying a suit, in respect of the following matters, namely, (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents and material objects; (c) issuing commissions for the examination of witnesses; (d) in respect of such other matters as may be prescribed; and every in quiry or investigation by a tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code.
It is difficult to conceive in view of these provisions that the Industrial Tribunal per forms any funCtions other than that of a judicial nature.
The tribunal has certainly the first three requisites and characteristics of a Court as defined above.
It has cer tainly a considerable element of the fourth also inasmuch as. 481 the tribunal cannot take any administrative action, the character of which is determined by its own choice.
It has to make the adjudication in accordance with the provisions of the Act as laid down in section 7.
It consists of persons who are qualified to be or have been judges.
It is its duty to adjudicate on a serious dispute between employers and employees as affecting their right of freedom of contract and it can impose liabilities of a pecuniary nature and disobedience of its award is made punishable.
The powers exercisable by a tribunal of this nature were considered in a judgment ' of the Federal Court of India in Western India Automobile Association vs Industrial Tribunal, Bombay (x), and it was observed that such a tribunal can do what no Court can, namely, add to or alter the terms or condi tions of the contract of service.
The tribunal having been entrusted with the duty of adjudicating a dispute of a peculiar character, it is for this reason that it is armed with extraordinary powers.
These powers, however, are derived from the statute.
These are the rules of the game and it has to decide according to these rules.
The powers conferred have the sanction of law behind it and are not exercisable by reason of any discretion vested in the members of the tribunal.
The adjudication of the dispute has to be in accordance with evidence legally adduced and the parties have a right to be heard and being represented by a legal practitioner.
Right to examine and cross examine witnesses has been given to the parties and finally they can address the tribunal when evidence is closed.
The whole procedure adopted by the Act and the rules is modelled on the Code of Civil Procedure.
In my opinion, therefore, the Industrial Tribunal has all the necessary attributes of a Court of justice.
It has no other function except that of adjudicating on a dispute.
It is no doubt true that by reason of the nature of the dispute that they have to adju dicate the law gives them wider powers than are possessed by ordinary Courts of law, but powers of such a nature do not affect (1) [1949]] F.C.R. 321.
482 the question that they are exercising judicial power.
Stat utes like the Relief of Indebtedness Act, or the Encumbered Estates Act have conferred powers on Courts which are not ordinarily known to law and which affect contractual rights.
That circumstance does not make them anything else but tribunals exercising judicial power of the State, though in a degree.
different from the ordinary Courts and.
to an extent which is also different from that enjoyed by an ordinary Court of law.
They may rightly be described as quasi judicial bodies because they are out of the hierarchy of the ordinary judicial system but that circumstance cannot affect the question of their being within the ambit of article 136.
It may also be observed that the tribunal is deemed to be a civil Court for certain purposes as laid down in rule 21 of the rules above cited and in section 11(3) of the Act.
As a civil Court if it exercises any of the powers contem plated by this section its decisions would become subject to appeal to a District Judge and a fortiori this Court 's power under article 136.
would at once be attracted in any case in respect of these matters.
Again, in Chapter VI of the Act breach of the terms of an award has been made punishable by section 29 of the Act.
The result therefore, is that disobedience of the terms of an award is punishable under the Act.
That being so, a determination of the tribu nal not only affects the freedom of contract and imposes pecuniary liability on the employer or confers pecuniary benefits on the employees, but it also involves serious consequences as failure to observe those terms makes a person liable to the penalties laid down in Chapter VI.
An award which has these serious consequences can hardly be said to have been given by a tribunal which does not exer cise some of the most important judicial functions of the State.
Considerable stress was laid by Mr. Alladi on the provi sions of sections 15 and 19 of the Act.
Section 15 enacts as follows : "(1) Where an industrial dispute has been referred to a Tribunal for adjudication, it shall hold its 483 proceedings expeditiously and shall, as soon as practicable on the conclusion thereof, submit its award to the appropri ate Government.
(2) On receipt of such award, the appropriate Govern ment shall by order in writing declare the award to be binding.
Provided that where the appropriate Government is a party to the dispute and in its opinion it would be inexpe dient on public grounds to give effect to the whole or any part of the award, it shall on the first available opportu nity lay the award together with the statement of its rea sons for not making a declaration as aforesaid before the Legislative Assembly of the province, or where the appropri ate Government, is the Central Government, before the Cen tral Legislature, an d shall, as soon as may be, cause to be moved therein a resolution for the consideration of the award; and the Legislative Assembly or as the case may be, the Central Legislature, may by its resolution confirm, modify or reject the award.
(3) On the passing of a resolution under the proviso to sub section (2), unless the award is rejected thereby, the appropriate Government shall11 by order in writing declare the award as confirmed or modified by the resolution, as the case may be, to be binding.
(4) Save as provided in the proviso to subsection (3) of section 19, an award declared to be binding under this section shall not be called in question in any manner.
" As regards clause (4), it was conceded rightly that a law dealing with industrial disputes and enacted in the year 1947 could not in any way,affect the provisions of the Constitution laid down in article 136.
It was however, strenuously urged that the award of the tribunal had no binding force by itself and unless the appropriate Govern ment made a declaration in writing under clause (2) of section 15, this award was a lifeless document and had no sanction behind it and therefore it could not have been contemplated that if would be appealable even by special leave.
In my opinion, this contention is unsound.
The provisions of clause (2) of 484 section 15 leave no discretion in the Government either to affirm, modify or reject the award.
It is bound to declare it binding.
It has no option in the matter.
In such a situation it is the determination by the tribunal that matters.
Without that determination Government cannot function.
It does not possess the power either to adjudi cate the dispute or to alter it in any manner whatsoever.
That power vests in the tribunal alone.
The rights of the parties are really affected by the adjudication contained in the award, not by the Government 's declaration which is automatic.
It is no doubt true that announcement of the award by the Government gives it binding force but that does not affect the question of the appealability of the determination under article 136 of the Constitution.
The apposite answer to this contention may be given in the language of the decision in Rex vs Electricity Commissioners (1).
The relevant passage runs thus : "It is necessary, however, to deal with what I think was the main objection of the Attorney General.
In this case he said the Commissioners come to no decision at all.
They act merely as advisers.
They recommend an order embodying a scheme to the Minister of Transport, who may confirm it with or without modifications.
Similarly the Minister of Trans port comes to no decision.
He submits the order to the Houses of parliament, who may approve it with or without modifications.
The Houses of Parliament may put anything into the order they please, whether consistent with the Act of 1919, or not.
Until they have approved, nothing is decided, and in truth the whole procedure, draft scheme, inquiry, order, confirmation, approval, is only part of a process by which Parliament is expressing its will, and at no stage is subject to, any control by the Courts.
It is unnecessary to emphasize the constitutional importance of this contention.
Given its full effect, it means that the checks and safeguards which have been imposed by Act of Parliament, including the freedom from compulsory taking, can be removed, and new and onerous and (1) , at 207.
485 inconsistent obligations imposed without an Act of Parlia ment, and by simple resolution of both Houses of Parliament.
I do not find it necessary to determine whether, on the proper construction of the statute, resolutions of the two Houses of Parliament could have the effect claimed.
In the provision that the final decision of the Commissioners is not to be operative until it has been approved by the two Houses of Parliament I find nothing inconsistent with the view that they act judicially and within the limits pre scribed by Act of Parliament, and that the Courts have power to keep them within those limits.
It is to be noted that it is the order of the Commissioners that eventually takes effect, neither the Minister of Transport who confirms, nor the Houses of Parliament who approve.
can under the statute make an order which in respect of the matters in question has any operation.
I know of no authority which compels me to hold that a proceeding cannot be a judicial proceeding subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament.
The authorities are to the contrary The observations, though they relate to a case which concerns the issue of a writ of prohibition and certiorari, have application to the present case.
Here no discretion whatsoever has been left in the Government in ordinary cases to either modify or t0 reject the determination of the tribunal.
The fact that the Government has to make a decla ration after the final decision of the tribunal is not in any way inconsistent with the view that the tribunal acts judicially.
It may also be pointed out that within the statute itself a clue has been provided which shows that the circumstance that the award has to be declared by an order of Government to be binding does not affect the question of its appealability.
In article 136 clause (2) express provi sion has been made for excepting from the ambit of article 136 the decisions of military courts and tribunals.
It follows that but for the exception it was considered that these would be within article 136 clause (1).
It is quite clear from the various provisions of the Army Act that the decisions of military tribunals or courts are subject to confirmation either by 486 the Commander in Chief or various other military authori ties.
It is only after such confirmation that 'that can operate.
It has never been considered that fact in any way affects the question of their appealability.
Rex vs Minister of Health (1) also supports this view.
There by the Housing Act, 1925, by section 40, a local authority which had prepared an improvement scheme was required to present a petition to the Minister praying that an order should be made confirming such scheme.
Sub section (3) provided that the Minister after considering the peti tion may cause a local inquiry to be made and may by order confirm the scheme with or without conditions or modifica tions.
In sub section (5) it was stated that the order of the Minister when made shall have effect as if enacted in this Act.
It was held be the Court of Appeal that as the order made by the Minister was made without the statutory conditions having been complied with it was ultra vires and therefore a writ of certiorari should issue for the purpose of quashing it.
Reliance was placed by Scrutton L.J. on Rex vs Electricity Commissioners (2).
The same.view was ex pressed in Minister of Health vs The King (3).
It was observed that judicial review by prohibition or a writ of certiorari was permissible if the Minister of Health in confirming the order exceeded his statutory powers.
It is clear therefore that simply because an order has to be confirmed by a Minister or by the Government it in any way affects the power of judicial review.
Reference may also be made to the observations in Smith vs The Queen (4).
At page 623 it was observed that it is a common principle in every case which has in itself the character of a judicial pro ceeding that the party against whom a judgment is to operate shall have an opportunity of being heard.
In this sense it can hardly be disputed that the proceeding before an indus trial Tribunal is a judicial proceeding.
In my judgment, therefore, the contention raised by Mr. Alladi that this (1) (3) [1931] A.C. 494; (2) (4) 3 A.C. 245.
487 Court cannot exercise its powers under article because the decision of the tribunal has no force till a declaration is made by the Government cannot be sustained.
As regards section 19, it was contended that an award declared by the appropriate Government under section 15 to be binding can only come into operation on such date as may be specified by the appropriate Government and can only remain in operation for such period not exceeding one year, as may be fixed by that Government and it was said that herein the Government had the power to state the period from which the award was to commence and the time for which it was to remain in force.
This section does not, in my opin ion, affect the question of the appealability of the deter mination of the tribunal.
Government has certain functions to perform in its own sphere after the award is made.
In certain cases it is bound to declare that award binding.
In other cases, when it is itself a party to the dispute, it has certain overriding powers and these overriding powers are that if it considers that the award is not in public interests it may refer it to the legislature.
The legisla ture, however, has the power to modify, accept or reject the award.
These overriding powers presuppose the existence of a valid determination by a tribunal.
If that determina tion is in excess of jurisdiction or otherwise proceeds in a manner that offends against the rules of natural justice and is set aside by exercise of power under article 136, then no occasion arises for exercise of governmental power under the Act.
Given a valid award, it could not be denied that the Government could exercise its powers in any manner it con sidered best and the exercise of that power is outside the constitution of this Court.
In this connection reference was made to Moses vs Parker (1).
The passage on which emphasis was laid reads as follows : "The Court has been substituted for the commissioners to report to the governor.
The difference is that their report is to be binding on him.
Probably it was (1) [1896] A.C. 488 thought that the status and training of the judges made them the most proper depositaries of that power.
But that does not make their action a judicial action in the sense that it can be tested and altered by appeal.
It is no more judicial than was the action of the commissioners and the governor.
The Court is to be guided by equity and good conscience and the best evidence.
So were the commissioners.
So every public officer ought to be.
But they are expressly exoner ated from all rules of law and equity, and all legal forms.
How then can the propriety of their decision be tested on appeal ? What are the canons by 'which this Board is to be guided in advising Her Majesty whether the Supreme Court is right or wrong ? It seems almost impossible that decisions can be varied except by reference to some rule, whereas the Court making them is free from rules.
If appeals were allowed, the certain result would be to establish some system of rules, and that is the very thing from which the Tasmanian Legislature has desired to leave the Supreme Court free and unfettered in each case.
If it were clear that appeals ought to be allowed such difficulties would doubt less be met somehow.
But there are strong arguments to show that the matter is not of an appreciable nature.
" One would have expected that after this opinion the decision would have been that the Judicial Committee had no jurisdiction to entertain the appeal but their Lordships proceeded to base their decision not on this ground but on the ground that this was not a fit case for the exercise of the prerogative of the King.
In my opinion, the observations made in that case have no apposite application to the provi sions of the statute with which we are concerned.
I do not see any difficulty in this case in testing the propriety of the determination of the tribunal.
This Court is not to substitute its decision for the determination of the tribu nal when granting relief under article 136.
When it chooses to interfere in the exercise of these extraordinary powers, it does so because the tribunal has either exceeded its jurisdiction or has approached the questions referred to it in a manner which is likely to 489 result in injustice or has adopted a procedure which runs counter to the well established rules of natural justice.
In other words, if it ,has denied a hearing to a party or has refused to record his evidence or has acted in any other manner, in an arbitrary or despotic fashion.
In such cir cumstances no question arises of this Court constituting itself into a tribunal and assuming powers of settling a dispute.
All that the Court when it entertains an appeal would do is to quash the award and direct the tribunal to proceed within the powers conferred on it and approach the adjudication of the dispute according to principles of natural justice.
This Court under article 136 would not constitute itself into a mere court of error.
Extraordinary powers have to be exercised in rare and exceptional cases and on well known principles.
Considered in the light of these principles, there is no insuperable difficulty in the present case of the nature pointed out in the passage cited above.
It was conceded that the High Court could exercise powers under section 226 and could quash an award but it was said that under article 136 this power should not be exer cised in an appeal.
I do not see why ? Particularly when after the High Court has passed any decision on an applica tion made to it in exercise of the powers under section 226, that decision could be brought to this Court in appeal.
In the matter of an industrial dispute where expedition is the crux of the matter, it is essential that any abuse of powers by such tribunals is corrected as soon as possible and with expedition.
It may be mentioned that it is no novel practice for a court empowered to grant special leave to exercise its powers even though there may be intermediate rights of appeal or other remedies available, if it is considered essential to do so in extraordinary situations.
Vide Bent wick 's Privy Council Practice, 3rd Edn., page 125.
Therein it is stated as follows : "In several cases from Jamaica, the Privy Council grant ed leave to appeal to the Queen in Council directly from the Supreme Court, without an intermediate appeal (which would have been attended with much 490 expense and delay) to the Court of Error in the island, there being in each of those cases manifestly some point of law raised which deserved discussion.
" The cases were In Re Barnett(1), Harrison vs Scott (2), and Attorney General of Jamacia vs Manderson (s).
The phraseology employed in article 136 itself justifies this course.
The article empowers this Court to grant special leave against sentences or orders made by any court.
In all other articles of the Constitution right of appeal is con ferred against final decisions of the highest court of appeal in the country but under this article power is given to this Court to circumvent that procedure if it is considered necessary to do so.
I am, therefore, of the opinion that the mere circumstance that a remedy in the nature of a writ of certiorari is open to the petitioners does not necessarily lead to the conclusion that the power of this Court under article 136 is circumscribed by that circumstance.
Whenever judicial review is permissible in one form or another, this Court as the highest Court in the land can exercise its special powers and circumvent ordinary procedure by granting special leave.
What it has to ulti mately decide it can decide earlier.
I now proceed to examine some of the cases to which reference was made by Mr. Alladi.
Three Australian cases were cited which concern the construction of sections 51, 71 and 72 of the Australian Constitution (63 and 64 Vict., c. 12).
Section 72 requires that every Justice of the High Court and every Justice of any other Court created by the Parliament of the Common wealth shall subject to the power of removal contained in the section be appointed for life.
Section 71 confers the whole judicial power of the Commonwealth upon the Courts therein mentioned and no other tribunal or body can exercise that power.
Every Court referred to in section 71 has to be constituted in the manner provided by section 72.
The ques tion in these cases was as to the meaning of the phrase "judicial power of the Commonwealth.
" Similar (1) 4 Moo. 453. (2) 5 Moo. 357. (3) 6 Moo. 239. 491 phraseology has not been used in any part of the Constitu tion of India and in these circumstances it is difficult to derive any assistance from these decisions in solving the problem before us.
The Constitution of India is not mo delled on the Constitution of Australia and that being so, any observations made in decisions given under that Consti tution cannot be held to be a safe guide in the interpreta tion of language employed in a Constitution differently drafted.
The first of these cases is Waterside Workers ' Federa tion of Australia vs
J.W. Alexander Ltd. (1).
Therein it was held that the power conferred by the Commonwealth Concilia tion and Arbitration Act 1904 1915 upon the Commonwealth Court of Conciliation and Arbitration to enforce awards made by it is part of "the judicial power of the Commonwealth "within the meaning of section 71 of the Constitution, and can only be vested in the courts mentioned in that section.
Mr. Alladi placed reliance on a passage at page 467 in the judgment of Isaacs and Rich JJ., which reads as follows : "The arbitral part of the Act, therefore, is quite within the power of pl. xxxv, and is not intended by the Act to be exercised by an ordinary Court of Justice, which, it is suggested, Parliament by some strange perversity proceed ed to destroy at birth.
It is true that enforcement provi sions are found. .
But all this was in imitation of the State Acts of Arbitration, and not in reliance on the Judi cature Chapter of the Federal Constitution.
The arbitral portion of the Act is, in our opinion, perfectly good, subject to its severability from any other portion which may be bad.
" It was argued that the Industrial Tribunal here was an arbitration tribunal of the same kind as in Australia and exercises similar functions.
It is however pertinent to observe that the phraseology employed in section 15 of the Indian Act is different from that used in the Australian statute.
The Indian statute has constituted different bodies for different purposes.
An Industrial Tribunal has been constituted (1) 25 C.L.R. 63 492 only to discharge one function of adjudication.
It is not described as an arbitral tribunal.
The Act has avoided the use of the word "arbitration" either in preamble or in any of its relevant provisions though the determination has been named as an award.
In these circumstances it is unsafe to seek any guidance from observations made in this case.
The next case to which reference was made is Rola Co. (Australia) Proprietary Ltd. vs The Commonwealth (1).
The question here was whether the Women 's Employment Board constituted under the Women 's Employment Act, 1942, did not exercise the judicial power of the Commonwealth.
It was held that the Board exercised functions which were arbitral in character.
Emphasis was laid on a passage occurring in page 198 of the report which reads as follows : "An industrial award lays down rules of conduct for the future.
It does not purport to ascertain and enforce exist ing rights; it is directed to the creation of new rights.
It is urged on behalf of the plaintiff that a determination of the Committee does not create a rule of conduct binding the parties for the future, but that it authoritatively deter mines a possibly controverted question of fact and that the making of such an authoritative determination is necessarily an exercise of judicial power.
Reference is made to the frequently quoted statement of Griffith C.J. in Huddart Parker & Co. Pty. Ltd. vs Moorehead (2), approved by the Privy Council in Shell Co. of Australia Ltd. vs Federal Commissioner of Taxation (8):__ "I am of opinion that the words 'judicial power ' as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controverises between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property.
The exercise of this power does not begin until some tribunal which has power to give a binding and authori tative decision (whether subject to appeal or not) is called upon to take action." (1) ; (2) a C.L.R. 330 at 357.
(3) 493 Reg.
5C gives Committees power.
to decide controversies between subjects relating to their rights and the regulation purports to make those decisions binding and authoritative.
I am not satisfied that the words of Griffith C.J. are properly interpreted when it is said that they mean that a power to make binding and authoritative decisions as to facts is necessarily judicial power.
I direct attention to the concluding words " is called upon to take action.
" In my opinion these words are directed to action to be taken by a tribunal which has power to give a binding and authorita tive decision.
The mere giving of the decision is not the action to which the learned Chief Justice referred.
If a body which has power to give a binding and authoritative decision is able to take action so as to enforce that deci sion, then, but only then, according to the definition quoted, all the attributes of judicial power are plainly present.
I refer to what I say more in detail hereafter, that the Privy Council, in the Shell case (1), in which approval was given to the definition quoted, expressly held that a tribunal was not necessarily a Court because it gave decisions (even final decisions) between contending parties which affected their rights.
In Huddart Parker 's case (2), Isaacs 1. referred to the statement of Palles C.B. in R.v.
Local Government Board for Ireland (3) "to erect a tribunal into a 'Court ' or 'juris diction ', so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or affect rights." "By this," said the learned Chief Baron, "I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact.
It is otherwise of a ministerial power.
If the existence of such a power depends upon a contingency, al though it may be necessary for the officer to determine whether (1) (2) ; at 383.
(3) at p. 373.
494 the contingency has happened, in order to know whether he shall exercise the power, his determination does not bind.
The happening of the contingency may be questioned in an action brought to try the the act done under the alleged exercise of the power.
But where the determination binds, although it is based on an erroneous view of facts or law, then the power authorizing it is judicial.
There we get a modern use of the term 'judicial power '.
" This state ment of the characteristics of judicial power looks to what, in Waterside Workers ' Federation of Australia vs Gilchrist, Watt & Sanderson Ltd.(1), Isaacs and Rich JJ.
referred to as the creation of instant liability in specified persons as distinct from laying down a rule or standard of conduct for the future.
The decision of an ordinary Court that B is bound to pay money to A applies a pre existing standard of rights and duties not created by the Court itself, with the result that there is an immediately enforceable liability of B to pay to A the sum of money in question.
The decision of the Wom en 's Employment Board does not create any such liability, nor does the determination of a Committee of Reference create any such liability.
In order to impose an immediale ly enforceable liability upon any employer, for example, to pay wages to a particular female, it would be necessary for the female or some person on her behalf (see reg.
9A) to sue in a court of competent jurisdiction.
If such a proceeding succeeded there would then be a liability created by the determination of the court.
such a proceeding the determina tion of the Committee of Reference would be evidence of the facts to which it related, but that determination would not in itself create "liability.
" The concluding words of the passage quoted above at once distinguish the present case from the Australian case.
The award given by an Industrial Tribunal in respect either of bonus or higher wages, etc.
is enforceable by its own force and by the coercive machienary of the Act and it is not merely a declaration of a character that furnishes a cause of action to the employee to bring a suit on its foot to recover the C.L.R. 482, 512.
495 wages.
An arbitral tribunal 's decision cannot be enforced unless it has the sanction of a Court of justice behind it but the award of the Tribunal is enforceable under the Act itself by the coercive machinery provided therein.
It is the terms of the award that are enforceable and not the terms of the order made by the Government.
It is the breach of the terms of the award that is punishable and not any breach of Government 's order.
The Government itself is bound to declare the award binding and it has no option whatsoever in the matter.
It is no doubt true that the tribunal has not only to decide the existing rights and liabilities of the parties and it can lay down rules of conduct for the future but it does so because by law it is authorised to do so.
Its decision carries the sanction with it.
The Government is bound to give effect to it and the statute enforces it by coercive machinery.
In my view, therefore, this decision again has no relevancy to the present case.
The third case to which reference was made is Shell Co. of Australia vs Federal Commissioner of Taxation (1).
That was an income tax matter and the decision has been consid ered in an earlier part of this judgment.
Reference was also made to Mohammad Ahmad vs Governor General in Council ("), in which it was held that an improvement trust was not a civil Court subordinate to the High Court under section 115 of the Code of Civil Procedure.
That has no bearing to the matter in issue here.
Similar point was discussed in Hari vs Secretary of State for India (3).
Labour Relations Board vs John East Iron Works Ltd. (4) is a Canadian case and the decision proceeded on the same lines as in the Australian cases.
Mr. Sen appearing for the respondents placed reliance on O 'Connor vs Waldron (5).
The relevant passage occurs at page 81 which runs thus : The law as to judicial privilege has in process of time developed.
Originally it was intended for the protection of judges sitting in recognised Courts of (1) (3) I.L.R. (2) I.L.R. (4) A.I.R. 1949 P.C. 129.
(5) , 496 Justice established as such.
The object no doubt was that judges might exercise their functions free from any danger that they might be called to account for any words spoken as judges.
The doctrine has been extended to tribunals exer cising functions equivalent to those of an established Court of Justice.
In their Lordships ' opinion the law on the subject was accurately stated by Lord Esher in Royal Aquari um etc.
Ltd. vs Parkinson (1), where he says that the privi lege applies wherever there is an authorized inquiry which, though not before a Court of Justice, is before a tribunal which has similar attributes.
This doctrine has never been extended further than to Courts of Justice and tribunals acting in a manner similar to that in which such Courts act '" The learned counsel contended that the. word "tribunal" in article 136 could only have reference to those tribunals which exercise functions equivalent to that of a Court of Justice.
I have no hesitation in holding that the Industrial Tribunal has similar attributes as that of a Court of Jus tice in view of the various provisions to which I have made reference.
Reference was also made to certain passages occuring in pages 422 and 428 of Toronto Corporation vs York Corporation (2).
That was a case of the Municipal Board of Ontario.
It was held there that the Board was merely an administrative tribunal.
Next reliance was placed on R.v.
National Arbitration Tribunal, Ex parte Horatio Crowther & Co. Ltd.(3).
That dealt with the powers of tile National Arbitration Tribunal.
In my opinion this citation also is not of much assistance.
It was again urged by Mr. Alladi that the word "tribu nal" was introduced in the article to provide for cases of tribunals like the Board of Revenue.
The suggestion does not appear to be sound, because a Revenue Board has all the attributes of a Court of justice and falls within the defi nition of the word "Court" in matters where it adjudicates on rights of parties.
(6) (7) [1938] A.C. &15.
(8) 497 The word "tribunal" has been used in previous legisla tion in a number of statutes and it is difficult to think that the Constitution when it introduced this word in arti cle 136 intended to limit its meaning to only those tribu nals which though not described as Courts strictly speaking, were discharging the same or analogous functions as were being discharged by Courts.
For the reasons given above I am of the opinion that the word "tribunal" in article 136 has to be construed liberally and not in any narrow sense and an Industrial Tribunal inasmuch as it discharges functions of a judicial nature in accordance with law comes within the ambit of the article and from its determination an application for spe cial leave is competent.
The question now to determine is whether the exercise of overriding powers of this Court can be justified on any ground whatsoever in the present case.
As I have already said, exceptional and extraordinary powers of this character can only be justifiably used where there has been a grave miscarriage of justice or where the procedure adopted by the Tribunal is such that it offends against all notions of legal procedure.
Dr. Bakshi Tek Chand for the petitioner bank urged four grounds justifying exercise of the special jurisdiction of this Court.
Firstly, he contended that the word "victimiza tion" used in clause 18 of the reference had been interpret ed in such a manner by the Tribunal that it had usurped jurisdiction to decide disputes which were never referred to it.
In my view this is not a matter which can justify the exercise of the powers under article 136.
This Court is not a mere Court of error.
The word "victimization" has not been defined in the statute and is not in any sense a term of law or a term of article It is an ordinary English word which means that a certain person has become a victim, in other words, that he has been unjustly dealt with.
It was argued that the word has acquired a special meaning in regard to industrial disputes and connotes a person who becomes a victim of the employer 's wrath by reason of his trade union activities and that the word cannot relate to a person who has been merely unjustly dismissed.
Be that as it may.
498 The determination of the Tribunal has not been materially affected by this interpretation of the word to any large extent and that being so, it does not call for the exercise of the special power.
The second ground urged was that the Tribunal has erred in ordering reinstatement of persons who were guilty of an illegal strike.
It was contended that section 23 (b) of the Act has been wrongly construed by it and as a result of this misconstruction persons who were guilty of a wrong and who could not have been reinstated have been reinstated.
In brief, the argument was that under section 23(b) when a matter has been referred to a tribunal in respect of an earlier strike, any strike during the pendency of that dispute is an illegal strike and that was the situation here.
The employees of the bank had struck work in December, 1948.
That dispute had been referred to an Industrial Tribunal.
It was during the pendency of that dispute that another strike took place which led to the dismissal of the employees who have now been reinstated by the present award.
The Calcutta High Court has held that a strike during the pendency of the period of truce and during the pendency of an earlier dispute before a tribunal is illegal even if it is brought about as a result of fresh and new demands which are not covered by the earlier dispute.
One of the members of the Tribunal thought that the decision laid down the law correctly on the point, but the other member thought that the decision was erroneous.
Both of them, however, agreed that whether the strike was legal or illegal that point did not in any way affect the question that they had to decide under issue 18.
The consequences of an illegal strike are laid down in the Act and certain penalties are provided therein.
The Act nowhere states that persons guilty of illegal strike cannot be reinstated.
Be that as it may.
The reference to the Tribunal was made by the Government in respect of an illegal.
strike and the Tribunal was bound to give its decision on the reference.
Item 18 of schedule II clearly empowers the tribunal to deal with cases of victimi zation as a result of the third strike which the petitioner described as illegal.
The Tribunal may be 499 wrong in the view they have taken but it seems to me this is again not a question of that vital character which would justify the grant of special leave under article 136.
The next question raised by the learned counsel that the award of the Tribunal is based on no evidence whatsoever.
This contention requires serious consideration.
I have examined the proceedings of the Tribunal and it appears that all ' it did was that as required by rule 17 at the first sitting it called upon the parties to state their cases.
Mr. Parwana on behalf of the employees stated their respec tive cases and Mr. Ved Vyas who represented the bank stated the bank 's case and after the cases had been stated the proceedings terminated and both parties addressed arguments and the Tribunal proceeded to give its award.
Whether the charge of victimization in individual cases was proved or not depended on proof of certain facts which had to be established by evidence.
The onus of proving victimization clearly rested on the employees.
No evidence whatsoever was led on their behalf.
The statement of the case by Mr. Parwana was not on oath.
There was no examination or cross examination of Mr. Parwana.
No affidavit supporting the facts stated by Mr. Parwana was filed by him or by any employee.
Mr. Parwana produced an abstract of the corre spondence but the original correspondence was not produced.
The bank disputed the facts stated by Mr. Parwana by means of a lengthy affidavit.
It seems no reference was made even to this affidavit by the Tribunal.
No counter affidavit was filed in reply to the facts stated in this 'affidavit.
The bank wanted to call some evidence.
Particular reference was made in respect of a scurrilous letter issued by one Bhatta charya on behalf of the employees and distributed by them, which it is alleged considerably shook the credit of the bank.
This opportunity was denied to it.
It was contended before us that the bank wanted to lead evidence on certain matters and that the opportunity to lead it was denied.
There is nothing on the record to support this contention.
The result therefore is that the facts on the basis of which allegations of victimization have been 64 500 made are neither supported by an affidavit nor by any evi dence and the award is based on no evidence whatsoever.
The Act as well as the rules framed under it contemplate a proper hearing, discovery and inspection of documents and production of evidence, etc.
None of this procedure was followed by the Tribunal.
It is difficult to see on what material the Tribunal has given its award as there is none existing on the present record and the respondents ' counsel could not point out to any such material.
At one time during the argument I was inclined to think that possibly both parties by agreement consented to treat the statement of case as evidence in the case and did not wish to produce any other evidence, but the affidavit filed on behalf of the bank disputes all the facts stated by Mr. Parwana.
The only evidence on the record is the bank 's affidavit and if the facts contained in the affidavit are accepted, then the determination made by the Tribunal cannot stand.
It seems to me therefore that the procedure adopted by the Tribunal was against all principles of natural justice and the award is thereby vitiated and should be set aside.
It happens that when the safeguard of an appeal is not provided by law the tendency sometimes is to act in an arbitrary manner like a benevolent despot.
Benevolent despotism, however, is foreign to a democratic Constitution.
The members of the Tribunal seem to have thought that having heard the state ment of the cases of the parties they could proceed to a judgment on their own view of its right or wrong unaided by any material.
That kind of procedure to my mind is unwar ranted by the statute and is foreign to a democratic Consti tution.
In these circumstances it is the compelling duty of this Court to exercise its extraordinary powers and to quash such an award.
The last contention raised by Bakshi Tek Chand was that though a Tribunal consisting of three persons was appointed to adjudicate on the dispute, the award has only been signed by two of them.
Reference in this connection was made to section 16 of the Act which says that the award of a Tribu nal shall be in writing and shall be signed by all the members of the 501 Tribunal and that nothing in the section shall be deemed to prevent any member of the Tribunal from recording a minute of dissent.
The provisions of the section are mandatory and have not been complied with.
It is common ground that the case was stated by the parties at a sitting when all the members of the Tribunal were present and the arguments were heard by all of them.
No sitting took place subsequent to this which would have necessitated the carrying on of pro ceedings by two members of the Tribunal by a quorum.
When the matter has been heard by all the three members, the award should have been given by all of them.
Therefore the award given by two of them is not the award of the Tribunal constituted by the Government.
It is therefore vitiated and has to be quashed.
Reference in this connection was made to section 8 of the Act which reads as follows : "If the services of the chairman of a Board or of the chairman or other member of a Court or Tribunal cease to be available at any time the appropriate Government shall, in the case of a chairman, and may in the case of any other member, appoint another independent person to fill the vacancy, and the proceedings shall be continued before the Board, Court or Tribunal so reconstituted.
" The Tribunal was never reconstituted by the Government by any notification.
Under section 7 a Tribunal has to be constituted in accordance with the provisions of the Act by the Government.
The Government having constituted a Tribunal of three persons it had power under section 8 to reconsti tute it but did not exercise that power.
The result there fore is that the Tribunal as originally constituted was not the Tribunal which gave the award in this reference.
Only two members have given the award.
It was said that one of the members ceased to be available and the Government was not bound to fill up that vacancy.
There is no material on the record to prove whether any member became unavailable and if so, when.
But even if a member becomes unavailable and the Government does not choose to fill up the vacancy, still the Government has to reconstitute the Tribunal by saying that 502 two members will now constitute the Tribunal.
An affidavit with two telegrams annexed was filed before "us on behalf of the respondents which disclosed that Mr. Chandrasekhara Aiyar who was one of the members of the Tribunal, in Novem ber, 1949, was appointed a member of the Boundary Commission in Bengal and that the other two members sent a telegram to the Labour Ministry asking it to fill up the vacancy or to reconstitute the Tribunal.
The advice given by the Ministry was that they could proceed as they were and that the Gov ernment would later on, if necessary, fill up the vacancy.
We are not concerned whether the advice given was right or wrong.
But the fact remains that the Tribunal was never reconstituted and it was not denied that Mr. Chandrasekhara Aiyar is now sitting in the same Tribunal without being again nominated to it and the Tribunal is hearing the same reference under the other issues referred to it.
Moreover, I do not see why after having heard the reference he could not give the award even if he was in Calcutta or sign the award given by the other two members.
The idea of three persons hearing a case and two of them deciding it is repug nant to all notions of fairness.
It may well have been that the opinion of the third may have influenced the other two or the decision arrived at may have been quite different.
It so happened in this case that two members of the Tribunal differed on an important question of law but somehow adjust ed their differences and gave a unanimous award.
The presence of the third in such a situation may have very vitally affected the result.
After a good deal of thought I feel that it would be most dangerous for this Court to condone proceedings of this character.
If exceptional powers are not exercised even when a body legally constitut ed under the statute does not function according to the statute, then they defeat the very purpose of the Constitu tion.
Reference in this connection may be made to the deci sion of their Lordships of the Privy Council in Fakira vs King Emperor (1).
In that case section 377 (1) A.I.R. 1937 P.O. 119.
503 of the Code of Criminal Procedure as modified and as ap plicable to Hyderabad stood as follows : "In every case so submitted, the confirmation of the sentence or order passed by the Court of the Resident at Hyderabad shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them." In Fakira 's case the order of confirmation was only made, passed and signed by one of them, though the Court of the Resident consisted of two Judges.
Their Lordships held that the peremptory provisions of section 377 had not been complied with and that the sentence passed had not been validly confirmed.
The appeal was allowed and the case was remitted to the Court of the Resident.
The provisions of section 18 of the are also of a peremptory nature.
Reference may also be made to a case arising under the Bar Councils Act reported in In re An Advocate, Madras(1), where one member of the tribunal under that Act had died and had not signed the report.
It was held that the tribunal ceased to be properly constituted and that the report could not be considered.
For the reasons given above I would quash this award and direct that the Tribunal which is still functioning should readjudge item 18 of the reference and then submit its award on this point to Government.
The employees cannot be held responsible for the method of procedure adopted by two members of the Tribunal.
Each party will have to bear their own costs in this Court.
The appeal is allowed to the extent indicated above.
MUKHERJEA J.
This appeal, which has come up before us on special leave, is directed against an award made by the All India Industrial Tribunal, dated the 19th of January, 1950.
The Tribunal was constituted by the Central Govern ment under section 7 of the and a large number of disputes (1) A.I.R. 1942 Mad.
504 between several Banking companies and their emiployees were referred to it for adjudication.
Amongst these Banking companies were the Bharat Bank Limited, the appellants before us, and the disputes between them and their employ ees, who are respondents in this appeal, related inter alia to a number of cases of retrenchment and victimization which the latter alleged against the former.
The Tribunal held its enquiry in Delhi in respect to the cases which were connected with the Delhi Branch of the appellants and as a result of the same, made their award on 19th January, 1950, holding that 26 persons, who were employees under the appel lants, were improperly dismissed by the latter and should be reinstated.
Further directions were given in the award regarding the salaries and allowances that were to be paid to the dismissed employees.
This award was declared to be binding in terms of the provisions of sections 15 and 19 of the by the Central Government on 30th of January, 1950, and it was directed to remain in operation for a period of one year.
It is against this award that the present appeal has been preferred.
On behalf of the Indian Union which appeared as an intervener in this appeal, as also on behalf of the respond ents, a preliminary objection was taken challenging the competency of the appeal.
The contention put forward by Sir Alladi Krishnaswami Aiyar, who appeared for the inter vener, in substance, is that article 136 of the Indian Constitution, under which special leave was prayed for and obtained by the appellants in this case, does not contem plate or include within its scope an appeal against an award of an Industrial Tribunal which is not vested with, and cannot exercise, judicial powers, and the decision of which cannot, therefore, rank as a judicial determination.
The Industrial Tribunal, it is said, is an administrative body exercising quasi judicial functions and this Court cannot be called upon to exercise the powers of an appellate Court in respect to the decision of a tribunal which is really a part of the administrative machinery of the Govern ment.
505 In reply to this objection, it has been urged by Sir Tek Chand that the Tribunal constitutedunder the is really and in substance, a Court or judicial tribunal which is invested with the power and authority to exercise judicial functions; and in any event, the language of article 136 of the Constitution is wide enough to include an appeal from the award or determination of any tribunal, be it judicial or not.
There are two questions which require consideration on this preliminary point.
The first is, whether the award or decision of an Industrial Tribunal constituted under the is a judicial decision in the proper sense of the expression or is it the pronouncement of an administrative or quasi judicial body which may exercise some of the functions of a Court of law but is really not so ? The other question turns upon the construction to be put upon article 136 of the Constitution particularly on the meaning to be given to the words 'tribunal ' and 'determina tion ' occurring therein; and the question is whether the language is wide enough to include an adjudication or award of an Industrial Tribunal.
As regards the first question, it is to be noticed that owing to the intricate and complex system of Government that exists in a modern State and the vast expansion of social legislation of all sorts that have taken place in England and in other countries including our own, within the last few decades, the so called administrative and quasi judicial tribunals have come to be a permanent feature of our social and political system.
They function as adjudicating bodies in disputes concerning a large number of economic and.
social affairs.
In a sense they are governmental bodies appertaining to the executive and not to the judicial branch of the State, though in various matters they are armed with judicial powers analogous to those normally carried out by Courts of law.
The question is, what are the tests or distinguishing features, if any, which distinguish an admin istrative tribunal from a Court of law.
Once we are able to formulate these tests, we would be 506 in a position to determine whether a Tribunal functioning under the is or is not a judicial tribunal properly so called.
Whether a particular function or activity is judicial or not is often a difficult question to decide.
The point was elaborately dealt with by Lord Sankey who delivered the judgment of the Privy Council in Shell Co. of Australia vs Federal Commissioner of Taxation (1).
The question raised in that case was whether the Board of Review, which was set up in 1925 under the Commonwealth Income Tax legislation, was a Court exercising judicial powers of the Commonwealth ? The High Court of Australia decided by a majority that it was an administrative and not a judicial tribunal and this majority judgment was affirmed in appeal by the Privy Council.
Lord Sankey remarked in course of his judgment that "the decided cases show that there are Tribunals which possess many of the trappings of a Court but which, nevertheless, are not Courts in the strict sense of exercising judicial power.
Mere externals do not make a direction by an ad hoc tribunal to an administrative officer, an exercise by a Court of judicial power.
" The actual decision in the case rested on the ground that the Board of Review could not be a judicial tribunal, as its orders were not conclusive for any purpose whatsoev er.
The decision, it seems, has only a negative value.
The Lord Chancellor enumerated a series of negative propositions which stated inter alia that a tribunal is not necessarily a Court because two or more contending parties appear before it, nor because it hears witnesses, or gives a final deci sion which affects the right of the parties.
What the real or positive test is, the Privy Council did not care to formulate, though the judgment quoted, with approval, cer tain observations of Griffith C.J. given in another Austra lian case, namely, Huddart Parker & Co. vs Moorehead(" '), which to some extent neutralised the effect of the negative tests enumerated in the judgment.
The observations of Grif fith C.J. are as follows : (1) (2) ; , at p. 357.
507 "I am of opinion that the words 'judicial power '. mean the power which every sovereign authority must have of necessity to decide controversies between its subjects, or between itself and its subjcets, whether the rights relate to life, liberty or property.
The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
" It may be stated that the authority to hear and decide on evidence between a proposal and an opposition though it is one of the most essential of judicial powers, may be present is an administrative tribunal also.
In the majority of cases, administrative bodies are also armed with the powers of a Court of Justice in summoning witnesses, admin istering oaths and punishing disobedience to its order made for the purpose of effecting its enquiries (1).
As a matter of fact, it is usual to find that those features which were at one time attached exclusively to activities carried on in a Court of law are being extended to committees, commissions or boards conducting enquiries under directions or supervi sion of the Government.
The presence or absence of these features, therefore, does not furnish any conclusive test to determine whether a particular body is a judicial body or not.
In the observations of Griffith C.J. quoted above, the learned Chief Justice laid stress on the power to make a binding and authoritative decision as the essential element in the exercise of judicial power.
The exact meaning and implication of these expressions were the subject matter of discussion in later Australian cases and it was held by the majority of the Judges in Rola Co. (Australia) Pty.
Limited vs The Commonwealth (2), that t. hey do not simply mean that if an authority is given power to decide controverted ques tions of fact and its determination is made binding on the parties to the controversy, it would be sufficient to show that judicial power was entrusted to such authority.
A determination, it was pointed out, may be binding on the parties (1) Vide W F. O 'Connor vs Waldron at p, 82. ; 508 in the same sense as a contract is binding on them.
What is necessary is that the determination by its own force and without the aid or instrumentality of any other authority or power must affect the rights and obligations of the parties; or in other words, the decision itself irrespective of the facts decided, must create rights and impose obligations; and it should be enforceable as such under the ordinary law of the land.
This undoubtedly is one of the fundamental tests which distinguishes a judicial body from one which exercises administrative or quasi judicial functions.
Some times the decision or report of the administrative tribunal becomes operative after it is accepted by the head of the department under which the tribunal conducted its enquiries and it is then enforced by some sort of administrative process; or it might create rights between the parties which have to be sued upon in the ordinary way in a Court of law and it is only on the basis of a judgment or decree that is obtained in such action that relief could be had by the party.
The essence of judicial determination is that nothing further remains to be done except the enforcement of the judgment, a step which is compelled automatically by the law of the land.
The other fundamental test which distinguishes a judicial from a quasi judicial or administrative body is that the former decides controversies according to law, while the latter is not bound strictly to follow the law for its decision.
The investigation of facts on evidence adduced by the parties may be a common feature in both judicial and quasi judicial tribunals, but the difference between the two lies in the fact that in a judicial proceeding the Judge has got to apply to the facts found, the law of the land which is fixed and uniform.
The quasi judicial tribunal on the other hand gives its decision on the differences between the parties not in accordance with fixed rules of law but on principles of administrative policy or convenience or what appears to be just and proper in the circumstances of a particular case.
In other words, the process employed by an administrative tribunal in coming to its decision is not what is known as 'judicial 509 process ' (x).
Sir Maurice Gwyer in his deposition before the Committee on Minister 's Powers appointed by the English Parliament in 1929 stated that "a clear distinction is to be drawn between judicial and quasijudicial powers.
" The 'judicial power ' was defined by the witness as a power to decide a question of legal right in a dispute between par ties involving either a finding of fact or the application of a fixed rule or principle of law or involving both.
"The quasi judicial power," he defined as meaning "the power of giving decisions on questions of differences of an adminis trative and not justiciable character which cannot be deter mined by reference to any fixed law or principle of law but are matters of administrative discretion and judgment "(2).
In Cooper vs Wilson (3), Scott L.J. quoted with approval and adopted as the basis of his judgment the following passage from the report of the above committee: "A true judicial decision presupposes an existing dis pute between two or more parties, and then involves four requisites : (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertain ment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.
A quasi judicial decision equally presupposes an existing dispute between two or more parties and involves (1) and (2) but does not necessarily involve (3) and never involves (4).
The place of (4) is in fact taken by administrative action, the character of which is determined by the Minister 's free choice.
" (1) See Robson 's Justice and Administrative Law, p. 74.
(2) Vide Committee of Minister 's Powers, Minutes of Evd., Vol.
II, pages 15 16 and also Robson 's Justice and Adminis trative Law, p. 319.
(3) 510 In our opinion these statements correctly bring out the distinction between a judicial tribunal and an administra tive body which exercises quasi judicial functions.
These being the essential features which distinguish the two classes of tribunals, we would have to ascertain with refer ence to the provisions of the , which class or category of tribunals an Industrial Tribunal comes under.
The object of the , as set out in the preamble, is "to make provisions for investigation and settlement of industrial disputes and for certain other purposes hereinafter appearing.
" The word "settlement" suggests the idea of establishing compromise between the interests of disputing parties.
There are three classes 'of authorities provided for by the Act who are entrusted with the powers and duties of investigation and settlement of industrial disputes.
First of all, there are conciliation officers or Boards of Concil iation, whose duties mainly are to induce parties to come to a fair and amicable settlement amongst themselves.
Second ly, there are Courts of Enquiry and though they are ' de scribed as Courts, their duties end with investigation into the matters referred to them and submitting reports there upon to the appropriate Government.
Lastly, there are Industrial Tribunals composed of independent persons who either are or had been Judges of a High Court or District Judges or are qualified for appointment as High Court Judges.
It will be seen from the descriptions given above that the Board of Conciliation or Court of Enquiry constituted under the could, on no account, be regarded as judicial tribunals.
To enable them to investi gate facts they are however armed with certain powers of compelling attendance of witnesses and production of docu ments etc.
These provisions are to be found in section 11 of the Act.
The significant thing to note is, that there is no distinction made in this respect between Conciliation Boards and Courts of Enquiry on the One hand and Industrial Tribunals on the other.
The same powers are conferred 511 the three classes of authorities without any distinction whatsoever and sub section (3) of section 11 further lays down that any enquiry or investigation by a Board, Court of Enquiry or Tribunal shall be deemed to be a judicial pro ceeding within the meaning of sections 193 and 228 of the Indian Penal Code.
This means that proceedings before an Industrial Tribunal or for the matter of that before the other two bodies also could be deemed to 'be judicial pro ceedings only for certain specified purposes.
The express provision making the proceedings judicial proceedings for those purposes only emphasises that they are not judicial proceedings otherwise.
Under section 15 (1), the Industrial Tribunal has got to submit its award to the appropriate Government and sub section (2) lays down that on receipt of such an award, the appropriate Government shall by order in writing declare the award to be binding.
A different provision has been made in regard to cases where the Government itself figures as a party to the dispute.
In such cases, if the Government considers it inexpedient on public grounds to give effect to the award either in whole or in part, it may, at the earli est opportunity, lay the award for consideration before the Provincial or Central Legislative Assembly as the case may be and the Legislative Assembly may.
by its resolution confirm, modify or reject the award.
After the resolution is passed, the Government is to declare the award so con firmed or modified to be binding [see sub section (3)].
Sub section (4) of section 15 expressly lays down that an award declared to be binding under any two of the previous sub sections shall not be called into question in any manner whatsoever.
The Government is not merely to declare the award binding but under section 19 (3), it has got to speci fy the date when the award would come into force and also to fix the period during which it would remain binding, and this period shall not exceed one year.
It will be seen, therefore, that there is nothing in the from which it could be inferred that the Industrial Tribunal really functions as a Court exercis ing judicial functions.
Regarding 512 the trappings or the external indicia of a Court, its i position is almost the same as that of the Board of Con ciliation or Court of Enquiry and Bakshi Sir Tek Chand concedes that the latter are not judicial tribunals at all.
The powers of an Industrial Tribunal are certainly wider than those of the other bodies, but it has no power to make a final pronouncement which would proprio vigore be binding on, and create rights and obligations between the parties.
It is for the appropriate Government to declare the award to be binding and the part which the Government plays in such matters is not a mechanical part merely, for the award can really become operative only when the date of its commence ment and the period of its duration are fixed, and it is for the Government and Government alone to.
fix the same.
With regard to the other class of cases, where the Government itself is one of the parties to the dispute, the position is still worse.
An award in such cases is always subject to the contingency of being rejected or modified by the legis lature before whom it could be placed for consideration at the option of the Government.
Where a contingency like this is attached to an award, it can never be regarded as a final or binding decision which is of the essence of a judicial proceeding.
The fact that in cases of disputes between private employers and their workmen, the Government has to accept the award as it is, makes no difference in principle.
Possibly, this rule was made in consideration of the status and training of the people who constitute the Tribunal, but nevertheless the determination cannot acquire any authority or force, so long as the appropriate Government does not make the declaration and fix the time of its operation as mentioned above.
In regard to the other class of awards, where the Government is one of the disput ing parties, the award on the face of it is neither the final nor the authoritative pronouncement on the matter in dispute, and it is always in the powers.
of one of the disputing parties to subject it to further scrutiny at the hands of the legislature who can reject the whole award or effect such changes in it as it considers proper.
This shows the real nature of the Tribunal and it is not and 513 could not be suggested that the Industrial Tribunal is a Tribunal which exercises judicial functions when the dispute is only between private employers and their workmen, and it ceases to be such when the employer is the Government it self.
We would now examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all.
In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law.
It can confer rights and privileges on either party which it con siders reasonable and proper, though they may not be within the terms of any existing agreement.
It has not merely to interpret or give effect to the contractual rights and obligations of the parties.
It can create new rights and obligations between them which it considers essential for keeping industrial peace.
An industrial dispate as has been said on many occasions is nothing but a trial of strength between the employers on the one hand and the workmen 's organization on the other and the Industrial Tribunal has got to arrive at some equitable arrangement for averting strikes and lock outs which impede production of goods and the industrial development of the country.
The Tribunal is not bound by the rigid rules of law.
The process it employs is rather an extended form of the process of collective bargaining and is more akin to administrative than to judi cial function.
In describing the true position of an Industrial Tribu nal in dealing with labour disputes, this Court in Western India Automobile Association vs Industrial Tribunal, Bom bay, and others(1) quoted with approval a passage from Ludwig Teller 's well known work on the subject, where the learned author observes that "industrial arbitration may involve the extension of ,existing agreement or the making of a new one or in general the creation of new obligations or modification of old ones, while commercial arbitration generally (1) at p. 345.
514 concerns itself with interpretation of existing obligations and disputes relating to existing agreements.
" The views expressed in these observations were adopted in its entire ty by this Court.
Our conclusion, therefore, is that an Industrial Tribunal formed under the is not a judicial tribunal and its determination is not a judicial determination in the proper sense of these expres sions.
We now come to the other question as to whether an appeal could be taken to this Court against an award of an Industrial Tribunal by special leave under article 136 of the Constitution.
Article 136 is a part of Chapter IV of the Constitution which deals with the Union Judiciary.
The different jurisdictions of the Supreme Court have been prescribed in a series of articles commencing from article 131.
Article 131 defines the original jurisdiction of the Supreme Court.
Article 132 deals with its appellate powers in cases where substantial questions of law as to the inter pretation of the Constitution are involved.
Article 133 contains the provision relating to appeals in civil cases from judgments, decrees and orders of the High Courts;and article 134 makes provisions relating to criminal appeals.
Article 135 lays down that the Supreme Court shall have jurisdiction and powers with respect to any matter not covered by articles 133 and 134, if such jurisdiction and power could have been exercised by the Federal Court prior to the coming into force of the present Constitution.
Then comes article 136 which runs as follows: "(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
" The article is worded in the widest terms possible.
It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals by granting of special leave against any kind of judgment, decree or order made by any Court or tribunal in any 515 cause or matter and the powers could be exercised in spite of and overriding the specific provisions for appeal con tained in the previous articles.
The controversy so far as the present case is concerned mainly centers round the interpretation to be put upon two words, namely, "determi nation" and "tribunal" used in the article.
Does the word "tribunal" mean a judicial tribunal only and is the expres sion "determination" restricted to what is known as "judi cial determination"? Sir Alladi 's contention is that in interpreting these words we should follow the principle of ejusdent generis.
"Determination," he says, must be taken to be judicial determination which is of the same nature as decree, judg ment, order or sentence; and "tribunal" associated with the word" Court" could not but mean "judicial tribunal.
" Bakshi Sir Tek Chand on the other hand lays stress on the fact that the word "determination" was not in the origi nal draft Constitution, and it was subsequently added, presumably with a view to widen the scope of article 136 and include within it, the decisions of administrative and quasi judicial tribunals also.
He points out that according to the definition given in section 2 (b) of the , "award" means a determination either interim or final of an industrial dispute by an Industrial Tribunal.
There is undoubtedly something to be said in favour of both these views.
The difficulty, in our opinion, arises from the fact that neither of these terms "determination" or "tribunal" has a fixed or definite connotation in ordinary language.
The word "determination" means and signifies the ending of a controversy or litigation by the decision of a Judge or Arbitrator.
It cannot be said that it is restrict ed exclusively to proceedings in court.
Likewise, the dictionary meaning of the word "tribunal" is 'court of justice ' or 'seat of a Judge. ' By 'Judge ' we mean some authority by which contested matters are decided between rival parties.
Here again, it is not possible to say that the expression is applicable only to a 66 516 regular court of law.
If the tribunal is a full fledged judicial tribunal, it is not disputed that its decisions would be proper subject matter of appeal under article ,136 of the Constitution.
The question is whether this article includes within its scope the determinations of quasi judicial tribunals as well.
Our view is that ordinarily we should not put any re stricted interpretation upon the plain words of an article in the Constitution and thereby limit our powers of granting special leave for appeals, which the Constitution for best of reasons did not choose to fetter or circumscribe in any way.
At the same time, we must admit that some sort of restricted interpretation may be unavoidable in view of the context in which particular words appear; and certain re strictions may be implicit in the very purpose for which article 136 has been framed.
Article 136 empowers us in our discretion to hear appeals from pronouncements of all infe rior courts and tribunals.
With regard to law courts, no difficulty arises.
As regards tribunals which are not courts in the proper sense of the expression, it may not be proper, in our opinion, to lay down a hard and fast rule that no appeals could, on any account, be allowed against determina tions of such tribunals.
There are numerous varieties of these adjudicating bodies, whose structures vary greatly in character and composition and so do the powers and functions which they exercise.
The best thing to do would be to examine each type of cases as it arises and if we find that with regard to determinations emanating from certain tribu nals it is not possible for us to exercise fully and effec tively the powers of an appellate Court, such determinations must be held to lie outside the purview of article 136 of the Constitution.
This disability in the matter of exercising our powers as an appellate Court might arise from the fact that the rules and principles by which we ordinarily judge the sound ness or otherwise of judicial decisions are not capable of being applied to the determinations of certain administra tive tribunals.
It might also arise from the fact that the law under which the 517 tribunal functions prevents us from making any effective order which would be binding and operative of its own force without the intervention of some other power or authority; or there may be some kind of contingency attached to it.
In our opinion, these difficulties do confront us in the entertaining or hearing of an appeal against the decision of an Industrial Tribunal.
In the first place, as we have said above, the determination of an Industrial Tribunal does not become complete and binding unless and until it is declared to be so by the appropriate Government.
Till the Government makes such declaration, neither of the parties to the dis pute can have any real reason for filing an appeal.
An appeal, if it lies, could be filed after the determination has been declared binding.
But in such cases, is it the determination of the Tribunal merely which is challenged by way of appeal or is it ' the determination by the Tribunal to which has been super added a declaration by the Government ? The decision in the appeal would undoubtedly affect not merely the decision of the Tribunal but that of the Govern ment as well which is certainly not a tribunal within the meaning of article 136.
Assuming again that the award is set aside and we substitute our own determination in place of the award given by the Tribunal, will our award be enforce able by itself or will it require a declaration by the Government to make it binding ? If Government is itself a party to the dispute, will it be open to Government to place our decision for consideration by the Legislative Assembly? And will the Legislative Assembly be competent to reject or modify our award ? These problems arise because under sec tion 15 the award under the Act becomes binding only when the Government declares it to be so and if our judgment takes the place of the award of the Tribunal, all the in firmities that attach to the award must necessarily attach to our judgment also.
The other difficulty is no less formidable.
As said above, the Tribunal is not bound to decide the disputes by application of the ordinary law of the land.
A good deal depends upon questions of policy 518 and public convenience.
It is not possible for us to.judge the propriety of the decision by a reference to some stand ard or fixed rules and we think that the very policy of the law prevents us from interfering with the discretion exer cised by the Tribunal.
Where the direction is committed to any body or a tribunal exercising quasi judicial functions which are not lettered by ordinary rules of law, the tribunal should in the absense of any provision to the contrary be deemed to have the final authority in the exercise of that discretion.
We cannot sit in appeal over their decision and substitute our own discre tion for theirs.
,Questions, however, may and do arise where such quasi judicial body attempts to usurp jurisdiction which it does not possess.
It may assume jurisdiction under a mistaken view of law or refuse to exercise jurisdiction properly by adoption of extraneous or irrelevant considera tions;or there may be cases where in its proceedings the tribunal violates the principles of natural justice.
In all such cases the most proper and adequate remedy would be by writs of certiorari or prohibition and the Court having authority may direct that the decision of the body or tribu nal might be brought up to be quashed for lack of jurisdic tion or for mistake apparent on the face of it; and if the proceedings had not terminated at that time, a writ of prohibition may also be issued for preventing the tribunal from exceeding its jurisdiction.
The issuing of such writs would not be an exercise of appellate powers which means the rehearing of the case and passing of such judgment which in the opinion of the appellate Court the original tribunal should have made.
The object of these writs is simply to keep the exercise of powers by these quasi judicial tribu nals within the limits of jurisdiction assigned to them by law and torestrain them from acting in excess of their authority.
These principles are well settled and require no elucidation(1).
Our conclusion, therefore, is that article 136 of the Constitution does not contemplate a determination given by the Industrial Tribunal.
(1) Rex vs Electricity Commissioners ; Board of Education vs Rice 519 Even assuming for argument 's sake that we have got jurisdiction under article 136, the exercise of which would depend upon the circumstances of each case, in view of the reasons which we have set out above, this is not an appeal which, in our opinion, should be admitted even if we have the power to do so.
The result is that the preliminary objection succeeds and the appeal fails and is dismissed with costs.
PATANJALI SASTRI ' J.
I entirely agree with the judgment just now delivered by Mukherjea J. and I have nothing to add.
Appeal dismissed.
Agent for the Union of India: P.A. Mehta.
| Held per KANIA (C.J. FAZL ALl, and MAHAJAN JJ.
(MUKH ERJEA and PATANJALI SASTRI JJ.
dissenting).
The functions and duties of the Industrial Tribunal constituted under , are very much like those of a body discharging judicial functions although it is not a Court, and under article 136 of the Constitution of India the Supreme Court jurisdiction to entertain an application for leave to appeal from decision of the Tribunal, even though it will be very to entertain such an application.
Per MUKERJEA J. (PATANJALI SASTRI J. concurring).
An Industrial Tribunal functioning under the is not a judicial tribunal.
The nature of the determinations made and the materials and considerations on which it has to decide a dispute are also such that the powers of an appellate court cannot be exer cised fully and effectively in respect of them and such determinations are therefore outside the purview of article 136 of the Constitution.
Even assuming that the Court had jurisdiction appeal, the present case was not a fit one for entertaining an appeal from the determination of the Tribunal.
[On the merits KANlA C. J., FAZL ALl, PATANJALI SASTRI and MUKHERJEA, JJ.
were of opinion that there was no ground for admitting the appeal.
MAHAJAN J. was of opinion that the award was bad and must be set aside.]
|
No. 61 of 1950.
Appeal from an order of the High Court of Patna dated 9th September, 1948, (Agarwala C.J. and Meredith J.) in M.J.C. No. 5 of 1948.
The appeal was originally filed as Federal Court Appeal No. 71 of 1948 on a certificate granted by the Patna High Court under cl. 31 of the Letters Patent of that High Court that the case was a fit one for appeal to the Federal Court.
H.P. Sinha (S.C. Sinha, with him) for the appellant.
S.K. Mitra (section L. Chibber, with him) for the respondent.
November 30.
The judgment of the Court was deliv ered by FAzL ALl J.
800 FAZL ALI J.
This is an appeal from an order of the High Court of Judicature at Patna dated the 9th September, 1948, declining to call upon the board of Revenue to state a case under section 21 (3) of the Bihar Sales Tax Act, 1944 (Act VI of 1944), with reference to an assessment made under that Act.
The Bihar Sales Tax Act was passed in 1944, and section 4 of the Act provides that "every dealer whose gross turn over during the year immediately preceding the commencement of the Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notified.
" It is not disputed that, having regard to the definitions of dealer, goods and sale under the Act, the appellant, who has been doing contract work on a fairly extensive scale for the Central Public Works Department and the East Indian Railway, comes within the category of a dealer mentioned in section 4.
Section 7 of the Act provides that "no dealer shall, while being liable under section 4 to pay tax under the Act, carry on business as a dealer unless he has been registered under the Act and possesses a registration certificate".
In pursuance of this provision, the appellant filed an applica tion for registration on the 19th December, 1944, and a certificate of registration was issued to him on the 21st December, 1944.
On the 8th October, 1945, the Sales Tax Officer issued a notice to the appellant asking him to produce his accounts on 10th November, 1945, and to show cause why in addition to the tax to be finally assessed on him a penalty not exceeding one and a half times the amount should not be imposed on him under section 10 (5) of the Act.
Section 10 (5), under which the notice purported to have been issued, runs thus: "If upon information which has come into his posses sion, the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully failed to apply for registra tion, the Commissioner shall, alter giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any, due from the dealer in respect of such 801 period and all subsequent periods and the Commissioner may direct that the dealer shall pay, 'by way of, penalty, in addition to the amount so assessed, a sum not exceeding one and a half times that amount.
" The appellant appeared before the Sales Tax Officer in response to this notice, but obtained several adjournments till 16th March, 1046, and ultimately failed to appear.
Thereupon, he was assessed by the Sales Tax Officer, accord ing to the best of his judgment, and was ordered to pay Rs. 4,526 13 0 as tax and a penalty amounting to one and a half times the amount assessed, under section 10 (5) of the Act.
The appellant appealed to the Commissioner against the assessment and the penalty levied upon him, but his appeal was dismissed on the 6th June, 1946.
He then filed a peti tion for revision to the Board of Revenue, against the order of the Commissioner, but it was dismissed on the 28th May, 1947.
He thereupon moved the Board of Revenue to refer to the High Court certain questions of law arising out of is order of the 28th May, but Mr. N. Baksi, a Member of the Board, by his order of the 4th December, 1947, rejected the petition with the following observations : "No case for review of my predecessor 's order made out.
No reference necessary.
" Section 21 of the Act provides that if the Board of Revenue refuses to make a reference to the High Court, the applicant may apply to the High Court against such refusal, and the High Court, if it is not satisfied that such refusal was justified, may require the Board of Revenue to state a case and refer it to the High Court.
The section also provides that "the High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Board of Revenue a copy of such judg ment under the seal of the Court . . and the Board shall dispose of the case accordingly.
" In accordance with this section, the appellant made an application to the High Court praying that the Board of Revenue may be called upon to state a case and refer 802 it to the High Court.
Dealing with this application, the High Court pointed out that the Member of the Board had not been asked to review his predecessor 's order but only to state a case, and gave the following directions : "The ease must, therefore, go back to the Board of Revenue for a case to be stated or for a proper ,order rejecting the application to be passed." The Board then reheard the matter and rejected the application of the appellant and refused to state a case and refer it to the High Court.
The appellant thereafter made an application to the High Court for requiring the Board of Revenue to state a case, but this application was summarily rejected.
He then applied to the High Court for leave to appeal to the Federal Court, which the High Court granted, following the decision of a Full Bench of the Lahore High Court in Feroze Shah Kaka Khd vs Income tax Commissioner, punjab and N.W.F.P., Lahore The High Court pointed out in the order granting leave that in the appeal that was taken to the Privy Council in the Lahore case, an objection had been raised as to the competency of the appeal, but the Privy Council, while dismissing the appeal on the merits, had made the following observation: " The objection is a serious one.
Admittedly such an appeal as the present is not authorized by the Income tax Act itself.
If open at all, it must be justified under clause "9, Letters Patent of the Lahore High Court, as being an appeal from a final judgment, decree or order made in the exercise of original jurisdiction by a Division Bench of the High Court.
And this present appeal was held by the Full Court to be so justified.
Before the Board the question was not fully argued, and their Lordships accordingly refrain from expressing any opinion whatever upon it" (2).
The High Court in granting leave to the appellant seems to have been influenced mainly by the fact that the view of the Lahore High Court had not been held by the Privy Council to be wrong.
(1) A.I.R. 1981 Lah.
(2) A.I.R. 1933 P. C. 198.
803 At the commencement of the hearing of the appeal in this Court, a preliminary objection was raised by the learned counsel for the respondent that this appeals was not compe tent, and, on hearing both the parties, we are of the opin ion that the objection is wellfounded.
In Sri Mahanth Harihar Gir vs Commissioner of Income tax, Bihar and Orissa (1) it was held by a special Bench of the Patna High Court that no appeal lay to His Majesty in Council under clause 31 of the Letters Patent of the Patna High Court, from an order of the High Court dismissing an application under section 66 (3) of the Income tax Act, (a provision similar to section 21 of the Act before us) to direct the Commissioner of Income tax to state a case.
In that case, the whole law on the subject has been clearly and exhaustively dealt with, and it has been pointed out that the view taken by the Full Bench of the Lahore High Court in the case cited by the appellant was not supported by sever al other High Courts and that the Privy Council also, when the matter came before it, refrained from expressing any opinion as to its correctness.
In our opinion, the view expressed in the Patna case is correct.
Clause 31 of the Letters Patent of the Patna High Court, on the strength of which the appellant resists the prelimi nary objection raised by the respondent, runs thus : "And We do further ordain that any person or persons may appeal to Us, Our heirs and successors, in Our or Their Privy Council, in any matter not being of criminal juris diction, from any final judgment, decree, or order of the said High Court of Judicature at Patna, made on appeal and from any final judgment, decree on order made in the exercise of original jurisdiction by Judges of the said High Court or of any Division Court, from which an appeal does not lie to the said High Court under the provisions contained in the 10th clause of these (1) A.I.R. 1941 Prat.
804 presents: provided, in either case, that the sum or matter at issue is of the amount or value of not less than ten thousand rupees, or that such judgment,decree or order involves, directly or indirectly, some claim, demand or question to or respecting property amounting to or of the value of not less than ten thousand rupees; or from any other final judgment, aecree or order made either on appeal or otherwise as aforesaid, when the said High Court declares that the case is a fit one for appeal to Us . " In order to attract the provisions of this clause, it is necessary to show, firstly, that the order under appeal is a final order; and secondly, that it was passed in the exer cise of the original or appellate jurisdiction of the High Court.
The second requirement clearly follows from the concluding part of the clause.
It seems to us that the order appealed against in this case, cannot be regarded as a final order, because it does not of its own force bind or affect the rights of the parties.
All that the High Court is required to do under section 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its judgment to the Board of Revenue.
The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court.
It is true that the Board 's order is based on what is stated by the High Court to be the correct legal position, but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties, and the final order in the matter is the order which is passed ultimately by the Board of Revenue.
This question has been fully dealt with in Tata Iron and Steel Company vs Chief Revenue Authority, Bombay(1), where Lord Atkinson pointed out that the order made by the High Court was merely advisory and quoted the following observations of Lord Esher in In re Knight and the Tabernacle Permanent Building Society(2): "In the case of Ex parte County Council of Kent, where a statute provided that a case might be stated (1) at 617. 805 for the decision of the Court it was held that though the language might prima facie import that there has to be the equivalent of a judgment or order, yet when the context was looked at it appeared that the jurisdiction of the Court appealed to was only consultative, and that there was noth ing which amounted to a judgment or order.
" It cannot also be held that the order was passed by the High Court in this case in the exercise of either original or appellate jurisdiction.
It is not contended that the matter arose in the exercise of the appellate jurisdiction of the High Court, because there was no appeal before it.
Nor can the matter, properly speaking, be said to have arisen in the exercise of the original jurisdiction of the High Court, as was held by the Judges of the Lahore High Court in the case to which reference was made, because the proceeding did not commence in the High Court as all origi nal suits and proceedings should commence.
But the High Court acquired jurisdiction to deal with the case by virtue of an express provision of the Bihar Sales Tax Act.
The crux of the matter therefore is that the jurisdiction of the High Court was only consultative and was neither original nor appellate.
In this view, the appeal must be dismissed, though on hearing the parties, it appeared to us that the salestax authorities including the Commissioner and the Board of Revenue were in error in imposing a penalty upon the appel lant under section 10 15) of the Act which had no applica tion to his case, inasmuch as he had been registered as required by section 7 of the Act.
In the circumstances, while dismissing the appeal, we make no order as to costs.
Appeal dismissed.
Agent for the respondent:
K. Chatterjee.
| No appeal lay to the Federal Court from an order of the Patna High Court dismissing an application under section 21(3)of the Bihar Sales Tax Act, 1944, to direct the Board of Reve nue, Bihar, to state a case and refer it to the High Court.
Such an order is not a` "final order" within the meaning of cl. 31 of the Letters Patent of the Patna High Court, inas much as an order of the High Court under section '21 (3) is advisory and standing by itself does not bind or affect the rights of the parties though the ultimate order passed by the Board of Revenue may be based on the opinion expressed by the High Court.
Nor is such an order passed by the High Court in the exercise either of its appellate or original jurisdiction within the meaning of the said clause.
Sri Mahant Harihar Gir vs Commissioner of Income tax, Bihar and Orissa (A.I.R. 1941 Pat. 225) and Tata Iron and Steel Company vs Chief Revenue Authority, Bombay (50 I.A. 212 applied.
Feroze Shah Kaka Khel vs Income tax Commissioner, Punjab (A.I.R. 1931 Lab.
138)disapproved.
|
No. LIX of 1949.
Appeal from the judgment of the Allahabad High Court (Verma and Yorke JJ.) dated 6th September, 1943 in First Appeal No. 3 of 1940.
P.L. Banerjee (B. Banerjee, with him), for the appel lant.
768 S.P. Sinha (N.C. Sen, with him), for the respondents.
November 14.
The court delivered judgment as follows : MUKHERJEA J.
This appeal is directed against an appel late judgment of a Division Bench of the Allahabad High Court dated September 6, 1943, by which the learned Judges reversed a decision of the Civil Judge, Etawah, made in Original Suit No. 28 of 1936.
The suit was one commenced by the plaintiff, who is respondent No. 1 in this appeal, for recovery of possession of two items of immovable property one, a residential house and other, a shop both of which are situated in the town of Etawah.
The properties admittedly formed part of the estate of one Mangal Sen who died sometime towards the end of the last century, leaving behind him, as his heirs, his two widows, Mst.
Mithani and Mst.
Mangal Sen had a son named Chhedi Lal and a daughter named Janki Kuar born of his wife Mst.
Rani, but both of them died during his lifetime.
Chhedi Lal had no issue and he was survived by his widow Mst.
Meria,while Janki left a son named Thakur Prasad.
Janki 's husband married another wife and by her got a son named Babu Ram.
On Mangal Sen 's death, his properties devolved upon his two widows, and Mst.
Rani having died subsequently, Mst.
Mithani came to hold the entire estate of her husband in the restricted rights of a Hindu widow.
On 27th November 1919, Mst.
Mithani surrendered the whole estate of her husband by a deed of gift in favour of Thakur Prasad who was the nearest reversioner at that time.
Thakur Prasad died in 1921, leaving a minor son named Nand Lal who succeeded to his properties and this Nand Lal is the plain tiff in the suit out of which this appeal arises.
On 27th October 1921, there was a transaction entered into between Babu Ram on his own behalf as well as guardian of infant Nand Lal on the One hand and Mst.
Meria, the widow of Chhedi Lal, on 769 the other, by which two items of property which are the subject matter of the present litigation were conveyed to Meria by a deed of transfer which has been described as a Tamliknama; and she on her part executed a deed of relin quishment renouncing her claims to every portion of the estate left by Mangal Sen.
It is not disputed that Meria took possession of the properties on the basis of the Tam liknama and on 10th April 1923 she executed a will, by which these properties were bequeathed to her three nephews, who are the sons of her brother Sunder Lal.
Meria died on 19th June 1924.
One Ram Dayal had obtained a money decree against Sunder Lal and his three sons, and in execution of that decree the properties in suit were attached and put up to sale and they were purchased by Ram Dayal himself on 30th January 1934.
On 1st June 1936, the present suit was insti tuted by Nand Lal and he prayed for recovery of possession of these two items of property on the allegation that as they were given to Mst.
Meria for her maintenance and resi dence, she could enjoy the same only so long as she lived and after her death, they reverted to the plaintiff.
Sunder Lal, the brother of Meria, was made the first defendant in the suit, and his three sons figured as defendants Nos.
2 to 4.
Defendant No. 5 is a lady named Chimman Kunwar in whose favour Sunder Lal was alleged to have executed a deed of transfer in respect of a portion of the disputed proper ty.
Ram Dayal, the decree holder auction purchaser, died in May 1935 and his properties vested in his daughter 's son Ram Gopal under a deed of gift executed by him in favour of the latter.
On 1st September 1938, Ram Gopal was added as a party defendant to the suit on the plaintiff 's application and he is defendant No. 6.
The two other defendants, namely, defendants 7 and 8, who were also made parties at the same time, are respectively the widow and an alleged adopted son of Ram Dayal.
The suit was contested primarily by defendant No. 6, and the substantial contentions raised by him in his written statement were of a two fold character.
770 The first and the main contention was that Mst.
Meria got an absolute title to the disputed properties on the strength of the 'Tamliknama ' executed in her favour by the guardian of the plaintiff and after her death, the properties passed on to the three sons of Sunder Lal who were the legatees under her will.
Ram Dayal, it was said, having purchased these properties execution of a money decree against Sunder Lal and his three sons acquired a valid title to them.
The other contention raised was that the suit was barred by limitation.
The trial Judge decided both these points in favour of the contesting defendant and dismissed the plain tiff 's suit.
On appeal to the High Court, the judgment of the Civil Judge was set aside and the plaintiff 's suit was decreed.
The defendant No. 6 has now come up on appeal to this court and Mr. Peary Lal Banerjee, who appeared in support of the appeal, pressed before us both the points upon which the decision of the High Court has been adverse to his client.
The first point raised by Mr. Banerjee turns upon the construction to be placed upon the document executed by Babu Ram on his own behalf as well as on behalf of Nand Lal then an infant, by which the properties in dispute were trans ferred to Mst.
Meria by way of a 'Tamliknama '.
The question is whether the transferee got, under it, an absolute inter est in the properties, which was heritable and alien able or was it the interest of a life tenant merely.
The documentis by no means a complicated one.
It begins by a recital of the events under which Nand Lal became the sole owner of the properties left by Mangal Sen and refers in this connection to the obligation on the part of both Babu Ram and Nand Lal to "support, maintain and console" Mst.
Meria, the widow of the pre deceased son of Mangal Sen.
The document then proceeds to state as follows: "I have therefore, of my own accord and free will without any compulsion or coercion on the part of any one else while in my proper senses made a Tamlik of a double storied pucca built shop . and a house 771 and a kothri in Etawah . . worth Rs. 8,000 for purposes of residence of the Musammat, owned by the minor aforesaid . which at present stands let out on rent to Sunder Lal, brother of Mst.
Meria aforesaid . . in favour of Mst.
Meria aforesaid, widow of Chhedi Lal and made her the owner (Malik).
If any portion or the whole of the property made a Tamlik of for the purpose mentioned above passes out of the possession of the Musammat aforesaid on account of the claim of Nand Lal minor aforesaid, I and my property of every sort shall be responsible and liable for the same.
" This document has got to be read along with the deed of relinquishment, which is a contemporaneous document execut ed by Meria renouncing all her claims to the property left by Mangal Sen.
The deed of relinquishment like the Tamliknama recites elaborately, with reference to previous events, particularly to the deed of gift executed by Mst.
Mithani in favour of Thakur Prasad, the gradual devolution of the entire estate of Mangal Sen upon Nand Lal.
It states thereafter that Babu Ram, as the guardian of the minor and also in his own right, "has under a Tamliknama dated this day made a 'Tamlik '.
in my favour of a shop alongwith a Balakhana and a kota for my maintenance and a house . . for purpose of my residence which are quite sufficient for my maintenance." "I have therefore, of my own accord ", the document goes on to say, "made a relinquishment of the entire property aforesaid mentioned in the deed of gift . worth Rs. 25,000.
I do covenant and do give in writing that I have and shall have no claim to or concern with the property . . belonging to the minor afore said, nor has the property aforesaid remained subject to my maintenance allowance nor shall I bring any claim at any time.
" The schedule to the instrument, it may be noted, gives a list of all the properties of Mangal Sen in respect to which Mst.
Mithani executed a deed of gift in favour of Thakur Prasad, including the two items of property covered by the 'Tamliknama ' mentioned aforesaid.
772 In construing a document whether in English or in vernacular the fundamental rule is to ascertain the inten tion from the words used; the surrounding circumstances are to be considered, but that is only for the purpose of finding out the intended meaning of the words which have actually been employed(1).
In the present case the instru ment of grant has been described as a 'Tamliknama ' which means a document by which ' Maliki ' or ownership rights are transferred and the document expressly says that the grantee has been made a ' Malik ' or owner.
There are no express words making the gift heritable and transferable; nor on the other hand, is there any statement that the transferee would enjoy the properties only during her life time and that they would revert to the grantor after her death.
It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her.
The reasoning adopted by Mr. Justice Mitter of the Calcutta High Court in Kollani Koer vs Luchmee Parsad(2) which was ap proved of and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable.
It was held by the Privy Council as early as in the case of Tagore vs Tagore( '3) that if an estate were given to a man without express words of inheritance, it would, in the absence of a conflicting context, carry, by Hindu Law, an estate of inheritance.
This is the general principle of law which is recognised and embodied in section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a 'widow 's estate ', there is no justification for departing from this principle.
There is certainly no such provision in Hindu Law and no text could be supplied in support of the same.
(1) Vide Rajgndra Prasad vs Gopal Prasad.
57 I.A. 296.
(2) (3) L.R.I.A. Supp.
47 at 65.
773 The position, therefore, is that to convey an absolute estate to a Hindu female, no express power of alienation need be given; it is enough if words are used of such ampli tude as would convey full rights of ownership.
Mr. Banerjee naturally lays stress upon the description of the document as 'Tamliknama ' and the use of the word ' Malik ' or owner in reference to the interest which it pur ports to convey to the transferee.
The word ' Malik ' is of very common use in many parts of India and it cannot cer tainly be regarded as a technical term of conveyancing.
In the language of the Privy Council, the term 'Malik ' when used in a will or other document "as descriptive of the position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full pro prietory rights, including a full right of alienation, unless there is something in the context or in the surround ing circumstances to indicate that such full proprietory rights were not intended to be conferred(1). ' ' This I think to be a perfectly correct statement of law and I only desire to add that it should be taken with the caution which the Judicial Committee uttered in course of the same observa tion that "the meaning of every word in an Indian document must always depend upon the setting in which it is placed, the subject to which it is related and the locality of the grantor from which it receives its true shade of meaning.
" The question before us, therefore, narrows down to this as to whether in the present case there is anything in the context of these two connected instruments or in the sur rounding circumstances to cut down the full proprietory rights that the word 'Malik ' ordinarily imports.
The High Court in reaching its decision adverse to the appellant laid great stress on the fact that the grant was expressed to be for maintenance and residence of Mst.
Meria.
This, it is said, would prima facie indicate that the grant was to enure for the lifetime of the grantee.
It is pointed out by the learned (1) Vide Sasiman Chowdhurain vs Shib Narayan, 49 I.A, 25.
99 774 Judges that the language of the document does not show that anybody else besides the lady herself was to be benefited by the grant and the indemnity given by Babu Ram was also given to the lady personally.
It is further said that if Meria was given an absolute estate in the properties comprised in the 'Tamliknama ', there was no necessity for including these two properties again in the deed of relinquishment which she executed at the same time.
I do not think that the mere fact that the gift of property is made for the support and maintenance of a female relation could be taken to be a prima facie indication of the intention of the donor, that the donee was to enjoy the property only during her life time.
The extent of interest, which the donee is to take, depends upon the intention of the donor as expressed by the language use, d, and if the dispositive words employed in the document are clear and unambiguous and import absolute ownership, the purpose of the grant would not, by itself, restrict or cut down the interest.
The desire to provide maintenance or residence of the donee would only show the motive which prompted the donor to make the gift, but it could not be read as a meas ure of the extent of the gift.
This was laid down in clear terms by the Judicial Committee in a comparatively recent case which is to be found reported in Bishunath Prasad vs Chandrika(1).
There a Hindu executed a registered deed of gift of certain properties in favour of his daughter in law for the" support and maintenance" of his daughter in law and declared that the donee should remain absolute owner of the property (malik mustaqil) and pay Government revenue.
There were no words in the document expressly making the interest heritable or conferring on the donee the power of making alienation.
It was held by the Judicial Committee that the donee took under the document, an absolute estate with powers to make alienation giving title valid after her death.
In course of the judgment, Lord Blanesburgh quoted, with approval, an earlier decision of the (1) 60 I.A 56 775 Judicial Committee, where the words "for your maintenance" occurring in a deed of gift were held insufficient to cut down to life interest the estate taken by the donees.
These words, it was said, "are quite capable of signifying that the gift was made for the purpose of enabling them to live in comfort and do not necessarily mean that it was to be limited to a bare right of maintenance.
" On behalf of the respondent, reliance was placed upon the decision of the Judicial Committee in Raja Ram Buksh vs Arjun(1)in support of the contention that in a maintenance grant it is the prima facie intention of the gift that it should be for life.
In my opinion, the decision cited is no authority for the general proposition as is contended for by the learned Counsel for the respondent, and it is to be read in the context of the actual facts of the case which relate to grants of a particular type with special features of its own.
It was a case where a Talukdar made a grant of certain villages to a junior member of the joint family for mainte nance of the latter.
The family was governed by the law of primegeniture and the estate descended to a single heir.
In such cases the usual custom is that the junior members of the family, who can get no share in the property, are enti tled to provisions by way of maintenance for which assign ments of lands are generally made in their favour.
The extent of interest taken by the grantee in the assigned lands depends entirely upon the circumstances of the partic ular case, or rather upon the usage that prevails in the particular family.
In the case before the Privy Council there was actually no deed of transfer.
It was an oral assignment made by the Talukdar, and the nature of the grant had to be determined upon the recitals of a petition for mutation of names made to the Revenue Department by the grantor after the verbal assignment was made and from other facts and circumstances of the case.
The case of Woodoya ditta Deb vs Mukoond(2), which was referred to and relied upon in the judgment of the Privy Council, was (1) 28 I.A, 1.
(2) 22 w.
R. 229.
776 also a case of maintenance or khor phos grant made in favour of a junior member of the family, where theestate was im partible and descended under the rules of primogeniture.
It was held in that case that such grants, the object of which was to make suitable provisions for the immediate members of the family, were by their very nature and also under the custom of the land resumable by the zemindar on the death of the grantee, as otherwise the whole zemindary would be swallowed up by continual demands.
This principle bas obviously no application to cases of the type which we have before us and it was never so applied by the Privy Council, as would appear from the decision referred to above.
The learned Counsel for the plaintiff respondent drew our attention in this connection, to the fact that the properties given by the ,Tamliknama ' were valued at Rs. 8,000, whereas the entire estate left by Mangal Sen was worth Rs. 25,000 only.
It is argued that the transfer of nearly one third of the entire estate in absolute right to one who was entitled to maintenance merely, is, on the face of it, against probability and common sense.
I do not think that, on the facts of this case, any weight could be at tached to this argument.
In the first place, it is to be noted that whatever might have been the actual market value of the properties, what the widow got under the Tamliknama was a residential house and a shop, and the shop was the only property which fetched any income.
This shop, it appears, was all along in possession of Sunder Lal, the brother of Meria, and the rent, which he paid or promised to pay in respect of the same, was only Rs. 12 a month.
So from the income of this property it was hardly possible for Meria to have even abate maintenance, and this would rather support the inference that the properties were given to her absolutely and not for enjoyment merely, so long as she lived.
But what is more important is, that the object of creating these two documents, as the surrounding circumstances show, was not merely to make provision 777 for the maintenance of Mst.
Meria; the other and the more important object was to perfect the title of Nand Lal to the estate left by Mangal Sen and to quiet all disputes that freight arise in respect of the same.
It may be that Mst.
Meria could not, in law, claim any.
thing more than a right to be maintained out of the estate of her deceased father in law.
But it is clear that whatever her legal rights might have been, Nand Lal 's own position as the sole owner of the properties left by Mangal Sen was not altogeth er undisputed or free from any hostile attack.
As has been said already, Sunder Lal, the brother of Meria, was in occupation of the double storied shop from long before the Tamliknama was executed and Meria got any legal title to it.
It appears from the record that in 1920 a suit was institut ed on behalf of the infant Nand Lal for evicting Sunder Lal from the shop and the allegation in the plaint was that Sunder Lal was occupying the property as a tenant since the time of Mst.
Mithani by taking a settlement from her.
Sunder Lal in his written statement filed in that suit expressly repudiated the allegation of tenancy and also the title of Nand Lal and openly asserted that it was Mst.
Meria who was the actual owner of Mangal Sen 's estate.
The suit ended in a compromise arrived at through the medium of arbitrators and the result was that although Sunder Lal admitted the title of the plaintiff, the latter had to abandon the claims which were made in the plaint for rents, costs and damages.
Sunder Lal continued to be in occupation of the shop and executed a rent agreement in respect of the same in favour of Nand Lal promising to pay a rent of Rs. 12 per month.
A few months later, the Tamliknama was executed and this shop along with the residential house were given to Meria in maliki right.
The recitals in both the Tamliknama and the deed of relin quishment clearly indicate that the supreme anxiety on the part of Babu Ram, who was trying his best to safeguard the interests of the minor, was to put an end to all further disputes that might be raised by or on behalf of Mst.
Meria with regard to the rights of Nand Lal to the properties 778 of Mangal Sen and to make his title to the same absolutely impeccable.
That seems to be the reason why Meria was given a comparatively large portion of the properties left by Mangal Sen which would enable her to live in comfort and her interest was not limited to a bare right of mainte nance.
It is significant to note that the shop room, which was all along in possession of Sunder Lal, was included in this Tamliknama and soon after the grant was made, Sunder Lal executed a rent agreement in respect of the shop in favour of Mst.
Meria acknowledging her to be the owner of the property.
It is true that the document does not make any reference to the heirs of Meria, but that is not at all necessary, nor is it essential that any express power of alienation should be given.
The word "Malik" is too common an expres sion in this part of the country and its meaning and impli cations were fairly well settled by judicial pronouncements long before the document was executed.
If really the grantee was intended to have only a life interest in the properties, there was no lack of appropriate words, per fectly well known in the locality, to express such inten tion.
The High Court seems to have been influenced to some extent by the fact that in the Tamliknama there was a guarantee given by Babu Ram to Meria herself and to no one else agreeing to compensate her in case she was dispossessed from the properties at the instance of Nand Lal.
This covenant in the document was in the nature of a personal guarantee given by Babu Ram to Mst.
Meria for the simple reason that the property belonged to an infant and it was as guardian of the minor that Babu Ram was purporting to act.
It was too much to expect that Babu Ram would bind himself for all time to come and give a guarantee to the future heirs of Meria as well.
Probably no such thing was contem plated by the parties and no such undertaking was insisted upon by the other side.
But whatever the reason might be which led to the covenant being expressed in this particu lar form, I do not think that it has even a remote bearing on the 779 question that arises for our consideration in the present case.
It is of no assistance to the plaintiff in support of the construction that is sought to be put upon the , docu ment on his behalf.
I am also not at all impressed by the other fact re ferred to in the judgment of the High Court that if the properties were given to Meria in absolute right, there was no necessity for including them again in the schedule to the deed of relinquishment which Meria executed.
I fail to see how the inclusion of the properties in the deed of relin quishment would go to indicate that Meria 's rights to these properties were of a restricted and not an absolute charac ter.
It is after all a pure matter of conveyancing and the two documents have to be read together as parts of one and the same ' transaction.
Under the ' Tamliknama ', Meria got two properties in absolute right out of the estate of Mangal Sen.
By the deed of relinquishment, she renounced her claim for maintenance in respect of all the properties left by Mangal Sen including the two items which she got under the 'Tamliknama '.
After the ' Tamliknama ' was executed in her favour, there Was no further question of her claiming any right of maintenance in respect of these two items of property.
She became the absolute owner thereof in exchange of her rights of maintenance over the entire estate and this right of maintenance she gave up by the deed of relinquish ment.
On a construction of the entire document, my conclu sion is that there is nothing in the context of the docu ment, or in the surrounding circumstances which would dis place the presumption of full proprietory rights which the use of the word "Malik" is apt ordinarily to convey.
The first contention of the appellant, therefore, succeeds and in view of my decision on this point, the second question does not arise for determination at all.
The result is that the appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial Judge restored.
The defendant No. 6 will have his costs from the plaintiff in all the courts.
There will be no order for costs as regards the other parties: 780 FAZL ALI J.
I agree with the judgment delivered by my learned brother, Mukherjea J. CHANDRASEKHARA AIYAR J.
During the hearing of the appeal I entertained doubts whether the view taken by the High Court was not correct.
But on further consideration, I find that it cannot be maintained, having regard to the terms of the ' Tamliknama ' (deed of transfer) in favour of Musammat Meria and the context in which it came into exist ence.
The name of the document or deed does not very much matter.
Though the word ' malik ' is not a term of art, it has been held in quite a large number of cases, decided mostly by the Judicial Committee of the Privy Council, that the word, as employed in Indian documents, means absolute owner and that unless the context indicated a different meaning, its use would be sufficient to convey a full title even without the addition of the words, ' heirs ', or ' son ', ' grandson ' and ' great grandson '.
Of course, if there are other clauses in the document which control the import of the word and restrict the estate to a limited one, we must give the narrower meaning; otherwise the word must receive its full significance.
Especially is this so, when the rule of interpretation laid down in Mohammed Shamsul vs Sewak Ram( ') has come to be regarded as unsound.
The language employed in the ' Tamliknama ' (exhibit II) is almost similar to the language of the deeds construed in Bhaidas Shivdas vs Bai Gulab & Another( '2) and Bishunath Prasad Singh vs Chandika Prasad Kumari and Others(s) where it was held that an absolute estate was conveyed.
I agree that the judgment and decree of the High Court should be set aside and that the decree of the trial Judge should be restored with costs to the appellant in all the Courts.
Appeal allowed.
| In construing a document whether in English or in vernacular the fundamental rule is to ascertain the inten tion from the words used; the surrounding circumstances are to be considered but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.
To convey an absolute estate to a Hindu female, no express power of alienation need be given; it is enough if words of such amplitude are used as would convey full rights of ownership.
The term 'Malik ' when used in a will or other document as descriptive of the position which a devisee or donee is intended to held, has been held apt to describe in owner possessed of full proprietory rights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietory rights were not intended be conferred to 767 The mere fact that a gift of property is made for the support and maintenance of a female relation could not be taken to be a prima facie indication of the intention of the donor, that the donee was to enjoy the property only during her life time.
The extent of interest, which the donee is to take, depends upon the intention of the donor as ex pressed by the language used, and if the dispositive words employed in the document are clear and unambiguous and import absolute ownership, the purpose of the grant would not, by itself, restrict or cut down the interest.
The desire to provide maintenance or rcsidence of the donee would only show the motive which prompted the donor to make the gift, but it could not be read as a measure of the extent of the gift.
Where a Hindu died leaving two widows, a widowed daugh terin law and a daughter 's son, and a relative of the family acting as guardian of the daughter 's son 's son who was then the nearest reversioner got a relinquishment deed from the daughter in law renouncing all her claims to the estate and in return executed a deed of 'tamlikhama ' to her with re spect to certain properties which ran as follows: "I have therefore, of my own accord and free will, without any compulsion or coercion on the part of any one else while in my proper senses made a Tamlik of a double storied pucca built shop . . and a house and a kothri in Etawah . . worth Rs. 8,000 for purposes of residence of the Musammat (the daughter in law) owned by the minor aforesaid . . which present stands let out on out on rent to Sunder Lal, brother of Mst.
Meria aforesaid . . in favour of Mst.
Meria aforesaid, widow of Chhedi Lal and made her the owner (Malik) " ' Held, that there was nothing in the context of the document or in the surrounding circumstances which would displace the presumption of full proprietory rights which the use of the words 'Malik ' is apt ordinarily to convey and the daughter in law obtained under the gift deed a full heritable and transferable title to t, he properties con veyed thereby.
Rajendra Prasad vs Gopal Prasad (57 I.A. 296), Kollani Koer vs Luchmee Parsad , Tagore vs Tagore (I.A. Supp.
Sasiman Chaudhurain vs Shib Narayan (49 I.A. 25), Biswanath Prasad vs Chandrika (60 I.A. 56) relied on.
Baja Ram Baksh vs Arjun (60 I.A. 56), Woodayaditta Deb vs W.R. 229) distinguished.
|
s Nos. 98, 99, 100 and 101 of 1950.
139 Appeals from the orders of the High Court of Judicature at Patna (Manohar Lall and Imam JJ.) in Miscellaneous Ap peals Nos.
108 to 111 of 1948.
Shambhu Barmeswar Prasad and Ramanugrah Prasad for the appellants.
H.J. Umrigar for the respondents.
January 12.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
The decision of these four ap peals, which are connected with each other and which have arisen out of orders made by the High Court of Patna in four Miscellaneous Appeals, depends on the interpretation of section 7 of the Bihar Moneylenders (Regulation of Transac tions) Act, 1939.
The facts which have led to the appeals are found brief ly stated in the petition filed by the present appellants in the 3rd Court of Sub Judge, Patna, and may be re stated here for convenient reference : "The father of the petitioners borrowed Rs. 40,000 from the guru (ancestor) of the decree holder under mortgage bond, dated 11 1 1893.
Out of Rs. 40,370 7 6 interest and compound interest up to 4 1 1910, Rs. 32,370 7 6 was paid in cash and for the balance Rs. 8,000 interest and Rs. 40,000 principal, i,e., for Rs, 48,000 a Mortgage Suit No. 14 of 1910 was filed in1st Court of the Sub Judge, Patna, and in lieu of the claim and cost of the said suit two fresh mortgage bonds were executed on 11 7 1910, viz., one for Rs. 40,000 and the other for Rs. 9,488 and the latter bond was satisfied by payment of Rs. 15,835 in cash.
With respect to the above bond of Rs. 40,000, dated 11 7 1910 the petitioners paid Rs. 38,530 13 6.
Mort , gage Suit No. 110 of 1927 was brought in the 3rd Court of the Sub Judge, Patna, and a decree for Rs. 58,012 2.0 was passed on 9 7 1929.
Out of this Rs. 5,000 was paid in cash and for the balance of Rs. 53,012 12 0 one mortgage bond dated 6 10 1931 was executed for Rs. 42,000 and on the same date two 140 hand notes were executed, viz., one for Rs. 5,000 and one for Rs. 6012 2 0.
One Suit No. 14 of 1933 for both the hand notes was brought in 3rd Court of the Sub Judge and a decree for Rs. 15,008 2 0 was passed on 28 2 1935.
This decree is under execution.
" When the decree holder sought to execute the money decree by attachment and sale of the judgmentdebtors ' properties stating that they were subject to a mortgage lien of Rs. 62,272 13 0 under the mortgage bond dated 6 10 1931, the two judgment debtors, who are brothers, filed objec tions under sections 11 and 16 of the earlier Bihar Money lenders Act III of 1938 and section 47 of the Civil Procedure Code.
The petitions (two by each of them) were filed separately by the brothers.
They urged that on a proper calculation under section 11 no lien was subsisting on the properties owing to payments made towards the mort gage debt amounting to Rs. 92,394 2 0.
The Subordinate Judge held that this plea of the judgment debtors could not be entertained in the Miscellaneous case before him relating to the execution and all that could be done was to notify the mortgage encumbrance without deciding anything as to the correctness of the amount claimed to be due under it; and this conclusion was partly based on the fact that section 16 of the Act had been declared by the High Court void.
Ap peals taken to the High Court were dismissed.
The judgment debtors thereupon preferred an appeal to the Feder al Court, contending that sections 7 and 13 of the new Act (corresponding to sections 7 and 11 of the old Act)were applicable and that it was the duty of the court to estimate the value of the property after making the necessary calcu lations under section 7 with reference to the lien.
The decision of the Federal Court is reported in Ramnandan Prasad Narain Singh and Another vs Kulpati Shri Mahanth Goshwarni Madhwanand Ramji(1).
The case was remitted back to the High (1) 141 Court, giving liberty to the appellants to file an applica tion under section 13.
In answer to a fresh application for execution dated 2 7 1042, the two brothers filed the same objections as before.
Miscellaneous Cases Nos. 45 and 46 of 1942 related to sections 7 and 13 of the Bihar Money lenders Act and Miscellaneous Cases Nos. 50 and 52 of 1042 related to the objections under section 47 of the Code of Civil Procedure.
The Subordinate Judge held that the amount of the loan should be taken as the amount mentioned in the mortgage deed of 1931 and not the amount advanced in 1893 and that a sum of Rs. 70,840 was still due on the bond.
He determined the market value of the several properties given as security, adopting 16 times the net income as the basis.
Appeals to the High Court were numbered as M.A. 108 to 111 of 1943 and they were heard by Manohar Lall and Imam JJ.
They modified the order of the lower Court in certain re spects.
Even according to them the amount of the loan was what was mentioned in the mortgage bond of 6 10 1931, but as a sum of Rs. 11,855 3 0 had been repaid expressly towards the principal amount after the date of the bond, that amount became reduced to Rs. 28,150.
Adding an equal sum by way of interest which according to them was the maximum amount, permitted to be allowed under section 7 of the Act, the total liability was stated to be Rs. 56,300 and a charge was declared on the property for this amount.
They also directed that the valuation of the property should be fixed at twenty times the net income and not sixteen times.
It is from this order that the present appeals have been preferred.
Two points were urged on behalf of the appellants, namely (a) that the decree holder was barred by construc tive res judicata from contending that the construction placed upon section 7 by the judgmentdebtors was wrong; and (b) that in applying section 7, we must consider the origi nal amount of loan of Rs. 40,000 given in the year 1893 and allow the claim 142 of interest only for that maximum sum, after taking into account all sums paid by the appellants and their predeces sors towards interest since 1893.
The first point is entirely without substance.
When the decree holder contended that section 11 of the Bihar Money lenders Act, 1938, was declared void and ultra vires and that therefore section 7 of the new Act which corresponded to section 11 was also inapplicable, the judgment debtors pleaded that they were entitled to the benefit of section 7 of the new Act.
The Federal Court held in Ramnandan Prasad Narain Singh and Another vs Kulpati Shri Mahanth Goshwami Madhwanand Ramji(1) that the judgment debtors (present appellants) were entitled to claim the benefit of the provi sions of the new Act when the executing court proceeded under section 13 to determine the value of the properties to be sold.
The correct interpretation of section 7 was not in question between the parties.
To say that the appellants were entitled to take advantage of the provisions of section 7 is entirely different from the contention that the inter pretation sought to be put by them on section 7 was the right one.
The Federal Court was not dealing with any question of interpretation at all.
It is impossible to see where the doctrine of constructive res judicata comes in, so as to be of help to the appellants.
The second question raised on their behalf relates to the true meaning of section 7 of the Bihar Moneylenders (Regulation of Transactions) Act VII of 1939, which is in these terms: "7.
Notwithstanding anything to the contrary con tained in any other law or in anything having the force of law or in any agreement, no Court shall, in any suit brought by a money lender before or after the commencement of this Act in respect of a loan advanced before or after the com mencement of this Act or in any appeal or proceedings in revision arising out of such suit, pass a decree for an amount of interest for the period preceding the institution of the suit, (1) 143 which together with any amount already realised as interest through the court or otherwise, is greater than the amount of loan advanced, or, if the loan is based on a document, the amount of loan mentioned in, or evidenced by, such document.
" In the present case, the original loan of Rs. 40,000 was advanced as early as 11 1 1893.
The appellants j contend that for the purposes of calculating the interest to be decreed prior to the date of the suit the loan advanced must be taken to be the original sum and that if an account is taken of all the sums received by the creditor as interest from that date up to the date of the suit, there would be nothing due for interest.
On the other hand, the decree holder urges that having regard to the latter part of the section, the loan must be taken to be the amount mentioned in the mortgage bond dated 8 10 1931, namely Rs. 42,000.
Whichever method of calculation is adopted, it must be remembered that it has to be made not for the purposes of passing any decree on the mortgage loan, but for estimating under section 13 of the Act the value of the properties to be brought to sale in execution of the money decree against the appellants.
As pointed out by Sir Maurice Gwyer C.J. in Surendra Prasad Narain Singh vs Sri Gajadhar Prasad Sahu Trust Estate and Otherse), "Section 7 of the Act of 1937 is no doubt extremely obscure and illdrawn.
" The true intention of the framers of the Act is somewhat difficult to gather.
But the Patna High Court has been consistently placing upon the section an interpretation which is opposed to the contention of the appellant in these proceedings.
The point came up expressly for decision in Singhesh war Singh and Others vs Madni Prasad Singh Others(2) where a mortgage bond was executed on 31 8 1922 for a sum of Rs. 2,000 which was the balance of the principal and inter est due under a mortgage bond of the 11th of October, 1912, for (1) (2)A.T.R. 1940 Pat.
65. 19 144 Rs. 1,391.
The judgment debtors raised the plea that the court should go back to the earlier bond of 1912 and that as a sum of Rs. 1,512 had been paid as and by way of interest towards that bond, no decree could be passed against them for more than the principal sum of Rs. 1,391.
The learned Judges rejected this contention and took the amount stated in the document of 1922, namely Rs. 2,000, as the loan and they held that the plaintiffs were entitled to get a decree for interest for a sum not larger than Rs. 2,000 as no payment had been proved to have been made after the execution of the bond.
The same view was taken in Lal Singh vs Ramnarain Ram and Others(1) and the plain tiffs were awarded a decree on the basis that the loan was to be taken as Rs. 2,909 8 0 which was the amount for which the hand note sued upon was executed and not Rs. 1,000 which was the original amount advanced upon an earlier hand note of the year 1924.
The case reported in Madho Prasad Singh vs Mukutdhari Singh and Others(2) lays down the same position.
The Full Bench decision in Deo Nandan Prasad vs Ram Prasad (3) rei terates the same view, pointing out the distinction between sections 7 and 8 of the Act and stating that while under section 8 we can go to the original loan in spite of a later document, under section 7, the loan must relate to the document on which the suit is based, that is, the final document and not the original one.
In each one of these cases, the question of the true meaning of section 7 was pointedly considered.
This construction no doubt enables a creditor to circumvent the beneficent provisions of the Act by taking a document for the interest due and adding it to the principal amount.
Gwyer C.J. points out this difficulty at page 59 in the case Surendra Prasad Narain Singh vs Sri Gajadhar Prasad Sahu Trust Estate and Others(4).
If the interpretation does not carry out the intentions of the framers of the Act by reason of unhappy or ambiguous phrasing, it is for the Legis lature to intervene.
But far from doing so, it has (1) , Patna 618.
(2) (1941) 193 I.C.661.
(4) [1940] F.C.R.39.
145 acquiesced, during all these years in the construction which the Patna High Court has been placing upon the section from the very next year after the enactment of the statute.
Having regard to the great obscurity in the language em ployed in the relevant provisions and the inaction of the Legislature, it is, in our opinion, legitimate to infer that the view expressed by the Patna High Court is in accord with the intention of the Legislature.
The appeals fail and are dismissed with costs, only one set in all of them together.
Appeals dismissed.
Agent for the respondent ': R.C. Prasad.
| Where a fresh document is executed for the amount remaining due on account of principal and interest under a loan ad vanced prior document, and a suit is brought for recovery of the amount due under the later document with interest due thereunder, "the amount of loan mentioned in, or evidenced by, such document" for the purposes of section 7 of the Bihar Money Lenders Regulations and Transactions) Act, 1939, is the amount mentioned, or evidenced by, the later document and not that mentioned in the original document which was renewed; and the court can pass a decree for an amount of interest for the period preceding the institution of the suit, which together with any amount realised as interest after the date of the later document, is not greater than the amount of loan mentioned in the later document.
The maximum amount that can be so decreed is not the amount which together with the interest realised from the date of the original loan does not exceed the original loan.
Singheswar Singh and Other 's vs Nadni Prasad Singh and Others (A.I.R. 1940 Pat.
65), Lal Singh vs Ramnarain Ram and Others (,A.I.R 1942 Pat 138), Madho Prasad Singh vs Mu kutdheri Singh and Others , Deo Nandan Prosad vs Ram Prasad (I.L.R 23 Pat. 618), Ram Nandan Prasad Narain Singh vs Kulpati Shri Mahanth Goshwami Madhwanand Ramji ([1940] F.C.R. 1), Surendra Prasad Narain Singh vs Sri Gajadhar Prasad Sahu Trust Estate and Others ([1940] F.C.R. 39) referred to.
|
(Case No. 24 of 1050).
Appeal under article 132 (1) of the Constitution of India, against the judgment and order of the High Court of Judicature at Calcutta in Criminal Miscellaneous Case No. 361 of 1050.
A.C. Gupta and Sudhansu Sekhar Mukherjee (Arun Kumar Dutta and S.N. Mukherjee, with them) for the appellants.
M.C. Setalvad, Attorney General, (B. Sen, with him) for the respondent.
Jan. 25.
The Judgment of Kania C.J., Fazl Ali, Mukherjea and Chandrasekhara Aiyar JJ., was delivered by Kania C.J. Patanjali Sastri and Das JJ.
delivered separate judgments.
KANIA C.J. This is an appeal under article 132 of the Constitution of India from the judgment of the 214 High Court at Calcutta, which rejected the habeas corpus petitions of the appellants.
The detention orders under the , in all cases were served on the appellants on the 26th February, 1950, and the grounds for the detention were served on the 14th March, 1950.
By way of specimen we quote one of them: "You are beings detained in pursuance of a detention order made under sub clause (ii) of clause (a) of subsection (1)of section a of the , (Act IV of 1950), on the following grounds: (1) That you have been assisting the operations of the Communist Party of India, which along with its volunteer organisations has been declared unlawful by Government under section 16 of the Indian Criminal Law Amendment Act (Act XIV of 1908), and which has for its object commission of rioting with deadly weapons, robbery, dacoity, arson and murder and possession and use of arms and ammunitions and explosives and thus acting in a manner prejudicial to the maintenance of public order and that it is necessary to prevent you from acting in such manner.
(2) That as a member of the C.P.I. on its Kishan front, you have fomented trouble amongst the peasants of Howrah District and incited them to acts of lawlessness and vio lence: and have thereby acted in a manner prejudicial to the maintenance of public order: That as a worker of the C.P.I. you have tried to foment trouble amongst the tramways men and other workers at Cal cutta and in speeches which you delivered at the University Hall and other places you actually incited them to resort to acts of violence and lawlessness; and have thereby acted in a manner prejudicial to the maintenance of public order.
" On the 16th of July, 1950, the Government of West Bengal served on the appellants "in continuation of the grounds already furnished on the 14th of March, 1950, supplementary grounds" for their detention a specimen of which is in the following terms: 215 "In continuation of the grounds already furnished under order No. 6163 H.S. dated 14th March, 1950, you are being informed of the supplementary grounds for your detention which are as follows: You as the Secretary of the Bengal Chatkar Mazdoor Union, as a member of the Executive Committee of the Federa tion of Mercantile Employees ' Union, as the honorary report er of the 'Khabar ' newspaper (C. P.I. organ) carried on the disruptive programme of the C.P.I.
On the 29th July, 1948, you along with others led a procession at Howrah preaching discontent against Government and have been thus acting in a manner prejudicial to the maintenance of public order. ' ' As in the case of the first grounds, these "supplemen tary grounds" were also served on each appellant separately.
The appellants applied for a Rule of habeas corpus separate ly under section 491 of the Criminal Procedure Code and on the 21st July, 1950, the High Court issued a Rule in each case on the Chief Secretary to the Government of West Ben gal.
A second set of grounds were communicated to the appellants on the 22nd or 23rd of July, 1950.
A specimen of one is in the following terms: "In continuation of the grounds already furnished under order No. 12820 dated 14th July, 1950, you are being in formed of the supplementary grounds for your detention which are as follows: 1.
That in a meeting held at the University Institute on the 19th March, 1947, under the auspices of the Calcutta Tramway Workers ' Union, you held out the threat that any attempt to take out tram cars on the 20th March, 1947, would be inviting disaster and you further said that if the au thorities tried to resume the tram service you and your friends would not hesitate to remove the tram lines and cut the wires.
That on the 13th June, 1948, you presided over a meeting under the auspices of the Students ' Federation (C. P.I. controlled) and delivered speech 28 216 advocating withdrawal of ban on the Communist Party of India and its organ Swadhinta." The High Court after considering the whole matter re jected the petitions of the appellants and the appellants have thereupon come in appeal before us.
In the High Court, it was first contended on behalf of the appellants that the communication of the grounds dated the 14th March was not a compliance with article 22 (5)of the Constitution of India, as those grounds were not commu nicated "as soon as may be.
" The High Court rejected this contention.
Under the circumstances of the case, we agree with the High Court and are unable to hold that in furnish ing the grounds dated the 14th March, 1950, the authorities had failed to act in accordance with the procedure laid down in article 22 (5) of the Constitution.
Under the Bengal Criminal Law Amendment Act, 1930, a very large number of persons were detained.
The validity of that Act was being challenged in the High Court and the judgment was expected to be delivered towards the end of February, 1950.
The , was passed by the Parliament of India in the last week of February, 1950, and these orders on all those detenus were served on the 26th of February, 1950.
Having regard to the fact that the Provin cial Government had thus suddenly to deal with a large number of cases on one day, we are unable to accept this contention of the appellants.
On behalf of the appellants it was next urged that there has been a non compliance with the procedure laid down in article 22 (s)of the Constitution and section 7 of the in the manner of supplying grounds to the appellants resulting in not providing to the appel lants the earliest opportunity to make a representation, which they had a right to make.
In the judgment delivered today in Case No. 22 of 1950(1) we have discussed in detail the nature of the two rights conferred under article 22 (5).
We have to apply those principles to the facts of this appeal for its decision.
(11 Supra, P. 167. 217 When the authorities sent their second communication dated 16th July, 1950, to the appellants they described it as "in continuation of the grounds already furnished" and as the "supplementary grounds for your detention".
Relying on the wording of this communication it was argued that these were additional grounds which were furnished to the detenu and therefore the procedure prescribed under article 22 (5) had not been followed.
It was argued that the obligation to communicate grounds "as soon as may be" was absolute.
The grounds for detention must be before the Provincial Government before they could be satisfied about the necessity for making the detention order.
If the grounds before the detaining authorities on the 26th of February, 1950, were only those which they communicated on the 14th of March, they cannot support the detention on additional grounds which were not before them on that day and which they set out in the second communication four months later.
It was also contended that the fact of this communication showed that the authorities were not satisfied on the origi nal grounds and had therefore put forth these supplementary grounds as an afterthought.
In our opinion these arguments cannot be accepted.
A 'description of the contents of the second communication as "supplementary grounds" does not necessarily make them additional or new grounds.
One has to look at the contents to find out whether they are new grounds as explained in our judgment in Case No. 92 of 1950(1).
Examining the contents of the later communication in that way we find that they only furnish details of the second heads of the grounds furnished to the appropriate appellant on 14th March, 1950, in respect of his activities.
We are unable to treat them as new grounds and we agree with the High Court in its conclusion that these are not fresh or new grounds.
We do not think it proper to consider the true effect of the communication only by reading its opening words.
The whole of it must be read and considered togeth er.
The contention that the authorities were not satisfied on the original (1) Supra, p. 167.
218 grounds and therefore put forth this.
communication as the supplemental grounds is again unsound.
The fact that these details were communicated later does not necessarily show that they were not within the knowledge of the authorities when they sent the communication dated the 14th of March.
The contention that this communication of the 16th of July, 1950, was not "as soon as may be", has to be rejected having regard to the principles set out in our judgment in Case No. 22 of 1950.
The facts in each case have to to be taken into consideration and if the detained person contends that this part of the procedure prescribed in article 22 (5) was not complied with, the authorities will have to place materials before the court to refute that contention.
In the present case the High Court has considered that there has been no infringement of this procedural law and we see no reason to come to a different conclusion.
It was next argued that the grounds being vague, they could not be considered as grounds at all and therefore they could not be sufficient "to satisfy" the authorities.
On this point we have nothing to add to what we have stated in our judgment in Case No. 22 of 1950.
We are unable to accept the contention that "vague grounds" stand on the same footing as "irrelevant grounds".
An irrelevant ground has no connection at all with the satisfaction of the Provincial Government which makes the order of detention.
For the reasons stated in that judgment we are also unable to accept the contention that if the grounds are vague and no repre sentation is possible there can be no satisfaction of the authority as required under section 3 of the .
This argument mixes up two objects.
The sufficiency of the grounds, which gives rise to the satis faction of the Provincial Government, is not a matter for examination by the court.
The sufficiency of the grounds to give the detained person the earliest opportunity to make a representation can be examined by the court, but only from that point of view.
We are therefore unable to accept the contention that the quality and characteristic of 219 the grounds should be the same for both tests.
On the ques tion of satisfaction, as has been often stated, one person may be, but another may not be, satisfied on the same grounds.
That aspect however is not for the determination of the court, having regard to the words used in the Act.
The second part of the enquiry is clearly open to the court under article 22 (5).
We are therefore unable to accept the argument that if the grounds are not sufficient or adequate for making the representation the grounds cannot be suffi cient for the subjective satisfaction of the authority.
As regards the grounds furnished by the Government in each case in its first communication, it is sufficient to notice that while the first ground is common to all the appellants, the second ground is different in most cases.
The High Court has considered the case of each appellant in respect of the communication dated the 14th of March, 1950, sent to him.
In their opinion those grounds are not vague.
They have held that the procedural requirement to give the detained person the earliest opportunity to make a represen tation has not been infringed by the communication of the grounds of the 14th of March and by the subsequent communi cation made to the appellants in July.
This point was not seriously pressed before us.
After hearing counsel for the appellant we see no reason to differ from the conclusion of the High Court on this point.
The result is that the appeal fails and is dismissed.
PATANJALI SASTRI J.
This appeal was heard along with Case No. 22 of 1950 (The State of Bombay vs Atma Ram Sridhar Vaidya)(1), as the main question involved was the same.
In the view I have expressed on that question in my judgment delivered today in that case, this appeal cannot succeed and I agree that it should be dismissed.
DAS J.
The same important questions have been raised in this appeal by 100 detenus against an order of a Bench of the Calcutta High Court as were raised (1) Supra, p. 167, 220 by the detenu in the appeal of the State of Bombay in which judgment has just been delivered.
One additional point raised in this appeal was that the fact that a large number of fresh orders of detention were made "overnight" indicates bad faith on the part of the authorities, for the authori ties could not have applied their minds to each individual case.
I am unable to accept this contention as correct.
The authorities had already applied their minds to the suspected activities of each of the detenus and were satisfied that with a view to prevent them from doing some prejudicial act of a particular kind it was necessary to make an order of detention against them under the local Acts.
There being doubt as to the validity of the local Acts and the Preven tive Detention Act having been passed in the meantime the question was to make a fresh order under the new Act.
The minds of the authorities having already been made up as to the expediency of making an order of detention against them, an elaborate application of mind, such as is now suggested, does not appear to me to be necessary at all.
I do not think there was any failure of duty on the part of the authorities which will establish bad faith on their part.
In my view, for reasons stated in my judgment in the other appeal, there being no proof of any mala fides on the part of the authori ties, no fundamental rights of the petitioners have been infringed.
In the case of each of the detenus, apart from the common ground, there were one or more specific grounds of detention which are quite sufficient to enable the detenu concerned to make his representation.
Therefore, the ques tion of supplementary particulars does not arise at all.
In my opinion the conclusions arrived at by Roxburgh J. were correct and well founded, and, therefore, this appeal should be dismissed.
Appeal dismissed.
| A large number of persons were detained under the Bengal Criminal Law Amendment Act, 1930.
The validity of this Act was being challenged in the High Court.
Meanwhile, the Preventive Detention Act of 1950 was passed on 26th Febru ary, 1950, and on the same date detention orders under this Act were served on them.
The grounds of detention were served on them on the 14th of March, and on the 16th of July the Government served on them "supplementary grounds" in continuation of the grounds already furnished on the 14th of March.
A second set of grounds were communicated to the appellants on the 22nd or 23rd of July.
They applied to the High Court of Calcutta for writs of habeas corpus contending that the orders of detention were invalid on various grounds.
The High Court rejected these applications and they appealed to the ' Supreme Court.
Held per KANIA C.J., FAZAL ALI, MUKHERJEA and CHANDRASEK HARA AIYAR JJ. (i) that in the particular circumstances of the case, especially in view of the fact that a large number of causes had to be dealt with on the passing of the Preven tive Detention Act in February, 1950, it cannot be said that the grounds were not communicated to the appellants "as soon as nay be" within the meaning of article 22 (5); ' 213 (ii) it cannot be held that the appellants were not given the "earliest opportunity" to make a representation, as required by article 22(5), merely because further details and facts were communicated to the appellants on the 16th July and 22nd July as these later communications did not contain any new or additional grounds (though they were described as "supplementary grounds ") but only furnished details of the heads of grounds furnished on the 14th March; (iii) merely because a ground is vague it cannot be considered that it is no ground at all and therefore cannot be sufficient to ' satisfy '.the authorities; a ' vague ' ground does not stand on the same footing as an irrelevant ground, which can have no connection at all with the satis faction of the Government; (iv) the sufficiency of the grounds for the purposes of satisfaction of the Government is not a matter for examina tion by the court; their sufficiency to give the detained person the earliest opportunity to make a representation can be examined by the court, but only from that point of view.
Held also, per DAS J.
The fact that a large number of fresh orders of detention were made overnight did not neces sarily indicate bad faith on the part of the authorities in the circumstances of these cases as the authorities had already applied their minds to the suspected activities of each of the detenus and were satisfied that with a view to prevent them from doing some prejudicial act, it was neces sary to detain them.
The State of Bombay, vs Atma Ram Sridhar Vaidya supra P.167 followed.
|
135 of 1950.
Application under article 32 of the Constitution for a writ in the nature of a writ of certiorari and prohibition.
Dr. Tek Chand (Hardayal Hardy and Jindra Lal, with him) for the petitioner.
M.C. Setalvad, Attorney.
General for India, (section M. Sikri, with him) for the respondent.
january 12.
This is said to be a test case, for, on its decision, we are told, depend the rights of numerous other persons whose interests are similar to those of the petitioner.
There is no serious controversy as to the facts material for the purposes of this application.
They are shortly as follows: On May 5, 1948, the then Rulers of eight Punjab States including.
Patiala and Nabha with the concurrence and guarantee of the Government of India entered into a covenant agreeing to unite and integrate their territories in one State with a common executive, legislature and judiciary by the name of Patiala and East Punjab States Union, hereinaf ter compendiously referred to as the Pepsu.
By article III (6) of the covenant the then Ruler of Patiala became the first President or Raj Pramukh of the Council of Rulers and he is to hold the office during his lifetime.
Article VI of the covenant is as follows : "(1) The Ruler of each Covenanting State shall, as soon as may be practicable, and in any event not later than the 20th of August, 1948, make over the administration of his State to the Raj Pramukh, and thereupon, (a) all rights, authority and jurisdiction belonging to the Ruler which appertain, or are incidental to the Govern ment of the Covenanting State shall vest in 130 the Union and shall thereafter be exercisable only as pro vided by this Covenant or by the Constitution to be framed thereunder; (b) all duties and obligations of the Ruler pertaining or incidental to the Government of the Covenanting State shall devolve on the Union and shall be discharged by it; (c) all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the Union, and (d) the military forces, if any, of the Covenanting State shall become the military forces of the Union.
" Article X provides for the formation of a Constituent Assembly to frame a constitution of a unitary type for the Union within the framework of the Covenant and the Constitu tion of India.
This Constituent Assembly was also to func tion as the interim Legislalature of the Union until an elected legislature came into being.
The proviso to clause (2) of that Article runs as follows : "Provided that until a Constitution framed by the Con stituent Assembly comes into operation after receiving the assent of the Raj Pramukh, the Raj Pramukh shall have power to make and promulgate Ordinances for the peace and good government of the Union or any part thereof, and any Ordi nance so made shall, for the space of not more than six months from its promulgation have the like force of law as an Act passed by the Constituent Assembly;but any such Ordinance may be controlled or superseded by any such Act.
" This Union was inaugurated on July 15, 1948, and the Raj Pramukh thereafter took over the administration of the different Covenanting States.
The Administration of Nabha State was taken over by the Raj Pramukh on August 20, 1948.
On the same day the Raj Pramukh, in exercise of the powers vested in him, promulgated an Ordinance (No. 1 of 2005) called the Patiala and East Punjab States Union (Administra tion) 131 Ordinance, 2005.
The following provisions of this Ordi nance are relevant for our purpose: "1.
(2) It shall extend to the territories included in the Covenanting States on and from the date on which the administration of any of the said State or States has been or is made over to the Raj Pramukh.
* * 3.
As soon as the administration of any Covenanting State has been taken over by the Raj Pramukh as aforesaid, all laws, Ordinances, Acts, Rules, Regulations, Notifica tions, Hidayats and Firrnans i Shahi having force of law in Patiala State on the date of commencement of this Ordinance shall apply mutatis mutandis to the territories of the said State and with effect from that date all laws in force in such covenanting State immediately before that date shall be repealed: Provided that proceedings of any nature whatsoever pending on such date in the Courts or offices of any such Covenanting State shall, notwithstanding anything contained in this Ordinance or any other Ordinance, be disposed of in accordance with the laws governing such proceedings in force for the time being m any such Covenanting State.
" Section 6 provides for the adaptation of the laws etc.
enforced under section 3 and, amongst other things, any reference in these laws etc.
to the Patiala State and the like was to be construed as a reference to the State of the Union.
A notification (No.35 dated 27 5 05/11 9 1948) was issued over the signature of the Revenue Secretary notifying that the Patiala Income tax Act of 2001 and the Rules there under had come into force in the various Covenanting States from August 20, 1948, thereby repealing the law or laws in force in that behalf in those States before that date, except as to pending proceedings.
It may be mentioned here that prior to that date there was no law in the Nabha State imposing income tax on the subjects of that State.
On November 14, 1948, the Commissioner of Income tax issued a Notification (No. 4, dated 132 29 7 2005) intimating that persons belonging to the Cove nanting States of Nabha and Nalagarh would be assessed to income tax under the Patiala Income Tax Act, 2001.
It was mentioned that persons of those States whose income reached the taxable limit ' 'should henceforward keep regular and proper accounts for purposes of audit by the Income Tax Department" on February 2, 1949, Ordinance 1 of 2005 was repealed and replaced by Ordinance No. XVI of 2005 promul gated by the Raj Pramukh and called the Patiala and East Punjab States Union General Provisions (Administration) Ordinance, 2006.
Section 3 (1) runs as follows: "3.
(1) As from the appointed day, all laws and rules, regulations, bye laws and notifications made thereunder, and all other provisions having the force of law, in Patiala State on the said day shall apply mutatis mutandis to the territories of the Union and all laws in force in the other Covenanting States immediately before that day shall cease to have effect; Provided that all suits, appeals, revisions applica tions, reviews, executions and other proceedings, or any of them, whether Civil or Criminal or Revenue, pending in the Courts and before authorities of any Covenanting States shall, notwithstanding anything contained in this Ordinance, be disposed of in accordance with the laws governing such proceedings in force in any such Covenanting State immedi ately before the appointed day.
" By section 2 (a) the "appointed day" was defined as meaning the 5th day of Bhadon, 2005, corresponding to August 20, 1948.
There was a section providing for adaptation similar to section 6 of the Ordinance 1 of 2005.
There was another Ordinance to which reference has to be made, namely, Ordinance No. 1 of 2006 called the Finance Ordinance promul gated on April 13, 1949, which came into force on that very date.
Section 5 of that Ordinance introduced several amend ments to the Patiala Income Tax Act, 2001.
It recast 133 sections 3 and 34 of that Act and introduced a new section as section 23B. Section 6 of that Ordinance runs thus: "6.
For the assessment year beginning on the 1st day of Baisakh, 2006, that is to say, in respect of the accounting the income, profits and gains of the previous year ending on the last day of Chet, 2005, (a) income tax shall be charged at the rates specified in Part I of the Second Schedule to this Ordinance, and (b) rates of super tax shall, for the purposes of sec tion 55 of the Patiala Income Tax Act, 2001, be specified in Part II of the Second Schedule to this Ordinance.
" It is in this setting that the facts leading to the present petition have to be considered.
The petitioner is a resident of Ateli in the district of Mohindargarh now in Pepsu but which formerly formed part of the Nabha State.
The petitioner has been carrying on his business at Ateli for a number of years under the ' name and style of Raghunath Rai Ram Parshad.
He never paid any income tax as no such tax was imposed by any law in the Nabha State.
On October '20, 1949, the petitioner was served with a notice under sections 22(2) and 88 of the Patiala Income Tax Act, 2001, requiring him to submit a return for the Income Tax year 2006 (13 4 1949 to 12 4 1950) disclosing his income during the previous year (13 4 1948 to 12 4 1949).
The petitioner, on December 4, 1949, filed his return for the year 2006 and on February 14, 1950, he was assessed to income tax.
On May 23, 1950, the petitioner received a notice under section 34 calling upon him to file his return for the year ending the last day of Chet 2005, i.e., for the year 13 4 1948 to 12 4 1949.
In this return he had to specify his income of the previous year, namely, 2004 (i.e., 13 4 1947 to 12 4 1948).
It ap pears that the petitioner along with other assessees of Ateli and Kanina submitted a petition before the Income Tax Officer on July 9, 1950, asking him not to 134 proceed with the assessment for the year 2005 but on July 13, 1950, the Income Tax Officer assessed him to the best of his judgment under section 34(4) read with section 22(4) of the Income Tax Act.
The petitioner along with other asses sees similarly situated moved the Income Tax Commissioner and the Central Board of Revenue, New Delhi, but without any success.
No formal appeal under the Patiala Income Tax Act appears to have been filed by the petitioner against assess ments for either of the two years 2005 and 2006.
On August 10, 1950, the petitioner filed his present petition before this Court under article 32 of the Constitution praying that a writ in the nature of a writ of certiorari be issued for quashing the assessments of the petitioner 's income accrued in the years 2004 and 2005 and other ancillary reliefs.
During the pendency of this petition the income tax authori ties have issued a notice under section 46 intimating that penalty will be imposed if the tax was not paid up.
The contention of the petitioner in the first place is that he has been denied the fundamental right of equality before the law and the equal protection of the laws guaran teed to him by article 14 of the Constitution.
His griev ances are formulated in paragraphs 10 and 11 of his peti tion.
It is said that while the people of Kapurthala which is included in Pepsu have been asked to pay income tax for the period prior to August 20, 1948, at the old rate fixed by the Kapurthala Income Tax Act which was lower than the rate fixed by the Patiala Income Tax Act, 2001, the people of Nabha who had not to pay any income tax prior to August 20, 1948, at all have been made liable to pay at the higher Patiala rate and that such discrimination offends against the provisions of article 14.
This charge is refuted by paragraph 10 of the affidavit of Sardar Gurbax Singh, the Additional Director of Inspection (income Tax), New Delhi, who was formerly the Commissioner of Income Tax, Punjab and Pepsu, which has been filed in opposition to the present petition.
It is there stated that for the assessment year 2005, in Kapurthala the assessees whose cases were pending on 135 August 20, 1948, were assessed under the Kapurthala Income Tax Act at rates fixed thereunder but that for the assess ment year 2006 the provisions of the Patiala Income Tax Act and the rates prescribed thereunder were uniformly applied in all areas of the Pepsu, including Kapurthala This alle gation which is not denied in the affidavit filed by the petitioner in reply must be taken as correct.
The assess ment of Kapurthala assessees for the year 2005 at the old Kapurthala rate was obviously made under the proviso to section 3 of Ordinance No. 1 of 2005, which was reproduced in the proviso to section 3(1)of the Ordinance No. XVI of 2006 and both of which required all pending proceedings to be completed according to the law applicable to those pro ceedings when they were initiated.
No case of assessment was pending as against any Nabha assessee on August 20, 1948, for there was no Income Tax Act in Nabha prior to that date and, therefore, there could be no occasion for completing any pending proceedings against any of such assessees.
In the premises, there can be no grievance by them on the score of discrimination.
The discrimination, if any, was not brought about by the two Ordinances, but by the circumstance that there was no Income Tax Act in Nabha and consequently there was no case of assessment pending against any Nabha assessees.
In any case the provision that pending proceed ings should be concluded according to the law applicable at the time when the rights or liabilities accrued and the proceedings commenced is a reasonable law rounded upon a reasonable classification of the assessees which is permis sible under the equal protection clause and to which no exception can be taken.
In our opinion the grievance of the alleged infringement of fundamental right under Article 14 is not well founded at all.
Dr. Tek Chand appearing in support of the petition next contends that the administration of Nabha State having been taken over by the Raj Pramukh only on August 20, 1948, and the Patiala law including the Patiala Income Tax Act, 2001, having been brought 136 into operation on and from August 20, 1948, the assessment of the tax on the petitioner 's income which accrued prior to August 20, 1948, was wholly illegal and not authorised by the said Ordinances and the State by insisting on collecting the tax so illegally assessed was threatening to invade the petitioner 's fundamental right to property guaranteed by article 31(1) of the Constitution.
Article 31(1) runs as follows: "(1) No person shall be deprived of his property save by authority of law.
" It will be noticed that clause (1) reproduces subsection (1) of section 299 of the Government of India Act, 1935, without the words "in British India.
" Reference has 'next to be made to article 265 which is in Part XII, Chapter I, dealing with "Finance." That article provides that no tax shall be levied or collected except by authority of law.
There 'was no similar provision in the corresponding chapter of the Government of India Act, 1935.
If collection of taxes amounts to deprivation of property within the meaning of article 31(1), then there was no point in making a sepa rate provision again as has been made in article 265.
It, therefore, follows that clause (1) of article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, for otherwise article 265 becomes wholly redundant.
In the United States of America the power of taxation is regarded as distinct from the exercise of police power or eminent domain.
Our Constitution evidently has also treated taxation as distinct from compulsory acquisition of property and has made inde pendent provision giving protection against taxation save by authority of law.
When Dr. Tek Chand was asked if that was not the correct position, he did ,not advance any cogent or convincing answer to refute the conclusion put to him.
In our opinion, the protection against imposition and collec tion of taxes save by authority of law directly comes from article 265, and is not secured by clause (1) of article 31.
Article 265, 137 not being in Chapter IIi of the Constitution, its protection is not a fundamental right which can be enforced by an application to this court under article 32.
It is not our purpose to say that the right secured by article 265 may not be enforced.
It may certainly be enforced by adopting proper proceedings.
All that we wish to state is that this application in so far as it purports to be rounded on arti cle 32 read with article 31(1) to this Court is misconceived and must fail.
The whole of Dr. Tek Chand 's argument was rounded on the basis that protection against imposition and collection of taxes save by authority of law was guaranteed by article 31(1) and his endeavour was to establish that the Pepsu Ordinances could not, in law, and did not, on a correct interpretation of them, impose any income tax retrospective ly; that the Income Tax Officer on an erroneous view of the law had wrongly assessed the tax on income accrued prior to August 20, 1948, and that consequently the petitioner was being threatened with deprivation of property otherwise than by authority of law.
In the view we have taken, namely, that the protection against imposition or collection of taxes save by authority of law is secured by article 265 and not by article 31(1), the questions urged by Dr. Tek Chand do not really arise and it is not necessary to express any opinion on them on this application.
Those questions can only arise in appropriate proceedings and not on an applica tion under article 32.
In our judgment this application fails on the simple ground that no fundamental right of the petitioner has been infringed either under article 14 or under article 31(1) and we accordingly dismiss the petition with costs.
Petition dismissed.
| Section 3 (1) of the Patiala and East Punjab States Union General Provisions (Administration) Ordinance (No. XVI of 2005) which came into force on February 2, 1949, and re enacted section 3 of an earlier Ordinance which was in force from August 20, 1948, provided that as from the appointed day (i.e., August 20, 1948) all laws in force in the Patiala State shall apply muutatis mutandis to 17 128 the territories of the said Union, provided that all pro ceedings pending before courts and other authorities of any of the Covenanting States shall be disposed of in accordance with the laws governing such proeeedings in force in such Covenanting State immediately before August 20, 1948.
In one of the Covenanting States, viz., Kapurthala, there was a law of income tax in force on the said date, the rate of tax payable under which was lower than that payable under the Patiala Income tax Act, and in another Covenanting State, Nabha, there was no law of income tax at all.
For the ac counting year ending April 12, 1948, assessees of Kapurthala State were assessed at the lower rates fixed by the Kapur thala Income tax Act, in accordance with the proviso in section 3 of the Ordinance relating to pending proceedings, and the assessees of Nabha were assessed at the higher rates fixed by the Patiala Act as there was no income tax law in Nabha on August 20, 1948, and no income tax proceedings were therefore pending in Nabha.
The petitioner who was an asses see residing in Nabha and who was assessed under the Patiala Act applied under article 32 of the Constitution for a writ in the nature of a writ of certiorari quashing the assessment on the ground (i) that he had been denied the fundamental right of equality before the law and equal protection of the laws guaranteed by article 14 of the Constitution inasmuch as he was assessed at a higher rate than that at which asses sees of Kapurthala were assessed, (ii) that, as the Ordi nance bringing the Patiala Income tax Act into force in Nabha was enacted only on August 20, 1948, it cannot operate retrospectively and authorise the levy of tax on income which had accrued in the year ending April 12, 1948, and therefore he was threatened with infringement of the funda mental right guaranteed by article 31 (1) of the Constitution that no one shall be deprived of his property save under authority of law: Held, (i) that the discrimination, if any, between the assessees of Kapurthala and Nabha was not brought about by the Ordinance but by the circumstance that there was no income tax law in Nabha and consequently there was no case of assessment pending against any Nabha assessees; and in any case the provision that pending proceedings should be concluded according to the applicable at the time when the right is or liabilities accrued and the proceedings com menced, was a reasonable law rounded upon reasonable classi fication of the assessees which is permissible under the equal protection clause; (ii) that, as there is a special provision in article 965 of the Constitution that no tax shall be levied or collected except by authority of law, cl.
(1) of article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by article 265 not a right conferred by Part III of the Constitution, it could not be enforced under article 129
|
nder article 132(1) of the Constitution from a judgment and order dated 12th April, 1950, of the High Court of Judicature at Bombay (Chagla C.J., Bavdekar and Shah JJ.): Case No. I X of 1950.
A.S.R. Chari, for the appellant.
M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the respondent.
Jan. 22.
The judgment of Kania C.J., Patanjali Sastri J. Das J. and Chandrasekhara Aiyar J. was delivered by Das J. Mahajan J. and Fazl Ali J. delivered separate judgments.
Mukherjea J. agreed with Fazl Ali J. DAs J.
At all material times the petitioner, who is the appellant before us, was the Secretary of People 's Publish ing House, Ltd., a company incorporated under the Indian Companies Act with its registered office at 190 B, Khetwadi Main Road in Bombay.
In September, 1949, a pamphlet entitled "Railway Mazdooron ke khilaf Nai Zazish" is alleged to have been published in Bombay by the petitioner as the secretary of that company.
Learned counsel for the peti tioner states that the pamphlet was published as a "book" within the meaning of section 1 of the Press and Registra tion of Books Act (XXV of 1867) and that the provisions of that Act had been duly complied 230 with.
The Bombay Government authorities, however, took the view that the pamphlet was a "news sheet" within the meaning of section 2 (6) of the Indian Press (Emergency Powers) Act, 1931, and that as it had been published without the authori ty required by section 15 (1) of that Act, the petitioner had committed an offence punishable under section 18 (1) of the same Act.
A prosecution under that Act was accordingly started against the petitioner in the Court of the Chief Presidency Magistrate, Bombay, and was registered as Case No. 1102/P of 1949.
During the pendency of the proceedings the Constitution of India came into force on January 26, 1950.
On March 3, 1950, the petitioner filed a written statement submitting, inter alia, that the definition of "news sheet" as given in section 2 (6) of the Indian Press (Emergency Powers) Act, 1931, and sections 15 and 18 thereof were ultra vires and void in view of article 19(1)(a) read with article 13 and that the hearing of the case should be stayed till the High Court decided that question of law.
This was followed up by a petition filed in the High Court on March 7, 1950, under article 228 of the Constitution, praying that the record of Case No. 1102/P of 1949 be sent for, that it be declared that sections 15 and 18 read with section 2 (6) and (10), in so far as they create liability for restrictive measure for a citizen, are ultra vires of article 19 (1) (a)and are, therefore, void and inoperative and that the petitioner be ordered to be acquitted.
During the pendency of this petition the Chief Presidency Magis trate on March 23, 1950, framed a charge against the peti tioner under section 18 of the Press (Emergency Powers) Act, 1931.
The petition under article 228 was heard on April 12, 1950, by a Bench of the Bombay High Court consisting of Chagla C.J. and Bavdekar and Shah JJ.
Two questions were raised before the Bench, namely (1) Whether sections 15 (1) and 18 (1) read with the definitions contained in sections 2 (6) and 2 (.10) of the Indian Press (Emergency Powers) Act, 1931, were 231 inconsistent with article 19 (1) (a) read with clause (2) of that article ? and (2) Assuming that they were inconsistent, whether the proceedings commenced under section 18 (1) of that Act before the commencement of the Constitution could neverthe less be proceeded with ? The High Court considered it unnecessary to deal with or decide the first question and disposed of the application only on the second question.
The High Court took the view that the word "void" was used in article 13 (1) in the sense of "repealed" and that consequently it attracted section 6 of the General Clauses Act, which Act by article 367 was made applicable for the interpretation of the Constitution.
The High Court, therefore, reached the conclusion that proceedings under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of the commence ment of the Constitution were not affected, even if the Act were inconsistent with the fundamental rights conferred by article 19 (1)(a)and as such became void under article 13 (1) of the Constitution after January 26, 1950.
The High Court accordingly answered the second question in the af firmative and dismissed the petitioner 's application.
The petitioner has now come up on appeal before us on the strength of a certificate granted by the High Court under article 132 (1) of the Constitution.
Learned counsel appearing in support of this appeal urged that the Indian Press (Emergency Powers) Act, 1931, was one of the many repressive laws enacted by an alien Government with a view to stifle the liberty of the Indian subjects and particularly of the Indian Press; that, with the advent of independence the people of India began to breathe freely and by the Constitution which they gave unto themselves they took care to guarantee to themselves the fundamental rights of free citizens of a democratic republic and that article 13 (1) of that Constitution brushed aside all vestiges of subordination which the tyranny of the alien rulers had imposed upon them and declared all 232 laws inconsistent with the fundamental rights to be void as if they had never been passed and had never existed.
It was, therefore, against the spirit of the Constitution, argued the learned counsel, that a free citizen of India should still continue to be persecuted under such a retro grade law which, being inconsistent with the fundamental rights, must be declared to be void.
Learned counsel urged that it was not necessary for him to contend that such inconsistent laws became void ab initio or that all past and closed transactions could be reopened but he contended that on and from January 26, 1950, when the Constitution came into force such inconsistent laws which became void could not be looked at for any purpose and far less could they be utilised for the purpose of framing a charge or punishing a free citizen.
As the void law cannot be utilised any long er, the pending prosecutions, according to learned counsel, must fall to the ground.
To permit pending proceedings under a law which, after the commencement of the Constitu tion had become void, to proceed further, after the Consti tution has taken effect, is to prolong the efficacy of the law notwithstanding that it has become void on and from the date the Constitution came into force and that is against the spirit of the Constitution.
An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the lan guage of the Constitution.
What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view.
Article 372 (2) gives power to the President to adapt and modify existing laws by way of repeal or amendment.
There is nothing to prevent the President, in exercise of the powers conferred on him by that article, from repealing, say the whole or any part of the Indian Press (Emergency Powers) Act, 1931.
If the President does so, then such repeal will at once attract section 6 of the General Clauses Act.
In such a situation all prosecutions under 233 the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of its repeal by the President would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act.
It is therefore clear that the idea of the preservation of past inchoate rights or liabili ties and pending proceedings to enforce the same is not foreign or abhorrent to the Constitution of India.
We are, therefore, unable to accept the contention about the spirit of the Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with.
Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have al ready been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail.
It is, therefore, quite clear that the court should construe the language of article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitu tion.
Article 13 (1) with which we are concerned for the pur poses of this application is in these terms: "All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
" It will be noticed that all that this clause declares is that all existing laws, in so far as they are inconsistent with the provisions of Part II1 shall, to the extent of such inconsistency, be void.
Every statute is prima facie pro spective unless it is expressly or by necessary implications made to have retrospective operation.
There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution.
We find nothing in the language of article 13 (1) which may be read as indicating an 234 intention to give it retrospective operation.
On the con trary, the language clearly points the other way.
The provi sions of Part III guarantee what are called fundamental rights.
Indeed, the heading of Part III is "Fundamental Rights".
These rights are given, for the first time, by and under our Constitution.
Before the Constitution came into force there was no such thing as fundamental right.
What article 13(1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void.
As the fundamental rights became operative only on and from the date of the Constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being.
It must follow, therefore, that article 13(1) can have no retrospective effect but is wholly pro spective in its operation.
After this first point is noted, it should further be seen that article 13 (1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes.
On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency.
They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights.
In other words, on and after the commencement of the Constitu tion no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights.
Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights.
Article 13(1) cannot be read as obliterating the entire operation of the inconsist ent laws, or to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess.
Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution.
Learned counsel for the appellant has drawn our attention to articles 249 (3), 250, 357, 358 235 and 369 where express provision has been made for saving things done under the laws which expired.
It will be no ticed that each of those articles was concerned with expiry of temporary statutes.
It is well known that on the expiry of a temporary statute no further proceedings can be taken under it, unless the statute itself saved pending proceed ings.
If therefore, an offence had been committed under a temporary statute and the proceedings were initiated but the offender had not been prosecuted and punished before the expiry of the statute, then, in the absence of any saving clause, the pending prosecution could not be proceeded with after the expiry of the statute by efflux of time.
It was on this principle that express provision was made in the several articles noted above for saving things done or omitted to be done under the expiring laws referred to therein.
As explained above, article 13 (1) is entirely prospective in its operation and as it was not intended to have any retrospective effect there was no necessity at all for inserting in that article any such saving clause.
The effect of article 13 (1) is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a. subsequent statute.
As already explained, article 13 (1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution.
It has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in contra vention of the provisions of any law which, after the Con stitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned, for, to say that it is, will be to give the law retrospective effect.
There is No. fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitu tion came into force.
So far as the past acts 31 236 are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of fundamental rights.
We, therefore, agree with the conclusion arrived at by the High Court on the second question, although on dif ferent grounds.
In view of that conclusion, we do not consider it necessary to examine the reasons of the High Court for its conclusion.
In our opinion, therefore, this appeal fails, and is dismissed.
FAZL ALI J.
I regret that I cannot agree with the view which the majority of my colleagues are inclined to take in this case.
The facts of the case are simple and will bring out the point to be decided.
On the 9th December, 1949, the appel lant was arrested and a prosecution was started against him under section 18(1) of the Indian Press (Emergency Powers) Act (XXIII of 1931) in the Court of the Chief Presidency Magistrate at Bombay for publishing a pamphlet in Urdu entitled "Railway Mazdoorun Ke Khilaf Nai Sazish.
" The prosecution case was that the pamphlet was a news sheet within the meaning of section 2(6) of the Act and that since it had been published without the authority required by section 1.5(1) of the Act, the appellant had committed an offence punishable under section 18(1) of the Act.
While the prosecution was pending, the Constitution of India came into force on the 26th January, 1950, and thereafter the appel lant raised the contention that sections 2(6), 15 and 18 of the Act were void, being inconsistent with article 19(1) (a) of the Constitution and therefore the case against him could not proceed.
Having raised this contention, the appellant filed a petition in the High Court at Bombay under article 228 of the Constitution asking the High Court to send for the record of the case and declare that sections 15 and 18of the Indian Press (Emergency Powers) Act read with section 2(6) and (10) thereof were void and inoperative and the petitioner should be ordered to be acquitted.
The petition was heard by a Full Bench of the Bombay High Court, and the learned Judges constituting the Bench, in 237 deciding the point raised, assumed that the provisions of the Act impugned by the appellant were inconsistent with the fundamental right guaranteed by article 19(1)(a) of the Constitution of India, and held that article 13(1) had virtually the effect of repealing such provisions of existing laws as were inconsistent with any of the fundamental rights and that consequently under section 6 of the General Clauses Act, which is made applicable for the interpretation of the Constitution by article 367, pending proceedings were not affected.
The appellant 's petition to the High Court having been dismissed, he preferred this appeal in the Supreme Court.
One of the points discussed elaborately by the learned counsel appearing for the parties in the course of their arguments was as to what was the effect upon pending pro ceedings when an Act was repealed or when a temporary Act expired.
In Craies on Statute Law, the effect of the expiry of a temporary Act is stated to be as follows : "As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it, and it ceases to have any further effect.
Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate." (4th Ed., pp. 347 348).
This statement of law by Craies was referred to with approval and adopted by the Federal Court in J.K. Gas Plant Manufacturing Co., (Rampur) Ltd., and Others vs King Emper or.
(1) As to the effect of the repeal of an Act, the fol lowing passage from Craies book seems to sum up the legal position as it obtained in England before the enactment of the Interpretation Act of 1889 : "When an Act of Parliament is repealed," said Lord Tenterden in Surtees vs Ellison(2) "it must be at 166.
(2) 238 considered (except as to transactions past and closed) as if it had never existed.
That is the general rule.
" Tindal C.J. states the exception more widely.
He says (in Kay vs Goodwin)(1): ,, The effect of repealing a statute is to obliterate it as completely from the records of the Parlia ment as if it had never been passed;and it must be consid ered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law." (P. 350).
Again, Crawford in his book on "Statutory Construction" dealing with the general effect of the repeal of an Act states the law in America to be as follows: ' 'A repeal will generally, therefore, divest all incho ate rights which have arisen under the repealed statute, and destroy all accrued causes of action based thereon.
As a result, such a repeal, without a saving clause, will destroy any proceedings whether not yet begun, or whether pending at the time of the enactment of the repealing Act, and not already prosecuted to a final judgment so as to create a vested right." (Pp.
599 600).
In a footnote relating to the cases which the learned author cites in support of the above proposition, he adds: "See Cleveland, etc., R. Co. vs Mumford (Ind.)(2) where the repeal of a statute during the trial prevented a judg ment from being rendered.
Similarly, there can be no legal conviction for an offence, unless the act be contrary to law at the time it is committed; nor can there be a judgment, unless the law is in force at the time of the indictment and judgment.
If the law ceases to operate, by its own limita tion or by a repeal, at any time before judgment, no judg ment can be given.
Hence, it is usual in every repealing law to make it operate prospectively only, and to insert a a saving clause, preventing the retroactive operation of the repeal and continuing the repealed law in force as to all pending prosecutions, and often as to all violations of the existing law already committed." (1) ; (2) 239 The author then proceeds to quote the following passage from Wall vs Chesapeake & Ohio Ry.
, Company (1): "It is well settled that if a statute giving a special remedy is repealed without a saving clause in favour of pending suits all suits must stop where the repeal finds them.
If final relief has not been granted before the repeal went into effect, it cannot be after.
If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when its decision was rendered.
The effect of the repeal is to obliterate the statute repealed as completely as if it bad never been passed, and it must be considered as a law which never existed, except for the purposes of those actions or suits which were commenced, prosecuted and con cluded while it was an existing law.
Pending judicial pro ceedings based upon a statute cannot proceed after its repeal.
This rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordi nate tribunal from whence the appeal was taken, if it ap pears that pending the appeal a statute which was necessary to support the judgment of the lower court has been with drawn by an absolute repeal." (P. 601).
It is well known that formerly the practice in England used to be to insert in most of the repealing statutes a clause saving anything duly done or suffered under the repealed statutes and any pending legal proceeding or inves tigations.
Ultimately, to dispense with the necessity of having to insert a saving clause in almost every repealing Act, section 38 (2) was inserted in the Interpretation Act, 1889, which provides that a repeal, unless the con trary intention appears, does not affect the previous opera tion of the repealed enactment or anything duly done or suffered under it and any investigations, legal proceedings or (1) 125 N.E.20.
240 remedies may be instituted, continued or enforced in respect of rights, liabilities and penalties under the ;repealed Act, as if the repealing Act had not been passed.
Crawford in his book to which I have referred adverts in these words to a similar difficulty which was experienced in America and to the manner in which it has been met: "Due to the numerous troublesome problems which constantly arose with the repeal of statutes, as well as to the numerous cases where hardship was caused, statutes have been enacted in several States expressly providing that the repeal of a statute shall not affect any rights, causes of action, penalties, forfeitures, and pending suits, accrued or instituted under the repealed statute." In India, the earliest attempt that was made to guard against the normal legal effect of a repeal is to be found in section 6 of Act I of 1868.
This provision was further elaborated by section 6 of the General Clauses Act of 1897 which is on the same lines as section 38 (2)of the Interpre tation Act of England.
The position therefore now in India as well as in England is that a repeal has not the drastic effect which it used to have before the enactment of the Interpretation Act in England or the General Clauses Act in this country.
But this is due entirely to the fact that an express provision has been made in those enactments to counteract that effect.
Hence, in those cases which are not covered by the language of the General Clauses Act, the principle already enunciated will continue to operate.
The learned AttorneyGeneral had to concede that it was doubtful whether section 6 of that Act is applicable where there is a repeal by implication, and there can be no doubt that the law as to the effect of the expiry of a temporary statute still remains as stated in the books, because sec tion 6 of the General Clauses Act and section 38 (2) of the Interpretation Act have no application except where an Act is repealed.
It should be remembered 241 that the soundness of the law which has been consistently applied to cases governed by statutes which have ceased to be in force, by reason of having been repealed or having expired, has never been questioned, and it cannot be brushed aside as if it embodied some archaic or obsolete rule pecul iar only to the common law of England.
It is the law which has been enunciated by eminent Judges both in England and in America and is based on good sense and reason.
I shall now proceed to consider what would be the cor rect legal position, when a provision of an existing law is held to be void under article 13 (1) of the Constitution.
From the earlier proceedings before the Constituent Assem bly, it appears that in the original draft of the Constitu tion, the words "shall stand abrogated" were used instead of "shall be void," in article 13 (1), and one of the questions directly before the Assembly was what would be the effect of the use of those words upon pending proceedings and anything duly done or suffered under the existing law.
Ultimately, the article emerged in the form in which it stands at present, and the words "shall stand abrogated" were replaced by the words "shall be void.
" If the words "stand abrogated" had been there, it would have been possible to argue that those words would have the same effect as repeal and would attract section 6 of the General Clauses Act, but those words have been abandoned and a very strong expression, indeed the strongest expression which could be used, has been used in their place.
The meaning of the word "void" is stated in Black 's Law Dictionary (3rd Edn.) to be as fol lows: "null and void; ineffectual; nugatory; having no legal force or binding effect;unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid.
" A reference to the Constitution will show that the framers thereof have used the word "repeal" wherever neces sary (see articles 252, 254, 357, 372 and 395).
They have also used such words as "invalid" (see 242 articles 245, 255 and 276), "cease to have effect" (see articles 358 and 372), ' 'shall be inoperative", etc.
They have used the word "void" only in two articles, these being article 13 (1) and article 154, and both these articles deal with cases where a certain law is repugnant to another law to which greater sanctity is attached.
It further appears that where they wanted to save things done or omitted to be done under the existing law, they have used apt language for the purpose; see for example articles 249, 250,357, 358 and 369.
The thoroughness and precision which the framers of the Constitution have observed in the matters to which reference has been made, disinclines me to read into article 13 (1) a saving provision of the kind which we are asked to read into it.
Nor can I be persuaded to hold that treating an Act as void under article 13 (1) should have a milder effect upon transactions not past and closed than the repeal of an Act or its expiry in due course of time.
In my opin ion, the strong sense in which the word "void" is normally used and the context in which it has been used are not to be completely ignored.
Evidently, the framers of the Constitu tion did not approve of the laws which are in conflict with the fundamental rights, and, in my judgment, it would not be giving full effect to their intention to hold that even after the Constitution has come into force, the laws which are inconsistent with the fundamental rights will continue to be treated as good and effectual laws in regard to cer tain matters, as if the Constitution had never been passed.
How such a meaning can be read into the words used in arti cle 13 (1), it is difficult for me to understand.
There can be no doubt that article 13 (1)will have no retrospective operation, and transactions which are past and closed, and rights which have already vested, will remain untouched.
But with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings whether not yet begun, or pending at the time of the enforcement of the Constitution and not yet prosecuted to a final judgment, the very serious question arises as to whether a law which 243 has been declared by the Constitution to be completely ineffectual can yet be applied.
On principle and on good authority, the answer to this question would appear to me to be that the law having ceased to be effectual can no longer be applied.
In R. vs Mawgan (Inhabitants)(1) a presentment as to the non repair of a highway had been made under 13 Geo. 3, c. 78, section 24, but before the case came on to be tried, the Act was repealed.
In that case, Lord Denman C.J. said: "If the question had related merely to the present ment, that no doubt is complete.
But dum loquimur, we have lost the power of giving effect to anything that takes place under that proceeding." And Littledale J. added: "/do not say that what is already done has become bad, but that no more can be done." In my opinion, this is precisely the way in which we should deal with the present case.
It was argued at the Bar that the logical outcome of such a view would be to hold that all the convictions al ready recorded and all the transactions which are closed, should be reopened, but, in my opinion, to argue on these lines is to overlook what has been the accepted law for centuries, namely, that when a law is treated as dead, transactions which are past and closed cannot be revived and actions which were commenced, prosecuted and concluded whilst the law was operative cannot be reopened.
In the course of the arguments, a doubt was also raised as to what would be 'the effect in the case of an appeal pending when the Constitution came into force, from a con viction already recorded before the 26th January, 1950.
The law applicable to such a situation is well known and has been correctly summed up by Crawford in these words: "Pending judicial proceedings based upon a statute cannot proceed after its repeal.
The rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was (1) ; 244 correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the.
appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an abso lute repeal.
" I think I should at this stage deal briefly with two points which were raised in the course of the arguments in support of the opposite view.
It was urged in the first place that without there being a saving clause to govern article 13 (1), it can be so construed as to permit offences committed prior to the 26th January, 1950, to be punished.
The argument has been put forward more or less in the fol lowing form.
The law which is said to be in conflict with the fundamental rights was a good law until the 25th January, and, since article 13 (1) is to be construed prospectively, and not retrospectively, every act constituting an offence under the old law remains an offence and can be punished even after the 26th January.
It seems to me that the same argument could be urged with reference to matters which constituted offences under a repealed Act or a temporary Act which has expired.
But such an argument has never succeeded.
The real question is wheth er a person who has not been convicted before the Act has ceased to exist or ceased to be effectual can still be prosecuted under such an Act.
The answer to this question has always been in the negative, and I do not see why a different answer should be given in the case of an Act which has be come void, i.e., which has become so ineffectual that it cannot be cured.
The second argument which also has failed to impress me is that if section 6 of the General Clauses Act does not in terms apply, the principle underlying that section should be applied.
The answer to this argument is that the Legislature in its wisdom has confined that section to a very definite situation, and, though it was open to it to make the section more comprehensive and general, it has not done so.
It is well known that situations similar to those which arise by reason of the repeal of an Act have arisen in regard to Acts 245 which have expired or Acts which have been declared to be void, and, though such situations must have been well known to the Legislature, they have not been provided for.
In these circumstances,I do not see how the very clear and definite provision can be enlarged in the manner in which it is attempted to be enlarged.
Besides, I have not come across any case in which the principle underlying section 38 (2) of the Interpretation Act or section 6 of the General Clauses Act has been invoked or applied.
In the present case, we have to look at the state of the law at the time when the question arises as to whether a person has committed any offence.
If we find that the law which made the act an offence has become completely ineffec tual and nugatory, then neither can a charge be framed nor can the accused person be convicted.
In my opinion, if the assumption on which the High Court has proceeded is correct, the appellant is entitled to a declaration that he cannot be convicted for the offence of which he is accused.
MAHAJAN J.
The appellant is the secretary of the Peo ple 's Publishing House Ltd., Bombay.
In September, 1949, he published a pamphlet entitled "Railway Mazdoorum Ke Khilaf Nai Sazish.
"On the 9th December, 1949, he was arrested and a prosecution was launched against him under section 18 (1) of the Indian Press (Emergency Powers) Act (XXIII of 1931)in the Court of the Chief Presidency Magistrate at Bombay in respect of this pamphlet, as it had been published without any authority as required under section 16 of the said Act.
On the 8th March, 1950, an application was made on his behalf in the High Court of Judicature at Bombay under article 228 of the Constitution of India for quashing the proceedings started against him and it was contended that sections 16 and 18 of Act XXIII of 1931 were ultra vires of Part III of the Constitution of India and were thus void and had no effect whatsoever and no prosecution launched under these sections could be proceeded with after the coming into force of the Constitution.
The High Court refused this 246 application and held that the proceedings instituted against the appellant before the commencement of the Constitution could not be affected by the provisions of the Constitution that came into force on the 26th January, 1950.
Dissatis fied with this decision, the appellant has preferred the present appeal to this court.
The sole point to decide in the appeal is whether pro ceedings instituted under section 18 (1) of the Indian Press (Emergency Powers) Act, XXIII of 1931, before the commence ment of the Constitution of India are affected by its provi sions.
The High Court has answered this question in the negative and, in my opinion, rightly.
I am in respectful agreement with the observations of the learned Chief Justice of Bombay that it is difficult to believe that the Constituent Assembly contemplated that with regard to the laws which it was declaring to be void under article 13 all vested rights and all proceedings taken should be disturbed and affected by particular laws ceasing to be in force as a result of inconsistencies with the fundamental rights guaranteed to the citizens.
It is not arguable and was not argued that Part III of the Constitu tion has any retrospective operation.
The appellant was not possessed of any fundamental rights in September, 1949, when he published the pamphlet in question and his act clearly came within the mischief of the provisions of section 18 of Act XXIII of 1931 and he thus became liable to the penalties prescribed therein.
It was, however, contended by Mr. Chari, the learned counsel for the appellant, that the effect of the language employed in article 13 (1)of the Constitution was that the proceedings commenced before the coming into force of the Constitution could not be continued after its commencement under the laws that became inconsistent with its provisions.
For this proposition he placed reliance on the rule of construction stated in Maxwell on "Interpretation of Stat utes ", p. 404, which is to the following effect : 247 "Where an Act expired or was repealed, it was formerly regarded, in the absence of provision to the contrary, as having never existed, except as to matters and transactions passed and closed.
Where, therefore, a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution was begun while the Act was still in force.
" This rule seems to be based on a statement of Tindal C.J. in Kay vs Goodwin(1).
The learned Chief Justice made the following observations : "I take the effect of repealing a statute to be, to obliterate it as completely from the records of Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing laW." This was the rule of the English common law which was applied in cases of statutes which were repealed and under this rule all pending actions and prosecutions could not be proceeded with after the repeal of the law under which they were started.
This rule was however changed by the Inter pretation Act of 1889, section 38.
Therein it was enacted that unless the contrary intention appears, no repeal is to affect any investigation, legal proceeding, including the initiation of criminal proceedings, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.
A similar provision exists in India in section 6 of the Gener al Clauses Act of 1868 and 1897.
The High Court held that the provisions of article 13(1) were analogous to the repeal of a statute and therefore section 6 of the General Clauses Act had application to the construction of these provisions and that being so, the coming into force of the Constitution did (1) ; 180 E.R. 1403; 248 not in any way affect the continuance of the proceedings that had been commenced against the appellant under the law that was in force at the time of the publication of the pamphlet.
Mr. Chari contended that the High Court was in error in applying the provisions of section 6 of the General Clauses Act to the interpretation of article 13 (1) of the Constitution inasmuch as the provisions of this article were not analogous to repeal and did not amount to a repeal of the existing law.
He contended that a repeal of the law could only be by the legislature but that under article 13 power had been given to the court to declare any law incon sistent with the Constitution to be void; in other words, the power given was larger in scope and effect than the power of repeal and the effect of the declaration that a certain statute was void as it was repugnant to the freedom guaranteed by the Constitution was to wipe out the statute altogether from the date of the coming into force of the Constitution and that nothing could be done under that statute with effect from the 26th January, 1950, and there fore the court could not frame a charge under the law that was declared void, or pass a judgment of conviction against a person under a law that had been declared void.
Mr. Chari went to the length of saying that a statute which was incon sistent with the Constitution became dead on the coming into force of the Constitution and under a dead statute no action could be taken whatsoever.
He emphasised his contention by stressing the fact that freedoms guaranteed by Part III of the Constitution could not be tainted by keeping alive prosecutions and actions under laws framed by a foreign government which were inconsistent with those freedoms.
It was said that some of the laws which the Constitution in tended to be declared void by the court because of their repugnancy to the fundamental rights guaranteed to the citizen by the Constitution were those which a foreign government had enacted to keep the people of this country under its domination and that to continue prosecutions under these laws after the coming into force of the Constitution would be wholly contrary and 249 repugnant not only to the letter of the Constitution but also to its spirit.
It was conceded that transactions finally closed under such laws could not be reopened but that prosecutions and actions which were still continuing should be stopped and further action concerning them would become illegal and would be contrary to the freedoms guaran teed by the Constitution.
Reference was made to articles 249, 250, 357, 358, and 369 to show that the scheme of the Constitution was that wherever it intended that the proceed ings commenced under existing laws which became inoperative on the 26th January, 1950.
were to continue after that date, apt phraseology had been used to indicate that intention but that in article 13 no such saving words were used and there fore it must be presumed that the Constituent Assembly did not intend that proceedings taken under such laws were to be continued after the 26th January, 1950.
Article 13 (1) of the Constitution is in these terms : "All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. ' ' The freedom guaranteed to the citizen which has applica tion to the case of the appellant is in article 19 (1) (a) and this article is in these terms : "All citizens shall have the right to freedom of speech and expression.
" It is admitted that after the 26th January, 1950, there has been no infringement of the appellant 's right of freedom of speech or expression.
In September, 1949, he did not enjoy either complete freedom of speech or full freedom of expression.
It is in relation to the freedom guaranteed in article 19(1) of the Constitution to the citizen that the provisions of article 13 (1) come into play.
This article does not declare any law void independently of the existence of the freedoms guaranteed by Part III.
A citizen must be possessed 250 of a fundamental right before he can ask the court to de clare a law which is inconsistent with it void ;but if a citizen is not possessed of the right, he cannot claim this relief.
The appellant in the present case was not possessed of any fundamental right on the day that he published the pamphlet and in these circumstances the question is whether he can claim protection under the rights guaranteed to him on 26th January, 1950, for escaping the consequence of his act on any principles of construction of statutes.
Accord ing to the contention of the learned counsel, the principles applicable to repealed statutes are not in terms applicable to such a case, whether they are to be found in the rules of the common law of England or whether they are contained in the Interpretation Act or the General Clauses Act.
Those rules are applicable to cases either of repeal or to cases of a statute dying a natural death by efflux of time.
None of those however have any application to the construction of statutes framed in languages like the one contained in article 13 (1) of the Constitution.
Besides the rule of construction which applies to repealed statutes or to tempo rary statutes our attention was not drawn to any other rule of construction under which a person who commits an offence against an Act during its existence as a law becomes unpun ishable on its termination.
Both on considerations of con venience and also on grounds of justice and reason I am inclined to think that penalties incurred under a law in force at the time when the act was committed would survive its extinction so that persons who violate its provisions might afterwards be punished.
Persons who during the contin uance of a statute have obtained rights under it cannot be affected by a declaration that the statute with effect from a certain date will become an inoperative statute.
When in the case of repeal of a statute, which according to Tindal C.J. obliterates it completely from the records of Parlia ment as if it had never been passed, the common law rule has been abrogated by statute, it is difficult to apply that rule on any sentimental grounds at this date to the case of statutes which are declared void or declared to have 251 no effect whatsoever after a certain date only.
The expres sion "void" has no larger effect on the statute so declared than the word "repeal".
The expression "repeal" according to common law rule obliterates a statute completely as if it had never been passed and thus operates retrospectively on past transactions in the absence of a saving clause or in the absence of provisions such as are contained in the Interpretation Act, 1889, or in the , while a provision in a statute that with effect from a particular date an existing law would be void to the extent of the repugnancy has no such retrospective operation and cannot affect pending prosecutions or actions taken under such laws.
There is in such a situation no necessity of introducing a saving clause and it does not need the aid of a legislative provision of the nature contained in the Interpretation Act or the .
To hold that a prospective declaration that a statute is void affects pending cases is to give it indirectly retrospective opera tion and that result is repugnant to the clear phraseology employed in the various articles in of the Con stitution.
The contention of the learned Attorney General that the phraseology employed in article 13 (1) of the Constitution clearly indicates that there was no intention to give any retrospective operation to the provisions of Part III of the Constitution and that the declaration that laws repugnant to Part III of the Constitution are void only operates from 26th January, 1950, has, in my opinion, force.
It seems clear that an existing statute in spite of a declaration by court that it is void remains in force till the 25th Janu ary, 1950, and continues to remain on the statute book even after the 26th January, 1950, except that no effect can be given to any of its provisions which are repugnant to the fundamental rights guaranteed by the Constitution.
The effect of article 13 (1)is only prospective and it operates in respect to the freedoms which are infringed by the State subsequent to the coming into force of the Constitution but the past acts of a person which came within the mischief of the law then in force are not affected 33 252 by Part III of the Constitution.
The reference made by Mr. Chari to different articles of the Constitution where saving clauses have been inserted to save pending proceedings or acts is not very helpful inasmuch as where a certain provi sion has a retrospective effect, then it is necessary to introduce a saving clause if things done in the past have to be saved from the retrospective effect of the statute; but where the provision is clearly not intended to be retrospec tive, then the necessity of saving clause does not arise.
The provisions of the Constitution to which Mr. Chari made reference were of the nature that but for the saving clause the effect of them would be retrospective in character under the accepted canons of construction of statutes.
Mr. Chari 's argument that it could not have been intend ed by the Constitution makers that prosecutions started under laws passed by a foreign power and which affect the freedoms guaranteed to the citizen under the Constitution in Part III were to be continued after the dawn of independence and after India had become a democratic republic to a cer tain extent seems to me to be plausible; but on further thought I have come to the conclusion that this argument appeals more to the heart than to the head and is not based on any sound principle of construction of statutes.
Under the accepted canons of construction of statutes, if a law has no retrospective operation of any kind whatsoever, then such a law cannot affect pending prosecutions or actions and the Constitution not being retrospective in its operation could not therefore in any way affect prosecutions started for offences that were complete under the law in force at the time they were committed.
The cure for such an incon gruous state of affairs and the relief for such situation lies with the Government and the legislature and not with the courts.
If a case of sedition against an alien govern ment is continued after the coming into force of the Consti tution, the court cannot decline to proceed with it and to pass some sentence howsoever lenient, against an accused by placing a construction on the Constitution 253 which gives it retrospective operation, but the government of the republic or its legislature can always by executive or legislative action bring to a close all such distasteful proceedings and not only can it do so in the case of pending prosecutions but it can give relief also to persons who have suffered under laws of sedition against an alien government and are suffering terms of imprisonment in the jails of the Republic.
If punishment for contravention of such laws cannot be given to offenders because decision in their case has been delayed beyond the 26th January, 1950, it will be highly unreasonable not to give relief and to let punish ments continue in case of persons, the sentence against whom have already been passed under laws which were solely enact ed to maintain the alien rule.
Both cases, in my opinion, stand on the same footing and relief in those cases lies not with courts but with the executive government of the Repub lic.
If Mr. Chari 's argument that on the commencement of the Constitution on 26th January, 1950, all proceedings started under laws that became repugnant and inconsistent with the Constitution were to be stopped was accepted, it would lead to very strange results, and Mr. Chari had to concede that it would be so.
Suppose a person was convicted of the offence of sedition or of an offence under one of the safety Acts, the provisions of which are repugnant to the Constitution, but his appeal was pending in the High Court against his conviction, then, according to the conten tion of Mr. Chari, the court has no power to hear the appeal because the law being void, no further action could be taken in the matter.
The result would be that the Court would not be able to hear an appeal and to give relief to the accused if he had been erroneously convicted.
If a court cannot frame a charge or convict a person under a law that is repugnant to the Constitution equally it would not be enti tled to continue any proceeding for the benefit of the accused under cover of such a law.
Great deal of emphasis was laid during the course of the argument on the meaning to be given to the word "void" and it was said that this word in its widest 254 sense meant that the law declared void was void ab initio, i.e, from the very reception of the law it was bad.
H that meaning was given to this word, then it would mean that all laws existing on the 26th January, 1950, and which were declared void by article 13 (1) because of their being repugnant to the Constitution were bad when they were passed by the legislature, though at the same time the subject enjoyed no fundamental rights.
It was sought to give to this word "void" the same wide meaning as was given to the word "repeal" by Tindal C.J. in the case above mentioned.
With every respect to the great Judges who administered the common law in England during the earlier period of British history and in all humility I venture to say that the rule evolved by them qua "repeal" was of an artificial nature.
The dictum of the learned Chief Justice that a repeal of a statute obliterates it completely from the records of Par liament as if it had never been passed is to my mind based on an extended meaning of that expression than its ordinary dictionary sense.
When a statute has been in operation, say for a period of fifty years, people have suffered penalties under it or have acquired rights thereunder and the law has been enforced by courts for such a long period, then to say that when it is repealed it is completely obliterated and that it never had any existence and was never passed by Parliament, is rather saying too much and is ignoring hard real facts and amounts to shutting one 's eyes to the actual ities of the situation.
It would be more consonant with reason and justice to say that the law existed and was good at the time when it was passed but that since the date of its repeal it has no longer any effect whatsoever.
The Parliament may however say in the repealing statute that it will have retrospective operation and it may also prescribe the limits of its retrospectivity and to that extent past transactions may be affected by it.
Because the rule of common law evolved by the English Judges was not in conso nance with reason and justice, a legislative practice was evolved under which each repealing statute contained a saving clause under 255 which past transactions were not allowed to be affected by the repeal.
Eventually the rule of common law was completely abrogated by the enactment of the Interpretation Act, 1889.
In India in the year 1868, section 6 of the enacted what was later on enacted in England in the Interpretation Act and for over eighty years it is this rule of construction that has been adopted in this country, the rule being that past transactions, whether closed or incho ate cannot be affected by the repeal of an earlier statute or by the coming into effect of a new one.
In my opinion, the rule contained in the and in the English Interpretation Act is more in consonance with reason and justice and is also a rule of convenience and should be followed in this country, in preference to the rule evolved by the English Judges in the earlier part of English legal history.
Be that as it may, it is unnecessary in this case to have resort either to the rule of common law or to the as the language of article 13 itself furnishes a solution to the problem.
Reference was also made to the rule of construction applicable to temporary statutes.
In the case of such statutes, the rule of English law is that after the expiry of the life of the statute no action can be taken under the expired statute unless an intention can be gathered from its provisions to the contrary, but transactions already com pleted during the period that these statutes had the force of law are not in any way affected.
That rule seems to be quite logical and is consonant with reason and justice.
When the life of a statute is limited and it dies a natural death, then no question either of its retrospective or of prospective nature arises.
If the intention of the statute was that anything done under it has to continue, then it will be allowed to continue; otherwise nothing done under it will be continued after its natural death.
Any rule applica ble to construction of such a statute has no application to the interpretation of the Constitution of India and the reference to this rule, in my opinion, is not relevant for the decision of this 256 Reference was also made to the rule of construction laid down by the American courts in respect of statutes de clared void because of their being repugnant to the Consti tution of the United States of America.
It is obvious that if a statute has been enacted and is repugnant to the Con stitution, the statute is void since its very birth and anything done under it is also void and illegal.
The courts in America have followed the logical result of this rule and even convictions made under such an unconstitutional statute have been set aside by issuing appropriate writs.
If a statute is void from its very birth then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law.
This rule, however, is not applicable in regard to laws which were existing and were constitutional according to the Government of India Act, 1935.
Of course, if any law is made after the 25th January, 1950, which is repugnant to the Constitution, then the same rule will have to be followed by courts in India as is followed in America and even convic tions made under such an unconstitutional law will have to be set aside by resort to exercise of powers given to this court by the Constitution.
The only rule of construction applicable to the inter pretation of article 13 of the Constitution is the one that concerns the determination of the question whether a statute is intended to have any retrospective operations.
If the well known canons of construction on this point are applied, then it has to be held that article 13 was not intended to have any retrospective effect whatever; on the other hand, its language denotes that it recognized the validity of the existing laws up to the date of the commencement of the Constitution and even after its commencement except to the extent of their repugnancy to any provisions of Part III of the Constitution.
On this construction of article 13 it cannot affect any past transactions, whether closed or inchoate.
Reference in this connection may be made to the provisions of 257 article 372(2) of the Constitution.
Under this article the President has been given power to adapt existing laws and to bring them in accordance with the articles of the Constitu tion by a process of amendment, repeal or adaptation.
The President could have repealed the Press (Emergency Powers) Act and brought the law in accordance with the provisions of Part III of the Constitution and if he had used the powers of repeal given to him by this article, the provisions of the would have been immediately attract ed to that situation and the pending prosecution of the appellant would have to be continued in view of those provi sions.
If in that situation the Constitution contemplates the continuance of pending proceedings under existing laws, it becomes difficult to place a different interpretation on the phraseology employed in article 13(1) of the Constitu tion, than the one that is in accord with that situation.
By the construction that I have placed on this article that incongruous result is avoided.
In view of the decision above arrived at it seems unnec essary to pronounce on the alternative argument of the learned Attorney General to the effect that the expression ' 'void ', used in article 13 of the Constitution is synonymous with the word "repeal" and that it was an apt word used in the context to indicate the same intention.
It was said that the word "repeal" was not used in the article but instead the expression "void" was employed therein by the draftsmen in order to include within its ambit cases of custom and usage where such custom and usage were also repugnant to the provisions of Part III of the Constitution.
It was also urged that by article 13 (1)the Constitution in express terms repealed all laws inconsistent with its provi sions and that the only power given to the court was to find out which of these laws was inconsistent with the provisions of Part III.
The declaration that these laws were void or repealed was by the force of the provisions of article 13 itself and did not result from the decision of the courts.
It is also unnecessary to examine the further argument of the learned 258 Attorney General that in any case since 1868 in this country the rule of construction of statutes is the one laid down by section 6 of the General Clauses Act,1868, and that though in express terms that statute may not be applicable to the construction of article 13(1) of the Constitution, yet that rule is a rule of justice, equity and good conscience and has become a rule of common law in this country and should be applied even to cases where statutes become void by rea son of their being repugnant to the Constitution.
For the reasons given above I see no force in this appeal and I would accordingly dismiss it.
MUKHERJEA J. I am in entire agreement with the view taken by my learned brother Fazl Ali J. in his judgment and I concur both in his reasons and his conclusion.
Appeal dismissed.
| Held by the Court (KANIA C.J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, DAS and CHANDRASEKHARA AIYAR JJ.
FAZL ALI and MUKHERJEA JJ., dissenting) Article 13(1) of the Indian Constitution does not make existing laws which are incon sistent with fundamental rights void ab initio, but only renders such laws ineffectual and void with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution.
It has no retrospective effect, and if therefore an act was done before the com mencement of the new Constitution in contravention of the provisions of any law which was a valid law at the time of the commission of the act, a prosecution for such an act, which was commenced before the Constitution came into force can be proceeded with and the accused punished according to that law.
even after the commencement of the new Constitu tion.
On the expiry of a temporary statute no further proceed ings can be taken under it unless the statute itself saved pending proceedings and if an offence had been committed under a temporary statute and proceedings were initiated but the offender had not been prosecuted and punished before the expiry of the statute, then in the absence of a saving clause the pending prosecution cannot be proceeded with after the expiry of the statute by efflux of time.
The effect of article 13(1) is quite different from that of the expiry of a temporary statute or the repeal of a statute by a subsequent statute.
A court of law has to gather the spirit of the Constitu tion from the language/of the Constitution.
What one may believe or wish to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view.
229 Per FAZL ALI and MUKHERJEA JJ.
(contra) Though article 13(1) has no retrospective operation, and transactions which are past and closed and rights which have already vested will remain untouched, with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings which were pending at the time of the enforcement of the Constitution and not yet prosecuted to a final judgment, a law which has become void under article 13(1) of the Constitution cannot be applied.
What has to be looked at is the state of the law at the time when the question arises as to whether a person has commit ted an offence, and if it is found that the law which made the act an offence has become completely ineffectual and nugatory, then neither can a charge be framed nor can the accused person be convicted.
Judgment of the Bombay High Court affirmed.
|
Appeal (Civil Appeal No. 28 of 1950) from a judgment and decree of the High Court of Judicature at Bombay dated 19th March, 1945, in Appeals Nos.
68 and 190 of 1942.
H.D. Banaji (V. R. Desai, with him) for the appellants.
M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the respondent.
February 5.
The judgment of the Court was deliv ered by MAHAJAN J.
This is an appeal from a judgment of the High Court of Judicature at.
Bombay modifying the decree of the trial court and decreeing partially the plaintiff 's suit.
The appellants are the legal representatives of the original plaintiff Haji Ali Mohamed Haji Cassum.
The State of Bombay is the respondent.
The facts giving rise to this Controversy, briefly stated, are as follows ; 35 268 Village Dahisar originally formed part of the Malad Estate comprising in all eight villages.
The said estate was conveyed by the East India Company to two Dady brothers for valuable consideration by a deed of indenture dated the 25th January, 1819.
By that conveyance all the lands in the eight villages were conveyed absolutely to the said purchas ers and it was covenanted by the Company that the purchas ers, their heirs and assigns shall peaceably and quietly enjoy the said villages and receive and take the rents and profits thereof without any hindrance or interruption from the said Company.
By a sale deed dated the 13th December, 1900, Haji Cassum, father of the plaintiff, purchased the village of Dahisar from its proprietors for a price of Rs. 1,30,000 and after his death the plaintiff became the pro prietor thereof and as such received rents and assessment from the tenants and holders of the lands in the village according to the rights prevailing under the survey settle ment which had taken place in the village about the year 1864 65.
In the year 1879 the Bombay Land Revenue Code was enact ed.
Section 48 of the Code is in these terms : "48.
(1) The land revenue leviable on any land under the provisions of this Act shall be assessed, or shall be deemed to have been assessed, as the case may be, with reference to the use of the land (a) for the purpose of agriculture, (b) for the purpose of building, and (c) for a purpose other than agriculture or building.
(2) Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provi sions of this Act upon such land shall, notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a differ ent rate by such authority and subject to such rules as the Provincial Government may prescribe in this behalf . . . " 269 After the Act came into force, the Government drafted rules under the provisions of section 214 for promulgation.
The inamdars represented to the Government that the rules should be so framed as not to prejudice their rights under the conveyances executed by the Company in their favour.
The draft rules were promulgated by a notification issued on the 5th June, 1907.
On that date, the Government adopted a resolution ordering that the rules be promulgated and also giving an assurance to the inamdars to the following effect : "Government will, however, be prepared to amend or abrogate these rules if they are found to be detrimental in any material respects to the interests of the inamdars.
" Rule 92 is one of the rules promulgated under the provisions of the Act and it runs thus : "When land assessed for purposes of agriculture only is subsequently used for any purpose unconnected with agricul ture the assessment upon the land so used shall, unless otherwise directed by Government, be altered under sub section (2) of section 48 by the collector in accordance with rules 81 to 87 inclusive." On the 25th July, 1923, the plaintiff requested the Commissioner of Bombay, Suburban District, for a revision of the survey of Dahisar village.
He executed an agreement under the provisions of section 216 of the Bombay Land Revenue Code and made a formal application in that behalf as required by the Code and the rules made thereunder.
The Commissioner by his letter dated the 14th March, 1925, authorised the extension of the provisions of chapters 8 and 9 of the Land Revenue Code to the village in question.
The plaintiff also deposited the necessary expenses required for the revision of the survey.
The revision was made by the Superintendent of the Land Records who submitted his report to the Commissioner on the 15th December, 1926.
This report was sanctioned by Government.
The order sanctioning the revised survey was communicated to the plaintiff on the 23rd 270 December, 1927.
Under the revised survey the assessment of Rs. 4,217 on the village lands was increased to Rs. 6,057 3 2, and the plaintiff from that date started recover ing the increased assessment from the tenants of the lands in the village.
At the time of the revision of the survey it was found that nine plots of land comprised in eleven field numbers which were formerly agricultural had been built upon and these were being used for non agricultural purposes.
The survey officer formed them into a separate group and showed them as kharaba and no assessment, either agricultural or non agricultural, was levied on these nine plots and the plaintiff could not therefore recover any assessment in respect of these plots after 1926.
On the BOth April, 1934, he requested the Collector to assess non agricultural assessment on these plots.
This request was refused by the Collector on the 17th July, 1935, in these terms: "With reference to your letter dated 30 4 1934, I have the honour to state that I regret your request cannot be granted.
" It has to be observed that this refusal was in contra vention of the provisions of rule 92 which imposes on the Collector a duty to make alteration in the assessment, unless he has been directed to the contrary by Government.
It was not denied that by the 17th July, 1935, no such direction had been given to the Collector by Government.
If the Collector had done his duty as enjoined by rule 92, this lengthy and unnecessary litigation might well have been avoided.
Against the order of the Collector the plaintiff ap pealed to the Commissioner.
In his appeal he pointed out that certain additional lands in the village had been con verted to non agricultural uses subsequent to the revision of the survey in 1926.
The Commissioner declined to inter fere.
This information was conveyed by the Collector to the counsel for the plaintiff on the 22nd May, 1937.
Against the Commissioner 's decision, the plaintiff appealed to the Governor in Council and 271 on the 20th December, 1937, he received a copy of the fol lowing communication from Government to the Commissioner : "The undersigned presents compliments to the Commis sioner, Northern Division, and with reference to his letter, No. L.N.D. 3124, dated 20th April, 1936, on the subject noted above, is directed to invite his attention, to the orders issued in Government Resolution, No. s235/3a, dated 8th March, 1937, and to state that Government confirm the action of the Collector, Bombay Suburban District, in refusing the Khot 's request for the levy of nonagricultural assessment in the village of Dahisar.
By order of the Governor in Council, for Under Secretary to the Government of Bombay.
" In order to find out whether there was any resolution of the Government as mentioned in the above communication, during the pendency of the suit the plaintiff issued the following interrogatory to the Government of the State of Bombay : "When was the decision, not to assess the lands men tioned in Schedule II of the plaint and other lands under rule 92, referred to in para.
8 of their written statement arrived at by the Government ? Produce a copy of the said decision which may have been embodied in a Government resolution along with the opinion of the Government officers with which Government may have concurred.
" The answer given on behalf of the State Government to this question was as follows : "(8) Government Memorandum, Revenue Department, No. 5235 B/33, dated the 8th March, 1937, confirmed the Collec tor 's action in refusing the proprietor 's request for the levy of non agricultural assessment. ' ' This answer indicates that the Government acting under rule 92, neither adopted any resolution nor issued any notification giving any directions to the Collector contrary to the provisions contained in that 272 rule.
All that it did was to confirm the Collector 's order rejecting the request of the plaintiff for making the as sessment of non agricultural lands in the village.
During the interval between 1927 37 a large number of plots of land mentioned in schedule II were put to non agricultural uses by the tenants in possession of them and a number of buildings were constructed thereupon.
The plain tiff having failed in persuading the Government to make an assessment under rule 92 of such lands, after service of notice under section 80 of the Code of Civil Procedure, instituted the present suit, (a) for a declaration that he was entitled to have nonagricultural assessment made on all lands in the village of Dahisar which were used or which may thereafter be brought into use for purposes other than agricultural, and (b)for an order that the Collector of Bombay, Suburban District, be directed to determine the amount of non agricultural assessment on the lands mentioned in schedules I and II of the plaint and to levy the same under clause 2 of rule 96 and pay it to the plaintiff, or in the alternative, to direct the defendant to issue a commission to the plaintiff under section 88 of the Land Revenue Code.
Schedule I gave details of the nine plots of land that had been converted into non agricultural use before the survey of 1926, while schedule II gave details of those lands which since 1926 up to the date of the suit had been converted to such use.
The plaintiff also claimed damages to the extent of Rs. 120 as compensation for loss of agricultural assessment for six years in respect of lands mentioned in schedule I and he claimed similar damages to the extent of Rs. 300 for loss of non agricultural assess ment in respect of the other lands.
He also claimed future damages and costs.
The suit was resisted by the State Government on a number of grounds.
It was contended that it was barred under section 4 (c) of the Revenue Jurisdiction Act and under article 14 of the Indian Limitation Act.
On the merits it was pleaded that the action of the survey officer and the Collector in refusing to levy non agricultural assessment on lands contained in the 273 two schedules was lawful and proper and that the civil court could not question the discretion of the Government in such matters.
The trial Judge negatived all the technical objections raised by the defendant and on the merits held that the Collector 's action in refusing to levy nonagricultural assessment on the lands in question was wrongful.
He, there fore, granted the declaration prayed for.
He, however, refused to give further relief to the plaintiff and disal lowed the prayer for a direction for levying non agricultur al assessment on the lands given in the two schedules and for paying it to the plaintiff.
He observed that the Govern ment would be well advised if it levied such assessment and paid it to the plaintiff.
Two appeals were taken to the High Court against the decree of the trial Judge.
That Court modified this decree and granted a declaration to the plaintiff that he was entitled to receive non agricultural assessment on all lands which are and which may hereafter be used for non agricul tural purposes.
It ordered the defendant to levy such altered assessment on the lands mentioned in schedule I and decreed consequential damages to the plaintiff in respect to these lands.
As regards the lands in schedule II, the plain tiff 's suit for a direction to assess and levy non agricul tural assessment on them was dismissed.
The court drew a distinction between lands that had been converted to non agricultural use before the survey of 1926 and those which had since then been converted to such use.
As regards the former, it was held that the survey officer had erroneously declined to make non agricultural assessment on those lands and his action was ultra vires.
Relief was given to the plaintiff regarding those lands as prayed for.
As regards the latter, it was held that it was within the discretion of the Government to order an alteration of the assessment on such lands and this discretion could not be questioned in a court of law.
The plaintiff being dissatisfied with this part of the decision made an application for leave to appeal to.
the Privy Council on the 15th 274 September, 1945.
During the pendency of the application the plaintiff died and his heirs and executors were implead ed as his legal representatives.
A certificate for leave to appeal to the Privy Council was granted on the th February, 1947, and the appeal preferred under the certificate is now before us for decision.
There is no controversy in this appeal as regards the reliefs that have been given to the plaintiff by the High Court.
The appeal concerns the fur ther relief refused to the plaintiff in respect to the lands mentioned in schedule II.
It was contended on behalf of the appellant that under the terms of the conveyance dated 25th January, 1819, and of the covenants contained therein it was not open to the Government or the Collector to refuse the alteration of the assessment claimed by the plaintiff and that the Government could not give any direction under rule 92 which would be contrary to these covenants and assur ances.
It was said that the Government was bound to use its power to levy assessment as trustee for the transferee and that the exercise of this power could not be arbitrarily refused by it.
It was urged that the Government Resolution dated 5th June, 1907, clearly indicated that the rules framed under the Land Revenue Code were not intended to affect adversely the owners of alienated lands and the Collector was bound to make an assessment as required by the plaintiff.
Lastly, it was argued that as a matter of fact Government never exercised its power under rule 92 and never gave a direction to the Collector to a contrary effect and that the mere affirmation of the erroneous order of the Collector by Government did not amount to a direction con templated by the provisions of rule 92.
Having considered this case in all its aspects, we have reached the decision that the High Court 's decision have in so far as it refused relief to the plaintiff in respect to the lands mentioned in schedule II should be reversed.
Rule 92 cited in the earlier part of this judgment in imper ative terms directs the Collector to alter the assessment in case agricultural lands are Converted to non agricultural use.
The Collector has 275 no option in the matter and as soon as an application is made to him he should proceed to make an assessment and levy it on the non agricultural lands.
When the Collector de clined to accede to the request of the plaintiff he acted in contravention of the clear provisions of the rule, because admittedly at that time no "directions to the contrary" had been given to him by the Government.
There was no resolu tion of the Government in existence and no notification had been issued under the provisions of rule 92 directing the Collector not to make an alteration in the assessment when required to do so.
The Commissioner, in dismissing the plaintiff 's appeal, also contravened the provisions of rule 92.
When the matter went up in appeal to the Governor in Council, no decision was taken under the provisions of rule 92.
The High Court assumed that the confirmation of the action of the Collector by the Government amounted to a direction by the Government to the contrary in respect of the lands in question.
We are unable to agree with this conclusion.
When Gov ernment has been given the power to give directions to the Collector not to act in accordance with the imperative provisions of a rule which enjoin upon him to make the altered assessment, that power has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerned and the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to the public.
It was conceded by Mr. Joshi that no such decision was taken by Government and no direction was issued by Government under rule 92 Dismissal by the Government of the plaintiff 's appeal and affirmation by it of an erroneous order of the Collector could not be held to amount to action under the provisions of rule 92.
In these circumstances, the plaintiff was clearly entitled to further relief in respect to lands mentioned in schedule II and a direction should have been issued to the State Government for making altered assessment on non agricultural lands and levy it on them and pay it to the plaintiff.
36 276 Mr. Joshi contended that the true effect of the provi sions contained in section 48 (2) and rule 92 was that the Government was not bound to levy altered assessment on lands converted to non agricultural use, that the section merely provided that the persons in possession of land were liable for such assessment but it did not say that it was obligato ry on the Government to make it and that the court had no jurisdiction to interfere with the discretion of the Govern ment in the matter.
We think that when a liability is imposed by a statute, that liability cannot be defeated by the exercise of any discretion by Government or by making rules which may negative that liability, but it is not necessary in this case to finally decide the point as the appeal stands decided otherwise.
It is also unnecessary to express an opinion as to the precise scope of the power conferred on Government by the language of rule 92.
The plaintiff 's learned counsel very properly did not press his appeal in respect to the claim of damages concern ing lands mentioned in schedule II.
Plaintiff 's suit to that extent fails.
For the reasons given above the appeal is allowed and the plaintiff 's suit is decreed with costs except in regard to the claim for damages in respect to the lands mentioned in schedule II.
The defendant is directed to make an assess ment on lands mentioned in schedule II in the same way as in respect of the lands mentioned in schedule I and levy the same and pay it to the plaintiff.
Appeal allowed.
| Rule 92 of the rules issued under the Bombay Land Reve nue Code, 1879, provided that when land assessed for pur poses of agriculture only is subsequently used for any purpose unconnected with agriculture, the assessment upon the land so used shall unless otherwise directed by the Government be altered under section 48 (2) by the Collector in accordance with rr.
81 to 87: Held, that as the rule imposes an imperative duty on the Collector to alter the assessment, the power which has been given to the government to give directions to the Collector not to act in accordance with the imperative provisions of the rule has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerned and the decision that the power has been exercised must be notified in the usual manner.
Where the Government did not pass any resolution or issue any directions to that effect but merely confirmed on appeal an order of the Collector rejecting an application to assess nonagricultural assessment on agricultural lands which had been used for building purposes: Held, that the confirmation of the Collector 's order by the Government did not amount to a direction to act otherwise within the mean ing of r. 92 and the applicant was entitled to have the assessment on the lands altered under section 48(2) in accordance with rr.
81 to 87 as laid down in r. 92.
|
Appeal from a judgment and decree of the Patna High Court dated 25th March, 1949, in A.S. 2280 of 1948 reversing an appellate _decree of the Subordinate Judge in Suit No. 62 of 1948.
Baldev Sahay (T. K. Prasad, with him) for the appel lant.
N.C. Chatterjee (H.J. Umrigar, withhim) for the respond ent. 1951.
February 2.
The judgment of the Court was deliv ered by FAZL ALL J.
This is an appeal from a judgment and decree of the High Court of Judicature at Patna reversing the appellate decree of a Subordinate Judge in a suit insti tuted by the respondents.
The facts of the case are briefly these.
The respondents have been in occupation as a monthly tenant of several blocks of premises belonging to the appellants at a monthly rental of Rs. 112.
The rent for the months of March, April and May, 1942, having fallen into arrears, they remitted it along with the rent for June, on 28th June, 1947, by means of two cheques.
As the appellants did not accept the cheques, on 4th August, 1947, the re spondents remitted the amount subsequently by postal money order.
On 12th August, 1947, the appellants, maintaining that there was non payment of rent and hence the respond ents were liable to be evicted, under section 1 1 (1) (a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947), applied to the House Control ler for the eviction of the respondents from the premises.
Section 11 (1) (a) of the Act runs as follows : "Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of section 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except 147 (a) in the case of a month to month tenant, for non payment of rent or breach of the conditions of the tenancy, or for subletting the building or any portion thereof with out the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment ;" On 30th August, 1947, the respondents, whose money order had in the meantime been returned by the appellants, deposited the rent up to the month of June in the Office of the House Controller.
Notwithstanding this deposit, the House Controller passed an order on the both November, directing the eviction of the respondents by 10th May, 1948, and holding that they had made themselves liable to eviction by reason ' of non payment of rent.
The order of the House Controller was upheld by the Commissioner on appeal on the 27th April, 1948, and thereupon the respondents filed the present suit in the Patna Munsif 's Court for a declaration that the order of the ContrOller dated the 10th November, 1947, was illegal, ultra vires and without jurisdiction.
The suit was dismissed by the Munsif and his decree was upheld on appeal, but the 'High Court decreed the suit holding that the order of the Rent Controller was without jurisdiction.
The appellants were thereafter granted leave to appeal by the High Court, and they have accordingly preferred this appeal.
The High Court has delivered a somewhat elaborate judg ment in the case, but it seems to us that the point ' aris ing in this appeal is a simple one.
The main ground on which the respondents have attacked the order of eviction passed by the House Controller is that in fact there was no non payment of rent, and, since no eviction can be ordered under the Bihar Act unless non payment is established, the House 'Controller had no jurisdiction to order eviction.
On the other hand, one of the contentions put forward on behalf of the appellants is that there was non payment of rent within the meaning of that expression as used in the Act, since the rent was not paid as and when it 148 fell due.
It was pointed out that the rent for the month of March became due in April and the rent for April became due in May, but no step was taken by the respondents to pay the arrears until the 28th June, 1947.
It appears that at the inception of the tenancy, the respondents had paid one month 's rent in advance, and it had been agreed between them and the appellants that the advance rent would be adjusted whenever there was default in payment of rent for full one month.
It was however pointed out that the advance payment could be adjusted only for one month 's rent, but, in the present case, the rent for three months had become due, and, since in a monthly tenancy the rent is payable for month to month, the rent for each month becoming due in the subse quent month, non payment of that rent at the proper time was sufficient to attract the provisions of section 11(1) (a) of the Act.
The appellants also raised a second contention, namely, that having regard to the scheme of the Act, the House Controller was fully competent to decide whether the condition precedent to eviction had been satisfied, anal once that decision had been arrived at, it could not be questioned in a civil court.
This contention was accepted by the first two courts, and the first appellate court dealing with it observed as follows : "But the Buildings Control Act has authorised the Con troller to decide whether or not there is nonpayment of rent and it is only when he is satisfied that there has been nonpayment of rent that he assumes jurisdiction.
If the question of jurisdiction depends upon the decision of some fact or point of law, and if the court is called upon to decide such question, then such decision cannot be collater ally impeached (vide 12 Patna 117).
In my opinion when the Controller assumed the jurisdiction on being satisfied that there was non payment of rent and proceeded to pass an order of eviction.
I think the Civil Court can have no jurisdic tion to challenge the validity of such order.
" The High Court did not however accept this view, and after referring to section 111 of the Transfer of 149 Property Act, proceeded to propound its own view in these words: "Regard being had to the circumstances in which the Act under consideration was enacted and its object, as stated in the preamble as being 'to prevent unreasonable eviction of tenants ' from buildings, it would seem that the expres sion 'non payment of rent ' in section 11 in the context in which it is used must be given an interpretation which would have the effect of enlarging the protection against determi nation of a tenancy enjoyed by a tenant under the ordinary law.
The Legislature, therefore, by enacting that a tenant shall not be liable to be evicted 'except for nonpayment of rent ' should be held to have intended to protect a tenant from being evicted from a building in his possession for being a defaulter in payment of rent, if he brings into Court all the rent due from him before the order of his eviction comes to be passed .
If, as contended for on behalf of the respondents, section 11 of the Act were to be construed as entitling a landlord to apply for eviction of a tenant on the ground of irregular payment of rent amounting to ' non payment ' of rent and as empowering the Controller to determine as to whether irregular payment of rent amounts to non payment of rent within the meaning of sub section (1)of section 11, and subsection (3) of section 18 were to be construed as making the decision of the Controller on this question of law a final one, it will appear that not only this Act will have conferred a right upon the landlord very much in excess of the right that he enjoys under the ordinary law in the matter of determination of tenancies, but that it will have conferred very much larger power on the Controller than that possessed by the Civil Courts under the ordinary law in the matter of passing decrees for eviction of tenants.
The principle of law and equity on which relief against forfei ture for ',non payment of rent ' is based, will have been completely abrogated, and the protection of a tenant in possession of a building instead of being enlarged will 150 have been very much curtailed.
A construction of these provisions, which is calculated to bring about these conse quences, cannot and is not in accordance with the circum stances to which this Act was intended to apply and indeed cannot be accepted.
The contention of Mr. Lalnarain Sinha on behalf of the respondent that the circumstances disclosed in the petition raised the question for determination by the Controller whether a case of non payment of rent in law was established, and his decision of that question, even if wrong in law, is not liable to be questioned in the Civil Court must be over ruled.
" It seems to us that the view taken by the High Court is not correct.
Section 11 begins with the words "Notwithstand ing anything contained in any agreement or law to the con trary," and hence any attempt to import the provisions relating to the law of transfer of property for the inter pretation of the section would seem to be out of place.
Section 11 is a self contained section, and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not, and under what condi tions he can be evicted.
It clearly provides that a tenant is not liable to be evicted except on certain conditions, and one of the conditions laid down for the eviction of a month to month tenant is non payment of rent.
Sub section (8) (b) of section 11 provides that the "Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building" and if he is not so satisfied he shall make an order rejecting the application.
Section 16 empowers the Controller to make enquiries and inspections and to summon and enforce the attendance of witnesses and compel the production of documents in the same manner as is provided in the Code of Civil Procedure.
Section 18 pro vides that any person aggrieved by an order passed by the Controller may within 15 days of the receipt of such order by him, prefer an appeal to the Commissioner of the Divi sion, and it also prescribes the procedure for the hearing of the appeal.
Sub section (3) 151 of this section states that "the decision of the Commission er and subject only to such decision, an order of the Con troller shall be final, and shall not be liable to be ques tioned in any Court of law whether in a suit or other pro ceeding by way of appeal or revision.
" The Act thus sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subject only to the decision of the Commis sioner.
The Act empowers the Controller alone to decide whether or not there is non payment of rent, and his deci sion on that question is essential before an order can be passed by him under section 11.
Such being the provisions of the Act we have to see whether it is at all possible to question the decision of the Controller on a matter which the Act clearly empowers him to decide.
The law on this subject has been very lucidly stated by Lord Esher M.R. in The Queen vs Commissioners for Special Purposes of the Income Tax(1), in these words : "When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first estab lished by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body.
It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise.
There it is not for them conclu sively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.
But there is another state of things which may exist.
The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do (1) , at .319.
20 152 something more.
When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none.
In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legis lature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide without any appeal being given, there is no appeal from such exercise of their jurisdiction.
" On the same lines are the following observations of Sir James Colville in The Colonial Bank of Australasia vs Wil lan(1), which is a case dealing with the principles on which a writ of certiorari may be issued : "Accordingly, the authorities. establish that an adju dication by a Judge having jurisdiction over the subject matter is, if no defect appears on the face of it, to be taken as conclusive of the facts stated therein; and that the Court of Queen 's Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found.
" There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is non payment of rent or not, as well as the jurisdiction, on finding that there is nonpayment of rent, to order evic tion of a tenant.
Therefore, even if the Controller may be assumed to have wrongly decided the question of non payment of rent, which by no means is clear, his order cannot be questioned in a civil court.
It seems to us that on this short ground this appeal must succeed, and we (1) , at p. 443.
153 accordingly allow the appeal, set aside the judgment and decree of the High Court and restore the decree of the courts below.
The appellants will be entitled to costs throughout.
Appeal allowed.
| Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is non payment of rent or not, as well as the jurisdiction, on finding that there is non payment of rent, to order eviction of a tenant.
Therefore, even if a Controller has wrongly decided the question wheth er there has been non payment of rent, his order for evic tion on the ground that there has been non payment of rent cannot be questioned in a civil court.
Queen vs Commissioners for Special Purposes of Income Tax (21 O.B.D. 313) and Colonial Bank of Australasia vs Willan (L.R. P.C. 417) relied on. 146
|
Case No. 22 of 1950.
Appeal under article 132(1) of the Constitution against a judgment and order of the Bombay High Court dated 1st Sep tember, 1950, in Criminal Application No. 807 of 1950.
The facts and arguments of counsel are set out in the judgment.
M.C. Setalvad Attorney General, (G. N. Joshi, with him) for the appellant.
A.S.R. Chari and Bava Shiv Charan Singh for the respond ent.
Jan. 25.
The judgment of Kania C.J., Fazl Ali, Mukherjea and Chandrasekhara Aiyar JJ. was delivered by Kania C.J. Patanjali Sastri and Das JJ.
delivered separate judgments.
KANIA C.J. This is an appeal from a judgment of the High Court at Bombay, ordering the release of the respondent who was detained in custody under a detention order made under the (IV of 1950).
The re spondent was first arrested on the 18th of December, 1948, under the Bombay 171 Public Security Measures Act, 1948 (Bombay Act IV of 1947), but was released on the 11th of November, 1949.
He was arrested again on the 21st of April, 1950, under the Preven tive Detention Act, 1950, and on the 29th of April, 1950`, grounds for his detention 'were supplied to him.
They were in the following terms: "That you are engaged and are likely to be engaged in promoting acts of sabotage on railway and railway property in Greater Bombay.
" The respondent filed a habeas corpus petition on the 31st of July, 1950, in which, after reciting his previous arrest and release, in para graphs 6 and 7 he mentioned as follows : "(6) On his release the applicant left Bombay and stayed out of Bombay, that is, in Ratlam and in Delhi.
(7) On 20th April, 1950, he returned to Bombay and was immediately arrested as stated above." He contended that the sole aim of the Government in ordering his detention was not the preservation of public order or the security of the State, but the locking up of active trade unionists who belonged to the All India Trade Union Congress.
He contended that the ground is "delight fully vague and does not mention when, where or what kind of sabotage or how the applicant promoted it." He further urged that the ground gave no particulars and therefore was not a ground as required to be furnished under the .
He stated that the present appellant acted mala fide, for a collateral purpose, outside the scope of the Act, and that the applicant 's detention in any event was illegal and mala fide.
When this petition was presented to the Court on the 9th of August, 1950, it directed the issue of a notice to the Commissioner of Police.
Pending the disposal of the Rule, on the 26th August, 1950, the Commissioner of Police sent a communication to the respond ent as follows: "In pursuance of section 7 of the (Act IV of 1950), and in continuation of my commu nication No. 227 dated the 29th April, 172 1950, the following further particulars are hereby communi cated to you in connection with the grounds on which a detention order has been made against you under sub section (1) of section 3 of the said Act : That the activities mentioned in the grounds furnished to you were being carried on by you in Greater Bombay be tween January 1950 and the date of your detention; and In all probability you will continue to do so.
If, in view Of the particulars now supplied, you wish to make a further representation against the order under which you are detained, you should address it to the Government of Bombay and forward it through the Superintend ent of Arthur Road Prison, Bombay.
" On the 30th of August, 1950, the Commissioner of Police filed an affidavit against the petition of the respondent in which it was stated that the objectionable activities were carried on by the applicant between the months of January, 1950, and the date of detention.
It further stated that in or about the month of January, 1950, there was a move for a total strike on the railways in India in the month of March, 1950, and the applicant was taking prominent part to see that the strike was brought ' about and was successful.
As a means to make the strike successful and bring about total cessation of work on all railways, the applicant and his associates were advocating sabotage on railways and railway property in Greater Bombay.
He further stated that reliable materials were put before him of the respondent being en gaged in such activities by experienced police officers.
He added that although the railways strike in the month of March did not materialise, the idea of bringing about such strike as soon as convenient continued to be entertained and the present respondent was actively engaged in bringing about such a strike in the near future.
He then stated that the disclosure of further facts relating to the activities of the detenue was against public interest.
In para.
6 there was a specific denial that 173 the respondent, after his release in November, 1949, and till 20th April, 1950, was out of Bombay.
It was stated that he used to go out of Bombay at times but during the major part of the period he was in the city of Bombay.
When the matter came up before a Bench of the High Court the respondent 's petition was granted.
In the judgment of the Court, Chagla C.J. observed: "It is clear by reason of the view we have taken in several cases under section 491 of the Criminal Procedure Code, that this is not a ground which would enable the detenue to make a representation to which he is entitled both under the Act and under the Constitu tion." After noticing the affidavit of the Commisioner of Police, it was further observed: "We appreciate the fact that, after our decision was given, Government decided to place all the materials before us so that we should be satisfied that what influenced the detaining authority in making the order was not any ulterior motive but that ample materials were at the disposal of the detaining authority which would justify the applicant 's detention.
We have looked at this affidavit and we have also looked at the particulars furnished to us by Mr. Chudasama.
If these particulars had been furnished at the time when the grounds were furnished on the 29th of April, 1950, very likely we would have come to the conclusion that the grounds were such as would have led the detenue to; know exactly what he was charged with and to make a proper representation.
" The judgment is however based on the following observation of the Chief Justice: "Anew and important question arises for our consideration; and that is whether it is permissible to the detaining authority to justify the detention by amplify ing and improving the grounds originally furnished . .
The only grounds which we have to consider and which were furnished in the purported compli ance of article 22(5) were the grounds furnished to the detenue on the 29th of April, 1950; and if these grounds were not such as to enable the detenue to make a proper representation, then there was a 174 violation of the fundamental right and a contravention of the statutory provisions.
That violation and that contra vention cannot be set right by the detaining authority by amplifying or improving the grounds already given.
As we said before, the point of time at which we have to decide whether there was a compliance or not with the provisions of article 22 (5) is the 29th of April, 1950, when the grounds were furnished, and not when further and better particulars were given on the 26th of August 1950.
" The learned Attor ney General, appearing for the appellant, has strenuously objected to this line of approach.
As the question of vagueness of grounds for the order of detention and the question whether supplementary grounds could be furnished after the grounds were first given to the detenue have arisen in various High Courts, we think it right that the general principles should be properly appreciated.
The Constitution of India has given legisla tive powers to the States and the Central Government to pass laws permitting preventive detention.
In order that a legis lation permitting preventive detention may not be contended to be an infringement of the Fundamental Rights provided in Part III of the Constitution, article 22 lays down the permissible limits of legislation empowering preventive detention.
Article 22 prescribes the minimum procedure that must be included in any law permitting preventive detention and as and when such requirements are not observed the detention, even if valid an initio, ceases to be "in accord ance with procedure established by law" and infringes the fundamental right of the detenue guaranteed under articles 21 and 22 (s) of the Constitution.
In that way the subject of preventive detention has been brought into the chapter on Fundamental Rights.
In the 3resent case we are concerned only with clauses (5) and (6) of article 22 which run as follows: 22. "(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, 175 as soon as may be, communicate to such person the ground on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
" It has to be borne in mind that the legislation in question is not an emergency legislation.
The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial.
By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end.
The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the infor mation in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudi cial act.
Section a of the there fore requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (8) the maintenance of supplies and services essential to the community . . it is necessary So to do, make an order directing that such person be detained.
According to the wording of section 3 therefore before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from 23 176 acting in such a manner.
The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established.
It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list.
The satisfaction of the Government however must be based on some grounds.
There can be no satisfaction if there are no grounds for the same.
There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section.
One person may think one way, another the other way.
If, therefore, the grounds on which it is stated that the Central Government or the State Gov ernment was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court.
Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the sec tion.
It is not for the court to sit in the place of the Central Government or the State Government and try to deter mine if it would have came to the same conclusion as the Central or the State Government.
As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objec tive test in a court of law.
Such detention orders are passed on information and materials which may not be strict ly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government.
An order having been so permitted to be made, the next step to be considered is, has the detained person 177 any say in the matter? In the chapter on Fundamental Rights, the Constitution of India, having given every citizen a right of freedom of movement, speech, etc. with their relative limitations prescribed in the different articles in Part III, has considered the position of a person detained under an order made under a .
Three things are expressly considered.
in article 22 (5) it is first considered that the man so detained has a right to be given as soon as may be the grounds on which the order has been made.
He may otherwise remain in custody without having the least idea as to why his liberty has been taken away.
This is considered an elementary right in a free democratic State.
Having received the grounds for the order of deten tion, the next point which is considered is, "but that is not enough; what is the good of the man merely knowing grounds for his detention if he cannot take steps to redress a wrong which he thinks has been committed either in belief in the grounds or in making the order." The clause therefore further provides that the detained person should have the earliest opportunity making a representation against the order.
The representation has to be against the order of detention because the grounds are only steps for the satis faction of the Government on which satisfaction the order of detention has been made.
The third thing provided is in clause (6).
It appears to have been thought that in convey ing the information to the detained person there may be facts which cannot be disclosed in the public interest.
The authorities are therefore left with a discretion in that connection under clause (6).
The grounds which form the basis of satisfaction when formulated are bound to contain certain facts, but mostly they are themselves deductions of facts from facts.
That is the general structure of article 22, clauses (5) and (6), of the Constitution.
The question arising for discussion is what should be stated in the grounds.
It is argued that whatever may be stated or omitted to be stated, the ground cannot be vague;that the Constitution envisages the 178 furnishing of the grounds once and therefore there is no occasion for furnishing particulars or supplemental grounds at a later stage; and that article 22 (5) does not give the detained person a right to ask for particulars, nor does it give the authorities any right to supplement the grounds, once they have furnished the same.
In our opinion much of the controversy is based on a somewhat loose appreciation of the meaning of the words used in the discussion.
We think that the position will be clarified if it is appreciated in the first instance what are the rights given by article 22 (5). 'The first part of article 22, clause (5), gives a right to the detained person to be furnished with "the grounds on which the order has been made" and that has to be done "as soon as may be." The second right given to such persons is of being afforded "the earliest opportunity of making a representation against the order.
" It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satis fied that it was necessary to make the order.
These grounds therefore must be in existence when the order is made.
By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts.
The con clusions drawn from the available facts will show in which of the three categories of prejudicial acts the suspected activity of the particular person is considered to fall, These conclusions are the "grounds" and they must be sup plied.
No part of such "grounds" can be held back nor can any more "grounds" be added thereto.
What must be supplied are the "grounds on which the order has been made" and nothing less.
The second right of being afforded the "earliest opportunity of making a representation against the order" is not confined to only a physical opportunity by supplying paper and pen only.
In order that a representa tion can be made the person detained must first have knowl edge of the grounds on which the authorities conveyed that they were satisfied about the necessity of making the detention order.
It is therefore clear that if the repre sentation has to be intelligible to meet the charges 179 contained in the grounds, the information conveyed to the detained person must be sufficient to attain that object.
Ordinarily, the "grounds" in the sense of conclusions drawn by the authorities will indicate the kind of prejudicial act the detenue is suspected of being engaged in and that will be sufficient to enable him to make a representation setting out his innocent activities to dispel the suspicion against him.
Of course if the detenue is told about the details of facts besides the grounds he will certainly be in a better position to deal with the same.
It is significant that the clause does not say that the "grounds" as well as details of facts on which ' they are based must be furnished or fur nished at one time.
The law does not prescribe within what time after the grounds are furnished the representation could be made.
The time in each case appears deliberately unprovided for expressly, because 'circumstances vary in each case and make it impossible to fix a particular time for the exercise of each of these two rights.
It thus appears clear that although both these rights are separate and are to be exercised at different times, they are still connected with each other.
Without getting information sufficient to make a representation against the order of detention it is not possible for the man to make the representation.
Indeed the right will be only illusory but not a real right at all.
The right to receive the grounds is independent but it is thus intentionally bound up and connected with the right to make the representation.
Although these two rights are thus linked up, the contingen cy of further communication between the furnishing of the grounds on which the order is made and the exercise of the right of representation granted by the second part of that clause is not altogether excluded.
, One thing is clear from the wording of this clause and that is that after the grounds are once conveyed to the detenue there can be no addition to the grounds.
The grounds being the heads, from which the Government was satisfied that it was necessary to pass the order of detention, there can be no addition to those 180 grounds because such additional grounds will be either the grounds which were not elements to bring about the satisfac tion of the Government or if they were such grounds there has been a breach of the provision of the first part of article 22 (5), as those grounds for the order of detention were not conveyed to the detained person "as soon as may be.
" This however does not mean that all facts leading to the conclusion mentioned in the grounds must be conveyed to the detained person at the same time the grounds are conveyed to him.
The facts on which the conclusion mentioned in the grounds are based must be available to the Government, but there may be cases where there is delay or difficulty in collecting the exact data or it may not be convenient to set out all the facts in the first communication.
If the sec ond ' communication contains no further conclusion of fact from facts, but only furnishes all or some of the facts on which the first mentioned conclusion was rounded it is obvious that no fresh ground for which the order of detention was made is being furnished to the detained person by the second communication which follows some time after the first communication.
As regards the contents of that communication therefore he test appears to be whether what is conveyed in the second communication is a statement of facts or vents, which facts or events were already taken into consideration in arriving at the conclusion included in the ground already supplied.
If the later communication contains facts leading to a conclusion which is outside the ground first supplied, the same cannot be looked into as supporting the order of detention and therefore those grounds are "new" grounds.
In our opinion that is the more appropriate expression to be used.
The expression "addi tional grounds" seems likely to lead to confusion of thought.
The next point to be considered is the time factor.
if a second communication becomes necessary, when should it be made ? Clause 22 (5) lays down two time factors.
The first is that the grounds should be supplied "as soon as may be " This allows the 181 authorities reasonable time to formulate the grounds on the materials in their possession.
The time element is neces sarily left indeterminate because activities of individuals tending to bring about a certain result may be spread over a long or a short period, or a larger or a smaller area, or may be in connection with a few or numerous individuals.
The time required to formulate the proper grounds of deten tion, on information received, is bound to vary in individu al cases.
There is no doubt that no express words are used to suggest a second communication from the authority to the detained person.
But having regard to the structure of the clause dealing with the two rights connected by the word "and ", and the use of the words "as soon as may be" and "earliest opportunity" separately, indicating two distinct time factors, one in respect of the furnishing of grounds and the other in respect of the making of the representa tion, the contingency of a second communication after the grounds are furnished, is not excluded.
However, the second communication should not be liable to be charged as not being within the measure "as soon as may be ".
Secondly, it must not create a new ground on which satisfaction of the Government could be suggested to have been arrived at.
In our opinion, if these two conditions are fulfilled, the objection against a later communication of details or facts is not sufficient to cause an infringement of the provision made in article 22(5).
The question has to be approached from another point of view also.
As mentioned above, the object of furnishing grounds for the order of detention is to enable the detenue to make a representation, i.e., to give him an opportunity to put forth his objections against the order of detention.
Moreover, "the earliest opportuni ty" has to be given to him to do that.
While the grounds of detention are thus the main factors on which the subjective decision of the Government is based, other materials on which the conclusions in the grounds are rounded could and should equally be conveyed to the detained person to enable him to make out his objections against the 182 order.
To put ,it in other words, the detaining authority has made its decision and passed its order.
The detained person is then given an opportunity to urge his objections which in cases of preventive detention comes always at a later stage.
The grounds may have been considered suffi cient by the Government to pass its judgment.
But to enable the detained person to make his representation against the order, further details may be furnished to him.
In our opinion, this appears to be the true measure of the proce dural rights of the detained person under article 22 (5).
It was argued that under article 22 (6) the authorities are permitted to withhold facts which they consider not desirable to be disclosed in the public interest.
It was argued that therefore all other facts must be disclosed.
In our opinion that is not the necessary conclusion from the wording of article 22 (6).
It gives a right to the detaining authority not to disclose such facts, but from that it does not follow that what is not stated or considered to be withheld on that ground must be disclosed and if not dis closed, there is a breach of a fundamental right.
A wide latitude is left to the authorities in the matter of disclo sure.
They are given a special privilege in respect of facts which are considered not desirable to be disclosed in public interest.
As regards the rest, their duty is to disclose facts so as to give the detained person the earliest oppor tunity to make a representation against the order of deten tion.
On behalf of the respondent, it was argued that if the grounds of detention are vague or insufficiently clear there will result a failure to give him the earliest opportunity to make a representation against the order of detention and that defect in its turn must affect the satisfaction on which the order of detention was made.
It was argued that just as a ground which is completely irrelevant, and there fore, in law is no ground at all, could not satisfy any rational person about the necessity for the order, a vague ground 183 which is insufficient to enable the detenue to make a repre sentation would similarly make the order of detention based on it, void.
In our opinion, this argument is un sound.
Although the ground may be good there may be a certain indefiniteness in its statement.
Proceeding on the footing that there is some connection, i.e., the ground by itself is not so convincingly irrelevant and incapable of bringing about satisfaction in any rational person, the question whether such ground can give rise to the satisfac tion required for making the order is outside the scope of the inquiry of the court.
On the other hand, the question whether the vagueness or indefinite nature of the statements furnished to the detained person is such as to give him the earliest opportunity to make a representation to the author ity is a matter within the jurisdiction of the court 's inquiry and subject to the court 's decision.
The analogy sought to be drawn between a ground which can have no connection whatsoever with the order and a ground which on its face has connection with the order but is not definite in its statement, is clearly faulty.
The extreme position, on the other hand, that there is no connection between the ground to be furnished and the representation to be made by the detained person under article 22 (5) is equally unsound, when the object in furnishing the ground is kept in mind.
The conferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds, i.e., materials on which the detention order was made.
In our opinion, it is therefore clear that while there is a connec tion between the obligation on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite dif ferent.
As already pointed out, for the first, the test is whether it is sufficient to satisfy the authority.
For the second, the test is, 24 184 whether it is sufficient to enable the detained person to make the representation at the earliest opportunity.
The argument advanced on behalf of the respondent mixes up the two rights given under article 22 (5) and converts it into one indivisible right.
We are unable to read article 22 (5) in that way.
As pointed out above, the two rights are connected by the word "and".
Furthermore, the use of the words "as soon as may be" with the obligation to furnish the grounds of the order of detention, and the fixing of another time limit, viz. the earliest opportunity, for making the representation, makes the two rights distinct.
The second right, as it is a right of objection, has to depend first on the service of the grounds on which the conclusion, i.e., satisfaction of the Government about the necessity of making the order, is based.
To that extent, and that extent alone, the two are connected.
But when grounds which have a ration al connection with the ends mentioned in section a of the Act are supplied, the first condition is satisfied.
If the grounds are not sufficient to enable the detenue to make a representation, the detenue can rely on his second right and if he likes may ask for particulars which will enable him to make the representation.
On an infringement of either of these two rights the detained person has a right to approach the court and complain that there has been an infringement of his fundamental right and even if the infringement of the second part of the right under article 22 (5) is established he is bound to be released by the court.
To treat the two rights mentioned in article 22 (s) as one is neither proper according to the language used, nor according to the purpose for which the rights are given.
The contention that the grounds are vague requires some clarification.
What is meant by vague ? Vague can be considered as the antonym of 'definite '.
If the ground which is supplied is incapable of being understood or de fined with sufficient certainty it can be called vague.
It is not possible to state affirmatively more on the question of what is vague.
It must vary according to the circum stances of each case.
It is 185 however improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it.
That is a matter of detail which has to be examined in the light of the circumstances of each case.
If on reading the ground furnished it is capable of being intel ligently understood and is sufficiently definite to furnish materials to enable the detained person to make a represen tation against the order of detention it cannot be called vague.
The only argument which could be urged is that the language used in specifying the ground is so general that it does not permit the detained person to legitimately meet the charge against him because the only answer which he can make is to say that he did not act as generally suggested.
In certain cases that argument may support the contention that having regard to the general language used in the ground he has not been given the earliest opportunity to make a repre sentation against the order of detention.
It cannot be disputed that the representation mentioned in the second part of article 22 (5) must be one which on being considered may give relief to the detained person.
The argument that supplementary grounds cannot be given after the grounds are first given to the detenue, similarly requires a closer examination.
The adjective "supplemen tary" is capable of covering cases of adding new grounds to the original grounds, as also giving particulars of the facts which are already mentioned, or of giving facts in addition to the facts mentioned in the ground to lead to the conclusion of fact contained in the ground originally fur nished.
It is clear that if by "supplementary grounds" is meant additional grounds, i.e., conclusions of fact required to bring about the satisfaction of the Government, the furnishing of any such additional grounds at a later stage will amount to an infringement of the first mentioned right in article 22 (5) as the grounds for the order of detention must be before the Government before it is satisfied about the necessity for making the order and all such grounds have to be furnished 186 as soon as may be.
The other aspects, viz., the second communication (described as supplemental grounds) being only particulars of the facts mentioned or indicated in the grounds first supplied, or being additional incidents which taken along with the facts mentioned or indicated in the ground already conveyed lead to the same conclusion of fact, (which is the ground furnished in the first instance) stand on a different footing.
These are not new grounds within the meaning of the first part of article 22 (5).
Thus, while the first mentioned type of "additional" grounds cannot be given after the grounds are furnished in the first instance, the other types even if furnished after the grounds are furnished as soon as may be, but provided they are furnished so as not to come in conflict with giving the earliest opportunity to the detained person to make a repre sentation, will not be considered an infringement of either of the rights mentioned in article 22 (5) of the Constitu tion.
This detailed examination shows that preventive deten tion is not by itself considered an infringement of any of the fundamental rights mentioned in Part III of the Consti tution.
This is, of course, subject to the limitations prescribed in clause (5) of article 22.
That clause, as noticed above, requires two things to be done for the person against whom the order is made.
By reason of the fact that clause (5)forms part of Part III of the Constitution, its provisions have the same force and sanctity as any other provision relating to fundamental rights.
As the clause prescribes two requirements, the time factor in each case is necessarily left fluid.
While there is the duty on the part of the detaining authority to furnish grounds and the duty to give the detained person the earliest opportunity to make a representation, which obligations, as shown above, are correlated, there exists no express provision contemplating a second communication from the detaining authority to the person detained.
This is because in several cases a second communication may not be necessary at all.
The only thing which emerges from the discussion is that while the authori ties must 187 discharge the duty in furnishing grounds for the order detention "as soon as may be" and also provide "the earliest opportunity to the detained person to ' make the representa tion", the number of communications from the detaining authority to the detenue may be one or more and they may be made at intervals, provided the two parts of the aforesaid duty are discharged in accordance with the wording of clause (5).
So long as the later communications do not make out a new ground, their contents are no infringement of the two procedural rights of the detenue mentioned in the clause.
They may consist of a narration of facts or particulars relating to the grounds already supplied.
But in doing so the time factor in respect of the second duty, viz. to give the detained person the earliest opportunity to make a representation, cannot be overlooked.
That appears to us to be the result of clause (5) of article 22.
In numerous cases that have been brought to our notice, we have found that there has been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order.
Instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number of words in the communication convey ing the grounds of detention.
In our opinion, this attitude is quite deplorable.
We agree with the High Court of Bombay in its observation when it says: "In all the matters which have come up before us we have been distressed to find how vague and unsatisfactory the grounds are which the detaining authority furnished to the detenue; and we are compelled to say that in almost every case we have felt that the grounds could have been ampler and fuller without any detriment to public interest.
" While the Constitution gives the Govern ment the privilege of not disclosing in public interest facts which it considers undesirable to disclose, by the words used in article 22 (5) there is a clear obligation to convey to the detained person materials (and the disclosure of which is not necessary to be withheld) which will enable him to make a representation.
It may be 188 noticed that the may not even contain machinery to have the representation looked into by an independent authority or an advisory board.
Under these circumstances, it is but right to emphasize that the commu nication made to the detained person to enable him to make the representation should, consistently with the privilege not to disclose facts which are not desirable to be dis closed in public interest, be as full and adequate as the circumstances permit and should be made as soon as it can be done.
Any deviation from this rule is a deviation from the intention underlying article 22 (5) of the Constitution.
The result of this attitude of some detaining authorities has been that, applying the tests mentioned ' above, several communications to the detained persons have been found wanting and the orders of detention are pronounced to be invalid.
Having regard to the principles mentioned above, we have to consider whether the judgment of the High Court is cor rect.
We have already pointed out that the summary rejec tion by the High Court of the later communication solely on the ground that all materials in all circumstances must be furnished to the detenue when the grounds are first communi cated, is not sound.
We have indicated the circumstances and conditions under which the later communication may or may not be considered as falling within the purview of article 22 (5) of the Constitution.
In dealing with the position when the grounds were first communicated, the High Court held as follows: "This is not a ground which would enable the detenue to make a representa tion to which he is entitled both under the Act and under the Constitution.
" In this case the later communication of the 26th August, 1950, was made after the respondent filed his petition and it appears to have been made to controvert his allegation that he was never in Bombay between January and April, 1950, as alleged in his affidavit.
After taking into consideration this communication it was observed by Chagla C.J. that if these particulars had been furnished on 29th April, 1950, very likely the 189 court would have rejected the petition.
The court set the respondent free only because of its view that after 29th April no further communication was permissible. ' In our opinion, this view is erroneous.
We think that on the facts of the present case therefore the respondent 's petition should have been dismissed.
We therefore allow the appeal.
PATANJALI SASTRI.
While I concur in the order pro posed by my Lord that this appeal should be allowed, I regret I find myself unable to agree with him on the true meaning and effect of article 22, clause (8), which is reproduced in section 7 of the , (hereinafter referred to as "the Act").
Put shortly, the question that falls to be decided is: Is it within the competence of the court to examine the grounds communicated to a person detained under the Act, with a view to see if they are sufficient in its opinion to enable him to make a representation to the detaining authority against the order, and if they are not, to direct his release ? It is now settled by the decision of the majority in Gopalan 's case(1) that article 21 is applicable to preven tive detention except in so far as the provisions of article 22 (4) to (7) either expressly or by necessary implication exclude its application, with the result that a person cannot be deprived of his personal liberty, even for preven tive purposes, "except according to procedure established by law." Part of such procedure is provided by the Constitution itself in clauses (5) and (6) of article 22 which read as follows: "(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause (1) ; 190 to disclose facts which such authority considers to be against the public interest to disclose.
If this procedure is not complied with, detention under the Act may well be held to be unlawful, as it would then be deprivation of personal liberty which is not in accordance with the procedure established by law.
The question accord ingly arises as to what are the requirements of article 22 (5) and whether they have been complied with in the present case ? On behalf of the respondent it is urged that the clause provides two safeguards for the person ordered to be de tained, namely, that (1) the grounds of his detention should be communicated to him as soon as may be, and (2) he should be given the earliest opportunity of making a representation against the order.
As there is to be no trial in such cases, the right of making a representation affords, it is said, the only opportunity to the person detained to repell the accusation brought against him and establish his innocence.
It is the communication of the grounds of detention that is expected to give him notice of what he is to meet by making a representation.
The grounds must, therefore, it is sub mitted, give sufficient indication of the nature and extent of the information on which action has been taken against him and must contain sufficient particulars of the time and place of the acts charged, so as to enable him to make his representation effective as far as it is in his power to do so.
If the grounds are vague and do not disclose the sub stance of the information on which the detention has been based, there would be no real compliance with the procedure prescribed by article 22 (s), and the detention must, it is claimed, be unlawful.
In other words, the sufficiency of the grounds for the purpose of enabling the person detained to make an effective representation against the order of deten tion is, in every case, a justiciable issue.
It must now be taken as settled by the decision of this Court in Gopalan 's case(1), which on this point was (1) 191 unanimous, that section 3 of the Act is constitutional and valid notwithstanding that it leaves it to the, "satisfac tion" of the executive government to decide whether action under the Act is to be taken or not against any particular person or persons.
The learned:Chief Justice pointed out (at p. 121) that action by way of preventive detention must be based largely on suspicion, and quoted the remark of Lord Finlay in Rex vs Halliday(1), that a court is the least appropriate tribunal to investigate the question whether circumstances of suspicion exist warranting the re straint on a person.
Dealing with a similarly worded provision of the Central Provinces and Berar Public Safety Act, 1948, the Federal Court declared in another unanimous judgment, that "The language clearly shows that the respon sibility for making a detention order rests upon the provin cial executive as they alone are entrusted with the duty of maintaining public peace;and it would be a serious deroga tion from that responsibility if the court were to substi tute its judgment for the satisfaction of the executive authority and, to that end, undertake an investigation of the sufficiency of the materials on which such satisfaction was grounded . .
The court can, however, examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of acts prejudicial to public safety and tranquillity, for "satisfaction" in this connection must be grounded on material which is of rationally probative value" Machindar Shivaji Mahar vs The King (2).
These decisions clearly establish, what indeed is plain from the nature of the measure, that preventive detention is a form of precautionary police action, to be employed on the sole responsibility of the executive government whose discretion is final, no recourse being permitted to a court of law by way of review or justification of such action except on allegations of mala fides or irrational conduct.
(1) ; , 269.
(2) [1949 50] 25 192 When the power to issue a detention order has thus been made to depend upon the existence of a state of mind in the detaining authority, that is, its "satisfaction", which is a purely subjective condition, so as to exclude a judicial enquiry into the sufficiency of the grounds to justify the detention, it seems to me to be wholly inconsistent with that scheme to hold that it is open to the court to examine the sufficiency of the same grounds to enable the person detained to make a representation, for, be it noted, the grounds to be communicated to the person detained are the "grounds on which the order has been made." Indeed, the logical result of the argument advanced by the respondent 's counsel would be to invalidate section 3 of the Act in so far as it purports to make the satisfaction of the govern ment the sole condition of a lawful detention, for, if clause (5) of article 22 were to be construed as impliedly authorising a judicial review of the grounds of detention to see if they contain sufficient particulars for making a representation, then, the subjective condition prescribed in section 3 would be inconsistent with that clause and there fore void.
When this was pointed out to counsel he submit ted that the decision in Gopalan 's case (1) as to the con stitutionality of section 3 required reconsideration in the light of his arguments based on article 22, clause (5).
Although the clause was not then considered from this point of view, it came in for a good deal of discussion in connec tion with section 14 of the Act and the present argument must, in my opinion, be rejected because it runs counter to that decision.
Apart from this aspect of the matter, I am not much impressed with the merits of the argument.
While granting, in view of the structure and wording of clause (5), that the grounds communicated to the person detained are to form the basis of his representation against the order, I am unable to agree with what appears to be the major premise of the argument, namely, that clause (5) contemplates an inquiry where the person detained is to be formally charged with (1) [1950] S.C.R.188, 193 specific acts or omissions of a culpable nature and called upon to answer them.
As pointed out by Lord Atkinson in Rex vs Halliday (1), preventive detention ' being a precautionary measure, "it must necessarily proceed in all cases to some extent on suspicion or, anticipation as distinct from proof", and it must be capable of being employed by the executive government in sudden emergencies on unverified information supplied to them by their police or intelligence officers.
the Government, acting honestly and in good faith make an order being "satisfied" on such information, however lacking in particulars, that a person should be detained in the public interest, as they have been empowered by Parliament to do, then all that article 22 (5) requires of them is to communicate as soon as may be the grounds which led to the making of the order, to the person concerned, and to give him the earliest opportunity of making any represen tation which he may wish to make on the basis of what is communicated to him.
If such communication is made and such opportunity is given the detaining authority will have complied with the procedure prescribed by the Constitution, and the person under detention cannot complain that he has been deprived of his personal liberty otherwise than in accordance with the procedure established by law.
I can find nothing in article 22, clause (5), to warrant the view that the grounds on which the order of detention has been made must be such that, when communicated to the person detained they are found by a court of law to be sufficient to enable him to make what the court considers to be an adequate representation.
The right to be produced before a Magistrate and to consult and be defended by a legal practi tioner is expressly denied by the Constitution itself to a person under preventive detention [vide article 22 (1), (2) and (3)3 and this.
Court held in Gopalan 's case(2) that there was nothing in the Constitution to entitle him to a hearing even before the detaining authority.
All this underlines the executive character of the function exercised by (1) ; , 275.
(2) ; , 194 the authority which does not in any way embark on a judicial or quasi judicial inquiry.
In such circumstances the repre sentation which the person detained is allowed to make to the Government, which is constituted the judge in its own cause, cannot be assumed to be similar in scope or purpose to a defence against a formulated charge in a court of law.
The argument, therefore, that the right of making a repre sentation should be made effective in the sense that such person should be enabled to defend himself successfully if possible, and, for that purpose, the detaining authority should communicate to him the necessary particulars on pain of having the order quashed if such particulars are not furnished, proceeds on a misconception of the true position.
Perhaps the most cogent reason for rejecting the argu ment is to be found in the language and provision of clause (6) of article 22.
"Nothing in clause (5)", that is to say, neither the right to be informed of the "grounds" of deten tion nor the right to make a "representation" shall "require" the detaining authority to disclose facts which the authority "considers" should not be disclosed in the public interest.
In other words, clause (5) should not be taken to import an obligation to provide particulars which the authority is given an absolute discretion to furnish or withhold.
I cannot understand how it can be claimed, in the face of clause (6), that it is incumbent on the executive govern ment to communicate particulars which a court of law consid ers necessary to enable the person detained to make a repre sentation.
It cannot be compulsory to furnish what the authority is given an uncontrolled power to decide to give or to refuse.
The combined effect of clauses (5) and (6) is, to my mind, to require the detaining authority, to communicate to the person affected only such particulars as that authority and not a court of law, considers sufficient to enable the said person to make a representation.
It is worthy of note that in the well known English case of Liversidge vs Anderson C), the existence of a (1) ; 195 similar privilege was regarded as a "very cogent reason" for holding that the words "If the Secretary of State has rea sonable cause to believe" did not raise a justiciable issue as to the existence of such cause as an objective fact.
Viscount Maugham observed "It is beyond dispute that he can decline to disclose the information on which he has acted on the ground that to do so would be contrary to the public interest, and that this privilege of the Crown cannot be disputed.
It is not ad rem on the question of construction to say in reply to this argument that there are cases in which the Secretary of State could answer the attack on the validity of the order for detention without raising the point of privilege.
It is sufficient to say that there must be a large number of cases in which the information on which the Secretary of State is likely to act will be of a very confidential nature.
That must have been plain to those responsible in advising His Majesty in regard to the Order in Council, and it constitutes, in my opinion, a very cogent reason for thinking that the words under discussion cannot be read as meaning that the existence of 'reasonable cause ' is one which may be discussed in a court which has not the power of eliciting the facts which in the opinion of the Secretary of State amount to 'reasonable cause '.
" There was considerable discussion as to the meaning of the words "grounds" and "representation" used in clause (5).
These are words of very wide connotation and, in the view I have expressed, it is unnecessary to define them.
It may, however, be noted that clauses (5) and (6) are not mutually exclusive in the sense that, when clause (6) is invoked, clause (5) ceases to be applicable.
When, therefore, the detaining authority withholds the material facts under clause (6)and communicates to the person detained the grounds of detention, which in that case must be necessari ly vague, it would still be communicating to him the "grounds" on which the order has been made, and such repre sentation as the person may wish to make on the basis of that communication would 196 still be a "representation ", within the meaning of clause (5).
This shows that no precise connotation can be at tributed to the terms "grounds" and" re presentation" as used in clause (5), for in certain cases at least, the one can be vague and the other inade quate from the point of view of the person detained and, on a question of construction they need not be different in other cases.
It was suggested in the course of the argument that clause (5) dealt with two distinct and independent matters, namely, (1) the communication of the grounds of detention, and (2) the affording of an opportunity to make a represen tation against the detention, and that the grounds communi cated need not have any necessary relation to the represen tation provided for.
the right to make a representation, it was said, imported, by implication, an independent obliga tion on the part of the authority to furnish the person detained with sufficient particulars and details of the accusation against him apart from and in addition to the obligation expressly imposed on the authority to communicate the grounds on which the order has been made, for the reason that without such particulars no adequate or effective representation could be made ' against the order, and though the sufficiency of the Grounds on which the order was based had been held not to be open to judicial examination, there was no reason why the sufficiency of the further communica tion implied in the provision for representation should not be justiciable.
The different time limits fixed for he performance of the duties imposed by clause (5) on the detaining authority are said to support this argument.
The construction suggested is, in my opinion, strained and artificial and cannot be accepted.
The collocation in the same clause of the right to be informed of the grounds of detention and the right to make a representation against it indicate, to my mind, that the grounds communicated are to form the basis of the representation and, indeed, are in tended mainly, if not solely, for that purpose.
To suggest that, apart from those grounds, and right of making a repre sentation 197 imports, by necessary implication, a further obligation to give such details and particulars as would render that right effective is, in my opinion, not to ' construe the clause in its natural meaning but to stretch it by the process of implication, so as to square, with one 's preconceived no tions of justice and fairplay.
No support for this construc tion can be derived from the provision of distinct time limits for the communication of the grounds and the afford ing of opportunity for representation.
as that can be ex plained by the different degrees of urgency required in the two cases.
The grounds are to be communicated "as soon as may be" which means as soon as possible and imports a much higher degree of urgency than what is implied in affording the "earliest opportunity" which, I take it, means affording writing and communication facilities to the person under detention as soon as he is ready and desires to make the representation.
While clause (5) does not allow the authority, after making the order of detention and communicating the grounds of such order, to put forward fresh grounds in justification of that order, I can find nothing in that clause to preclude the authority furnishing particulars or details relating to the grounds originally communicated, or the person under detention availing himself of such particulars and making a better or a further representation.
Nor is there anything to prevent such person from asking for, or the authority from providing, further and better particulars of those grounds where it is in a position to do so.
But the attempt in these and similar proceedings has always been not to secure the necessary particulars but to shift the arena of the contest to the court which, as Lord Finlay remarked in the case already referred to, is the least appropriate tribunal for investigating what must largely be matters of suspicion and not proof and which, for that very reason, might afford the relief hoped for without being in posses sion of all the facts.
Reference was made to the decisions of several High Courts dealing with the necessity of furnishing particulars of the grounds of detention.
But those decisions 198 turned on the provisions of the various Provincial Public Safety Acts which were passed before the commencement of the Constitution and which, in most cases, specifically provided for the communication of particulars.
Those decisions are of no assistance to the respondent as neither in article 22 nor in the Act is there any express provision that particulars of the grounds of detention should be given to the person detained.
Our attention was called to the decision of this court in Ishwar Das vs The State(1) as an instance where this court considered the grounds of detention to be vague and directed the release of the petitioner in that case from detention under the Act.
As pointed out in the brief judg ment in that case, no arguments were addressed on the point and the case was disposed of on the view prima.
facie sup ported by the decisions already referred to that, if the grounds were too general and vague to enable the person under detention to make a representation, he was entitled to be released.
No value can therefore be attached to that decision as a precedent.
In the course of the debate it was repeatedly urged that this court should be jealous in upholding the liberty of the subject which the Constitution has guaranteed as a fundamental right and must not adopt a construction of article 22 (5) which would rob the safeguards provided therein of all their efficacy.
I am profoundly conscious of the sanctity which the Constitution attaches to personal liberty and other fundamental rights and of the duty of this court to guard against inroads on them by the legislature or the executive.
But when, as has been stated, the Constitu tion itself has authorised preventive detention and denied to the subject the right of trial before a court of law and of consulting or being defended by a legal practitioner of his choice, providing only certain procedural safeguards, the court could do no more than construe the words used in that behalf in their natural sense consistently with the nature, purpose and scheme of the measure thus authorised, to ascertain what (1) Not reported.
199 powers are still left to the court in the matter.
It is in this light that I have endeavoured to construe clause (5) and, for the reasons indicated above, I have come to the conclusion that it is not the province of the court to examine the sufficiency of the grounds for the purpose of making a representation, a matter left entirely to the discretion of the executive authority.
An argument in sup port of the liberty of the subject has always a powerful appeal but the court should, in my opinion, resist the temptation of extending its jurisdiction beyond its legiti mate bounds.
DAS J.
This appeal from a decision of the Bombay High Court raises a very important question as to the sufficiency of the grounds of an order of detention under the Preven tive Detention Act, 1950.
The question depends, for its answer, on a correct interpretation of clauses (5) and (6) of article 22 of our Constitution which have been reproduced in section 7 of the Act.
A similar question has also been raised in another appeal filed in this court by one hundred detenus from the decision of a Bench of the Calcutta High Court, being Case No. 24 of 1950 (Tarapada and Others vs The State of West Bengal)(1).
As the view I. have taken as to the true meaning and effect of the relevant provisions of the Constitution and of the Act has not commended itself to the majority of my colleagues, I express it with a certain amount of diffidence arising out of the high regard I have for their opinions.
Under section 3 (1) (a) of the Act the authority con cerned can make an order of detention only if he is satis fied that, with a view to preventing a person from acting in a manner prejudicial to one or more of the matters referred to in sub clauses (i), (ii) and (iii) of clause (a), an order should be made.
What materials will engender in the mind of the authority the requisite satisfaction under section 3 (1) of the Act will depend on the training and temperament and the habitual mental approach of the person who is the authority to (11) Reported infra at p. 212 (1) Reported infra at p.212.
26 200 make the detention order.
The authority concerned may be a person who will not derive the requisite satisfaction except on very precise and full information amounting almost to legal proof or he may be a person equally honest who will be so satisfied on meagre information which may appear to others to be very vague or even nebulous.
If the authority is a person of the first mentioned type, then the "grounds" on which he will make the order will necessarily be more precise and fuller in particulars than the "grounds" on which an order may be made by the authority who is a person of the second mentioned type.
The "grounds" on which the authority who is a person of the first mentioned type makes an order of detention create no difficulty, for such grounds are quite precise and ample, and, when communicated to the detenu, will clearly enable him to appreciate the reasons for his detention and to make his representation.
We are, however, concerned with the "grounds" on which an order of detention may be made by the authority who is a person of the second mentioned type who may derive the requisite satisfaction from the conclusions which he may draw from the available information, which may not be precise or ample but on which, having regard to his source of information, the authority may honestly feel safe to rely and to act.
This last mentioned type of grounds" will, in the following discussion, be referred to as "vague grounds".
The question for our decision is whether an order of detention made in good faith on such "vague grounds" is valid when it is made and whether if valid when made, becomes invalid because these very grounds, when communicated to the detenu, are found to be insufficient to enable him to make a representa tion.
The first question urged by the learned counsel for the detenu is that an order of detention made upon grounds which are too vague to enable the detenu to to make a representa tion against the order is bad ab initio.
The argument is thus formulated.
Article 22 (5) requires two things, name ly, first, that the authority 201 making the order of detention shall, as soon as may be, communicate to the detenu the grounds on which the, order has been made and, secondly, that the authority ' shall afford him the earliest opportunity to make a representation against the order.
The two requirements 'are correlated.
The object of the communication of the grounds, according to the argument, is to enable the detenu to make a representation against the order of detention and the combined effect of the two constitutional requirements is that the grounds on which the order is made must be such as will, when communi cated to the detenu, enable him to make a representation.
If the grounds communicated are too vague being devoid of particulars, then no representation can be made on the basis of them and if no representation can be made on the basis of these grounds, no order of detention could properly have been made on those grounds, for it is the grounds on which the order had been made that have to be communicated to the detenu so as to enable him to make a representation.
The argument, shortly put, is that the implied requirement that the grounds must be such as will enable the detenu to make a representation also indicates the quality or attribute of the grounds on which the order of detention may be made.
Whether the grounds satisfy the requirements of article 22 (5) is not left to the subjective opinion of the authority which makes the order of detention but an objective test is indicated, namely, that the grounds must be such as will enable the detenu to make a representation which quite clearly makes the matter justiciable.
If the court finds that no representation may be made on account of the vague ness of the grounds.
the court must also hold that the order made on such vague grounds cannot be sustained.
The next step in the argument is that the provisions of the Preven tive Detention Act, 1950 (Act IV of 1950), which was passed after the Constitution came into effect must be read in the light of article 22 (5) as construed above.
So read, the satisfaction of the authority referred to in section a of the Act cannot be the subjective satisfaction 202 of the authority, for the satisfaction must be founded on grounds which, when communicated later on, will enable the detenu to make a representation which postulates an objective test.
This involves that section 3 (1) (a) of the Act should be read as if the words "on grounds which, when communicated to him, will enable him to make a repre sentation such as is mentioned in section 7 of this Act" occurred after the words "if satisfied with respect to any person" and before the words "that with a view".
If such interpolation of words be not permissible according to accepted canons of construction, then it must be held that in so far as section 3 of the Act makes an order of deten tion dependent on the subjective satisfaction of the author ity, the section is unconstitutional, being repugnant to the provisions of article 22 (5) and the necessary intendment thereof.
The argument so formulated is attractive but on closer scrutiny will be found to be unsound.
Before the Constitution came into force there were laws for the mainte nance of public security in almost all the provinces and in those laws there were provisions similar to the provisions of section 3 of the .
It was held in many cases that in the absence of bad faith, and provided the grounds on which the authority founded its satisfaction had a reasonable relation or relevancy to the object which the legislation in question had in view, the satisfaction of the authority was purely subjective and could not be questioned in any court of law.
The decision of the Federal Court in Machindar Shivaji Mahar vs The King(1) is one of such decisions.
Vagueness of the grounds on which satisfaction of the authority is founded cannot be treated as on the same footing as the irrelevancy of the grounds, unless the vagueness be such as may, by itself, be cogent evidence in proof of bad faith.
If the grounds are relevant to the objects of the legislation and if there is no proof of bad faith, then mere vagueness of the grounds cannot vitiate the satisfaction founded on them.
The satis faction being subjective, the court (1) at p.831, 203 cannot arrogate to itself the responsibility of judging the sufficiency or otherwise of the grounds.
It is true that at the time those decisions were given the Constitution had not come into force and there were no fundamental rights, but these well established principles were recognised and adopt ed by all members of this court in Gopalan 's case(1) which came up for consideration after the Constitution had come into force.
In that case it was held unanimously that under section 3 of the , the satis faction of the authority was purely subjective and could not, in the absence of proof of bad faith, be questioned at all and that section 3 was not unconstitutional.
It is true that the arguments now advanced were not advanced in exactly the same form on that occasion, but that fact makes no difference, for the arguments have no force as they are founded on the assumption that the grounds on which an order may be made must be such as will, when communicated, be sufficiently full and precise so as to enable the detenu to make a representation.
I find no warrant for such an as sumption.
Indeed, the fact that this court has held that section 3 of the Act which makes the satisfaction of the authority a purely subjective matter is not unconstitutional clearly destroys the cogency of the argument formulated as hereinbefore stated.
The decision in Gopalan 's case(1) as to the validity of section 3 of the Act makes it impossible to accept this argument.
It is next urged that even if the initial order was not invalid when made because satisfaction was a purely subjec tive matter for the authority alone and the court cannot consider or pronounce upon the sufficiency of the grounds on which the satisfaction was based, nevertheless, the continuance of the detention becomes unlawful if the same grounds when communicated, be found to be vague and devoid of particulars so as to render the making of a representa tion by the detenu somewhat difficult.
The argument is that although the vagueness of the grounds is not (1) ; 204 justiciable at the initial stage when the order is made and so the order cannot be said to be invalid ab initio, the same vagueness of the ground is nevertheless justi ciable at the later stage when they are.
communi cated, so that if vagueness renders the making of a representation difficult the continuance of the detention at once becomes illegal.
Under article 21 no person can be deprived of his life or personal liberty except according to procedure established by law.
As ex plained in Gopalan 's case(1) procedure established by law means procedure enacted by the Legislature, i.e., State made procedural law and not any rule of natural justice.
It was pointed out that the implication of that article was that a person could be deprived of his life or personal liberty provided such deprivation was brought about in accordance with procedure enacted by the appropriate Legislature.
Having so pro vided in article 21, the framers of our Constitution proceeded to lay down certain procedural requirements which, as a matter of constitutional necessity, must be adopted and included in any procedure that may be enacted by the Legislature and in accordance with which a person may be deprived of his life or personal liberty.
Those requirements are set forth in article 22 of the Constitution.
A perusal of the several clauses of that article will show that the constitutional require ments of procedure which must be incorporated in any law for preventive detention relate to a stage after the order of detention is made under section 3 of the .
The order of detention being thus in accordance with procedure enacted by law which is not inconsistent with, any of the provisions of of the Constitution applica ble to that stage, the order of detention cannot be questioned unless there is proof of bad faith, either direct or indirect.
We have, therefore, to consider whether the detention validly brought about becomes unlawful by reason of subsequent non compliance with the procedural requirements laid down in clause (5) of article 22, for if there is such non compliance, the (1) ; 205 detenu from that moment must be held to be deprived of his liberty otherwise than in accordance with procedure estab lished by law and will, therefore, be entitled to be re leased.
I am prepared to concede that there is some correla tion between the two parts of article 22 (5), namely, the communication of the grounds on which the order has been made and the making of the representation by the detained person.
The Constitution insists on the communication of the grounds on which the detention order has been made for some purpose.
That purpose obviously is to apprise the detenu of the reasons for the order of his detention.
The communica tion of the grounds will necessarily enable him, first, to see whether the grounds are at all relevant to the object sought to be secured by the Act.
If they are not, then they were no grounds at all and no satisfaction could be founded on them.
The very irrelevancy of the grounds will be a cogent proof of bad faith on the part of the authority so as to make the order itself invalid.
In the next place, the disclosure of the grounds will tell the detenu in which class his suspected activities have been placed and whether he is entitled to the benefit of having his case scrutinised by the Advisory Board.
Finally, the communication of the grounds on which the order has been made will tell him generally the reasons for his detention, and will, there fore, be helpful to the detained person in making his repre sentation which is also provided for in the tatter part of clause (5).
The fact that there is correlation between the two parts of clause (5) does not, however, carry us any further.
There is no warrant for assuming that the grounds to be communicated to the detenu are to be a formal indict ment or a formal pleading setting forth a charge or a case with meticulous particularity nor is there any warrant for the assumption that the representation has to be in the nature of a defence or written statement specifically deal ing with the charge or the case.
Indeed, the idea of a trial is foreign to the law of preventive detention.
The very fact that the provisions of clauses (1) and (2) of article 22 206 do not apply to preventive detention clearly excludes the idea of a trial before a tribunal.
As I have said, the grounds will generally indicate the conclusions drawn by the appropriate authority with respect to the suspected activities of any particular person and those grounds, when communicated, will enable the detenu to make a representa tion, for he can easily refer to and set forth his real activities and represent that all his activities are inno cent and cannot possibly give rise to the suspicion indicat ed in the grounds.
To say that clause (5) itself indicates that the grounds must be such as will enable the detenu to make a representation is to read into clause (5) something which is not there.
It is a re statement of the first argu ment in a new form and is fallacious.
In the first place, clause (5) does not in terms say that the authorities shall communicate such grounds as will enable the detenu to make a representation.
In the second place, the decision in Gopa lan 's case(1) militates against this argument, for if the sufficiency of the grounds is not justiciable at the initial stage when the order is made, as held in that case, it is wholly illogical to say that the intention of the Constitu tion is to make the sufficiency of the same grounds justi ciable as soon as they are communicated to the detenu.
As already stated, an order made upon satisfaction founded on vague grounds is quite valid, if the vagueness is not proof of bad faith.
Under clause (5) the authority is to communi cate the grounds on which the order has been made.
This will let the detenu know what operated on the mind of the authority when it made the order.
If the grounds were vague it is the vague grounds that must be communicated, for it was upon those vague grounds that the order had been made.
That is the express provision of the first part of clause (5).
This being the express requirement, the implication that the grounds communicated must be sufficient to enable the detenu to make a representation cannot be read into the clause, for that will militate against the express require ment.
If the order had been made on vague grounds but (1) ; 207 the authority is to communicate precise and well formu lated grounds which will be sufficient for the detenu to make a representation, then the communication will not be of grounds on which the order was made but of something more than what is expressly required.
The express provision must exclude such an inconsistent implied provision.
Again, clause (6)of article 22 gives the authority the right to claim privilege against disclosure of facts in public inter est.
Non disclosure of facts will necessarily make the grounds, as communicated, extremely vague and devoid of particulars.
If the construction of clause (5) which is contended for by the detenu 's counsel were correct, then the vagueness of the grounds resulting from the non disclosure of facts under clause will entitle the detenu to be released, for that vagueness also will render the making of a representation impossible or difficult.
That will mean that the claim of privilege given to the authority by clause (6) of article 22 is wholly meaningless and ineffective, and will defeat its very purpose, for the privilege cannot be claimed except at the peril of releasing the detenu.
Obvi ously that cannot be the intention.
It must, therefore, be held that the vagueness of grounds resulting from non dis closure of facts under clause (6) will not invalidate the order of detention, which was initially valid, on the ground that no representation can be made on the basis of such vague grounds.
In that case by claiming privilege under clause (6) the authority can frustrate the claim of justi ciability of the sufficiency of the grounds.
Further, why should the vagueness of grounds otherwise brought about stand on a different footing ? Clause (5) cannot mean one thing when the privilege is claimed and mean quite the opposite thing when no such privilege is claimed under clause (6).
The initial order is not justiciable.
The claim of privilege is not justiciable.
Why should it be assumed that the sufficiency of grounds for the purpose of making a representation was intended to be justiciable ? I see no logical reason 27 208 for making an assumption which will introduce an objec tive test in a matter which is prima facie intended to be purely subjective.
The argument is then re stated in the following fur ther modified form.
Clause (5) of article 22 imposes two obligations on the authority making an order of detention, namely, (i) that the authority shall, as soon as may be, communicate the grounds on which the order has been made, and (ii) that the authority shall afford the earliest oppor tunity to the detenu to make a representation against the order.
If the order was made as a result of satisfaction derived in good faith but upon grounds which may be vague, the order will be perfectly good and cannot be challenged in any court.
Communication of such grounds, even if they are vague, will satisfy the first obligation imposed upon the authority.
Under the latter part of clause (5) the authori ty is also under the obligation to afford the earliest opportunity to the detenu to make a representation.
If the grounds on which the order has been made were vague, then the second part of clause (5), independently and without reference to the first part of clause (5), impliedly imposes on the authority an obligation to rectify the defect of vagueness by supplying particulars so as to enable the detenu to make a representation.
Supplying of particulars, the argument concludes, is implicit in the second part of clause (5), for without such particulars the detenu is not afforded the opportunity to make a representation.
I am unable to accept this line of argument.
Under the first part of clause (5) the grounds on which the order has been made have to be supplied 'as soon as may be. ' The measure of time indicated by the words 'as soon as may be ' must obviously run from the date of detention.
Likewise, the latter part of clause (5) requires affording the detenu the earliest opportunity to make a representation.
From what terminus a quo is the period indicated by the phrase "earli est opportunity "to begin to run ? If that is also to run from the date of the detention, then the two periods under the two parts of clause (5), 209 must necessarily coincide and, therefore, the question of supplying further particulars after the grounds are supplied cannot arise.
On the other hand, the natural meaning of the words of the latter part of clause (5), to my mind, is that the period connoted by the phrase the "earliest opportunity" begins to run from the time the detenu expresses his desire or intention to make a representation.
The making of a representation is the right of the detenu.
To make or not to make a representation is his choice.
Therefore, it is only when he decides to make a representation and expresses his desire or intention to make a representation that the earliest opportunity is to be afforded to him to make the desired or intended representation.
Now, if the time is to run after the expression of desire or intention on the part of the detenu to make a representation, then the earliest opportunity to be afforded to the detenu can only mean affording him all physical facilities to carry out his desire or intention, for the detenu has decided to make his representation without any further particulars.
According to the language used in the latter part of clause (5), there is no express provision for supplying particulars.
Suppose the grounds on which the order was made and which were communicated to the detenu under the first part were quite precise and sufficient to enable the detenu to make a repre sentation, then affording him the earliest opportunity to make the representation can only mean giving him all physi cal facilities to do so, e.g., by supplying him with paper, pen and ink and when the representation has been drawn up by him, by forwarding the same with due despatch.
In such a case there is no question of supplying further and better particulars.
Suppose, again, that the grounds on which the order has been made and which have been communicated to the detenu are regarded by the authority to be quite precise and sufficient for making a representation, is the authority to anticipate that the detenu may find these grounds insuffi cient or that being moved in that behalf the Court may consider them insufficient and 210 then, as soon as the detenu expresses his desire or inten tion to make a representation.
is the authority to keep quiet and take the risk of the court releasing the detenu for the vagueness of the grounds or is he to tell the detenu "just wait a little; I think the grounds which I have communicated to you are quite precise and sufficient; lest you or the court find the grounds insufficient for making a representation, I shall supply you with further and better particulars so as to enable you to make the representation ?" The position thus stated is unreal on the face of it.
In my opinion, on a plain reading of clause (5) there is no justification for assuming that a second communication of particulars is contemplated either under the first part or under the second part of clause (5).
This does not, however, mean that the authority may not supply particulars either suo motu or on the application of the detenu.
All that I say is that clause (5) imposes no constitutional obligation on the authority to supply particulars so as to remove the vagueness of the grounds or to enable the detenu to make a representation, and non supply of further particulars does not constitute an infraction of any fundamental right.
It is said that clause (5) of article 22 construed in the way suggested above, would render that clause nugatory for it will then really guarantee no fundamental right at all.
I respectfully differ from this view for the criticism does not appear to me to be well founded.
Communication of the grounds, even if vague, will none the less be helpful to the detenu in the several ways I have already mentioned and, therefore, the right to have the grounds on which the order has been made communicated to him is a valuable right which has been recognised as a fundamental right.
Likewise, the right to make a representation is a valuable right which is guaranteed by the Constitution.
These rights remain unaffected.
If the the provisions of clause (5) of article 22 of our Constitution on a correct interpretation thereof are found to be inadequate for the protection of the liberty of 211 the detenus it is their misfortune.
The Constitution which the people have given unto themselves is the supreme law and must be upheld and obeyed whether ' or not one likes its provisions, inhibitions and necessary implications.
The court can only draw the, attention of the Parliament to the lacuna or defect, if any, in the Constitution and in the Act so that the lacuna may be supplied or the defect remedied in the constitutional way.
Our attention has been drawn to a number of cases where under various provincial laws and before the Constitution the different High Courts have directed the release of the detenu on the basis of the vagueness of the grounds.
Those decisions are, however, distinguishable because they were based on legislation which required the communication not only of grounds but also of particulars.
The omission from our Constitution of the provision for communicating the particulars in addition to the grounds which were to be found in those laws is significant, for it may be deliber ate.
Apart from this, however, those decisions do not appear to me to have any bearing on the correct interpreta tion of our Constitution or of the .
In Iswar Das vs The State(1) the question was not raised or argued as it was made clear in the judgment itself.
In view of what I have stated above, I am of the opinion that as the grounds originally communicated to the detenu were relevant to the objects which the Act had in view and as there is no proof of mala fides the obligations cast upon the authorities under article 22 (5) which have been reproduced in section 7 of the have been fully complied with.
Even according to the views expressed by the majority of my colleagues I would be pre pared to hold that the particulars subsequently supplied along with the grounds originally supplied fully enable the detenu to make his representation.
In my opinion there has been no contravention of the fundamental rights of the detenu.
I would, therefore, (1) Not reported.
212 allow this appeal and reverse the decision of the Bombay High Court.
Appeal allowed.
| The respondent was arrested on the 21st of April, 1950, under the , and on the 29th of 168 April.
1950, he was supplied with the ground for his deten tion which was as follows: "That you are engaged and are likely to be engaged in promoting acts of sabotage on rail way and railway property in Greater Bombay.
" The respondent filed a habeas corpus petition contending that the ground supplied was vague as it did not mention the time, place or nature of the sabotage or how the respondent promoted it and that as the ground gave no particulars, his detention was illegal.
Pending the disposal of the petition, the Commis sioner of Police sent a communication to the respondent giving these further particulars, viz., that the activities mentioned in the grounds supplied to him were being carried on by him in Greater Bombay between January, 1950, and the date of his detention and that he will in all probability continue to do so.
The High Court of Bombay held that if these particulars had been furnished at the time when the grounds were furnished on the 29th of April, 1950, very likely they would have come to the conclusion that the grounds were such as would have led the detenue to know exactly what he was charged with and to make a proper repre sentation, but released the respondent holding that the only grounds which were furnished in the purported compliance of article 22 (5) were the grounds furnished on the 29th of April, 1950, and as these grounds were not such as to enable the detenue to make a proper representation, there was a viola tion of a fundamental right and a contravention of the statutory provisions and this violation cannot be set right by the detaining authority by amplifying or improving the grounds already given: Held by the Full Court (KANIA C.J., FAZL ALI, PATANJALI SASTRI, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ).
Under section 3 of the , it is the satis faction of the Central Government or the State Government, as the case may be, that is necessary, and if the grounds on which it is stated that the Central Government or the State Government are satisfied have a rational connection with the objects which were to be prevented from being attained, the question of satisfaction cannot be challenged in a court of law except on the ground of mala fides.
Held also per KANIA C.J., FAZL ALI, MUKHERJEA and CHANDRASEKHARA AIYAR JJ.
, (PATANJALI SASTRI and DAS JJ.
dissenting).
Clause (5)of article 22 confers two rights on the detenue, namely, first, a right to be informed of the grounds on which the order of detention has been made, and secondly, to be afforded the earliest opportunity to make a representation against the order; and though these rights are linked together, they are two distinct rights.
If grounds which have a rational connection with the objects mentioned in section 3 are supplied, the first condition is complied with.
But the ,right to make a representation implies that the detenue should have information so as to enable him to make a representation, and if the grounds 169 supplied are not sufficient to enable the detenue to make a representation, he can rely on the second right.
He may if he likes ask for further particulars which will enable him to make a representation.
On an infringement of either of these two rights the detained person has a right to approach the court, and even if an infringement of the second right under article 22 (S) is alone, established he is entitled to be released.
Per PATANJALI SASTRI and DAS JJ.
As the power to issue a detention order depends upon the existence of a state of mind in the detaining authority, that is, its satisfaction, which is purely a subjective condition and judicial enquiry into the sufficiency of the grounds to justify the detention is thus excluded, it would be wholly inconsistent with the scheme to hold that it is open to the court to examine the sufficiency of the same grounds to enable the person de tained to make a representation, for, the grounds to be communicated to the person detained are the grounds on which the order has been made.
There is further nothing in article 22, el.
(5), to warrant the view that the grounds on which the order of detention has been made must be such, that when communicated to the person they are found by a court of law to be sufficient to enable him to make what the court con siders to be an adequate representation, or that the latter part of cl.
(5) confers a distinct right on the detenue or an independent obligation on the detaining authority to furnish the detenue with sufficient particulars and details to enable him to make an effective representation.
Held by the Full Court (KANIA C.J., FAZL ALI, PATANJALI SASTRI, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ.) In any view, on the facts of the case there was no infringement of any fundamental right of the respondent or contravention of any constitutional provision as he had been supplied with sufficient particulars as soon as he raised the objection that the grounds supplied were vague and the respondent was not, therefore, entitled to be released.
Per KANIA C.J., FAZL ALI, MUKHERJEA and CHANDRASEKHARA AIYAR JJ.) The "grounds" for making the order which have to be communicated to the person detained as soon as may be are conclusions of facts and not a complete recital of all the facts.
These grounds must be in existence when the order is made.
No part of the 'grounds can be held back, and after they have been once conveyed there can be no addition to the grounds.
All facts leading to the conclusion constituting the ground need not, however, be conveyed at the same time.
If a second communication contains no further conclusion of fact but only furnishes some of the facts on which the first mentioned conclusion was rounded it does not amount to a fresh ground.
The test therefore is whether what is conveyed in the second communication is a statement of facts or events, which facts or 170 events were already taken into consideration in arriving at the conclusion constituting the ground already supplied.
So long as the later communications do not make out a new ground, their contents are no infringement of the two procedural rights of the detenue mentioned in article 22, cl.
They may consist of a narration of facts or particulars relating to the grounds already supplied.
But in doing so the time factor in respect of second duty, viz., to give the detained person the earliest opportunity to make a represen tation, cannot be overlooked.
If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order it cannot be said to be "vague.
" The question whether the vagueness or indefinite nature of the statement furnished to the detained person is such that he was not given the earliest opportunity to make a representation is a matter within the jurisdiction of the court 's inquiry and subject to the court 's decision.
|
No. XLII of 1950.
Appeal from the judgment of the Calcutta High Court (Harries C.J. and Chakravarthi J.) in Appeal from Original Order No. 78 of 1948.
N.C. Chatterjee (B. Sen, with him), for the appellants.
A.N. Grover, for the respondents.
November 30.
The judgment of Fazl Ali and Patanja li Sastri JJ. was delivered by FAZL ALI J.
This is an appeal from a judgment of a Bench of the High Court of Judicature at Calcutta in West Bengal, reversing the decision of a single Judge of that Court, who had refused to set aside an award given by the arbitration tribunal of the Bengal Chamber of Commerce on a submission made by the respondents.
The facts of the case are as follows.
On the 25th January, 1946, the appellants entered into a contract with the respondents for the sale of 5,000 mounds of jute, which was evidenced by a "sold note" (Exhibit A), which is in the form of a letter addressed to the respond ents, commencing with these words: "We have this day sold by your order and for your account to the undersigned, etc.
" The word "undersigned" admittedly refers to the appellants, and, at the end of the contract, below their signature, the word "brokers" is written.
On the same day, a "bought note" (Exhibit B) was addressed by the appellants to the Bengal Jute Mill Company, with the following statement: "We have this day bought by your order and.
for your account from the undersigned, 794 etc.
" In this note also, the word "undersigned" refers to the appellants and underneath their signature, the word "brokers" appears, as in the "sold note" There are various provisions in the sold note, relating to delivery of jute, non delivery of documents, nonacceptance of documents, claims, etc., but the most material provisions are to be found in paragraphs 10 and 11.
paragraph 10 provides that the sellers may in certain cases be granted an extension of time for delivering the jute for a period not exceeding thirty days from the due date free of all penalties, and if the contract is not implemented within the extended peri od, the buyers would be entitled to several options, one of them being to cancel the contract and charge the sellers the difference between the contract rate and the market rate on the day on which the option is declared.
In the same para graph, there is another provision to the following effect: "Sellers shall notify Buyers that goods will or will not be shipped within such extended period referred to in (a) and in the case of sellers intimating that they will be unable to ship within the extended time Buyers shall exercise their option within 5 working days of receiving notice and notify Sellers.
In the absence of any such notice from Sellers it shall be deemed that the goods have not been shipped and Buyers shall exercise their option within 5 working days after expiration of extended date and notify Sellers.
" The 11th paragraph provides among other things that "all matters, questions, disputes, differences and/or claims arising out of and/or concerning and/or in connection and/or in consequence of or relating to this Contract whether or not obligations of either or both parties under this contract be subsisting at the time of such disputes and whether or not this contract has been terminated or purport ed to be terminated or completed shall be referred to the arbitration of the Bengal Chamber of Commerce under the rules of its Tribunal of Arbitration for the time being in force and according to such rules the arbitration shall be conducted.
" 795 It is common ground that the respondents delivered 2,256 maunds of jute under the contract, but the balance of 2,744 maunds could not be delivered within the stipulated period, and, by mutual agreement, time was extended up to the 30th June, 1946.
On the 2nd July, 1946, the respondents addressed a letter to the appellants stating that the balance of jute could not be despatched owing to lack of wagons, and "exten sion" was requested for a period of one month.
In reply to this letter, which was received by the appellants on or about the 3rd July, 1946, time was extended till the 31st July, 1946.
On the same day on which the reply was received by the respondents, i.e., on the 9th July, 1946, they ad dressed a letter to the appellants pointing out that the extension of time had not been intimated within the 5th working day as provided in the contract and therefore the contract was automatically cancelled.
After this letter, some further correspondence followed between the two par ties, and finally a bill of difference amounting to Rs. 4,116 was submitted by the appellants to the respondents, who, in their turn, denied their liability to pay the sum.
The appellants thereupon claimed arbitration under clause 11 of the sold note and submitted the dispute between them and the respondents to the Bengal Chamber of Commerce.
On the 6th February, 1947, the Tribunal of Arbitration made an award to the effect that the due date of contract had been extended by mutual agreement up to the 31st July, 1946, and accordingly the respondents should pay to the appellants a sum of Rs. 4,116 together with interest at the rate of 4% per annum from the 10th August, 1946, until the date of the award.
A sum of Rs. 210 was also held to be payable by the respondents on account of costs.
Nearly a year later, on the 19th February, 1949, a petition was presented by the re spondents under the Indian , to the High Court at Calcutta, in its ordinary original civil jurisdiction, praying inter alia that the award may be adjudged to be without jurisdiction and void and not binding on the respondents, and that it may be set aside.
The main point raised by the 796 respondents in the petition was that it was not open to the appellants to invoke the arbitration clause, as the Bengal Jute Mill Company and not the appellants were the real party to the contract and the appellants had acted as mere bro kers.
The appellants asserted in reply that the allegation made by the respondents in regard to there being no privity between them and the appellants was wrong, and in paragraph 16 of their affidavit they stated as follows : "With regard to paragraph 7 of the petition I crave reference to the said contract for its true construction and effect.
I say as I have already stated that according to the custom or usage or practice of the trade the respondent is entitled to charge brokerage and also to enforce the terms of the said contract.
" The case was heard by Sinha J., who dismissed the peti tion on the ground that the contract was directly between the respondents and the appellants.
The learned Judge also observed that if the right of the appellants to enforce the contract depended upon the existence of custom it would have been necessary to take evidence and the arbitrators would have had jurisdiction to decide the question of the exist ence of custom.
The respondents being dissatisfied with the judgment of Sinha J., preferred an appeal, which was heard and disposed of by a Division Bench of the High Court consisting of the learned Chief Justice and Chakravarthi J.
The learned Judges held that having regard to the fact that the appellants ' own contention was that they had entered into the contract as brokers and were entitled to enforce its terms by reason of the usage or custom of the trade, it was not open to Sinha J. to treat them as principals, and the award was liable to be set aside on the ground that the arbitration tribunal had no jurisdiction to make an award at the instance of a per son who was not a principal party to the contract.
The appellants thereafter having obtained a certificate from the High Court under section 109 (c) of the Code of Civil Proce dure, preferred this appeal.
797 It seems to us that this appeal can be disposed of on a short ground.
We have carefully read the affidavit filed on behalf of the appellants in the trial court, and we are unable to hold that their case was that they were not par ties to the contract or that they had asked the court to proceed on the sole ground that they were entitled to en force the contract by virtue of the custom or usage of the trade.
In our opinion, the position which was taken up by them may be summed up as follows : (1) They did not accept the allegations made by the respond ents that they were not parties to any arbitration agreement with the respondents.
(2) They asked the Court to construe the contract and its effect and asserted that they were entitled to enforce it.
(3) They also stated that they were entitled to enforce the contract according to the custom or usage of the trade.
The principal dispute raised in this case was whether the extension of time for delivery was granted within the time limited in the contract.
That dispute is certainly covered by the arbitration clause.
The further dispute that the brokers (appellants) were not parties to the contract in their own right as principals but entered into the contract only on behalf of the Bengal Jute Mill Company does not appear to have been raised until the matter went to the arbitrators.
Assuming that at that stage it was open to the respondents to raise such an objection, after the other dispute which clearly fell within the arbitration clause was referred to the arbitrators, this further dispute is also one which turns upon the true interpretation of the con tract, so that the respondents must have recourse to the contract to establish their claim that the appellants were not bound as principals while the latter say that they were: If that is the position, such a dispute, the determination of which turns on the true construction of the contract, would also seem to be a dispute, under or arising out of or concerning the contract.
In a 798 passage quoted in Heyman vs Darwins Ltd.(1), Lord Dunedin propounds the test thus: " If a party has to have recourse to the contract, that dispute is a dispute under the con tract ".
Here, the respondents must have recourse to the contract to establish their case and therefore it is a dispute falling within the arbitration clause.
The error into which the learned Judges of the appellate Bench of the High Court appear to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract ever having been entered into.
If, therefore, we come to the conclusion that both the disputes raised by the respondents fail within the scope of the arbitration clause, then there is an end of the matter, for the arbitrators would have jurisdiction to adjudicate on the disputes, and we are not concerned with any error of law or fact committed by them or any omission on their part to consider any of the matters.
In this view, it would not be for us to determine the true construction of the contract and find out whether the respondents ' contention is correct or not.
Once the dispute is found to be within the scope of the arbitration clause, it is no part of the province of the court to enter into the merits of the dispute.
In the result, we allow this appeal, set aside the judgment of the appellate Bench of the High Court and re store the order of Sinha J.
The appellants will be entitled to their costs throughout.
MAHAJAN J. I agree with my brother Fazl Ali that this appeal be allowed with costs.
Appeal allowed.
| The appellants, a firm of brokers, entered into a contrct for the sale and purchase of a quantity of jute under a "sold note" addressed to the respondents which they signed as "A & Co., brokers" and a "bought note" of the same date and for the same quantity of jute addressed to a third person in which also they signed as "A & C0.
, brokers ".
The" sold note" contained the usual arbitration clause under which all matters, questions, disputes, differences and/or claims, arising out of and/or concerning, and/or in connec tion and/or in consequence of, or relating to, the contract . . shall be referred to the arbitration of the Bengal Chamber of Commerce.
" A dispute having arisen with regard to a matter which admittedly arose out of the contract evidenced by the sold note, the appellants referred the dispute for arbitration.
The respondents raised before the arbitrators the further contention that as the appel lants were only brokers they were not entitled to refer the matter to arbitration.
The arbitrators made an award in favour of the appellants.
The respondents made an applica tion to the.
High Court under the Indian Arbitration Act for setting aside the award: Held that, assuming that it was open to the respondents to raise this objection at that stage, inasmuch as this further dispute 793 was also one which turned on the true interpretation of the contract and the respondents must have recourse to the contract to establish their claim, this was also a dispute arising out of or concerning the contract and as such fell within the arbitration clause, and the award could not be set aside under the Indian , on the ground that it was beyond jurisdiction and void.
Heyman vs Darwins Ltd. ([1942.] A.C. 356) referred to.
|
149 and 167 of 1950.
758 Application under article 32 of the Constitution for a writ in the nature of habeas corpus I Bawa Shiv Charan Singh for the petitioner in petition No. 149.
Bindra for the petitioner in Petition No. 167.
B.K. Khanna, Advocate General of the Punjab, for the respondent in both the petitions.
M.C. Setalvad, Attorney General for India, for the Union of India (Intervener in Petition No. 149).
February 23.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
The earlier of the two petitions has been filed by one Ujagar Singh, under article 32 of the Constitution of India, for a writ of habeas corpus and for an order of release from detention.
The latter petition is a similar one by one Jagiit Singh.
In both the petitions, the respondent is the State of Punjab.
The orders of deten tion were made under the preventive Detention Act IV of 1950.
The petitions are not connected with each other, except that they raise the same grounds.
In petition No. 149 of 1950, Ujagar Singh was originally arrested and detained under the East punjab Public Safety Act on 29th September, 1948.He was released on 28th March, 1949, but on the same date, there was an internment order against him.
On 29th September, 1949, he was rearrested.
On 2nd March, 1950, an order of detention under the , was served on him, and on 3rd April, 1950, he was served with the grounds of detention dated 11th March, 1950.
Both in September, 1949, and in March, 1950, the ground alleged was ' 'You tried to create public disor der amongst tenants in Una Tehsil by circulating and dis tributing objectionable literature issued by underground communists.
" Additional grounds were furnished in July 1950.
In petition No. 167 of 1950, Jagjit Singh was arrested on 24th July, 1948.
under the provisions of the 759 Punjab Safety Act, 1947.
After the East Punjab Public Safety Act, 1949, came into force, a fresh detention order dated 14th May, 1949, was served on him and he continued to be kept in jail.
Grounds of detention were given to him on 7th September, 1949.
A fresh order of detention under the Pre ventive Detention Act (IV of 1950) dated 2nd March, 1950, was served on 7th March, 1950.
Grounds of detention dated 11th March, 1950, were served on him on 3rd April, 1950.
Both in September 1949 and April 1950, the same ground was given, i.e., "In pursuance of the policy of the Communist Party, you were engaged in preparing the masses for violent revolutionary campaign and attended secret party meetings to give effect to this programme.
" Additional or supplementary grounds were served on 5th August, 1950.
Several contentions were advanced on behalf of the petitioners challenging the legality of their detention and urging that as the detention was unlawful and the petition ers ' fundamental right of personal liberty had been in fringed, they should be set at liberty.
The points taken on their behalf can be briefly summarised as follows_ As the ground of detention now mentioned was the same as the ground specified in 1948 or 1949, i.e., months earlier under the Provincial Acts, the order of detention was made mechanical ly and was really mala fide in the sense that there is nothing to show that were was any fresh satisfaction on the part of the detaining authority that detention was necessary in the interests of public order.
Secondly, the grounds were not given "as soon as may be", which is required under section 7 of the Act; and as an unusually long period of time elapsed between the order of detention and the giving of the grounds, the detention must be held to be unlawful after the lapse of a reasonable time.
Thirdly, the grounds given originally were so vague that they could not be said to be grounds at all such as would enable the detenu to make any representation against the order.
Fourthly, supplemen tary grounds could not be furnished and should not be taken into account in considering whether the 760 original order was lawful, or whether the detention became unlawful after a particular period of time.
Two other points of a subsidiary nature were also raised, namely that the order was bad as the period of detention was not specified therein as appears to be required by section 12 and that the grounds given did not purport to state that the authority making the order was the Governor of the State.
There is no substance in the last two points.
Section 12 of the Act does not require that the period of detention should be specified in the order itself where the detention is with a view to preventing any person from acting in any manner prejudicial to the maintenance of public order.
The section itself provides that he can be detained without obtaining the opinion of an Advisory Board for a period longer than three months but not exceeding one year from the date of detention.
Normally, the detention period shall not exceed three months, unless an Advisory Board reports before the expiration of the said period that there is in its opinion sufficient cause for such detention.
See arti cle 22, clause (4), sub clause (a) of the Constitution.
Under sub clause (7) (a) of the same article, Parliament may by law prescrib, the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law provid ing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4).
" Therefore, detention for more than three months can be justified either on the ground of an opinion of the Advisory Board sanctioning or warrant ing longer detention or on the ground that the detention is to secure the due maintenance of public order, in which case it cannot exceed one year in any event, as stated.
in sec tion 12 of the .
It is thus clear that the period is not to exceed three months generally, but may go up to one year in certain special cases.
In view of these provisions, the non specification of any definite period 761 in the detention order is not a material omission rendering the order itself invalid.
Under section 3 of the , the authority to make the order is the State Government.
Sec tion 166 (1) of the Constitution provides that all executive action of the Government of a State, shall be expressed to be taken in the name of the Governor.
The orders of deten tion expressly state that the Governor of Punjab was satis fied of their necessity and that they were made by his order.
The orders are signed no doubt by the Home Secre tary, but this is no defect.
The communication of the grounds need not be made directly by the authority making the order.
Section 7 does not require this.
The communica tion may be through recognized channels prescribed by the administrative rules of business.
Let us now turn our attention to the main contentions.
There is nothing strange or surprising in the fact that the same grounds have been repeated after the lapse of several months in both the cases, when it is remembered that the petitioners were under detention and in jail during the whole of the intervening period.
No fresh activities could be attributed to them.
There could only be a repetition of the original ground or grounds, whether good or bad.
It does not follow from this that the satisfaction of the detaining authority was purely mechanical and that the mind did not go with the pen.
The past conduct or antecedent history of a person can be taken into account when making a detention order, and, as a matter of fact, it is largely from prior events showing the tendencies or inclinations of the man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.
If the authority satisfied himself that the original ground was still available and that there was need for detention on its basis, no mala fides can be attributed to the authority from this fact alone.
The Act does not fix the time within which the grounds should be furnished to the person detained.
762 It merely states that the communication must be "as soon as may be".
This means reasonable despatch and what is reasona ble must depend on the facts of each case.
No arbitrary time limit can be set down.
The delays in the communication of the grounds in the two petitions have been adequately explained by the Home Secretary who says in this affidavits that grounds had to be supplied to nearly 250 detenus and that the printing of the necessary forms occupied some time.
According to him, he made an order even on 11 3 1950 for the supply of the grounds.
The extreme vagueness of the grounds is alone left as the chief line of attack.
As stated already, the original ground communicated in Petition No. 149 of 1950 is "to create public disorder amongst tenants in the Tehsil by circulating and distributing objectionable literature issued by underground communists.
" In the other petition, the ground is "In pursuance of the policy of the Communist Party you were engaged in preparing the masses for violent revolu tionary campaign and attended secret party meetings to give effect to this programme.
" We shall leave aside for the moment the supplementary grounds furnished later.
There can be little doubt that in both the cases the grounds furnished in the first instance were highly vague.
If we had only Iswar Das 's case to go by, Petition No. 30 of 1950, such vagueness by itself would constitute a justifica tion for release of the petitioners.
Since the date of that decision, however.
this Court had to consider the question at great length in two cases from Bombay and Calcutta re spectively Cases Nos. 22 and 24 of 1950 where the subject of the meaning and scope of section 7 of the and article 22, sub clauses (5) and (6)of the Constitution of India.
came up for elaborate consideration.
The said cases were decided on 25th January, 1951, and we are now governed by the principles laid down in these judg ments.
It was held by a majority of the Judges in Case No. 22 of 1950 (1) State of Bombay vs Atmaram Sridhar Vaidya [1951] S.C.R. 167.
763 (a) that mere vagueness of grounds standing by itself and without leading to an inference of mala fides or lack of good faith is not a justiciable issue in a court of law for the necessity of making ' the order, inasmuch as the ground or grounds on which the order of detention was made is a matter for the subjective satisfaction of the Government or of the detaining authority; (b) that there is nothing in the Act to prevent particulars of the grounds being furnished to the detenu within a reasonable time, so that he may have the earliest opportunity of making a representation against the detention order what is reasonable time being dependent on the facts of each case; (c) that failure to furnish grounds with the speedy addition of such particulars as would enable the detenu to make a representation at the earliest opportunity against the detention order can be considered by a court of law as an.
invasion of a fundamen tal right or safeguard guaranteed by the Constitution, viz., being given the earliest opportunity to make a representa tion;and (d) that no new grounds could be supplied to strengthen or fortify the original order of detention.
We are not concerned so much with the earlier history of the detenus as with what happened to them under the Preven tive Detention Act, 1950.
OverloOking the fact that the ground mentioned In March 1950 was the same as that given in September 1949, and condoning the vagueness in the original ground furnished in both the cases to support the making Of the order, it is impossible to justify the delay of nearly four months in furnishing what have been called additional or supplementary grounds, Let us take up Petition No. 149 first.
In the grounds furnished in July 1950, there are several which do not apparently relate to the original ground.
"You were respon sible for hartal by labourers working on Bhalera Dam in October 1947". "You instigated labourers working in Nangal in 1948 to go on strike to secure the acceptance of their demands" "After release you absconded yourself from your village and 99 764 remained untraced for a considerable period" . "When you were re arrested on 29 9 1949, lot of objectionable communist literature was recovered from your personal search" are instances of new grounds, and they have to be eliminated therefore from consideration.
In Jagjit Singh 's petition No. 167 of 1950, the supplemental grounds, which are as many as ten in number, are dated 31 7 1950, but they were served on him on 5 8 1950, that is two days after he had prepared his petition to this court under article 32 of the Constitution.
The grounds may be taken as particulars of the general allegation made against him on 3 4 1950 when the original grounds of detention were served.
But the time factor to enable him to make a representation at the earliest opportunity was not borne in mind or adhered to.
In the affidavit of Shri Vishan Bhagwan, Home Secretary to the Punjab Government, dated 6th September, 1950, no explanation has been offered for this abnormal delay in the specification of the particulars.
This delay is very unfor tunate indeed.
But for its occurrence the petitioner would not have been able to urge that one of the valuable rights guaranteed to him by the Constitution has been violated.
It is not alleged b.y the Home Secretary that the detenu was furnished with these particulars when he was arrested and detained under the Provincial Act and that consequently it was considered unnecessary to give him the same particu lars once over.
On the other hand, the detenu 's complaint has throughout been that he was given no particulars at all till the 5th August, 1950.
As the petitioners were given only vague grounds which were not particularised or made specific so as to afford them the earliest opportunity of making representations against their detention orders, and their having been inex cusable delay in acquainting them with particulars of what was alleged.
the petitioners have to be released, the rules being made absolute.
Ordered accordingly.
765 PATANJALI SASTRI J.
I concur in the order proposed by my learned brother Chandrasekhara Aiyar J. DAS J.
In view of the majority decision in Case No. 22 of 1950 (The State of Bombay vs Atma Ram Sridhar Acharya), I concur in the order proposed by my learned brother.
Order accordingly.
Petition No. 194 of 1950 Agent for the petitioner: R.R. Biswas.
Agent for the intervener: P.A. Mehta.
Petition No. 167 of 1950 Agent for the petition: R.S. Narula.
| Non specification of any definite period in a detention order made under section 3 of the Preventive Detention Act, IV of 1950, is not a material omission rendering the order invalid in view of the provisions contained in clauses (4) (a) and (7) (a) of article 22 the Constitution and section 12 of the Act.
An order of detention which expressly states that the Government of the State concerned was satisfied of the necessity of 757 making such an order and that it was made by the order of the Governor is not defective merely because it is signed by Home Secretary.
Communication of the grounds of the order need not be made directly by the authority making the order but may be made through recognized channels prescribed by the adminis trative rules of business.
The past conduct or antecedent history of a person can be taken into account in making a detention order, and as a matter of fact, it is largely from prior events showing tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.
If the authority making an order is satisfied that the ground on which the detenue was detained on a former occasion is still available and that there was need for detention on its basis no mala fides can be attributed to the authority from the fact that the ground alleged for the second detention is the same as that of the first detention.
Whether grounds have been communicated "as soon as may be" must depend on the facts of each case.
No arbitrary time limit can be laid down.
The recent rulings of the Supreme Court establish (a) that mere vagueness of grounds standing by itself and with out leading to an inference of mala fides or lack of good faith is not a justiciable issue in a court of law for the necessity of making the order, inasmuch as the ground or grounds on which the order of detention was made is a matter for the subjective satisfaction of the Government or of the detaining authority; (b) that there is nothing in the Act to prevent particulars of the grounds being furnished to the detenu within a reasonable time so that he may have the earliest opportunity of making a representation against the detention order what is reasonable time being dependent on the facts of each case; (c) that failure to furnish grounds with the speedy addition of such particulars as would enable the detenu to make a representation at the earliest opportu nity against the detention order can be considered by a court of law as an invasion of a fundamental right or safe guard guaranteed by the Constitution, viz. being given the earliest opportunity to make a representation; and (d) that no new grounds could be supplied to strengthen or fortify the original order of detention.
Where the petitioners against whom detention orders were made were given only vague grounds and there was inex cusable delay of nearly 4 months in acquainting them of the particulars, held that their detention was illegal and they should be released.
|
Appeal (Criminal Appeal No. 3 of 1950) from a judgment of the High Court of Judica ture at Patna dismissing a petition to revise an order of the Sessions Judge, Patna, convicting the appellant for an offence under section 186, Indian Penal Code: The facts of the ease appear in the judgment.
N.C. Chatterjee (Rameshwar Nath, with him) for the appellant.
S.K. Mitra (K. Dayal, with him) for the respondent.
S.M. Sikri for the Intervener.
305 1951.
March 5.
The judgment of the Court was delivered by PATANJALI SASTRI J.
This is an appeal from a judgment of the High Court of Judicature at Patna dismissing a revi sion petition against the conviction of the appellant for an offence under section 186 of the Indian Penal Code.
The appellant was at all material times the General Manager of the Jagdishpur Zamindary Company (hereinafter referred to as the company) who were the lessees of a sugar factory referred to in these proceedings as the Bhita Sugar Factory.
He was prosecuted for obstructing the then District Magistrate and the Special Officer incharge of Rationing, Patna, in the discharge of their official functions when they went to the factory on 6th December, 1947, to remove 5,000 maunds of sugar which had been seized out of the stock held by the company pursuant to an order of the Government of Bihar dated 5th December, 1047.
The case for the prose cution was as follows: The company had deliberately failed to comply with the orders for supply of sugar issued from time to time under the provisions of the Sugar and Sugar Products Control Order, 1047, by officers of the Government duly authorised in that behalf.
and, in consequence, the Government made the following order on 5th December, 1947 : "In exercise of the powers conferred on the Central Government by cl.
(1) of sub section (2) of section 3 of the Essential Supplies (Temporary Powers) Act, 1946, which have been delegated to the Provincial Government in relation to foodstuffs in the notification of the Government of India, Department of Food, No. PY 603 (2) 1 dated 21st October, 1946, the Governor of Bihar is pleased : (1) to authorise the District Magistrate, Patna, and/or the Special Officer in charge of Rationing, Patna, to search the stock of sugar held by Messrs. Jagdishpur Zamind ary Company, Bhita, in the District of Patna, which is about to commit a contravention of 306 the order of the Chief Controller of Prices and Supplies, Bihar, made under cl. 7 (1) (ii) of the Sugar and Sugar Products Control Order, 1947, and issued in order No. 1613 P.C.R. dated 27th September, 1947, in so far as the said order relates to the said Company, and (2) to direct that 5,000 maunds of sugar held in stock by the said Company shall be seized.
By order of the Governor of Bihar Sd.
T.P. SINGH, Secretary to Government.
" On the 6th December, 1947, when the officers named went to the factory to carry cut the aforesaid order, they were told by the appellant that he would do everything possible to obstruct the removal of the sugar, and accordingly it was found that the sugar godowns had been locked and the road leading to them blocked by heaps of coal, firewood and tins placed across, so as to make vehicular traffic impos sible.
A railway siding leading to the godowns had also been rendered unserviceable by the removal of some of the rails and fishplates.
As a result of such obstruction, the officers had to seek the aid of armed police to break open the locks, repair the railway line and clear the road block before the sugar could be removed from the factory.
The appellant 's main defence was that on a proper con struction of section 3 of the Essential Supplies (Temporary Powers) Act, 1946, hereinafter referred to as the Act) it was not competent for the Government to pass the order of 5th December, 1947, which was consequently illegal and void, and that obstruction to the execution of that order could not constitute an offence under section 186 of the Indian Penal Code.
The contention was rejected and the appellant was convicted and sentenced to simple imprisonment for a term of three weeks.
On appeal, the Sessions Judge, Patna, confirmed the conviction and sentence, agreeing with the findings of the trial court, and a Revision Petition preferred by the appel lant was rejected by the High Court, 307 which, however, granted a certificate under article 134 (1) (c) of the Constitution that the case was a fit one for appeal to this court as it involved a point of "sufficient public importance" as to the interpretation of section 3 of the Act.
Section 3, so far as it is material here, runs as follows : "3.
(1) The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increas ing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may, by notified order, provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by sub section (1), an order made thereunder may provide (j) for any incidental and supplementary matters, in cluding in particular the entering, and search of premises, vehicles, vessels and aircraft, the seizure by a person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being, or is about to be commit ted, the grant or issue of licences, permits or other docu ments, and the charging of fees therefor.
" It was contended that an order under sub section (1) should be in the nature of a rule or regulation of general application, like the Sugar and Sugar Products Control Order, 1947, issued by the Central Government on 4th August, 1947, as the sub section confers on the Central Government only the power to "provide for regulating or prohibiting" the production, supply, distribution, etc., of essential commodities, and does not authorise the making of ad hoc or special orders with respect to any particular person or thing.
We see no reason to place such a restricted con struction on the scope of the power conferred on the Central Government.
The term "notified order" which is defined as meaning "an 40 308 order notified in the official Gazette" is wide enough to cover special as well as general orders relating to the matters specified in section 3.
The power to provide for regulating or prohibiting production, distribution and supply conferred on an executive body may well include the power to regulate or prohibit by issuing directions to a particular producer or dealer or by requiring any specific act to be done or forborne in regard to production, etc., and the provisions of section 4 lend support to that view.
The Central Government is empowered under the latter section to delegate its power to make orders under section 3, sub ject to conditions to be specified, to any officer or subor dinate authority either of the Central or a Provincial Government.
It would be strange, if, as contended for the appellant, a subordinate officer in charge, say, of a small area, should, by delegation, exercise powers of a legisla tive character in relation to the matters specified in section 3, but should not have the power of issuing special orders concerning specific individuals or things.
We do not think that such a situation could have been contemplated.
The power delegated under section 4 must, in our opinion, include the power of issuing directions to any producer or dealer in relation to production, etc., of any specified essential commodity.
If so, the delegating authority itself must possess such power under section 3.
For instance, section 7 of the Sugar and Sugar Products Control Order, 1947, made by the Central Government empowers the" Control ler" "to issue directions to any producer or dealer to supply sugar or sugar products" to specified areas, persons or organisations.
This delegation is expressed to be made "in exercise of the powers conferred by sections 3 and 4" of the Act, but unless the Central Government itself had the power of issuing such directions under section 3, it could not delegate that power to the Controller under section 4.
This view is reinforced by the language of section 15, which contemplates orders under section 3 being made against a particular person, for it speaks of "an order made under section 3 which prohibits him (that 309 is, the person prosecuted for its contravention) from doing any act or being in possession of a thing without lawful authority etc.
" The restricted construction of section 3 contended for by the appellant 's counsel would render the scheme of the Act largely unworkable, and we have no hesita tion in rejecting it.
Even so, it was argued, an order for seizure could be made only subject to the conditions and limitations speci fied in clause (j) of sub section (2) of section 3, that is to say, only where the person authorised in that behalf "has reason to believe that a contravention of the order [an order made under sub section (1)] has been, is being, or is about to be committed ".
In the present case, the order of 5th December, 1947, directing the seizure of 5,000 maunds of the company 's sugar, in the execution of which the appellant has been found to have obstructed the officers of the Pro vincial Government, recited that the company was "about to commit a contravention of the order of the Chief Controller of Prices and Supplies, Bihar, made under cl. 7.
(1) (ii) of the Sugar and Sugar Products Control Order, 1947, and issued in order No. 1613 P.C.R. dated 27th September, 1947, in so far as the said order relates to the said company".
The latter 'order, while it directed the company, among others, "to supply sugar at the prices fixed to the approved dealers of certain Districts", left it to the District or Sub divi sional Officer to fix quotas for the approved dealers of his District or Sub division from the District or Sub divisional allotment and to inform the company when and where the supplies are to be made.
It has been found by the courts below that the total quantity of sugar which the order required to be supplied was varied from time to time, and no quotas to approved dealers were ever fixed nor information sent to the company as to when and where supplies were to be made.
The order of the 27th September, 1947, having thus remained inchoate and incomplete and so incapable of being carried out or contravened till the 5th December, 1947, it was submitted that no seizure and removal could be lawfully ordered on the basis of an anticipated contravention 310 of such an order, and that the officers concerned in the illegal and unauthorised removal of the sugar were not acting in the discharge of their public functions.
Reference was made in this connection to the decisions of the Calcutta High Court in Lilla Singh vs Queen Empress(1) and Queen Empress vs Jogendra Nath Mukerjee(2) where it was held that the public function in the discharge of which a public servant was obstructed must be a legal or legitimately authorised function, in order that the obstruction might constitute an offence under section 186 of the Indian Penal Code.
On the other hand, counsel for the respondent main tained that for an offence under that section it was not necessary that the act which was obstructed must be duly authorised and otherwise lawful if it was being done or was sought to be done by a public servant honestly and in good faith believing that it was part of his public functions, and reliance was placed in support of this view on the decisions of the Madras High Court in Queen Empress vs Poomalai Udayan(3), Public Prosecutor vs Madava Bhonjo Santos(4) and Peer Masthan Rowther vs Emperor(5).
We think it is unnecessary for the purpose of this appeal to pro nounce on the true scope of section 186 of the Indian Penal Code as we are of opinion that the appellant 's argument must fail on another ground.
It is manifest that sub section (2) of section 3 confers no further or other powers on the Central Government than what are conferred under sub section (1), for it is "an order made thereunder" that may provide for one or the other of the matters specifically enumerated in sub section (2) which are only illustrative, as such enumeration is "without prejudice to the generality of the powers conferred by sub section (1)" Seizure of an article being thus shown to fall within the purview of sub section (1), it must be competent for the Central Government or its delegate, the Provincial Government, to make an order for seizure under (1) I.L.R. 22.
(4) (2) I.L.R. (5) (3) I.L.R. 311 that sub section apart from and irrespective of the antici pated contravention of any other order as contemplated in clause (j) of sub section (2).
The order ' of 5th December, 1947, must, therefore, be held to be a valid order, notwith standing its reference to the order of the 27th September, 1947, as being about to be contravened.
If the latter order was incomplete and inoperative and consequently there could be no question of its contravention, as contended for the appellant, the reference to it in the order dated the 5th December, 1947, would be an immaterial redundancy and could not affect the validity of the latter order.
The seizure of the company 's sugar must, therefore, be regarded as duly authorised and lawful, and the appellant by ob structing its removal, committed an offence under section 186 of the Indian Penal Code even on the stricter construc tion placed on that provision by the Calcutta High Court.
The view we have expressed above receives support from the decision of the Privy Council in Sibnath Banerjee 's case(1).
Section 2(1) of the Defence of India Act, 1939, as amended by section 2 of the Defence of India (Amendment) Act, 1940, empowered the Central Government to make rules for securing the defence of British India, the public safe ty, the maintenance of public order, etc., and sub section (2) enacted "without prejudice to the generality of the powers conferred by sub section (1), the rules may provide for all or any of the following matters . ".
Among such matters was the detention of any person "reasona bly suspected" of having acted etc.
in a manner prejudicial to the public safety etc.
[clause (x)].
Rule 26 of the Rules made under the section, however, authorised the Gov ernment to detain a person "if it is satisfied" that it was necessary to detain him with a view to prevent him from acting prejudicially. ' . .The
Federal Court held (2) that this rule was ultra vires as it Went beyond the scope of clause (x) in that it left it to the satisfaction of the Government to decide whether or not it was necessary to detain a (1) ; 72 I. A.241, 248.
(2) 312 person, The decision was reversed and Lord Thankerton, delivering the judgment of the Board, observed: "In the opinion of their Lordships, the function of subsection(2) is merely an illustrative one; the rule making power is con ferred by sub section (1), and "the rules" which are re ferred to in the opening sentence of subsection (2) are the rules which are authorised by, and made under, sub section (1); the provisions of sub section (2) are not restrictive of sub section(1), as, indeed is expressly stated by the words "without prejudice to the generality of the powers conferred by sub section (1)".
"There can be no doubt as the learned Judge himself appears to have thought that the general language of sub section (1) amply justifies the terms of rule 26, and avoids any of the criticisms which the learned Judge expressed in relation to subsection (2)".
This accords with our view of the effect of subsections (1) and (2) of section 3 of the Act.
The appeal is dismissed.
The appellant 's bail bond is cancelled and he is ordered to surrender.
Appeal dismissed.
Agent for respondent and Intervener: P.A. Mehta.
| Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, provided as follows: (1) The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of an essential commodity, or for securing their equitable distribution and availability at fair prices, may by notified order, provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce therein.
Without prejudice to the generality of the powers conferred by sub section
(1) an order made thereunder may provide . (j) for any incidental and supplementary matters.
including in particular the entering, and search of premises, vehicles, vessels and aircraft, the seizure by a person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention has been, is being, or is about to be commit ted. " In exercise of the powers conferred on the Central Government by cl.
(j) of sub section
(2) of section (3) of the above said Act, which had been delegated to the Provincial Govern ment in relation to food stuffs, the Governor of Bihar made an order authorising the District Magistrate, Patna, and the Special Officer in charge of rationing, Patna, to search the stock of sugar held by a company of which the appellant was the General Manager and directing the seizure of 5,000 maunds of sugar held in stock by the said company, on the ground that the company was about to commit a contravention of an order of the Chief Controller of Prices and Supplies made under the Sugar and Sugar Products Control 304 Order, 1947.
The appellant obstructed the officers who went to search and seize the goods and was convicted under section 186, Indian Penal Code.
Held, (i) the power "to provide for regulating or prohib iting production, supply and distribution" conferred by the Act on the Central Government included the power to regu late or prohibit by issuing directions to a particular producer or dealer or by requiring any specific act to be done or foreborne in regard to production etc., and the order of the Governor was not therefore invalid on the ground that it was not a rule or regulation of general application but an order concerning a particular company alone; (ii) sub section (2) of section 3 conferred no further or other powers than what were conferred by sub section
(1) and the enumeration of certain matters in sub section
(2) was merely illustrative, as such enumeration was "without prejudice to the generality of the powers conferred by sub section
(1) "; (iii) seizure of an article being within the purview of sub section
(1) of section 3 it was therefore competent to the Cen tral Government, and its delegate the Provincial Government, to make an order for seizure under sub section
(1) apart from and irrespective of the anticipated contravention of any other order as contemplated in el.
(j) of sub section (2); (iv) even assuming that the order of the Chief Control ler of Prices under the Sugar Control Order was incomplete and inoperative and there could be no question of its con travention, the reference to that order in the order made by the Governor would be a mere redundancy and would not affect the validity of the latter order, and the appellant was rightly convicted under section 186, Penal Code.
Quaere: Whether for an offence under section 186, Penal Code, it is necessary that the act which was obstructed must be duly authorised and otherwise lawful.
King Emperor vs Sibnath Banerjee applied.
|
ppeals from" judgments and decrees of the High Court of Judicature at Calcutta dated 25th August, 1943, in First Appeals Nos. 20 and 173 of 1939 which arose out of a decision of the President of the Calcutta Improvement Tribunal in Case No. 95 of 1935.
Civil Appeals Nos. 95 and 96 of 1949.
Panchanan Ghose (Upendra Chandra Mullick, with him) for the appellant in Civil Appeal No. 95 and respondent in Civil Appeal No. 96.
S.P. Sinha (Nagendra Nath Bose, with him) for respond ents Nos. 1 to 3 in Civil Appeal No. 95 and appellants Nos. 1 to 3 in Civil Appeal No. 96.
S.N. Mukherjee, for respondent No. 4 in Civil Appeal No. 95.
March 14.
The judgment of the Court was delivered by FAZL ALl J.
These appeals are directed against the judgment and decree of the High Court of Judicature at Fort William in West Bengal, confirming a decision of the Presi dent of the Calcutta Improvement Tribunal, which modified an award of the First Land Acquisition Collector of Calcutta, made under the Land Acquisition Act in respect of the acquisition of two premises, which may conveniently be referred to as Nos. 140 and 141, Cotton Street.
In order to understand the points of contest between the various claimants to the compensation awarded in the case, it seems necessary to refer to certain facts showing how they came to be interested in the premises which are the subject matter of the land acquisition proceedings.
These premises belonged at one time to one Sewanarayan Kalia, and afterwards they became the property of a deity, Sree Sree Iswar Gopal Jieu Thakur, installed by Sewanarayan Kalia at Chinsurah in the district of Hoogly.
Sewanarayan, who had three wives, died in 1836, leaving behind him his third wife, Muni Bibi, two daughters by his 334 predeceased wives, these being Jiban Kumari and Amrit Ku mari, and a mistress named Kissen Dasi.
On the 23rd August, 1836, these persons executed a deed of solenama which was in the nature of a family arrangement, by which the remainder of the estate of Sewanarayan (i.e., what was left after excluding the dedicated properties) was divided in the terms of his will, with the result that Muni Bibi got subject to certain conditions, among other properties, the premises described as 140, Cotton Street, and Jiban Kumari got the contiguous premises, No. 141, Cotton Street.
Muni Bibi and Jiban Kumari also became the she baits of the Thakur or deity with power to appoint their successors.
On the 20th January, 1848, Muni Bibi by an arpannama dedicated 140, Cotton Street, to the Thakur.
It is recited in this deed, among other things, that on account of annual droughts and inundation and consequent diminution in the produce of the lands, certain properties dedicated to the sewa of the deity had been sold for arrears of revenue, that "Jiban Kumari had been making advances from her private funds for the expenses of jatra, mahotsob etc.
, of the deity, when the amount fell short, this being against the provisions laid down by her late husband", that the house known as 140, Cotton Street, having been let out, was yielding a rent of Rs. 30 p.m., that after deducting the necessary expenses the surplus income left was Rs. 20 p.m., and that "if this amount was included in the expenses for the sheba etc., of the deity every month, the provision made by her deceased husband may remain in force.
" After reciting these facts, it is stated that the rental of the house "shall be permanently and perpetually included in the expenses of the sheba.
" About 20 years later, on the 30th September, 1869, Muni Bibi created a permanent (maurasi mokrari) lease of the premises bearing No. 140, Cotton Street, in her capacity as a shebait in favour of one Nehal Chand Panday (who was admittedly a benamidar for one Bhairodas Johurry), at a rental of Rs. 25 p.m. (See exhibit L a kabuliyat executed by Nehal Chand in favour of Muni Bibi).
In the same year, on the 8th 335 December, Jiban Kumari granted a permanent lease to Bhairo das Johurry, in respect of the premises known as 141, Cotton Street at a rental of Rs. 90 p.m. (See exhibit K a kabuliy at executed by Johurry in favour of Jiban Kumari).
The main question which has been raised in this case is whether the two ladies were competent to give debutter properties by way of permanent lease to another person.
In 1870, Muni Bibi died, and, on the 15th January, 1872, Jiban Kumari ap pointed Gourimoni Devi a shebait by a registered deed and dedicated the premises known as 141, Cotton Street, to the deity.
Both Jiban Kumari and Gourimoni Debi died shortly afterwards, and Gopal Das, a minor son of Gourimoni, became the shebait of the idol.
During his minority, his father, Raghubar Dayal, became his certificated guardian, and, in that capacity, he executed a usufructuary mortgage deed in respect of the Cotton Street properties to one Lal Behari Dutt, on the 31 August, 1878.
After the death of Raghubar Dayal one Ajodhya Debi and after her one Kalicharan Dutta became the certificated guardian of Gopal Das, and, on the 17th August, 1890, the latter mortgaged some debutter properties including 140and 141, Cotton Street, to Lal Behari Dutt for a sum of Rs. 2,230.
On attaining majority, Gopaldas executed on the 17th January, 1896, a usufructuary mortgage deed in respect of all debutter properties includ ing the Cotton Street houses in favour of Lal Behari Dutt for paying the previous mortgage dues which amounted on that date to Rs. 4,955 and odd.
This deed provided among ' other things that the mortgagee was to collect rents, outgoings, carry on the sheba of the deity, and that whatever balance was left out of the income of the property was to go towards the satisfaction of the mortgage dues.
Gopaldas died in 1900, leaving behind him surviving his widow, Annapuma, who also died in 1905.
By 1918, Lal Behari Dutt also was dead, and his interest in the mortgaged properties, to which reference has been made, was sold to one Naba Kishor Dutt on the 12th December, 1918.
On the 17th November, 1933, Naba Kishor assigned the mortgagee 's 336 interest in the mortgaged properties to two of the Bagarias, respondents 1 and 2 in appeal No. 95, and m the same year the three respondents (1 to 3) also acquired the lessee 's interest in the Cotton Street houses.
The land acquisition proceedings, which have given rise to these appeals, were started about the year 1934 in respect of the premises bearing Nos. 140 and 141, Cotton Street, as well as two adjoining premises with which we are not concerned in this case.
In these proceedings, the following claims were put forward by three sets of persons: 1.
The Bagarias (respondents 1 to 3 in appeal No. 95) at first claimed the entire amount of compensation on the allegation that they were the absolute owners of the prem ises in question, but later on they claimed only as mortga gees and permanent lessees of those premises.
On behalf of the deity, the entire amount of compen sation money was claimed by Deosaran Singh and Ram Lakshman Singh, who alleged themselves to be shebaits, on the basis that the premises in question were debutter properties of the deity, and the Bagarias had acquired no interest therein either by the assignment of the usufructuary mortgage or the alleged purchase of the tenant 's rights in the properties.
Respondent No. 4 claimed compensation as a lessee for 99 years on the basis of a lease alleged to have been given to him by the original landlords.
In the present appeals, we are concerned with the first two claims only, and we shall briefly state how they were dealt with by the Collector and the courts below.
On the 22nd May, 1935, the Collector awarded Rs. 31,740 as compen sation for landlord 's interests, to be shared by the deity as owner and two of the Bagarias, respondents Nos. 1 and 2 in appeal No. 95 in their capacity of usufructuary mortga gee, and awarded a sum of Rs. 1,58,000 to the respondents Nos. 1, 2 and a as compensation for their rights as perma nent tenants of the premises in question.
Subsequently, 3 separate petitions of reference were filed 337 by the a claimants against the Collector 's award and the reference made by the Collector in pursuance thereof was registered as apportionment case No. 95 of 1935 in the Court of the Calcutta Improvement Tribunal.
Meanwhile, Deosaran Singh and Ram Lakshman Singh, who had put in claims as shebaits, retired from the contest, and the President of the Tribunal appointed one Narendra Nath Rudra as the next friend of the deity to represent and protect its interests.
On the 31st August, 1938, the President of the Tribunal gave his decision, by which he substantially upheld the award of the Collector, but modified it in one respect only.
He held that the usufructuary mortgage, on the basis of which re spondents 1 and 2 had put in a claim, had been paid off and therefore they were not entitled to any compensation, and the whole sum of Rs. 31,740 should be paid to the deity.
Respondents 1 to 3 however were held entitled to the sum of Rs. 1,58,000 as permanent tenants, on the ground that leases had been created for legal necessity and therefore were binding on the deity, He also held that the deity was not entitled to question the leases by virtue of article 134 (a) of the Limitation Act.
Regarding costs, he directed that all costs incurred on behalf of the deity should be paid out of the compensation money lying in deposit in court.
Two appeals were thereafter preferred to the High Court by the two main contesting parties and ultimately both these ap peals were dismissed, and the High Court upheld the decision of the Tribunal.
Subsequently, the present appeals were preferred to this Court, the deity having obtained a certif icate granting leave to appeal from the High Court, and the Bagaria respondents having obtained special leave from the Privy Council to prefer a cross appeal.
The main questions which arise in these appeals are : (1) whether the two mourasi mokrari leases, to which reference has been made were justified by legal necessity; and 44 338 (2) whether the mortgages on the basis of which the Bagarias had laid their claim to compensation had been satisfied.
The first question arises in Appeal No. 05, and the second question arises in Appeal No. 96.
So far as the question of legal necessity is concerned, there are concurrent findings of the Tribunal and the High Court against the appellant in appeal No. 95, but we allowed his counsel to argue the question at some length, because it was urged before us that on the facts of the case the point in issue was not a question of fact but one of mixed fact and law, especially as the decision of the High Court turned upon the construction of the leases and the inference drawn from the fact that the permanent nature of the tenancy had remained unquestioned for a very long period.
The tenancy in question came into existence as long ago as 1869, and it is not surprising that no direct evidence bearing on the issue of legal necessity is available now.
We have therefore to fall back upon the recitals in the documents, to ascertain the circumstances under which the documents, exhibits L and K, were executed, because it is well settled that if all the original parties to the trans action and those who could have given evidence on the rele vant points have passed away, a recital consisting of the principal circumstances of the case assumes greater impor tance and cannot be lightly set aside.
[See Banga Chandra Dhar Biswas vs Jagat Kisore Chowdhuri(1) 1 It appears to us that the recitals in the documents afford valuable evidence, because the tenancies were created by two pious ladies who were keenly interested in the sheba of the deity and with regard to whom it was not suggested that they expected to derive any personal advantage from the transactions in question.
It seems to us most unlikely that they would be parties to any untrue recitals merely to support the trans action.
It may be recalled here that in 1848, certain properties belonging to the deity had been sold for arrears of rent, and Jiban Kumari (1) 43 I.A. 249.
339 had been supplementing the income of the residue from her own properties for meeting the expenses of performing cer tain essential services to the deity, such as jatra, mahot sob, etc.
We also find from the arpannama that the value of the property which is the subject matter of the mokrari kabuliyat dated the 30th September, 1869 (exhibit L) was Rs. 2,000 in 1848, that it was not in the khas possession of Muni Bibi but had been let out to a tenant and that its net income was Rs. 20 p.m.
At the time when the arpannama was executed, Muni Bibi clearly thought that the sum of _Rs. 20 p.m., if included in the expenses for the sheba of the deity, would enable the sheba to be carried on without any extraneous help.
From the recitals in exhibit L, it appears that the house bearing No. 140, Cotton Street, was in a dilapidated condition and had collapsed in the rains of 1270 B.S. (1868 A.D.), and Muni Bibi was unable to bear the expenses of constructing a new building at the place.
The problem before her therefore was whether the deity should go without any income from this property, or she should enter into such an arrangement as would secure a permanent income for the expenses of the deity, which should not in any case be less than the income which the property had theretofore yielded.
She decided to choose what must have appeared to her to be the better and more prudent course, with the result that she got a sum of Rs. 500 cash for the deity as the price of the materials which were sold to the lessee, and also secured a regular monthly income of Rs. 25.
There can be no doubt that the transaction was in the best inter ests of the deity and clearly beneficial to it.
A reference to the arpannama shows that the house was in the possession of a, tenant even in 1848, and from the recitals in the document it is clear that what Muni Bibi contemplated was that the house should continue to remain in the possession of a tenant, and the rent of the house should be used for the sheba of the deity.
At that time, she did not contemplate any other mode of using the property she was going to dedicate.
We do not know who was the tenant of the 340 house in 1848 and what were the commitments of Muni Bibi at that time, but, even apart from these facts, it is difficult to believe that a devout person like her, who was not only a shebait but also the widow of the founder of the deity and who had shown such keen interest for the upkeep of the worship of the deity, should have entered into the transac tion in question unless she considered it absolutely neces sary to do so.
The contention put forward before us is that it has not been shown that there was no other course open to Muni Bibi than to.
grant a permanent lease in respect of the property, but it is manifest that at this distance of time no evidence can be available to show the actual pressure or necessity which impelled Muni Bibi to adopt the course she did.
It is now well settled that where the validity of a permanent lease granted by a shebait is called into question a long time after the grant, although it is not possible to ascertainfully what the circumstances were in which it was made, the court should assume that the grant was made for necessity so as to be valid beyond the life of the grantor.
[See Bava Magniram Sitgram vs Kasturbhai Manibhai(1)].
In the present case, the circumstances which can be gathered from the recitals together with the fact that the document has remained unquestioned for more than half a century, seem to us to be quite sufficient to support the conclusion that the grant was made for legal necessity and is binding on the deity.
On the facts narrated, it would appear that there were several shebaits between the death of Muni Bibi and the commencement of the present litigation, but the lease was never impugned as being beyond the power of the shebait who granted it.
On the other hand, we find that the permanent character of the lease was recognized in a deed executed by Gourimoni on the 18th October, 1873 (exhibit Y), and in a mortgage deed executed by Raghubar Dayal, the guardian of Gopaldas, on the 31st August, 1878.
The properties in question were subsequently mortgaged by Kali Charan Dutt and Gopaldas, but neither of these persons nor (1) 41 I. A. 54.
341 the mortgagees ever came forward to question the permanent nature of the tenancy.
The counsel for the appellant relied upon exhibit VI, which is a copy of the judgment of the High Court in a suit instituted by Nabakishore Dutt in 1995 against the Adminis trator General of Bengal for the rent of the house in ques tion.
It appears from this judgment that the tenancy was admitted by the defendant and it was also admitted by him that rent was due, but he claimed that he was entitled to insist upon a receipt specifying the money to have been paid as mourasi mokrari rent.
The learned Judge, who dealt with the case, however, thought that the point raised by the defendant did not strictly speaking arise in a suit for rent, which according to him could not be converted into a suit for declaration of title, and on that basis, he passed a decree in favour of the plaintiff.
The judgment does not say in so many words that Nabakishore resisted the claim as to the tenancy being mourasi mokrari, but, however that may be, assuming that such an assertion was really made by him, it cannot affect the character of a tenancy which had re mained unquestioned for nearly half a century.
The legal position with regard to 141, Cotton Street, is almost identical with that of the adjoining premises with which we have already dealt.
As has been already stated, a mourasi mokrari tenancy was created by Jiban Kumari on the 8th December, 1869, as is evidenced by exhibit K.
This document recites among other things that the house which was the subject of the lease, "stands in need of repairs and for want of such repairs there is chance of some portion thereof breaking down during the year.
" It also recites that whatever income was derived till then from that house was derived by letting it out on rent and that the mourasi tenancy was being created for the purpose of repair ing the house and keeping it in existence.
At the end of the document, it is stated that "the shebait shall keep the kabuliyat and patta in force and shall on taking the sum of Rs. 90 as rent, defray the expenses of the sheba of the deity.
" It is 342 noteworthy that the actual dedication of this property took place on the 15th January, 1872, more than 2 years after the kabuliyat.
On that date, a registered deed of gift was executed by Jiban Kumari in favour of Srimathi Gourimoni Debi and it was recited therein that the income of the house was being dedicated by the former to the sheba of the deity.
There was also a further clause in that deed to the follow ing effect : "In accordance with the terms of the solenama the ex penses of the Iswar seba shall be met from the income of those properties which have been dedicated for the perform ance of the work of the said seba and the amount by which the expenses for the festivals would fall short and the expenses which would be incurred for repairs to house for sheba of the said Thakur shall be met and the Tahailia (attendant) and the Brahman cook and the Brahman priest (now) employed and to be employed hereafter shall get (their) salaries, from the income of the said property." On reading this document along with the solenama and the mok rari lease granted by Jiban Kumari, it appears that she dedicated the property after having created a mokrari lease, that what she purported to dedicate was the income derived by way of rent from the mourasi mokrari tenancy, and that she had dedicated this income for specific purposes with the object of making up the deficit in the income received from other debutter properties.
If it is held that Jiban Kumari was an absolute owner of the property at the time the moura si mokrari lease was granted and afterwards she dedicated only the income of the property then the permanent lease cannot be assailed.
If, on the other hand, it is held on reading the solenama that Jiban Kumari had only a life estate in the house and it was one of the terms of the solenama that after her death the expenses of the deity were to be borne out of the income from the house, then in that case the question may arise as to whether she was entitled to create a lease beyond her lifetime.
Such a question however does not need an elaborate answer, because the same considerations which apply to 140, Cotton Street.
will 343 apply to this house, and the presumption as to necessity which is raised by the long lapse of time, would arise here also.
This presumption is considerably strengthened here as well as in the case of the lease granted by Muni Bibi, by the fact that the grantor of the lease was so devoted to the object of the endowment that it does not seem likely that she would have granted a permanent lease unless she was impelled to do so by absolute necessity.
It seems to us therefore that the view taken by the High Court is substan tially correct and the respondents Nos. 1 and 2 are entitled to compensation as permanent lessees.
In this view, Appeal No. 95 must fail, and it is dismissed.
As to Appeal No. 96, it has been concurrently found by the President of the Tribunal and the High Court that the appellants have failed to prove by proper evidence that there is any money still due to them on the usufructuary mortgage executed by Gopaldas in 1886.
In arriving at this finding, they have dealt with every possible argument that could be urged and was urged on behalf of the appellants to show that the mortgage had not been satisfied.
This court has repeatedly held that it will not generally interfere with concurrent findings on a pure question of fact, and nothing has been shown on behalf of the appellants to induce us to depart from this rule.
In the result Appeal No. 96 also is dismissed.
Having regard to the circumstances of the case, we shall make no order as to costs in either of these appeals.
Appeals dismissed.
Agent for the appellant in Civil Appeal No. 95 and respondent in Civil Appeal No. 96: Sukumar Ghose.
Agent for respondents Nos.
1 to 3 in Civil Appeal No. 95 and appellants Nos.
1 to 3 in Civil Appeal No. 96:S. C. Banerjee.
Agent for respondent No. 4 in Civil Appeal No. 95: P.K. Chatterjee.
| Where the issue is whether there was legal necessity for a particular transaction, if all the original parties to the transaction and those who could have given evidence on the relevant points have passed away, a recital consisting of the principal circumstances of the case assumes greater importance and cannot be lightly set aside.
Banga Chandra Dhar Biswas vs Jagat Kishore Chowdhuri (43 I.A. 249) referred to.
Where the validity of a permanent lease granted by a shebait has remained unquestioned for a very long time since the grant, although it is not possible to ascertain fully what the circumstances were in which it was made, the Court should assume that the grant was made for necessity so as to be valid beyond the life time of the grantor.
333 Bawa Magniram Sitaram vs Kasturbhai Manibhai (49 I.A. 54) referred to.
|
ppeal (Civil Appeal No. 32 of 1950), from a judgment and order of the High Court of Judicature at Madras dated 5th January, 1948, reversing an order of the District Judge of East Tanjore in an applica tion under section 47 and O. XXI, r. 2, of the Civil Procedure Code.
R.K. Kesava Aiyangar (T. K. Sundararaman, with him) for the appellants.
section Ramachandra Aiyar for the respondent.
March 5.
The judgment of the Court was delivered by MUKHERJEA J.
This appeal is on behalf of the decree holders in a mortgage suit and it is directed against a judgment and order of a Division Bench of the Madras High Court dated January 5, 1948, by which the 294 learned Judges reversed, on appeal, an order of the District Judge of East Tanjore made in a proceeding under section 47 and Order 21, rule 2, of the Civil Procedure Code.
The material facts are not in controversy and may be briefly stated as follows.
The appellants before us are the representatives of three original plaintiffs who, as mortga gees, instituted a suit (being O.S. No. 30 of 1934) in the Court of the District Judge, East Tanjore, for enforcement of a mortgage, against the present respondent, who was defendant No. 1 in the suit, and six other persons.
The mortgage bond, upon which the suit was brought, was executed by defendant No. 1 for himself and his minor undivided brother, the defendant No. 2, and also as authorised agent on behalf of defendants 3 to 7 who were interested in a joint family business.
The suit was contested by all the defendants except defendant No. 1, against whom it proceeded ex parte, and there was a preliminary decree passed on May 15,1937, by which a sum of RS.
1,08,098 was directed to be paid by defendant No.1 and defendants 3 to 7, in default of which the plaintiffs were declared entitled to apply for a final decree for sale of the mortgaged properties, and the suit was dismissed against defendant No. 2.
Against this decree, two appeals were taken to the Madras High Court, one by defendants 3 to 7 being Appeal No. 48 of 1938 who contended that the mortgage was not binding on them or on their shares in the joint family property; and the other by the plaintiffs being Appeal No. 248 of 1938 who chal lenged the propriety of the judgment of the trial judge in so far as it dismissed their claim against defendant No. 2.
During the pendency of these appeals, the Madras Agricultur ists ' Relief Act (Act IV of 1938) came into force and appli cations were made by defendants 2 to 7 to the High Court, praying that in the event of a decree being passed against them, the decretal debt might be scaled down in accordance with the provisions of the Act.
The defendant No. 1, who did not appear at any stage of the proceeding, did not make any such application.
The High Court forwarded 295 these applications to the lower court for enquiry into the matter and for return, with its finding on the question as to whether the applicants were agriculturists, and if so, to what extent, the decretal dues should be scaled down.
The District Judge, ' after making enquiries, submitted a finding that the applicants were agriculturists and that the debt, if scaled down, would amount to Rs. 49,255 with interest thereupon at 6% per annum from 1st of October, 1937, exclu sive of costs.
On receipt of this finding, the appeals were set down for final hearing and by their judgment dated March 23, 1942, the learned Judges of the High Court accepted the finding of the court below and held that defendants 2 to 7 were entitled to have the debts scaled down; but as no application had been made on behalf of defendant No. 1, he was held entitled to no relief under the Act.
A decree was drawn up in accordance with the judgment.
The amount due by defendants 2 to 7 was stated to be Rs. 49,255 with inter est thereon at 6% per annum; while, so far as defendant No. 1 was concerned, the decree of the trial judge was affirmed subject to a slight modification regarding the rate of interest.
The defendant No. 1 thereupon filed an applica tion in the court of the District Judge, East Tanjore, claiming relief under the Agriculturists ' Relief Act alleg ing that he too was an agriculturist and hence entitled to the benefits of the Act.
The application was dismissed on February 25, 1943, on the ground that as the decree had already been passed by the High Court definitely negativing his claim to any relief under the Agriculturists ' Relief Act, such application was not entertainable by the lower court.
The next step taken by the defendant No. 1 was to file an application in the High Court itself, praying for setting aside the ex parte decree which excluded him from the benefits of Act IV of 1938.
This application was re jected by the High Court on December 13, 1943.
As no payment was made in accordance with the prelimi nary decree passed by the High Court, a final decree in terms of the same was passed by the 296 District Judge on September 25, 1943. ' Proceedings for execution of this final decree were started on August 16, 1944, in E.P. 2 of 1945 of the court of the District Judge, East Tanjore.
Two lots of the mortgaged properties were put up to sale and purchased by the decree holders for a total sum of Rs. 12,005 on July 15, 1946.
The sale was con firmed on August 17, 1946, and part satisfaction of the decree was entered for that amount.
Apparently, certain terms of settlement were thereafter offered by the judgment debtors.
The estate of the decree holders was in the hands of the Receivers and from the Receivers ' report dated January 10, 1947, it appears that the Receivers agreed with the sanction of the court, to receive Rs. 24,000 only from or on behalf of defendant No. 2 and release him and his share of the mortgaged property from the decretal charge.
Likewise, the Receivers were agreeable to receive Rs. 48,000 from defendants 3 to 7 and to release them and their proper ties from the decretal debt.
With regard to defendant No. 1, the proposal, which seems to have been accepted by the Receivers, was that the amount payable by him under the decree was to be settled at Rs. 37,500 and one Yacob Nadar would 'pay this amount on his behalf on consideration of the decree against defendant No. 1 being assigned to him by the Receivers excluding the rights of the latter to execute the decree against defendants 2 to 7 as scaled down by the High Court.
The records of the execution case show that on January 20, 1947, a sum of Rs. 24,000 was paid on behalf of defend ant No. 2; and his properties, namely, lots 2 and 6 were exonerated from the decree.
On January 27, 1947, a sum of Rs. 30,000 was paid by defendants 3 to 7 and on February 17 following, they paid a further sum of Rs. 18,610 12 0.
These three amounts aggregated to Rs. 72,610 12 0.
Nothing was done towards the payment of the sum of Rs. 37,500 by defend ant No. 1 or by Yacob Nadar, but on March 6, 1947, the defendant No. 1 deposited in court a sum of Rs. 3,215 and put in a petition under section 47 and 297 Order 21, rule 2, Civil Procedure Code, praying that as the amount thus deposited together with the payments already made completely wiped off the amount due under the decree as scaled down by the High Court in favour of defendants 2 to 7, full satisfaction of the decree might be recorded exoner ating the mortgaged properties and also the defendant No. 1 himself from any further liability in respect of the decre tal debt.
The position taken up by defendant No. 1, in substance, was that the mortgage debt was one and indivisible and even though different amounts were mentioned as payable by two groups of defendants in the decree, the decree holders were bound under the terms of the decree to release the entire mortgaged property even on payment of the amount directed to be paid by defendants 2 to 7.
In other words, even though the defendant No. 1 's application for relief under the Madras Agriculturists ' Relief Act was expressly rejected and he was held liable for the entire amount of the mortgage debt, he would still be entitled to avail himself of the benefit of the scaling down of the decree in favour of defendants 2 to 7.
This contention was negatived by the District Judge, but was accepted by the High Court on appeal, who allowed the application of defendant No. 1 and directed that the court below should enter up full satisfac tion of the mortgage decree.
It is against this judgment that the decree holders have come up on appeal to this court.
The learned Judges of the High Court observed at the outset that in the working of the Madras Agriculturists ' Relief Act alongside the provisions of the Transfer of Property Act several curious and novel situations had arisen for which it was not possible always to find logical solu tions.
They then proceeded to discuss the various decisions of the Madras High Court which had a bearing on this point and the conclusion which they reached may be summed up in their words as follows: "It is no doubt somewhat odd that when a person is declared liable to pay a larger amount he should on 298 payment or tender of a smaller amount get his property exonerated from liability but this is inherent in and arises out of the proposition established by the decisions already dealt with, namely, that by the application of the principle of unity and indivisibility of a mortgage decree a non agriculturist can indirectly get relief which he cannot directly get".
It seems to us that the High Court 's approach to the case has not been a proper one and the conclusion it has reached cannot be supported in law.
The learned Judges appear to have overlooked the fact that they were sitting only as an executing court and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go.
It is true that they were to interpret the decree, but under the guise of interpretation they could not make a new decree for the parties.
As said above, the mortgage decree was scaled down by the High Court in favour of defendants 2 to 7 only and the amended decree directs that the said defendants do pay into court the sum of Rs. 49,255 with certain interest and costs on payment of which the plaintiff was to bring into court all the documents in his power or possession relating to the mortgage and reconvey or retransfer the property if so required.
So far as defendant No. 1 is concerned, the decree states in clear and express terms that he is to pay the sum of Rs. 1,05,000 and odd and it is on payment of this sum only that redemption would be allowed of the mortgaged property.
If the decision of the High Court is correct, this direction in the decree would be manifestly unmeaning and without any effect.
What is said, however, on behalf of the respondent is that he is not claiming any benefit in viola tion of this clause.
By virtue of the decree against defend ants 2 to 7 being satisfied, the entire mortgaged property would, by force of the very decree, be freed from the debt and if the respondent gets any benefit thereby, such benefit would be merely incidental or consequential in its nature.
The High Court agreed in substance with this contention 299 and based its decision entirely upon the view that by opera tion of the principle of indivisibility of the mortgage decree, a non agriculturist debtor, whose debt has not been scaled down under the provisions of the Agriculturists ' Relief Act, may indirectly get the benefit of the relief which has been granted to his agriculturist co debtor under the provisions of the Act.
The general law undoubtedly is that a mortgage decree is one and indivisible and exceptions to this rule are admitted in special circumstances where the integrity of the mortgage has been disrupted at the instance of the mortgagee himself; e.g., when there is severance of the interests of the mort gagors with the consent of the mortgagee or a portion of the equity of redemption is vested in the latter.
It is to be noted, however, that the Madras Agriculturists ' Relief Act is a special statute which aims at giving relief not to debtors in general but only to a specified class of debtors, viz., those who are agriculturists as defined in the Act.
To this extent it trenches upon the general law and section 7 of the Act expressly provides that "notwithstanding any law, custom, contract or decree of court to the contrary, all debts payable by an agriculturist at the commencement of this Act shall be scaled down in accordance with the provi sions of this chapter".
Thus in case of a mortgage debt when the loan has been advanced to more than one person, if one of the debtors happens to be an agriculturist while others are not, the agriculturist debtor would certainly be enti tled to have his debts scaled down under the provisions of the Act in spite of the provision of general law which prevents a mortgagor from denying the liability of the interest which he owns in the mortgaged property to satisfy the entire mortgage debt.
There is, therefore, nothing wrong in law in scaling down a mortgage decree in favour of one of the judgment debtors, while as regards others the decree is kept intact.
The Madras High Court expressly adopted this view in Rainier vs Srinivasiah (1), which is one of the (1) [1940] 2 M. 39 39 300 decisions referred to in the judgment appealed from.
The fact that in that case it was a puisne mortgagee and not a mortgagor whose application for relief under section 19 of the Madras Agriculturists ' Relief Act was allowed, does not make any difference in principle.
The puisne mortgagee was made a party defendant in the suit instituted by the first mortgagee to recover his dues and as the puisne mortgagee was liable to pay the debt due to the first mortgagee, he was held to be a debtor and hence entitled to claim the benefit of section 19 of the Agriculturists ' Relief Act.
It may be mentioned here that section 14 of the Madras Agricul turists ' Relief Act which provides for separation of a debt incurred by a Hindu family, some members of which are agri culturists while others are not, affords a clear indication that the splitting up of a debt in such circumstances is quite in accordance with the scheme of the Act.
The catena of cases upon which the learned Judges of the High Court relied in support of their decision seems to proceed on a different principle altogether and whether that principle is right or wrong, it has, in our opinion, no application to a case like the present.
In this class of cases, the mortgagors were agriculturists and hence entitled to have their debts scaled down under the Agriculturists ' Relief Act, but there were purchasers of the mortgaged property who were not agriculturists, and the question arose whether a purchaser could get the benefit of the debt scaled down in favour of the original debtors.
This question was answered in the affirmative.
The reason for taking this view was thus given by the learned Judges in Arunachalam Pillai vs Seetharam(1), where the purchase of the equity of redemp tion was at an execution sale: "When the 12th respondent purchased the properties in court auction, he took them subject to the burden of the appellant 's mortgage and if the burden is by reason of the provisions of section 8 refer.red to above reduced without pay ment, the purchase proves to that (1) 301 extent an advantageous one, and there is nothing in the Act to deprive him of the fruits of his.
lucky purchase, even though he is not an agriculturist.
He gets the benefit of the scaling down not because the provisions of the Act apply to him, for obviously they do not, but because such benefit is a necessary incident of his purchase under the general law and the Act does not deprive him of it.
" A somewhat different reason was assigned in Pachigola vs Karatam(1) which however was a case where a portion of the.
equity of redemption was transferred to a purchaser by a private sale.
It was held that the court by allowing the mortgagor to redeem the mortgage sale was not conferring on the purchaser, a non agriculturist, the benefit of the Act, as he would have to refund to his vendor the purchase money reserved with him which as a result of the scaling down he would not have to pay to the mortgagee.
In both these cases, the question was raised in the proceeding for scaling down of the decree under the provisions of the Agricultur ists ' Relief Act itself and not at the execution stage.
There is however the case of Subramanian vs Ramachandra (2), where the question arose in course of execution pro ceedings and a purchaser of a portion of the equity of redemption was held to be entitled to the benefit of the scaled down decree in favour of the mortgagors, although his own application for relief under the Act was refused.
It is not necessary for purposes of this case to express any opinion as to the correctness or otherwise of these deci sions.
It is enough to say that the ratio decidendi in all these cases is not applicable to the case before us.
In the present case there is no purchaser of the mortgaged property and consequently there is no question of the pur chaser, who is not an agriculturist himself, being entitled to the benefit of a decree which has been scaled down in favour of the agriculturist mortgagor.
Here the judg ment debtors are the mortgagors themselves and according to the plain provisions of the Agriculturists ' Relief Act there could (1) (2) 302 not be any objection to a decree for reduced amount being passed against an agriculturist debtor, while the same relief is not given to his co debtors who do not fulfil that description.
Some exception could undoubtedly be taken to the form and wording of the decree that has been passed in the present case.
The decree, in our opinion, should not only have stated the amount payable by defendant No. 1 and that by defendants 2 to 7 separately but should have expressly directed ,that on payment of the amount directed to be paid by defendants 2 to 7 their interest alone in the mortgaged property would not be liable to be sold.
The further direc tion should have been that in case they did not pay this amount, the whole of the mortgaged property including their interest would be sold for the entirety of the mortgage debt for which defendant No. 1 was made liable.
It is true that the decree contains no such clear directions but reading the decree as a whole and having regard to the actual decision in the case, this must be taken to be its plain implica tions.
The subsequent agreement between the parties arrived at in course of the execution proceedings by which the decreeholders agreed to release the interest of defendant No. 2 and that of defendants 3 to 7 separately on payment of certain specified amounts by 'them proceeds clearly on the assumption that the mortgage debt and the security have been split up, and in our opinion it is not possible for the defendant No. 1 to contend that the mortgage debt remained indivisible.
Our conclusion is that the view taken by the District Judge was right and should not have been disturbed.
The result is that the appeal is allowed, the order of the High Court is set aside and that of the District Judge restored.
We make no order as to costs of this appeal.
Appeal allowed.
| Under the Madras Agriculturists ' Relief Act, 1938, a mortgage decree can be sealed down in favour of some of the judgment debtors alone, while as regards the others it is kept intact.
In a suit to enforce a mortgage executed by defendant No. 1 on his own behalf and on behalf of defendants Nos. 2 to 7, the defendant No. 1 remained ex parte, and the others contested the suit.
A decree for Rs. 1,08,098 was passed by the trial court.
The Madras Agriculturists ' Relief Act, 1938, was passed during the pendency of an appeal and cross appeal, and on the application of defendants Nos. 2 to 7 under the said Act the amount of the decree was sealed down to Rs. 49,255 so far as defendants Nos. 2 to 7 were con cerned.
So far as defendant No. 1 was concerned the decree for the full amount remained as it was.
Defendant No. 1 thereupon applied for scaling down, but his 293 application was rejected.
Defendants Nos. 2 to 7 deposited certain amounts and got their properties released.
Defend ant No. 1 deposited the balance of the amount that remained due under the decree as scaled down on the application of defendants Nos. 2 to 7, and prayed that full satisfaction of the decree may be recorded.
The Subordinate Judge rejected this application but the High Court, on appeal, held that defendant No. 1 was entitled to the benefit of the scaling down in favour of defendants Nos. 2 to 7, as the mortgage debt was one and indivisible.
On further appeal: Held, that the ratio decidendi of the cases in which it was held that a purchaser of mortgaged properties was enti tled to the benefit of a decree which has been scaled down, even though the purchaser himself was not an agriculturist was not applicable to the present case.
According to the plain provisions of the Act, there was no objection to a decree for a reduced amount being passed against an agricul turist debtor, while the same relief is not given to his co debtors, and defendant No. 1 was not entitled to claim the benefit of the scaling down of the decree debt in favour of defendants No. 2 to 7.
Judgment of the Madras High Court reversed.
Ramier vs Srinivasiah ( referred to.
Arunachalam Pillai vs Seetharam (119413 1 M.L.J. 561), Pachigola vs Karatam ( , Subramaniam vs Ramachandra ( distinguished.
|
Appeal from a judgment and decree of the High Court of Judicature at Patna dated 14th February, 1946, in Appeal from Original Decree No. 117 of 1942 arising out of Title Suit No. 9 of 1939: Civil Appeal No. 40 of 1950.
S.C. Misra for the appellant.
N.C. Chatterjee (P. B. Gangoli, with him) for the re spondent.
154 1951.
February 5.
The judgment of the Court was deliv ered by MAHAJAN J.
This appeal arises out of Suit No. 9 of 1939 instituted in the Court of the Subordinate Judge of Palamau by the appellants against the respondents for a number of declarations in respect to the title to certain lands and for an injunction restraining the respondents from proceed ing with a rent suit.
The suit was decreed by the Subordi nate Judge but on appeal this decision was reversed by the High Court of Judicature at Patna and the appellants ' suit was dismissed.
The salient facts of the case are as follows: Village Darha belonged to a family of Pathaks as their ancestral lakhraj.
Over a hundred years ago the Pathaks granted the entire village in mokarrari to the ancestors of the family of Singhas (defendants ' first and second parties) at an annual jams of Rs. 24.
The mokarrari interest eventually devolved on three branches of the Singha family, each branch getting in the following proportions: Parameshwar Dayal and others, defendants ' first party, to the extent of six annas; Bisheswar Dayal Singh, defendants ' second party, to the extent of eight annas; and Madho Saran Singh, to the extent of two annas.
Subsequently, the two anna share of Madho Saran Singh was purchased by Hiranand Jha, father of the plaintiffs, jointly with.
Durganand Jha and Dharam Dayal.
Dharam Dayal was a mere benamidar for Hiranand Jha.
On the 5th June, 1916, Bisheshwar Dayal Singh purchased six anna share in the lakhraj interest from Deolal Pathak and others and on the 9th February, 1917, he purchased another two anna share from Mandil Pathak.
By virtue of these purchases he came to own the lakhraj interest to the extent of eight anna share.
He already held the mokarrari interest to the same extent which had devolved on him by inheritance.
Some time in the year 1917 or 1918 Hiranand Jha and Durganand Jha, who had acquired by purchase two anna mokar rari interest of Madho Saran Singh, 155 purchased in execution of a rent decree the raiyati interest in the whole village and came into possession of it.
They thus became mokarraridars of two anna share and raiyats of sixteen annas of the village lands.
In the year 1918, Title Suit No. 59 of 1918 was insti tuted in the court of the Subordinate Judge of Palamau for partition of the lands situate in several villages and belonging to the family of the defendants ' first and second parties.
The Jhas were impleaded as defendants in ' the suit, being co sharers in part of the property in suit.
This suit was decreed in the year 1921, and in the final partition an allotment of two annas share in Darha village was made in their favour.
The remaining fourteen anna share excluding khatian 1, 3 and 6 was allotted to the defendants ' first party.
These three khatians were allotted to Bisheshwar Dayal Singh and in exchange for the remaining portions of his interest in that village he was given some property in village Holeya.
The result of the partition proceedings was that the defendants ' first party came to hold fourteen anna mokarrari interest in village 'Darha, Bisheshwar Dayal Singh 's interest was limited to three khatians only, and the Jhas got a separate allotment for their two anna share in the mokarrari.
It appears that some time about the year 1926 the lakhraj interest holders, i.e., the Pathaks and Bisheshwar Dayal Singh, were in default in the payment of the cess due to Government.
On the 17th August, 1926, pro ceedings were taken against them for recovery of the cess and their interest was sold in execution of a certificate on the 18th October, 1927, to one Bijainandan Sahay.
The sale obviously was of the lakhraj interest.
This was confirmed on the 19th December, 1927, and a sale certificate was issued on the both March, 1928.
This was followed by deliv ery of possession on 15th July, 1928.
Possession was ob tained by one Kamta Prasad who had acquired this interest from Bijainandan Sahay on the 20th April, 1928.
On the 1st May, 1933, Kamta Prasad transferred his interest in the village to the plaintiffs who thus became proprietors of sixteen anna share in the village and mokarraridars as to two anna 156 share and raiyats of the entire sixteen annas in the whole village.
On the 21st September, 1934, the defendants ' first party as mokarraridars brought a suit against the plaintiffs for arrears of raiyati rent for the years 1338 39 F. to the extent of six annas share and for the years 134041 F. to the extent of fourteen anna share claiming that under the parti tion decree they got a fourteen anna share in the mokarrari interest in the village.
Plaintiffs contested the suit alleging that Bisheshwar 's mokarrari interest had merged in the lakhraj interest that was purchased by him from the Pathaks in the years 1916 17, and that by the sale under the Government 's certificate his whole eight anna interest in the village including both the lakhraj and the mokarrari had passed on to the plaintiffs and that the defendants ' first party could only claim rent from them to the extent of the six anna share in the mokarrari.
This plea was disallowed and the defendants ' first party 's claim for rent was decreed in full.
The decree was upheld on appeal and second appeal.
The question of title was, however, left open.
In the year 1938 another suit for rent was filed by the defendants ' first party as mokarraridars to recover fourteen anna share of the rent for the years subsequent to fasli 1341.
As a result of this suit, the plaintiffs brought the present suit for declaration and injunction on the allegation that the eight anna mokarrari interest of Bisheshwar Dayal Singh had merged in his lakhraj interest, that by the certificate sale Bisheshwar Dayal Singh lost all his interest in the village both lakhraj and mokarrari by reason of merger, that the partition decree of the year 1921 was illegal and in any case, under that decree the defendants ' first party got only six anna mokarrari interest and were entitled to realize rents from the tenants only to that extent.
An injunction was also claimed restraining the defendants from proceeding with the rent suit.
In the plaint, it was alleged that there was a private partition between the mokarraridars by virtue of which the lands of village Darha were divided between the three sets of mokarraridars, each set being 157 in separate possession of its own separate and defined shares.
It was also pleaded that there was another parti tion between the proprietors of the lakhrai interest, that is, between Bisheshwar Dayal Singh on the one hand and Deolal Pathak, Neman Pathak and Surajnath Pathak on the other, by virtue of which the lands that were in mokarrari patties of Parmeshwar Dayal Singh and others and Hiranand Jha and Durganand Jha fell in the patti of Deolal Pathak and others, while, the lands that were in the mokarrari patti of the defendants ' second party fell in his proprietary lakhraj patti and that as a result of these partitions the mokarrari interest of the defendants ' second party merged in his lakhraj interest and under a certificate sale the whole of his interest passed to the plaintiffs.
The trial Judge held that both the partitions alleged by the plaintiffs in paragraphs 5 and 8 of their plaint were proved and that the mokarrari interest of Bisheshwar Dayal Singh merged in his lakhraj interest and that at the certif icate sale the purchaser acquired his complete interest both lakhraj and mokarrari along with the eight anna lakhraj interest of the Pathaks and that the defendants ' first party were mokarraridars of six anna interest in the village and to that extent were entitled to a decree in their rent suit and could not claim a decree for rent to the extent of fourteen anna share.
The High Court in appeal held that none of the partitions alleged by the plaintiffs were proved and that the mokarrari interest of eight annas could not merge in the lakhrai interest of sixteen annas held jointly by Bisheshwar Dayal Singh with the Pathaks.
As a result of this decision the plaintiffs ' suit was dismissed.
In this appeal it was contended by the learned counsel for the appellants that the High Court had erroneously held that the two partitions set up by the plaintiffs in para graphs 5 and 8 had not been proved.
It was argued that the evidence on the record, both documentary and oral, fully established the fact of the two partitions and that in view of these partitions it should have been held that Bisheshwar Dayal Singh 158 became separate owner of eight anna lakhraj interest and in that interest his mokarrari interest of eight annas merged, and that under the certificate sale the whole of this inter est passed on to the purchaser in execution and that being so, the defendants ' first party could only maintain a suit for recovery of rent from the raiyats to the extent of their six anna mokarrari interest.
In our opinion, this appeal can be disposed of on a short point without taking into consideration the respective contentions of the parties raised before us or urged in the two courts below.
The plaintiffs ' case rests solely on the allegation of merger of the eight anna lakhraj interest of Bisheshwar Dayal Singh with his mokarrari interest to the same extent.
It, however, seems to us that there was no scope for the application of the doctrine of merger to the facts disclosed by the plaintiffs in their plaint.
If the lessor purchases the lessee 's interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessor 's interest.
In such a case the leasehold and the reversion cannot be said to coincide.
It was the plaintiffs ' case that mauza Darha was orginally granted in mokarrari under a single contract of lease and it was by inheritance that the lessee 's interest devolved on three branches of the family, Bisheshwar Dayal Singh getting an interest of eight annas in the whole of the leasehold.
He then purchased a six anna interest in the entire reversion in the year 1916 and another two anna interest in it in the year 1917.
By these purchases he became a joint owner in the entire lakhraj holding to the extent of a moiety.
He, however, never came to own the entire lakhraj interest in the village or the entire mokarrari interest therein.
There was thus no coalescence of the interest of the lessor and the lessee in the whole of the estate which was subject to lakhraj and mokarrari interests and that being so, the mokarrari interest of Bisheshwar Dayal Singh did not merge in his lakhrai interest.
159 Mere purchase by Bisheshwar Dayal Singh of portions of the lakhrai interest could not bring about an extinction of the lease or break its integrity as he was only one of the several joint holders of the mokarrari interest.
An inter se partition of the mokarrari interest amongst the mokarrari dars as alleged by the plaintiffs could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant, and qua the landlord they constitute one person, each constituent part of which possesses certain common rights in the whole and is liable to discharge common obligations in its entirety.
In the words of Lord Halsbury in White vs Tyndall(1), the parties to whom a demise is made hold as tenants in common but what they covenant to pay is one rent, not two rents and not each to pay half a rent but one rent.
There is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the covenants running with the land.
In law, therefore, an inter se partition of the mokarrari interest could not affect the integrity of the lease and it could not be said that Bisheshwar Dayal Singh under the alleged partition became a mokarraridar under another con tract of lease.
Such partitions amongst several lessees inter se are usually made for convenience of enjoyment of the leasehold but they do not in any way affect the integri ty of the tenancy or make each holder of an interest in it as a separate holder of a different tenancy.
In the present case there was not even an allegation that the tenancy was severed and the several tenancies came into existence as a result of the partition qua the landlord.
Similarly the allegation of partition inter se among the several owners of the lakhraj holding could not in any way affect the integri ty of the lease in the absence of an allegation of a fresh contract between the split up owners of the holding and the different owners in the mokarrari interest.
The lakhraj holding in the village still remains a single holding and it was not alleged that it was split up in different holdings. 'All owners (1) 13 App.
263 21 160 of the lakhraj interest are jointly responsible for payment of the cess to Government and it was because of their de fault in payment of the cess that the whole lakhraj interest was sold in the certificate sale.
In this situation none of the conditions necessary for the application of the doctrine of merger can be said to have been made out by the allega tions made in the plaint.
On the plaintiffs ' own case the lease is still a live one in respect of the six anna inter est of the defendants ' first party and in these circum stances it is not possible to hold that it has become ex tinct to the extent of eight anna interest of Bisheshwar Dayal Singh in the absence of any allegation that any fresh contract, express or implied, was arrived at between the parties.
The leasehold has not in any way been drowned in the reversion and both lakhraj and mokarrari interest are still intact.
For the reasons given above we agree with the decision of the High Court that Bisheshwar Dayal Singh 's interest in the mokarrari did not merge in his lakhraj interest and that under the certificate sale it did not pass to the execution purchaser; on the other hand, it vested in the defendants ' first party by reason of the family partition and they became entitled as mokarraridars to recover rent from the plaintiffs ' raiyats to the extent of fourteen annas share.
All that passed at the certificate sale to the execu tion purchaser and subsequently to the plaintiffs was merely the lakhraj interest of the Pathaks and of Bisheshwar Dayal Singh and it could not be that at this sale qua one judg ment debtor a larger interest passed to the execution pur chaser than in respect of the other debtor.
In view of our decision that the doctrine of merger has no application to the facts of the case, the plaintiffs ' case is bound to fail.
We accordingly hold that there is no substance in this appeal and we dismiss it with costs.
Appeal dismissed.
| If a lessor purchases the whole of the lessee 's interest, the lease is extinguished by merger, but there can be no merger or extinction where one of several joint holders of the mokarrari interest purchases portion of the lakhraj interest.
A partition inter se amongst several mokarraridars does not in any way affect the integrity of the tenancy or make each holder of an interest in it a separate holder of a different tenancy, and notwithstanding such partition the mokarraridars remain liable qua the lessor for the payment of the whole rent as one tenant.
White vs Tyndall (13 App.
Cas. 263) referred to.
|
No. XIII of 1950.
Application under article 32 (1) of the Constitution of India for a writ of habeas corpus against the detention of the appellant in the Madras jail in pursuance of an order of detention made under the .
The material facts of the case and arguments of counsel are set out in detail in the judgments.
The relevant provisions of the , are printed below.
Short title, extent and duration.
This Act may be called the .
(2) It extends to the whole of India . . (3) It shall cease to have effect on the 1st day of April, 1951, as respects things done or omitted to be done before that date.
2. Definitions.
In this Act, unless the context other wise requires, (a) "State Government" means, in relation to a Part C State, the Chief Commissioner of the State; and (b) "detention order" means an order made under Section 3. 3.
Power to make orders detaining certain persons. (1) The Central Government or the State Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India foreign power, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services to the community, or (b) if satisfied with respect to any person who is a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India it is necessary so to do, make an order directing that such person be detained.
(2) Any District Magistrate or Sub Divisional Magistrate, or Presidency town, the Commissioner of Police, may, if satisfied provided in sub clauses (ii) and (iii) of clause (a) of sub section (1), exercise the power conferred by the said sub section.
(3) When any order is made under this section by a Dis trict Magistrate, Sub Divisional Magistrate or Commissioner of Police, he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessi ty for the order.
Grounds of order of detention to be disclosed to persons affected by the order. (1) When a person is de tained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order his been made, and shall afford him the earliest opportunity of making a representa tion against the order, in a case where such order has been made by the Central Government, to that Government, and in a case where it has been made by a State Government or an officer subordinate thereto, to the State Government.
94 11.
Confirmation of detention order.
In any case where the Advisory Board has reported that* there is in Rs opinion suffcient cause for the detention of the person concerned, the Central Government or the State Government.
as the case may be, may confirm the detention order and continue the detention of the person concerned for ' such period as it thinks fit.
Duration of detention in certain cases. (1) Any person detained in any of the following classes of cases or under 'my of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained wish a view to preventing him from acting in any manner prejudicial to (a) the defence of India, relations of India with foreign powers or the security of India; or (b) the security of a State or the maintenance of public order.
* * * 14.
Disclosure of grounds of detention, etc. (1) No court shall, except for the purpose of a prosecution for an offence punishable under sub section (9,), allow any state ment to be made, or any evidence to be given.
before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by 'him against such order; and notwithstanding anything contained in any other law, no court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that par of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section (1): Provided that nothing in this sub section shall apply to a disclosure made ' to his legal adviser by a person who is the subject of a detention order.
M. K. Nambiar (section K. Aiyar and V.G. Rao, with him) for the petitioner.
K. Rajah Aiyar, Advocate General of Madras (C. R. Pattabi Raman and R. Ganapathi, with him) lot the State of Madras.
M.C. Setalvad, Attorney General for India (Jindralal, with him) for the Union of India.
95 1950.
May 19.
The following Judgments were delivered.
KANIA C. J This is a petition by the applicant under article 32 (1) of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail.
In the petition he has given various dates showing how he has been under detention since December, 1947.
Under the ordi nary Criminal Law he was sentenced to terms of imprisonment but those convictions were set aside.
While he was tires under detention under one of the orders of the Madras State Government, on the 1st of March, 1950, he was served with an order made under section 3 (1) of the , IV of 1950.
He challenges the legality of the order as it is contended that Act IV of 1950 contravenes the provisions of articles 13, 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Con stitution.
He has also challenged the validity of the order on the ground that it is issued mala fide.
The burden of proving that allegation is on the applicant.
Because of the penal provisions of section 14 of the impugned Act the applicant has not disclosed the grounds, supplied to him, for his detention and the question of mala fides of the order therefore cannot be gone into under this petition.
The question of the validity of Act IV of 1950 was argued before us at great length.
This is the first case in which the different articles of the Constitution of India contained in the Chapter on Fundamental Rights has come for discussion before us.
The Court is indebted to the learned counsel for the applicant and the Attorney General for their assistance in interpreting the true meaning of the relevant clauses of the Constitution.
In order to appreciate the rival contentions it is useful first to bear in mind the general scheme of the Constitution.
Under article 53 of the Constitution the executive power of the Union is vested in the President and is to be exercised by him in accordance with the 96 Constitution either directly or through officers subordinate to him.
The legislative powers of the Union are divided between the Parliament and Legislatures of the States.
The ambit and limitations on their respective powers are found in article 246 read with article 245, Schedule VII, Lists 1,2 and 3 of the Constitution.
For the Union of India the Supreme Court is established and its powers and jurisdiction are set out in articles 124 to 147.
This follows the pat tern of the Government of India Act, 1935, which was the previous Constitution of the Government of India.
Unlike the American Constitution, there is no article vesting the judicial power of the Union of India in the Supreme Court.
The material points substantially altering the edifice are first in the Preamble which declares india a Sovereign Democratic Republic to secure to all its citizens justice, liberty and equality and to promote among them all, frater nity.
Part III of the Constitution is an important innova tion.
It is headed "Fundamental Rights.
" In that Part the word "State" includes both the Government of the Union and the Government of the States.
By article 13 it is expressly provided that all laws in force in the territory of India, immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of this Part, to the extent of such inconsistency, are void.
There fore, all laws in operation in India on the day the Consti tution came into force, unless otherwise saved, to the extent they are inconsistent with this Chapter on Fundamen tal Rights, become automatically void.
Under article 13 (2) provision is made for legislation after the Constitution comes into operation.
It is there provided that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contraven tion of this clause shall to the extent of the contraven tion, be void.
Therefore, as regards future legislation also the Fundamental Rights in Part III have to be respected and, unless otherwise saved by the provisions of the Consti tution, they will be void to the extent they contravene the provisions of Part III.
Under article 245 (1) the legisla tive powers conferred under 97 article 246 are also made "subject to the provisions of this Constitution," which of course includes Part III dealing with the Fundamental Rights.
The term law in article 13, is expressed to be wide enough to include Acts, Ordinances, Orders, Bye laws, Rules, Regulations and even custom or usage having, in the territory of India, the force of law.
The rest of this Part is divided in seven divisions.
"Right to Equality" is found in articles 14 18, "Eight to Freedom" in articles 19 22, "Right against Exploitation" in articles 23 and 24, "Right to Freedom of Religion" in articles 25 28, "Cultural and Educational Rights" in articles 29 and 30, "Right to Property" in article 31 and "Right to Constitu tional Remedies" in articles 32 35.
In this case we are directly concerned only with the articles under the caption "Right to Freedom" (19 22) and article 32 which gives a remedy to enforce, the rights conferred by this Part.
The rest of the articles may have to be referred to only to assist in the interpretation of the above mentioned arti cles.
It is obvious that by the insertion of this Part the powers of the Legislature and the Executive, both of the Union and the States, are further curtailed and the right to enforce the Fundamental Rights found in Part III by a direct application to the Supreme Court is removed from the legislative control.
The wording of article 32 shows that the Supreme Court can be moved to grant a suitable relief, mentioned in article 32 (2), only in respect of the Funda mental Rights mentioned in Part III of the Constitution.
The petitioner is detained under a preventive detention order, made under Act IV of 1950, which has been passed by the Parliament of India.
In the Seventh Schedule of the Constitution, List I contains entries specifying items in respect of which the Parliament has exclusive legislative powers.
Entry 9 is in these terms: "preventive detention for reasons connected with Defence, Foreign Affairs or the Security of India; persons subjected to such detention." List III of that Schedule enumerates topics on which both the Union and the States have concurrent legislative 98 powers.
Entry 3 of that List is in these terms: "Preventive detention for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community; persons subjected to such detention.
" It is not disputed that Act IV of 1950 is covered by these two Entries in List I and List III of the Seventh Schedule.
The contention of the peti tioner is that the impugned legislation abridges or in fringes the rights given by articles 19 21 and is also not in accordance with the permissive legislation on preventive detention allowed under articles 22 (4) and (7) and in particular is an infringement of the provisions of article 22 (5).
It is therefore necessary to consider in detail each of these articles and the arguments advanced in respect thereof.
Article 19 is for the protection of certain rights of freedom to citizens.
It runs as follows : "19.
(1) All citizens shall have the right (a) to free dom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property; and (g) to practise any profession, or to carry on any occupation, trade or business. "(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relat ing to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposts, or prevent the State from making any law imposing, in the interests of public order 99 reasonable restrictions on the exercise of the right con ferred by the said sub clause.
(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause.
(5) Nothing in sub clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restric tions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any pro fession or carrying on any occupation, trade or business.
" Clause (2) specifies the limits up to which the abridge ment of the right contained in 19 (1) (a) may be permitted.
it is an exception.
Similarly clause (3) sets out the limit of abridgement of the right in 19 (1) (b) and clause (4) specifies such limits in respect of the right in 19 (1) (c).
Clause (5) is in respect of the rights mentioned in 19 (1) (d), (e) and (f) and clause (6) is in respect of the rights contained in 19 (1) (g).
It cannot be disputed that the articles collected under the caption "Right to Freedom" have to be considered together to appreciate the extent of the Fundamental Rights.
In the first place it is necessary to notice that 100 there is a distinction between rights given to citizens and persons.
This is clear on a perusal of the provisions of article 19 on the one hand and articles 20, 21 and 22 on the other.
In order to determine whether a right is abridged or infringed it is first necessary to determine the extent of the right given by the articles and the limitations pre scribed in the articles themselves permitting its curtail ment.
The inclusion of article 13 (1) and (2) in the Con stitution appears to be a matter of abundant caution.
Even in their absence, if any of the fundamental rights was infiringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits, invalid.
The existence of article 13 (1) and (2) in the Constitution therefore is not material for the decision of the question what fundamental right is given and to what extent it is permitted to be abridged by the Constitution itself.
As the preventive detention order results in the deten tion of the applicant in a cell it was contended on his behalf that the rights specified in article 19 (1) (a), (b), (c), (d), (e) and (g) have been infringed.
It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub clauses (b), (c), (d), (e) and (g).
Although this argu ment is advanced in a case which deals with preventive detention, if correct, it should be applicable in the case of punitive detention also to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code.
So considered, the argument must clearly be rejected.
In spite of the saving clauses (2)to(6) permitting abridge ment of the rights connected with each of them, punitive detention under several sections of the Penal Code, e.g., for theft, cheating, forgery and even ordinary assault, will be illegal. 'Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided.
In my opinion, such result is clearly not the outcome of the Constitution.
The article has to be read without any pre conceived notions.
So read, it clearly means 101 that the legislation to be examined must be directly in respect of one of the rights mentioned in the subclauses.
If there is a legislation directly attempting to control a citizen 's freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise.
If, however, the legisla tion is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these subclauses is abridged, the question of the application of article 19 does not arise.
The true approach is only to consider the directness of the legisla tion and not what will be the result of the detention other wise valid, on the mode of the detenue 's life.
On that short ground, in my opinion, this argument about the in fringement of the rights mentioned in article 19 (1) gener ally must fail.
Any other construction put on the article, it seems to me.
will be unreasonable.
It was next urged that while this interpretation may meet the contention in respect of rights under article 19 (1) (a), (b), (c), (e) and (g), the right given by article 19 (1) (d) is left untouched.
That sub clause expressly gives the right "to move freely throughout the territory of India.
" It was argued that by the confinement of the peti tioner under the preventive detention order his right to move freely throughout the territory of India is directly abridged and therefore the State must show that the im pugned legislation imposes only reasonable restrictions on the exercise of that right in the interests of the general public or for the protection of the interests of any Sched uled Tribe, under article 19 (5).
The Court is thus en joined to inquire whether the restrictions imposed on the detained person are reasonable in the interests of the general public.
Article 14 of the Constitution gives the right to equality in these terms: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
" 102 It was argued that the words "within the territory of India" are unnecessary in that article because the Parlia ment is supreme to make laws operative only within the territory of India.
Without those words also the article will bear the same meaning.
Similarly, it was urged that the words "territory of India" in article 19 (1) (d) may be treated as superfluous, and preventive detention would thus be an abridgement of the right to move freely.
In my opin ion, this rule of construction itself is faulty.
Because certain words may be considered superfluous (assuming them to be.
so in article 14 for the present discussion) it is quite improper to assume that they are superfluous wherever found in the rest of the Constitution.
On the contrary, in my opinion, reading sub clause (d) as a whole the words "territory of India" are very important.
What is sought to be protected by that sub clause is the right to freedom of movement, i.e., without restriction, throughout the terri tory of India.
Read with their natural grammatical. mean ing the sub clause only means that if restrictions are sought to be put upon movement of a citizen from State to State or even within a State such restrictions will have to be tested by the permissive limits prescribed in clause (5) of that Article.
Sub clause (d) has nothing to do with detention, preventive or punitive.
The Constitution men tions a right to freedom of movement throughout the territo ry of India, Every word of that clause must be given its true and legitimate meaning and in the construction of a Statute, particularly a Constitution, it is improper.
to omit any word which has a reasonable and proper place in it or to refrain from giving effect to its meaning.
This position is made quite clear when clause (5) is read along with this sub clause.
It permits the imposition of reasona ble.
restrictions on the exercise of such right either in the interest of general public or the protection of the interest of any Scheduled Tribe.
It is difficult to conceive of a reasonable restriction necessary in the interests of the general public for confining a person in a cell.
Such restriction may be appropriate to prevent a person from going from one Province to another or 103 one area to another, having regard to local conditions prevailing in particular areas.
The point however is made abundantly clear by the alternative, viz., for the protec tion of the interests of any Scheduled Tribe.
What protec tion of the interests of a Scheduled Tribe requires the confinement of a man in a cell ? On the other hand, pre venting the movement of a person from one part of the terri tory of India to another and the question of reasonable restriction imposed to protect the interests of a Scheduled Tribe is clearly intelligible and often noticed in the course of the administration of the country.
Scheduled Tribes have certain rights, privileges and also disabili ties.
They have their own civilization, customs and mode of life and prevention of contact with persons or groups with a particular Scheduled Tribe may be considered undesirable during a certain time or in certain conditions.
The legis lative history of India shows that Scheduled Tribes have been given a separate place on these grounds.
Reading article 19 as a whole, therefore, it seems to me that it has no application to a legislation dealing with preventive or punitive detention as its direct object.
I may point out that the acceptance of the petitioner 's argument on the interpretation of this clause will result in the Court being called upon to decide upon the reasonableness of several provisions of the Indian Penal Code and several other penal legislations as abridging this right.
Even under clause (5), the Court is permitted to apply the test of reasonable ness of the restrictions or limits not generally, but only to the extent they are either in the interests of the gener al public, e.g., in case of an epidemic, riot, etc., or for the protection of the interests of any Scheduled Tribe.
In my opinion, this is not the intention of the Constitution.
Therefore the contention urged in respect of article 19 fails.
It was argued that article 19 and article 21 should be read together as implementing each other.
Article 19 gave substantive rights to citizens while article 21 prescribed that no person can be deprived of his life and personal liberty except by procedure 104 established by law.
Even so, on a true construction of article 19, it seems to me that both preventive and punitive detention are outside the scope of article 19.
In order to appreciate the true scope of article 19 it is useful to read it by itself and then to consider how far the other articles in Part HI affect or control its meaning.
It is the first article under the caption "Right to Freedom .
" It gives the rights mentioned in 19 (1) (a) to (g) to all citizens of India.
These rights read by them selves and apart from the controls found in clauses (2) to (6) of the same article, specify the different general rights which a free citizen in a democratic country ordi narily has.
Having specified those rights, each of them is considered separately from the point of view of a similar right in the other citizens, and also after taking into consideration the principle that individual liberty must give way, to the extent it is necessary, when the good or safety of the people generally is concerned.
Thus the right to freedom of speech and expression is given by 19 (1) (a).
But clause (2) provides that such right shall not prevent the operation of a law which relates to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.
Clause (2) thus only emphasizes that while the individual citizen has a free right of speech or expression, he cannot be permit ted to use the same to the detriment of a similar right in another citizen or to the detriment of the State.
Thus, all laws of libel, slander, contempt of Court or laws in respect of matters which offend against decency or morality are reaffirmed to be operative in spite of this individual right of the citizen to freedom of speech and expression.
Simi larly; that right is also subject to laws which prevent undermining the security of the State or against activities which tend to overthrow the State.
A similar analysis of clauses f3) and (4) shows similar restrictions imposed on similar grounds.
In the same way clause (5) also permits reasonable restrictions in the exercise of the right to freedom of movement throughout the territory of India, the right to reside and settle in any part of the 105 territory of India or the right to acquire, hold and dispose of property, being imposed by law provided such reasonable restrictions on the exercise of such right are in the inter est of the general ' public.
The Constitution further pro vides by the same clause that similar reasonable restric tions could be put on the exercise of those rights for the protection of the interest of a Scheduled Tribe.
This is obviously to prevent an argument being advanced that while such restriction could be put in the interest of general public, the Constitution did not provide for the imposi tion of such restriction to protect the interests of a smaller group of people only.
Reading article 19 in that way as a whole the only concept appears to be that the specified rights of a free citizen arc thus controlled by what the framers of the Constitution thought were necessary restric tions in the interest of the rest of the citizens.
Reading article 19 in that way it appears to me that the concept of the right to move freely throughout the territo ry of India is an entirely different concept from the right to "personal liberty" contemplated by article 21.
"Person al liberty" covers many more rights in one sense and has a restricted meaning in another sense.
For instance, while the right to move or reside may be covered by the expression , 'personal liberty" the right to freedom of speech (men tioned in article 19 (1) (a)) or the right to acquire, hold or dispose of property (mentioned in 19 (1) (f)) cannot be considered a part of the personal liberty of a citizen.
They form part of the liberty of a citizen but the limita tion imposed by the word "personal"leads me to believe that those rights are not covered by the expression personal liberty.
So read there is no conflict between articles 19 and 21.
The contents and subject matters of articles 19 and 21 are thus not the same and they proceed to deal with the rights covered by their respective words from totally different angles.
As already mentioned in respect of each of the rights specified in sub clauses of article 19 (1) specific limitations in respect of each is provided, while the expression "personal 106 liberty" in article 21 is generally controlled by the gener al expression "procedure established by law.
" The Constitu tion, in article 19, and also in other articles in Part III, thus attempts to strike a balance between individ ual liberty and the general interest of the society.
The restraints provided by the Constitution on the legislative powers or the executive authority of the State thus operate as guarantees of life and personal liberty of the individu als.
Deprivation (total loss) of personal liberty, which inter alia includes the right to eat or sleep when one likes or to work or not to work as and when one pleases and sever al such rights sought to be protected by the expression "personal liberty" in article 21, is quite different from restriction (which is only a partial control) of the right to move freely (which is relatively a minor right of a citizen) as safeguarded by article 19 (1) (d).
Deprivation of personal liberty has not the same meaning as restriction of free movement in the territory of India.
This is made clear when the provisions of the Criminal Procedure Code in Chapter VIII relating to security of peace or maintenance of public order are read.
Therefore article 19 (5) cannot apply to a substantive law depriving a citizen of personal liberty.
I am unable to accept the contention that the word "deprivation" includes within its scope "restriction" when interpreting article 21.
Article 22 envisages the law of preventive detention.
So does article 9.46 read with Schedule Seven, List I, Entry 9, and List III, Entry 3.
Therefore, when the subject of preventive detention is specifically dealt with in the Chapter on Fundamental Rights I do not think it is proper to consider a legisla tion ' permitting preventive detention as in conflict with the rights mentioned in article 19 (1).
Article 19 (1) does not purport to cover all aspects of liberty or of personal liberty.
In that article only certain phases of liberty are dealt with. "Personal liberty" would primarily mean liberty of the physical body.
The rights given under article 19 (1) do not directly come under that description.
They are rights which accompany the freedom or liberty of the person.
By their very 107 nature they are freedoms of a person assumed to be in full possession of his personal liberty.
If article 19 is considered to be the only article safeguarding personal liberty several well recognised rights, as for instance, the right to eat or drink, the right to work, play, swim and numerous other rights and activities and even the right to life will not be deemed protected under the Constitution.
I do not think that is the intention.
It seems to me improper to read article 19 as dealing with the same subject as article 21.
Article 19 gives the rights specified therein only to the citizens of India while arti cle 21 is applicable to all persons.
The word citizen is expressly defined in the Constitution to indicate only a certain section of the inhabitants of India.
Moreover, the protection given by article 21 is very general.
It is of "law" whatever that expression is interpreted to mean.
The legislative restrictions on the law making powers of the legislature are not here prescribed in detail as in the case of the rights specified in article 19.
In my opinion there fore article should be read as a separate complete article.
Article 21 which is also in Part III under the caption "Right to Freedom" runs as follows : "No person shall be deprived of his life or personal liberty except according to procedure established by law.
" This article has been strongly relied upon by the peti tioner in support of his contention that the impugned Act is ultra vires the Parliament as it abridges the right given by this article to every person.
It was argued that under the Constitution of the United States of America the corre sponding provision is found in the 5th and 14th Amendments where the provision, inter alia, is "that no person shall be deprived of his life or liberty or property except by due process of law.
" It was contended for the petitioner that the Indian Constitution gives the same protection to every person in India, except that in the 'United States "due process of law" has been .construed by its Supreme Court to cover both 108 substantive and procedural law, while in India only the protection of procedural law is guaranteed.
It was contend ed that the omission of the word "due" made no difference to the interpretation of the words in article 21.
The word "established" ' was not equivalent to "prescribed".
It had a wider meaning.
The word "law" did not mean enacted law because that will be no 'legislative protection at all.
If so construed, any Act passed by the Parliament or the State Legislature, which was otherwise within its legislative power, can destroy or abridge this right.
On the same line of reasoning, it was argued that if that was the inten tion there was no necessity to put this as a fundamental right in Part III at all.
As to the meaning of the word "law" it was argued that it meant principles of natural justice.
It meant "jus", i.e., law in the abstract sense of the principles of natural justice, as mentioned in standard works of Jurisprudence, and not "lex", i.e., enact ed law.
Against the contention that such construction will leave the meaning vague, it was argued that four principles of natural justice recognised in all civilized countries were covered, in any event, by the word "law".
They are: (1) An objective test, i.e., a certain, definite and ascer tainable rule of human conduct for the violation of which one can be detained; (2) Notice of the grounds of such detention; (3) An impartial tribunal, administrative, judi cial or advisory, to decide whether the detention is justi fied; and (4) Orderly course of procedure, including an opportunity to be heard orally (not merely by making a written representation) with a right to lead evidence and call witnesses.
In my opinion, this line of approach is not proper and indeed is misleading.
As regards the American Constitution its general structure is noticed in these words in "The Government of the United States" by Munro (5th Edition) at page 53: "The architects of 1787 built only the basement.
Their descendants have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished.
Or, to change the metaphor, it has a fabric which, to use the words of 109 James Russell Lowell, is still being 'woven on the roaring loom of time '.
That is what the framers of the original Constitution intended it to be.
Never was it in their mind to work out a final scheme for the government of the country and stereotype it for all time.
They sought merely to pro vide a starting point.
" The same aspect is emphasized in Professor Willis 's book on Constitutional Law and Cooley 's Constitutional Limitations.
In contrast to the American Constitution, the Indian Constitution is a very detailed one.
The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legisla tures.
The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services.
It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or article 246, except to the extent one is legitimately and clearly limited by the other.
Four marked points of distinction between the clause in the American Constitution and article 21 of the Constitution of India may be noticed at this stage.
The first is that in U.S A. Constitution the word "liberty" is used simpliciter while in India it is restricted to personal liberty.
(2) In U.S.A. Constitution the same protection is given to proper ty, while in India the fundamental right in respect of property is contained in article 31.
(3) The word "due" is omitted altogether and the expression "due process of law" is not used deliberately.
(4) The word "established" is used and is limited to "Procedure" in Our article 21.
The whole argument of the petitioner is rounded on the meaning of the word "law" given to it by the Supreme Court of America.
It seems unnecessary to embark on a discussion of the powers and jurisdiction of the Supreme Court of the 'U.S.A. and how they came to enlarge or abridge the meaning of law in the expression "due process of law".
Without going into details, I think there is no justification to adopt the meaning of the word "law" as interpreted by the Supreme Court of U.S.A. in the expression "due 110 process of law" merely because the word "law" is used in article 21.
The discussion of the meaning of "due process of law" found in Willis on Constitutional Law and in Coo ley 's Constitutional Limitations shows the diverse meanings given to that expression at different times and under dif ferent circumstances by the Supreme Court of U.S.A., so much so that the conclusion reached by these authors is that the expression.
means reasonable law according to the view of the majority of the judges of the Supreme Court at a particular time holding office.
It also shows how the meaning of the expression was widened or abridged in certain decades.
Moreover, to control the meaning so given to that expression from time to time the doctrine of police powers was brought into play.
That doctrine, shortly put, is that legislation meant for the good of the people generally, and in which the individual has to surrender his freedom to a certain extent because it is for the benefit of the people at large, has not to be tested by the touchstone of the "due process of law" formula.
Our attention was drawn to the debates and report of the drafting committee of the Constituent Assembly in respect of the wording of this clause.
The report may be read not to control the meaning of the article, but may be seen in case of ambiguity.
In The Municipal Council of Sydney vs The Commonwealth(1), it was thought that individu al opinion of members of the Convention expressed in the debate cannot be referred to for the purpose of construing the Constitution.
The same opinion was expressed in United States vs Wong Kim Ark(2).
The result appears to be that while it is not proper to take into consideration the indi vidual opinions of Members of Parliament or Convention to construe the meaning of the particular clause, when a ques tion is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be ' permitted.
In the present case the debates were referred to to show that the expression "due process of law" was known to exist in the American Constitution (1) (2) (169) U.S 649 at 699.
111 and after a discussion was not adopted by the Constituent Assembly in our Constitution.
In Administrator General of Bengal vs Premlal Mullick(1), a reference to the proceedings of the Legislature which resulted in the passing of the Act was not considered legitimate aid in the construction of a particular section.
The same reasons were held as cogent for excluding a reference to such debates in construing an Indian Statute.
Resort may be had to these sources with great caution and only when latent ambiguities are to be resolved.
See Craies ' Statute Law (4th Edition) page 122, Maxwell on Interpretation of Statutes (9th Edition)pp.
28 29 and Crawford on Statutory Construction (1940 Edition) p. 379, article 214.
A perusal of the report of the drafting committee to which our attention was drawn shows clearly that the Constituent Assembly had before it the American article and the expression "due process of law" but they deliberately dropped the use of that expression from our Constitution.
No extrinsic aid is needed to interpret the words of article 21, which in my opinion, are not ambiguous.
Normally read, and without thinking of other Constitutions, the expression "procedure established by law" must mean procedure prescribed by the law of the State.
If the Indian Constitution wanted to preserve to every person the protection given by the due process clause of the Ameri can Constitution there was nothing to prevent the Assembly from adopting the phrase, or if they wanted to limit the same to procedure only, to adopt that expression with only the word "procedural" prefixed to "law.
" However, the correct question is what is the right given by article 21 ? The only right is that no person shall be deprived of his life or liberty except according to procedure established by law.
One may like that right to cover a larger area, but to give such a right is not the function of the Court; it is the function of the Constitution.
To read the word "law" as meaning rules of natural justice will land one in (1) (1895)L.R. 221.
A. 107.
15 15 112 difficulties because the rules of natural justice, as re gards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard.
This is particularly so when in omitting to adopt "due process of law" it was considered that the expression "procedure established by law" made the standard specific.
It can not be specific except by reading the expression as meaning procedure prescribed by the legislature.
The word "law" as used in this Part has different shades of meaning but in no other article it appears to bear the indefinite meaning of natural justice.
If so, there appears no reason why in this article it should receive this peculiar meaning.
Article 31 which is also in Part III and relates to the fundamental rights in respect of property runs as follows : "No person shall be deprived of his property save by authority of law.
" It is obvious that in that clause "law" must mean enact ed law.
The object of dealing with property under a differ ent article appears more to provide the exceptions found in article 31 (2) to (6), rather than to give the word "law" a different meaning than the one given in article 21.
The world "established" according to the Oxford Dictionary means "to fix, settle, institute or ordain by enactment or agree ment.
" The word "established" itself suggests an agency which fixes the limits.
According to the dictionary this agency can be either the legislature or an agreement between the parties.
There is therefore no justification to give the meaning of "jus" to "law" in article 21.
The phrase "procedure established by law" seems to be borrowed from article 31 of the Japanese Constitution.
But other articles of that Constitution which expressly pre serve other personal liberties in different clauses have to be read together to determine the meaning of "law" in the expression "procedure established by law.
" These articles of the Japanese Constitution have not been incorporated in the Constitution of India in the same language.
It is not shown that the word "law" means "jus" in the Japanese Constitution.
In the Japanese Constitution these 113 rights claimed under the rules of natural justice are not given by the interpretation of the words "procedure established by law" in their article 31.
The word "due" in the expression "due process of law" in the American Consti tution is interpreted to mean "just," according to the opinion of the Supreme Court of U.S.A.
That word imparts jurisdiction to the Courts to pronounce what is "due" from otherwise, according to law.
The deliberate omission of the word "due" from article 21 lends strength to the conten tion that the justiciable aspect of "law", i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution.
The omission of the word "due", the limitation imposed by the word "procedure" and the insertion of the word "established" thus brings out more clearly the idea of legislative prescription in the expres sion used in article 21.
By adopting the phrase "procedure established by law" the Constitution gave the legislature the final word to determine the law.
Our attention was drawn to The King vs The Military Governor of the Hair Park Camp ( '), where articles 6 and 70 of the Irish Constitution are discussed.
Under article 6 it is provided that the liberty of the person is inviolable and no person shall be deprived of such except "in accord ance with law" .
In article 70 it is provided that no one shall be tried "save in due course of law" and extraor dinary Courts were not permitted to be established except the Military Courts to try military offences.
The expres sion "in accordance with law" was interpreted to mean not rules of natural justice but as the law in force at the time.
The Irish Court gave the expression "due course of law" the meaning given to it according to the English law and not the American law.
It was observed by Lord Atkin in Eshugbayi Eleko vs Officer Administering the Government of Nigeria C), that in accordance with British Jurispru dence no member of the executive can interfere with the liberty or property of a British subject except when he can support the legality of his act before a Court of justice.
(1) [1924] 2 Irish Reports K.B. 104.
(2) [1931] A.C. (62 at 670.
114 In The King vs The Secretary of State for Home Affairs(1), Scrutton LJ.
observed: "A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction.
" It seems very arguable that in the whole set up of Part III of our Constitution these principles only remain guaranteed by article 21.
A detailed discussion of the true limits of article 21 will not be necessary if article 22 is considered a code to the extent there are provisions therein for preventive detention.
In this.
connection it may be noticed that the articles in Part III deal with different and separate rights.
Under the caption "Right to Freedom" articles 19 22 are grouped but each with a separate marginal note.
It is obvious that article 22 (1) and (2) prescribe limita tions on the right given by article 21.
If the procedure mentioned in those articles is followed the arrest and detention contemplated by article 22 (1) and (2), although they infringe the personal liberty of the individual, will be legal, because that becomes the established legal proce dure in respect of arrest and detention.
Article 22 is for protection against arrest and detention in certain cases, and runs as follows : "22.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2.) Every person who is arrested and detained in custo dy shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply(a) to any person who for the time being is an enemy alien; or (1) at 382.
115 (b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention: Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause 17); or (b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance .of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4); (b) the maximum period for which any person may ,in any class or classes of cases be detained under any law provid ing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4).
" The learned Attorney General contended that the subject of preventive detention does not fall under 116 article 21 at all and is covered wholly by article 22.
According to him, article 22 is a complete code.
I am unable to accept that contention.
It is obvious that in respect of arrest and detention article 22 (1) and (2) provide safeguards.
These safeguards are excluded in the case of preventive detention by article 22 (3), but safe guards in connection with such detention are provided by clauses (4) to (7) of the same article.
It is therefore clear that article 21 has to be read as supplemented by article 22.
Reading in that way the proper mode of construc tion will be that to the extent the procedure is prescribed by article 22 the same is to be observed; otherwise article 21 will apply.
But if certain procedural safeguards are expressly stated as not required, or specific rules on certain points of procedure are prescribed, it seems im proper to interpret these points as not covered by article 22 and left open for consideration under article 21.
To the extent the points are dealt with, and included or excluded,, article 22 is a complete code.
On the points of procedure which expressly or by necessary implication are not dealt with by article 22, the operation of article 21 will remain unaffected.
It is thus necessary first to look at article 22 (4) to (7) and next at the provisions 0 the impugned Act to determine if the Act or any of its provi sions are ultra vires.
It may be noticed that neither the American nor the Japanese Constitution contain provisions permitting preventive detention,.
much less laying down limitations on such right of detention, in normal timeS, i.e., without a declaration of emergency.
Preventive deten tion in normal times,.
i.e., without the existence of an emergency like war,. is recognised as a normal topic of legislation in List I. Entry 9, and List III, Entry 3, of the Seventh Schedule.
Even in the Chapter on Fundamental Rights article 22 envisages legislation in respect of pre ventive detention in normal times.
The provisions of article 22 (4) to (7) by their very wording leave unaffected the large powers of legislation on this point and emphasize particularly by article 22 (7) the power of the Parliament to deprive a person of a right to have his case considered by an advisory board.
Part III and.
117 article 22 in particular are the only restrictions on that power and but for those provisions the power to legislate on this subject would have been quite unrestricted.
Parliament could have made a law without any safeguard or any procedure for preventive detention.
Such an autocratic supremacy of the legislature is certainly cut down by article 21.
There fore, if the legislature prescribes a procedure by a validly enacted law and such procedure in the case of preventive detention does not come in conflict with the express provi sions of Part III or article 22 (4) to (7), the must be held valid notwithstanding that the Court may not fully approve of the procedure prescribed under such Act.
Article 22 (4) opens with a double negative.
Put in a positive form it will mean that a law which provides for preventive detention for a period longer than three months shall contain .a provision establishing an advisory board, (consisting of persons with the qualifications mentioned in sub clause (a)), and which has to report before the expira tion of three months if in its opinion there was sufficient cause for such detention.
This clause, if it stood by itself and without the remaining provisions of article 22, will apply both to the Parliament and the State Legislatures.
The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention, i.e., detention beyond the period of three months, still the detention is not to be permitted beyond the maximum period, if any, prescribed by Parliament under article 22 (7) (b).
Again the whole of this sub clause is made inoperative by article 22 (4) (b) in respect of an Act of preventive detention passed by Parlia ment under clauses (7) (a) .and (b).
Inasmuch as the im pugned Act is an Act of the Parliament purported to be so made, clause 22 (4) has no operation and may for the present discussion be kept aside.
Article 22 prescribes that when any person under a preventive detention law is detained, the authority making the order shall, as soon as may be, commu nicate to such person the grounds on which .
the order has been made and shall afford him the 118 earliest opportunity of making a representation against the order.
This clause is of general operation in respect of every detention order made under any law permitting deten tion.
Article 22 (6) permits the authority making the order to withhold disclosure of facts which such authority consid ers against the public interest to disclose.
It may be noticed that this clause only permits the non disclosure of facts, and reading clauses (5) and (6) together a distinc tion is drawn between facts and grounds of detention.
Article 22 (4) and (7) deal not with the period of detention only but with other requirements in the case of preventive detention also.
They provide for the establishment of an advisory board, and the necessity of furnishing grounds to the detenue and also to give him a right to make a represen tation.
Reading article 22 clauses (4) and (7) together it appears to be implied that preventive detention for less than three months, without an advisory board, is permitted under the Chapter on Fundamental Rights, provided such legislation is within the legislative competence of the Parliament or the State Legislature, as the case may be.
Article 22 (5) permits the detained person to make a representation.
The Constitution is silent as to the person to whom it has to be made, or how it has to be dealt with.
But that is the procedure laid down by the Constitution.
It does not therefore mean that if a law made by the Parliament in respect of preventive detention does not make provision on those two points it is invalid.
Silence on these points does not make the impugned Act in contravention of the Constitution because the first question is what are the rights given by the Constitution in the case of preventive detention.
The contention that the representation should be to an outside body has no support in law.
Even in the Liversidge case the representation had to be made to the Secretary of State and not to another body.
After such representation was made, another advisory board had to consider it, but it was not necessary to make the represen tation itself to a third party.
Article 22 (4) and (7) permit the non establishment of an advisory board expressly in a parliamentary legislation 119 providing for preventive detention beyond three months.
If so, how can it be urged that the nonestablishment of an advisory.
board is a fundamental right violated by the procedure prescribed in the Act passed by the Parliament? The important clause to be considered is article 22 (7).
Sub clause (a) is important for this case.
In the case of an Act of preventive detention passed by the Parliament this clause contained in the Chapter on Fundamental Rights, thus permits detention beyond a period of three months and ex cludes the necessity of consulting an advisory board, if the opening words of the sub clause are complied with.
Sub clause (b) is permissive.
It is not obligatory on the Parliament to prescribe any maximum period.
It was argued that this gives the Parliament a right to allow a person to be detained indefinitely.
If that construction is correct, it springs out of the words of sub clause (7) itself and the Court cannot help in the matter.
Subclause (c) permits the Parliament to lay down the procedure to be followed by the advisory board in an inquiry under sub clause (a) of clause (4).
I am unable to accept the contention that article 22 (4) (a) is the rule and article 22 (7) the exception.
I read them as two alternatives provided by the Constitution for making laws on preventive detention.
Bearing in mind the provisions of article 22 read with article 246 and Schedule VII, List I, Entry 9, and List III, Entry 3, it is thus clear that the Parliament is empowered to enact a law of preventive detention (a) for reasons connected with defence, (b) for reasons connected with foreign affairs, (c) for reasons connected with the security of India; and (under List III), (d) for reasons connected with the security of a State, (e) for reasons connected with the maintenance of public order, or (f) for reasons connect ed with the maintenance of supplies and services essential to the community.
Counsel for the petitioner has challenged the validity of several provisions of the Act.
In respect of the construction of a Constitution Lord Wright in James vs The Commonwealth of Australia(1), (1) (1936) A. 0. 578 at 614.
16 120 observed that "a Constitution must not be construed in any narrow and pedantic sense." Mr. Justice Higgins in Attorney General of New South Wales vs Brewery Employees ' Union (1), observed: "Although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be." In In re The Central Provinces and Berar Act XIV of 1938 (" '), Sir Maurice Gwyer C.J. after adopting these observations said: "especially is this true of a Federal Constitution with its nice balance of jurisdictions.
I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the lan guage of the enactment in the interest of any legal or con stitutional theory or even for the purpose of supplying omissions or of correcting supposed errors.
" There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words.
Where the funda mental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legisla ture we cannot declare a limitation under the notion of hav ing discovered something in the spirit of the Constitution which is not even mentioned in the instrument.
It is diffi cult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority.
It is also stated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a Statute on that ground alone.
But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and (1) at 611 12.
(2) at 37.
121 paramount law settled by the deliberate wisdom of the nation that one can find a safe and.
solid ground for the authority of Courts of justice to declare void ,any legislative enact ment.
Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too 'indefinite either for its own security.
or the protection of private rights.
It was first argued that by section 3 the Parliament had delegated its legislative power to the executive officer in detaining a person on his being satisfied of its necessi ty.
It was urged that the satisfaction must be of the legislative body.
This contention of delegation of the legislative power in such cases has been considered and rejected in numerous cases by our Federal Court and by the English Courts.
It is unnecessary to refer to all those cases.
A reading of the various speeches in Liversidge vs Anderson clearly negatives this contention.
Section 3 of the impugned Act is no delegation of legislative power to make laws.
It only confers discretion on the officer to enforce the law made by the legislature.
Section 3 is also impugned on the ground that it does not provide an objective standard which the Court can utilize for determining whether the requirements of law have been complied with.
It is clear that no such objective standard of conduct can be pre scribed, except as laying down conduct tending to achieve or to avoid a particular object.
For preventive detention action must be taken on good suspicion.
It is a subjective test based on the cumulative effect of different actions, perhaps spread over a considerable period.
As observed by Lord Finlay in The King vs Halliday (2), a Court is the least appropriate tribunal to investigate the question whether circumstances of suspicion exist warranting the restraint on a person.
The contention is urged in respect of preventive detention and not punitive detention.
Before a person can be held liable for an offence it is obvious that he should be in a position to know what he may do or not do, and an omission to do or not to do will result in the State (1) (2) ; at 269.
122 considering him guilty according to the penal enactment.
When it comes however to preventive detention, the very purpose is to prevent the individual not merely from acting in a particular way but, as the sub heads summarized above show, from achieving a particular object.
It will not be humanly possible to tabulate exhaustively all actions which may lead to a particular object.
It has therefore been considered that a punitive detention Act which sufficiently prescribes the objects which the legislature considers have not to be worked up to is.
a sufficient standard to prevent the legislation being vague.
In my opinion, therefore, the argument of the petitioner against section 3 of the impugned Act fails.
It was also contended that section 3 prescribes no limit of time for detention and therefore the legislation is ultra vires.
The answer is found in article 22 (7) (b).
A perusal of the provisions of the impugned Act moreover shows that in section 12 provision is made for detention for a period longer than three months but not exceeding one year in respect of clauses (a) and (b) of that section.
It appears therefore that in respect of the rest of the clauses mentioned in section 3 (1)(a)the detention is not contem plated to be for a period longer than three months, and in such cases a reference to the advisory board under section 9 is contemplated.
Section 7 of the Act which is next challenged, runs on the same lines as article 22 (5) and.
(6) and in my opinion infringes no provision of the Constitution.
It was argued that this gave only the right of making a representation without being heard 'orally or without affording an opportu nity to lead evidence and therefore was not an orderly course of procedure, as required by the rules of natural justice.
The Parliament by the Act has expressly given a right to the person detained under a preventive detention order to receive the grounds for detention and also has given him a right to make a representation.
The Act has thus complied with the requirements of article 22 (s).
That clause, which prescribes what procedure has to be followed as a matter of fundamental right, is silent about the person detained having a right to be heard 123 orally or by a lawyer.
The Constituent Assembly had before them the provisions of clause (1) of the same article.
The Assembly having dealt with the requirements of receiving grounds and giving an opportunity to make a representation has deliberately refrained from providing a right to be heard orally.
If so, I do not read the clause as guarantee ing such right under article 22 (5).
An "orderly course of procedure" is not limited to procedure which has been sanc tioned by settled usage.
New forms of procedure are as much, held even by the Supreme Court of America, due process of law as old forms, provided they give a person a fair opportunity to present his case.
It was contended that the right to make a representation in article 22 (5) must carry with it a right to be heard by an independent tribunal; otherwise the making of a representation has no substance because it is not an effective remedy.
I am unable to read clause (5) of .article 22 as giving a fundamental right to be heard by an independent tribunal.
The Constitution deliberately stops at giving the right of representation.
This is natural because under article 22 (7), in terms, the Constitution permits the making of a law by Parliament in which a reference to an advisory board may be omitted.
To consider the right to make a representation as necessarily including a right to be heard by an independent judicial, administrative or advisory tribunal will thus be directly in conflict with the express words of article 22 (7).
Even according to the Supreme Court of U.S.A. a right to a judicial trial is not absolute.
In the United States vs Ju Toy (1), a question arose about the exclusion from entry into the States, of a Chinese who claimed to be a citizen of the United States.
At page 263 the majority judgment con tains the following passage : " If for the purpose of argument, we assume that the Fifth Amendment applies to him, and that to deny entrance to a citizen is to deprive him ,of liberty, we nevertheless are of opinion that with regard to him due process of law does not require judicial trial: That is the result of the cases which we have cited, and the almost necessary result of the (1) (198) U.S. 253 at 263.
124 power of the Congress to pass exclusion laws.
That the decision may be entrusted to an executive officer, and that his decision is due process of law, was affirmed and ex plained in several cases.
It is unnecessary to repeat the often quoted remarks of Mr. Justice Curtis, speaking for the whole Court, in Den Exden Murray vs Hoboken Land and Im provement Company (1), to.
show that the requirement of a judicial trial does not prevail in every case.
" Again, I am not prepared to accept the ' contention that a right to be heard orally is an essential right of proce dure even according to the rules of natural justice.
The right to make a defence may be admitted, but there is nothing to support the contention that an oral interview is compulsory.
In the Local Government Board vs Arlidge (2), the respondent applied to the Board constituted under the Housing Act to state a special case for the opinion of the High Court, contending that the order was invalid because (1) the report of the Inspector had been treated as a confi dential document and had not been disclosed to the respond ent, and (2) because the Board had declined to give the respondent an opportunity of being heard orally by the person or persons by whom the appeal was finally decided.
The Board rejected the application.
Both the points were urged before the House of Lords on appeal.
Viscount Haldane L.C. in his speech rejected the contention about the necessity of an oral hearing by observing "But it does not follow that the procedure of every tribunal must be.the same.
In the case of a Court of law tradition in this country has prescribed certain principles to which, in the main, the procedure must conform.
But what that procedure is to be in detail must depend on the nature of a tribunal.
" In rejecting the contention about the disclosure of the report of the Inspector, the Lord Chancellor stated: "It might or might not have been useful to disclose this report, but I do not think that the Board was bound to do so.
any more than it would have been bound to disclose all the minutes made on the papers in the office before (1) 18 HO.W. 272 at 280.
(2) 125 a decision was come to .
What appears to me to have been the fallacy of the judgment of the majority in the Court of appeal is that it begs the question at the begin ning by setting up the test of the procedure of a Court of justice instead of the other standard which was laid down for such cases in Board of Education vs Rice (1).
I do not think the Board was bound to hear the respondent orally provided it gave him the opportunities he actually had.
" In spite of the fact that in England the Parliament is supreme I am unable to accept the view that the Parliament in making laws, legislates against the well recognised principles of natural justice accepted as such in all civilized countries.
The same view is accepted in the United States in Federal Communications Commission vs WJR The Goodwill Station (2).
A right to lead evidence against facts suspected to exist is also not essential in the case of preventive deten tion.
Article 22 (6) permits the non disclosure of facts.
That is one of the clauses of the Constitution dealing with fundamental rights.
If even the non disclosure of facts is permitted, I fail to see how there can exist a right to contest facts by evidence and the noninclusion of such procedural right could make this Act invalid.
Section 10 (3) was challenged on the ground that it excludes the right to appear in person or by any lawyer before the advisory board and it was argued that this was an infringement of a fundamental right.
It must be noticed that article 22 (1) which gives a detained person a right to consult or be defended by his own legal practitioner is specifically excluded by article 22 (3) in the case of legislation dealing with preventive detention.
Moreover,.
the Parliament is expressly given power under article 22 (7) (c) to lay down the procedure in an inquiry by an advisory board.
This is also a part of article 22 itself.
If so, how can the omission to give a right to audience be considered against the constitutional rights ? It was pointed out that section 10 (3) prevents even the disclosure of a (1) (2) ; at 276.
126 portion of the report and opinion of the advisory board.
It was argued that if so how can the detained person put forth his case before a Court and challenge the conclusions ? This argument was similarly advanced in Local Government Board vs Arlidge (1) and rejected, as mentioned above.
In my opinion, the answer is in the provision found in article 22 (7) (c) of the Constitution of India.
It was argued that section 11 of the impugned Act was invalid as it permitted the continuance of the detention for such period as the Central Government or the State Govern ment thought fit.
This may mean an indefinite period.
In my opinion this argument has nos substance because the Act has to be read as a whole.
, The whole life of the Act is for a year and therefore the argument that the detention may be for an indefinite period is unsound.
Again, by virtue of article 22 (7)(b), the Parliament is not obliged to fix the maximum term of such detention.
It has not so fixed it, except under section 12, and therefore it cannot be stated that section 11 is in contravention of article 22 (7).
Section 12 of the impugned Act is challenged on the ground that it does not conform to the provisions of article 22 (7).
It is argued that article 22 (7) permits preventive detention beyond three months, when the Parliament pre scribes "the circumstances in which, and the class or class es of cases in which," a person may be detained.
It was argued that both these conditions must be fulfilled.
In my opinion, this argument is unsound, because the words used in article 22 (7) themselves are against such interpretation.
The use of the word "which" twice in the first part of the sub clause, read with the comma put after each, shows that the legislature wanted these to be read as disjunctive and not conjunctive.
Such argument might have been possible (though not necessarily accepted) if ' the article in the Constitution was "the circumstances.
and the class or class es of cases in which . "I have.
no doubt that by the clause, as worded, the legislature (1) 127 intended that the power of preventive detention beyond three months may be exercised either if the circumstances in which, or the class or classes of cases in which, a person is suspected or apprehended to be doing the objectionable things mentioned in the section.
This contention therefore fails.
It was next contended that by section 12 the Parliament had provided that a person might be detained for a period longer than three months but not exceeding one year from the date of his detention, without obtaining the opinion of an advisory board, with a view to prevent him from acting in any manner prejudicial to (a) the defence of India, rela tions of India with foreign powers or the security of India; or (b)the security of a State or the maintenance of public order.
It must be noticed that the contingency provided in section 3 (1) (a) (iii), viz., the maintenance of supplies and services essential to the community is omitted in sec tion 12.
Relying on the wording of these two sub sections in section 12, it was argued that in the impugned Act the wording of Schedule VII List I, Entry 9, and List III, Entry 3, except the last part, are only copied.
This did not comply with the requirement to specify either the circum stances or the class or classes of cases as is necessary to be done under article 22 (7) of the Constitution.
Circum stances ordinarily mean events or situation extraneous to the actions of the individual concerned, while a class of cases mean determinable groups based on the actions of the individuals with a common aim or idea.
Determinable may be according to the nature of the object also.
It is obvious that the classification can be by grouping the activities of people or by specifying the objectives to be attained or avoided.
The argument advanced on behalf of the petitioner on this point does not ' appeal to me because it assumes that the words of Schedule VII List I, Entry 9, and List III, Entry 3 are never capable of being considered as circum stances or classes of cases.
In my opinion, that assumption is not justified, particularly when we have to take into consideration cases of preventive 17 128 detention and not of conviction and punitive detention.
Each of the expressions used in those entries is capable of complying with the requirement of mentioning circumstances or classes of cases.
The classification of cases, having regard to an object, may itself amount to a description of the circumstances.
It is not disputed that each of the entries in the Legislative Lists in the Seventh Schedule has a specific connotation well understood and ascertainable in law.
If so, there appears no reason why the same expression when used in section 12 (1) (a) and (b) of the impugned Act should not be held to have such specific meaning and thus comply with the requirement of prescribing circumstances or classes of cases.
This argument therefore must be rejected.
Section 13(2) was attacked on the ground that even if a detention order was revoked, another detention order under section 3 might be made against the same person on the same grounds.
This clause appears to be inserted to prevent a man being released if a detention order was held invalid on some technical ground.
There is nothing in the Chapter on Fundamental Rights and in article 21 or 22 to prevent the inclusion of such a clause in a parliamentary legislation, permitting preventive detention.
Article 20 (2) may be read as a contrast on this point.
Dealing with the four fundamental principles of natural justice in procedure claimed by the petitioner, it is thus clear that in respect of preventive detention no question of an objective standard of human conduct can be laid down.
It is conceded that no notice before detention can be claimed by the very nature of such detention.
The argument that after detention intimation of the grounds should be given has been recognised in article 22 (5) and incorporated in the impugned Act.
As regards an impartial tribunal, article 22 and (7) read together give the Parliament ample discretion.
When in specified circumstances and classes of cases the preventive detention exceeds three months, the absence of an advisory board is expressly per mitted 129 by article 22 (7).
Under article 22 (4) it appears implied that a provision for such tribunal is not necessary if the detention is for less than three months.
As regards an opportunity to be heard, there is no absolute natural right recognised in respect of oral representation.
It has been held to depend on the nature of the tribunal.
The right to make a representation is affirmed by the Constitution in article 22 (5) and finds a place in the impugned Act.
The right to an orderly course of procedure to the extent it is guaranteed by article 22 (4) read with article 22 (7) (c), and by article 22 (7) (a) and (b), has also been thus provided in the Act.
It seems to me therefore that the petitioner 's contentions even on these points fail.
Section 14 was strongly attacked on the ground that it violated all principles of natural justice and even in fringed the right given by article 22 (5) of the Constitu tion.
It runs as follows: "14.
(1) No Court shall, except for the purposes of a prosecution for an offence punishable under subsection (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order; and, notwithstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section (1): 130 Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.
" By that section the Court is prevented (except for the purpose of punishment for such disclosure) from being in formed, either by a statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section 7 on which the order was made, or of any representation made by him against such order.
It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from the produc tion of the proceedings or report of the.advisory board which may be declared confidential.
It is clear that if this provision is permitted to stand the Court can have no material before it to determine whether the detention is proper or not.
I do not mean whether the grounds are suffi cient or not.
It even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases men tioned in section 12 (1) (a) or (b).
In Machindar Shivaji Mahar vs The King (1), the Federal Court.
held that the Court can examine the grounds given by the Government to see if they are relevant to the object which the legislation has in view.
The provisions of article 22 (5) do not exclude that right of the Court.
Section 14 of the impugned Act appears to be a drastic provision.
which re quires considerable support to sustain it in a preventive detention Act.
The learned Attorney General urged that the whole object of the section was to prevent ventilation in public of the grounds and the representations, and that it was a rule of evidence only which the Parliament could prescribe.
I do not agree.
This argument is clearly not sustainable on the words of article 22 clauses (5) and (6).
The Government has the right under article 22 (6)not to disclose facts which it considers undesirable to disclose in the public interest.
It does not permit the Government to refrain from disclosing grounds which fall under clause (5).
(1) 131 Therefore, it cannot successfully be contended that the disclosure of grounds may be withheld from the Court in public interest, as a rule of evidence.
Moreover, the position is made clear by the words of article 22 (5).
It provides that the detaining authority shall communicate to such detained person the grounds on which the order has been made.
It is there fore ,essential that the grounds must be connected with the order of preventive detention.
If they are not so .connected the requirements of article 22 (5) are not ,complied with and the detention order will be invalid.
Therefore, it is open to a detained person to contend before a Court that the grounds on which the order ' has been made have no connection at all with the order, or have no connec tion with the circumstances or class or classes of cases under which a preventive detention order could be supported under section 12.
To urge this argument the aggrieved party must have a right to intimate to the Court the grounds given for the alleged detention and the representation made by him.
For instance, a person is served with a paper on which there are written three stanzas of a poem or three alphabets written in three different ways.
For the validity of the detention order it is necessary that the grounds should be those on which the order has been made.
If the detained person is not in a position to put before the Court this paper, the Court will be prevented from considering whether the requirements of article 22 (5) are complied with and that is a right which is guaranteed to every person.
It seems to me therefore that the provisions .of section 14 abridge the right given under article 22 (5) and are there fore ultra vires.
It next remains to be considered how far the invalidity of this section affects the rest of the impugned Act.
The impugned Act minus this section can remain unaffected.
The omission of this section will not change the nature or the structure or the object of the legislation.
Therefore the decision that section 14 is ultra vires does not affect the validity of the rest of the Act.
In my opinion therefore Act IV of 1950, except .section 14, is not ultra vires.
It does not infringe any 132 provisions of Part III of the Constitution and the con tention of the applicant against the validity of that Act except to the extent of section 14, fails.
The petition therefore fails and is dismissed.
FAZL ALI J.
The question to be decided in this case is whether 'the (Act IV of 1950), is wholly or in part invalid and whether the peti tioner who has been detained under that Act is entitled to a writ in the nature of habeas corpus on the ground that his detention is illegal.
The question being a pure question of law can he decided without referring to a long chain of facts which are narrated in the petitioner 's application to this Court and which have a more direct bearing on the alleged mala fides of the authorities who have detained him than on the validity of the Act.
The Act which is impugned was enacted by the Parliament on the 26th February, 1950, and will cease to have effect on the 1st April, 1951, save as respects.
things done or omit ted to be done before that date.
The main provisions of the Act are set out in sections 7, 8, 9, 10,11, 12 and 14.
Section a (1) provides that "the Central Government or the State Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any person who is.
a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, 133 it is necessary so to do, make an order directing that such person be detained.
" Sub sections (2) and (3) of this section empower a District Magistrate, Sub Divisional Magistrate or the Com missioner of Police in a Presidency Town to exercise the power conferred by and make the order contemplated in sub section (1), but with the qualification that any order made thereunder must be reported forthwith to the Government of the State to which the .officer in question is subordinate with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessity for the order.
Section 7 of the Act provides that the authority making an order of detention shall as soon as may be communicate to the person detained the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order, in a case where such ,order has been made by the Central Government, to that Government, and in a case where it has been made by a State Government or an officer subor dinate thereto, to the State Government.
Section 8 provides that the Central Government and each State Government shall, whenever necessary, constitute one or more advisory boards for the purposes of the Act, and state the qualifications of persons of which the board should consist.
Section 9 pro vides that when a detention order has been made with a view to preventing a person from acting in any manner prejudicial to the maintenance of supplies and services essential to the community or if it is made in regard to a person who is a foreigner within the meaning of the with a view to regulating his continued presence in India or making arrangements for his expulsion from India, the grounds on which the order has been made and the representation, if any,.
of the person detained shall, within six weeks from the date of detention, be placed 'before an advisory regard.
It will be noticed that this section does not provide that the cases of persons who are detained under section 3 (1) (a) (i) and (ii) will also be placed before the advisory board.
Section 10 lays down the 134 procedure to be followed by.
the advisory board and section 11 provides that in any case where the advisory board has reported that there is sufficient cause for the detention of the person concerned, the detention order may be confirmed and the detention of the person concerned may be continued for such period as the Central Government or the State Government, as the case may be, thinks fit.
Section 12,.
which is a very important section, as we shall presently see, runs as follows : "12 (1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceed ing one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to (a) the defence of India, relations of India with foreign powers or the security of India; or (b) the security of a State or the maintenance of public order.
(2) The case of every person detained under a detention order to which the provisions of sub section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State, Government, by such Govern ment, and where the order was made by any officer specified in sub section (2) of section 3, by the State Government to which such officer is subordinate, in consultation with a person who is or has been or is qualified to be appointed as Judge of a High Court nominated in that behalf by the Cen tral Government or the State Government, as the case may be.
" Section 14, which is also a material section for the purpose of this case, is to the following effect : "(1) No Court shall, except for the purposes of ' a prosecution for an offence punishable under subsection (2), allow any statement to be made, or any 135 evidence to be given, before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order; and, not withstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such commu nication or representation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be the contents of any such communication or representation as is referred to in sub section (1): Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.
" The point which has been pressed before us is that the Act is invalid, as it takes away or abridges certain funda mental rights conferred by Part III of the Constitution of India, and in support of this general proposition, reliance is placed on article 13 (2) which runs as follows : "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
" The rights guaranteed under Part III of the Constitution are classified under seven broad heads, as follows : (1) Right to equality; (2) Right to freedom; (3) Right against exploitation; (4) Right to freedom of religion; (5) Cultural and educational rights; (6) Right to property; and (7) Right to constitutional remedies.
136 Most of the articles which are said to have been disre garded occur under the heading "Right to freedom," these articles being articles 19 (1) (d), 21 and 22.
Another article which is also said to have been violated is article 32, under which the present application for a writ of habeas corpus purports to have been made.
Article 19 (1)is divided into seven sub clauses and runs as follows: "All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; " (f) to acquire, hold and dispose of property; and (g) to practise any profession, or to carry on any occupation, trade or business.
" Clauses (2), (3), (4), (5) and (6) of this article pro vide that nothing in clause (1) shall affect the operation of any existing law in regard to the rights under that clause, under certain conditions which are mentioned there in.
Clause (5), with which we are directly concerned and which will serve as a specimen to show the nature of these provisions, is to the following effect : "Nothing in sub clauses (d), (e) and (f)of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection 'of the interests of any Scheduled Tribe.
" The contentions advanced on behalf of the petitioner with reference to this article are : (1) that the Act under which he has been detained deprives him who is a citizen of the Republic of India of the right to move freely throughout the territory of India, which is guaran teed under article 19 (1) (d), and (2) 137 that under clause (5) of article 19, it is open to this Court to judge whether the restrictions imposed by the Act on the exercise of the right conferred by article 19 (1) (d) are reasonable or otherwise.
Before dealing with this argument, it is necessary to understand the meaning of the words used in article 19 (1)(d) and to have a clear compre hension as to the true nature of the right conferred there under.
The contention put forward on behalf of the peti tioner is that freedom of movement is the essence of person al liberty and any restraint on freedom of movement must be held to amount to abridgment or deprivation of personal liberty, as the case may be, according to the nature of the restraint.
After very careful consideration, I have come to the conclusion that this contention is well founded in law.
Blackstone in his "Commentaries on the Laws of England" (4th Edition, volume 1, page 134) states that "personal liberty consists in the power of locomotion, of changing . 'situation or moving one 's person to whatsoever place one 's own incli nation may direct, without imprisonment or restraint unless by due course of law.
" The authority of this state ment has never been questioned, and it has been bodily incorporated by H.J. Stephen in his "Commentaries on the Laws of England" and has been reproduced by Cooley in his well known treatise on "Constitutional Limitations" (8th Edition, volume 1, page 710), which was extensively quoted by both parties in the course of their arguments.
The view that freedom of movement is the essence of personal liberty will also be confirmed by reference to any book on the criminal law of England dealing with the offence of false imprisonment or any commentary on the Indian Penal Code dealing with the offences of wrongful restraint or confine ment.
Russell in his book on "Crimes and Misdemeanours" (8th Edition, volume 1, page 861), dealing with the offence of false imprisonment states as follows : "False imprisonment is unlawful and total restraint of the personal liberty of another, whether by constraining him or compelling him to go to a particular place or by confin ing him in a prison or 138 police station or private place, or by detaining him against his will in a public place . . . the essential element in the offence is the unlawful detention of the person or the unlawful restraint on his liberty.
Such interference with the liberty of another 's movements is unlawful, unless it may be justified . " Again, Dr. Gour in dealing with the offence of wrongful restraint in his book on "The Penal Law of British India" (5th Edition, page 1144) observes as follows : "Following the principle that every man 's person is sacred and that it is free, law visits with its penalties those who abridge his personal liberty, though he may have no design upon his person.
But the fact that he controls its movements for ever so short a time is an offence against the King 's peace, for no one has the right to molest another in his free movements.
" Dealing with the offence of wrongful confinement, the same learned author observes as follows at page 1148 of his book : " 'Wrongful confinement ' is a species of ' wrongful restraint ' as defined in the last section.
In wrongful restraint, there is only a partial suspension of one 's liberty of locomotion, while in wrongful confinement there is a total suspension of liberty 'beyond certain circum scribing limits '.
" Both these authors speak of restraint on personal liber ty and interference with the liberty of one 's movements or suspension of liberty or locomotion as interchangeable terms.
In Bird vs Jones (1), Coleridge J. said that "it is one part of the definition of freedom to be able to go whithersoever one pleases." A similar opinion has been expressed by several authors including Sir Alfred Denning in his book entitled "Freedom under the Law.
" There can there fore be no doubt that freedom of movement is in the last analysis the essence of personal liberty, and just as a man 's wealth is generally measured in this country in terms of rupees, annas and pies, one 's personal liberty depends upon the extent of his freedom of movement.
But it is contended on behalf of the State that freedom of move (1) 7 Q.B. 742.
139 ment to which reference has been made in article 19 (1) (d) is not the freedom of movement to which Blackstone and other authors have referred, but is a different species of freedom which is qualified by the words "throughout the territory of India.
" How the use of the expression "throughout the territory of India" can qualify the meaning of the rest of the words used in the article is a matter beyond my compre hension.
In my opinion, the words "throughout the territory of India" were used to stretch the ambit of the freedom of movement to the utmost extent to which it could be guaran teed by our Constitution.
The Constitution could not guar antee freedom of movement outside the territorial limits of India, and so has used those words to show that a citizen was entitled to move from one corner of the country to another freely and without any obstruction.
"Throughout" is an amplifying and not a limiting expression, and I am sur prised to find that the expression "throughout the territory of India," which was used to give the widest possible scope to the freedom of movement, is sought to be construed as an expression limiting the scope and nature of the freedom.
In my opinion, the words "throughout the territory of India," having regard to the context in which they have been used here, have the same force and meaning as the expression "to whatsoever place one 's own inclination may direct" used by Blackstone, or the expression "freedom to be ,able to go whithersoever one pleases" used by Coleridge J. in Bird vs Jones (1).
I am certain that neither of these authorities contemplated that the freedom of movement which is vouch safed to a British citizen, is guaranteed beyond the terri torial limits of British territories.
The question as to whether preventive detention is an encroachment on the right guaranteed by article 19 (1) (d) has been considered by the Nagpur, Patna and Calcutta High Courts.
The view which has .been ultimately adopted by these High Courts is that preventive detention is not a violation of the right guaranteed by article 19 (1) (d), but, in the Calcutta (1) 7 Q.B. 742.
140 High Court, where the matter has been elaborately discussed, at least five Judges have held that it does, and in the ultimate analysis the number of Judges.
who have held the contrary view appears to be the same.
Having regard to the fact that the view expressed by so many learned Judges is opposed to the view I am inclined to take, I consider it necessary to deal briefly with the main objections which have been raised in support of the narrow meaning sought to be attached to the words in article 19 (1)(d).
I have already dealt with one of them which is based on the ex pression "throughout the territory of India.
" A. nd I shall now proceed to deal with the, others seriatim.
I. It will be recalled that clause (5) of article 19, which I have already quoted in full, provides among other things that nothing in clause (1) (d) shall affect the operation of any law, present or future, imposing reasonable restrictions on the exercise of the right of freedom of movement either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
It has been argued that the use of the words "interests of any Scheduled Tribe" in this clause shows that the right guaranteed by article 19 (1) (d) is a limited right of movement, such as the right to visit different localities and to go from one place to another and is different from the expression "freedom of movement" which has been stated by Blackstone to be another name for personal liberty.
It is pointed out that the restrictions in contemplation here are mainly restrictions preventing undesirable outsiders from visiting Scheduled Areas and exploiting Scheduled Tribes, and if the words "freedom of movement" had been used in the larger sense, such a small matter would not have found a place in clause (5) of article 19.
I must frankly confess that I am unable to appreciate this argument and to hold that a mere reference to Scheduled Tribes affects the plain meaning of the words used in clause (1) (d) of article 19.
The words used in article 19 (1) (d) are very wide and mean that a person can go at his will in any direction to any locality and to any distance.
Re straint on a freedom.
141 so wide in scope and extent may assume a variety of forms and may include internment or externment of a person, his confinement to a particular locality or within the walls of a prison, his being prevented from visiting or staying in any particular area, etc.
The framers of the Constitution wanted to save all restrictive legislation affecting freedom of movement made in the interests of the general public (which expression means the same thing as "public interests") and I think that the law in regard to preventive detention is fully covered by the expression "restrictions imposed in the public interests.
" But they also remembered that there were restrictive laws made in the interests of an important community and that similar laws may have to be made in future and hence they added the words "for the protection of the interests of any Scheduled Tribe.
" A reference to the Fifth Schedule of the Constitution and the corresponding provisions of the Government of India Act, 1935, as well as to certain laws made for Chota Nagpur, Santhai Pargangs and .other localities will show that great importance has been attached in this country to.
the protec tion and preservation of the members of the scheduled tribes .and maintenance of order in tribal areas, and this, in my opinion, is sufficient to account for the special mention of the scheduled tribes in clause (5).
It may, at first sight, appear to be a relatively small matter, but in their anxiety to cover the whole field of restrictive laws made whether in the public interest or in the interests of a particular community and not to leave the smallest loophole, the framers of the Constitution apparently decided to draft the clause in the present form.
As far as I am aware, there are no restrictive laws made in the interests of any commu nity other than the scheduled tribes, and I think clause (5)is sufficiently comprehensive to include the smallest as well as the most complete restrictions on freedom of move ment.
I am also satisfied that the mere mention of sched uled tribes in clause (5) cannot change, the plain meaning of the words of the main provision which we find in article 19 (1) (d) and confine it to some kind of peculiar and truncated freedom of 142 movement which is unconnected with personal liberty and which is unknown to any Constitution with which.
we are familiar: It will perhaps be not out of place to refer in this.
connection to Ordinance XIV of 1943, which is one of the ordinances by which the Defence of India Act, 1939, was partly amended.
This ordinance provides for "the apprehension and detention in custody of any person whom the authority empowered by the rules to appre hend or detain as the case may be suspects, on grounds appearing to such authority to be reasonable, of being of hostile origin, or of having acted, acting, being about to act, or being likely to act in a manner prejudicial to the public safety or interest, the defence of British India, the maintenance of public order, His Majesty 's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war, or with respect to whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudi cial manner, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything.
" The points to be noted in connection with the ordinance are : (1) that it is an ordinance specifically providing for apprehension and detention; (2) that notwithstanding the fact that there is a gener al reference in it to acts prejudicial to public safety or interests and maintenance of public order there is also a specific reference to maintenance of peaceful conditions in tribal areas; (3) that tribal areas and scheduled tribes are, kindred subjects as would appear from the Fifth Schedule appended to the Constitution; and (4) that maintenance of peaceful conditions in tribal areas may be as much in the public interest as in the inter ests of persons living in those areas.
143 This ordinance shows at least this much that sometimes the law of preventive detention can also be made in the interests of scheduled tribes or scheduled areas and conse quently the mere mention of scheduled tribes in clause (5) does not necessarily exclude laws relating to preventive detention from the scope of article 19 (5) The same remarks apply to the ordinance called "The Restriction and Detention Ordinance, 1944" (Ordinance No. III of 1944) which empow ered the Central Government or the Provincial Government to detain and make orders restricting the movements of certain persons in the interest of public safety, maintenance of public order as well as maintenance of peaceful conditions in tribal areas, etc.
It is also argued that since preventive detention amounts to a total deprivation of freedom of movement, it is not a violation of the right granted under article 19 (1) (d) in regard to which the word "restriction" and not "deprivation" has been used in clause (5).
This argument also does not appeal to me.
There are really two questions which fall to be decided in this case, viz., (a) Does pre ventive detention take away the right guaranteed by article 19 (1) (d)?; and (b) if so, what are the consequences, if any ? It seems obvious to me that preventive detention amounts to a complete deprivation of the right guaranteed by article (19) (d).
The meaning of the word "restriction" is to be considered with reference to the second question and I think that it will be highly technical to argue that deprivation of a right cannot be said to involve restriction on the exercise of the right.
In my opinion, having regard to the context in which the word "restriction" has been used, there is no antithesis between that word and the word "depriva tion.
" As I have already stated, restraint on the right to move can assume a variety of forms and restriction would be the most appropriate expression to be ' used in clause (5) so as to cover all those forms ranging from total to various kinds of partial deprivation freedom of movement.
I will however have to advert to this subject later and will try to show that the 19 144 construction I have suggested is supported by good authori ty.
It appears that some of the Judges who had to deal with the question which we have before us were greatly influenced by the argument that if the deprivation of per sonal liberty amounts to deprivation of the right granted under article 19 (1) (d), any conviction for an offence under the Indian Penal Code involving a sentence of impris onment will be subject to judicial review on the ground of reasonableness of the provisions of the Code under which the conviction is recorded.
Meredith C.J. of the Patna High Court has given expression to his concern for the situation which will thereby arise, in these words : "It will be seen that the claim made is very sweeping indeed.
It would mean that every law under which a person may be imprisoned, including all the provisions of the Penal Code, is open to examination by the Courts on the ground of reasonableness.
It makes the Courts supreme arbiters in regard to any such legislation, and they can reject it or accept it in accordance with their ideas of whether it appeals to their reason.
But ideas of reasonableness or otherwise are apt to vary widely.
Take for example, laws relating to prohibition or take such a matter as adultery which the Indian law regards as a crime punishable with imprisonment but the English law does not.
It is difficult to believe the framers of the Constitution ever intended to place so enormous a power in the hands of the Courts . . . "[Rattan Roy vs The State of Biharl.
The obvious and strictly legal reply to this argument is that the consideration, which has so greatly weighed with the learned Chief Justice, is not enough to cut down the plain meaning of the general words used in article 19 (5) of the Constitution.
As has been pointed out in a number of cases, "in construing enacted words, we are not concerned with the policy involved or with the results injurious or otherwise which may follow by giving effect to the language 145 used" [King Emperor vs Benoari Lal Sharma and others (1)I Apart from this aspect of the matter, I agree with one of the learned Judges Of the Calcutta High Court in his remark that "no calamitous or untoward result will follow even if the provisions of the Penal Code become justiciable.
" I am certain that no Court would interfere with a Code which has been the law of the land for nearly a century and the provisions of which are not in conflict with the basic principles of any system of law.
It seems to me that this Court should not be deterred from giving effect to a fundamental right granted under the Constitution, merely because of a vague and unfounded fear that something catas trophic may happen.
I have so far proceeded on the assumption that the basis of the objection raised by Meredith C.J. is correct in law, but, in my opinion, it is not.
Crime has been defined to consist in those acts or omissions involving breach of a duty to which a sanction is attached by law by way of pun ishment or pecuniary penalty in the public interests.
(See Russell 's "Crimes and Misdemeanours ").
Section 2 of the Indian Penal Code, 1860, provides that "every person shall be liable to punishment under this Code ' and not otherwise for every act or omission contrary to the provisions there of, of which he shall be guilty within British India ." The Indian Penal Code does not primarily or necessarily impose restrictions on the freedom of movement, and it is not correct to say that it is a law imposing restrictions on the right to move freely.
Its primary object is to punish crime and not to restrict movement.
The punishment may consist in imprisonment or a pecuniary penalty.
If it consists in a pecuniary, penalty, it obviously involves no restriction on movement; but if it consists in imprisonment, there is a restriction on movement.
This restraint is imposed not under a law imposing restrictions on movement but under a law defining crime and making it punishable.
The punishment is correlated directly with the violation of some other person 's right and not with the right of (1) at p. 177.
146 movement possessed by the offender himself.
In my opinion, therefore, the Indian Penal Code does not come within the ambit of the words "law imposing restriction on the right to move freely ".
In the course of the arguments, the expression "punitive detention" was frequently used and the tendency was to put it on the same footing as preventive detention for the purpose of certain arguments.
Punitive detention is however essentially different from preventive detention.
A person is punitively detained only after a trial for committing a crime and after his guilt has been established in a compe tent Court of justice.
A person so convicted can take his case to the State High Court and sometimes bring it to this Court also; and he can in the course of the proceedings connected with his trial take all pleas available to him including the plea of want of jurisdiction of the Court of trial and the invalidity of the law under which he has been prosecuted.
The final judgment in the criminal trial will thus constitute a serious obstacle in his way if he chooses to assert even after his conviction that his right under article 19 (1) (d) has been violated.
But a person who is preventively detained has not to face such an obstacle whatever other obstacle may be in his way.
It was pointed out that article 19 being confined to citizens, the anomalous situation will follow that in cases of preventive detention, a citizen will be placed in a better position than a non citizen, because if a citizen is detained his detention will be open to some kind of judicial review under article 19 (5), but if a non citizen has been detained his case will not be open to such review.
In this view, it is said that the whole Act relating to preventive detention, may be declared to be void if it is unreasonable, though it concerns citizens as well as persons other than citizens.
I must frankly state that I am not at all per turbed by this argument.
It is a patent fact that the Constitution has confined all the rights mentioned in arti cle 19 (1) to citizens.
It is equally clear that restric tions on those rights are to a limited extent at least open to judicial review The very same question which is 147 raised in regard to article 19 (1)(d) will arise with regard to most of the other sub clauses.
A citizen has the right to assemble peaceably and without arms, to form associations or unions and so on.
If there is any law imposing unreason able restrictions on any of these rights, that law will not be good law so far as citizens are concerned, but it may be good law so far as non citizens are concerned.
I do not see why a similar situation arising with regard to the right granted under sub clause (d) should be stated to be anoma lous.
So far as the right of free movement is concerned, a non citizen has been granted certain protections in articles 21 and 22.
If a ,citizen has been granted certain other additional protections under article 19 (1) (d), there is no anomaly involved in the discrimination.
I think that it is conceivable that a certain law may be declared to be void as against a citizen but not against a non citizen.
Such a result however should not affect our mind if it is found to have been clearly within the contemplation of the framers of the Constitution.
V. It was contended that the rights declared by article 19 are the rights of a free citizen and if he has already been deprived of his liberty in the circumstances referred to in articles 20, 21 and 22, then it would be idle to say that he still enjoys the right referred to in article 19.
After giving my fullest consideration to this argument, I have not been able to appreciate how it arises in this case.
There is nothing in article 19 go suggest that it applies only to those cases which do not fall under articles 20, 21 and 22.
Confining ourselves to preventive detention, it is enough to point out that a person who is preventively de tained must have been, before he lost his liberty, a free man.
Why can 't he say to those who detained him: "As a citizen I have the right to move freely and you cannot curtail or take away my right beyond the limits imposed by clause (5)of article 19.
" This is the only question which arises in the case and it should not be obscured by any abstruse or metaphysical considerations.
It is true that if you put a man under detention, he cannot move and therefore he is not in a position to 148 exercise the right guaranteed under article 19 (1) (d).
but this is only the physical aspect of the matter and a person who is bed ridden on account of disease suffers from a similar disability.
In law, however,.
physical duress does not deprive a person of the right to freedom of movement.
If he has been detained under some provision of law imposing restrictions on the freedom of movement, then the question will arise whether the restrictions are reasonable.
If he has been detained under no provision of law or under some law which is invalid, he must be set at liberty.
To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each article is a code by itself and is independent of the others.
In my opinion, it cannot be said that articles 19, 20, 21 and 22 do not to some extent over lap each other.
The case of a person who is convicted of an offence will come under articles 20 and 21 and also under article 221 so far as his arrest and detention in custody before trial are concerned.
Preventive detention, which is dealt with in article 22, also amounts to deprivation of personal liberty which is referred to in article 21, and is a violation of the right of freedom of movement dealt with in article 19 (1) (d).
That there are other instances of overlapping of articles in the Constitution may be illus trated by reference to article 19 (1) (f) and article 31 both of which deal with the right to property and to some extent overlap each other.
It appears that some learned High Court Judges, who had to deal with the very question before us, were greatly impressed by the statement in the report of the Drafting Committee of the Constituent Assembly on article 15 (corresponding to the present article 21), that the word "liberty" should be qualified by the insertion of the word "personal" before it for otherwise it may be construed very widely so as to include the freedoms dealt with in article 13 (corresponding to the present article 19).
I am not however prepared to hold that this statement is decisive on the question of the construction of the words used in article 19 (1) (d) which are quite plain and can be construed without any 149 extraneous help.
Whether the report of the Drafting Commit tee and the debates on the floor of the House should be used at all in construing the words of a statute, which are words of ordinary and common use and are not used in any technical or peculiar sense, is a debatable question; and whether they can be used in aid of a construction which is a strain upon the language used in the clause to be interpreted is a still more doubtful matter.
But, apart from these legal consider ations, it is, I think, open to us to analyse the statement and see whether it goes beyond adding a somewhat plausible reason a superficially plausible reason for a slight verbal change in article 21.
It seems clear that the addi tion of the word "personal" before "liberty" in article 21 cannot change the meaning of the words used in article 19, nor can it put a matter which is inseparably bound up with personal liberty beyond its place.
Personal liberty and personal freedom, in spite of the use of the word "personal ," are, as we find in several books, sometimes used in a wide sense and embrace freedom of speech, freedom of .asso ciation, etc.
These rights are some of the most valuable phases or elements of liberty and they do not cease to be so by the addition of the word "personal.
" A general statement by the Drafting Committee referring to freedom in plural cannot take the place of an authoritative exposition of the meaning of the words used in article 19 (1)(d), which has not been specifically referred to and cannot be such an overriding consideration as to compel us to put a meaning opposed to reason and authority.
The words used in article 19 (1) (d) must be construed as they stand, and we have to decide upon the words themselves whether in the .case of preventive detention the right under article 19 (1) (d) is or is not infringed.
But, as I shall point out later, however literally we may construe the words used in article 19 (1) (d) and however restricted may be the meaning we may attribute to those words, there can be no escape from the conclusion that preventive detention is a direct infringe ment of the right guaranteed in article 19 (1) (d).
150 Having dealt with the principal objections, I wish to revert once again to the main topic.
The expressions "per sonal liberty" and" personal freedom" have, as we find in several books, a wider meaning and also a narrower meaning.
In the wider sense, they include not only immunity from arrest and detention but also freedom of speech, freedom of association, etc.
In the narrower sense, they mean immunity from arrest and detention.
I have shown that the juristic conception of "personal liberty ," when these words are used in the sense of immunity from arrest, is.
that it consists in freedom of movement and locomotion.
I have also pointed out that this conception is at the root of the criminal law of England and of this country, so far as the offences of false imprisonment and wrongful confinement are concerned.
The gravamen of these offences is restraint on freedom of movement.
With these facts in view, I have tried to find out whether there is any freedom of movement known in England apart from personal liberty used in the sense of immunity from arrest and detention, but I find no trace of any such freedom.
In Halsbury 's Laws of England (2nd Edition, volume 6, page 391), the freedoms mentioned are the right to per sonal freedom (or immunity from detention or confinement), the right to property, the right to freedom of speech, the right of public meeting, the right of association, etc.
Similar classifications will be found in Dicey 's "Introduc tion to the Study of the Law of the Constitution" and Keith 's "Constitutional Law" and other books on constitu tional subjects, but there is no reference anywhere to any freedom or right of movement in the sense in which we are asked to.
construe the words used in article 19 (1) (d).
In the Constitutions of America, Ireland and many other countries where freedom is prized, there is no reference to freedom or right of movement as something distinct from personal liberty used in the sense of immunity from arrest and confinement.
The obvious explanation is that in legal conception no freedom or right of movement exists apart from what personal liberty connotes and therefore a separate treatment of this freedom was not necessary.
It is only in the Constitution of the Free 151 City of Danzig, which covers an area of 701 square miles, that we find these words in article 75 : "All nationals shall enjoy freedom of movement within the City.
" There is however no authoritative opinion available to support the view that this freedom is anything different from what is otherwise called personal liberty.
The problem of construc tion in regard to this particular right in the Constitution of Danzig is the same as in our Constitution.
Such being the general position, I am confirmed in my view that the juristic conception that personal liberty and freedom of movement connote the same thing is the correct and true conception, and the words used in article 10 (1) (d) must be construed according to this universally accepted legal conception.
This conclusion is further supported by reference to the war legislation in England and in India, upon which the law of preventive detention, which has been in force in this country since the war, is based.
In the first world war, the British Parliament passed the Defence of the Realm Consoli dation Act, in 1914, and a number of regulations were made under it including regulation 14 B, which permitted the Secretary of State to subject any person "to such obliga tions and restrictions as hereinafter mentioned in view of his hostile origin or associations." Lord Atkin in refer ring to this regulation said in Liversidge vs Sir John Anderson (1), "that the regulation undisputedly gave to a Secretary of State unrestricted power to detain a suspected person." Apparently, Lord Atkin meant that the restriction referred to in the Act included preventive detention.
Under this regulation, one Arthur Zadig was interned, and he applied to the King 's Bench for a writ of habeas corpus which was refused.
The matter ultimately came up before the House of Lords in Rex vs Halliday (2), and the noble Lords in dealing with the case proceeded on the assumption that there was no difference between internment and incarceration or imprisonment.
Lord Shaw in narrating the facts of the case stated : (1) (2) ; 20 152 His person was seized, he has been interned .
The appellant lost his liberty and was interned . " He then proceeded to state that there was no difference between internment and imprisonment and quoted the following passage from Blackstone : "The confinement of the person, in any wise, is an imprisonment.
So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment.
" Proceeding on this footing (which I find to be the common basis in all other speeches delivered in the case, though Lord Shaw had given a dissenting judgment), Lord Finlay while dealing with the provisions of the regulations observed : "One of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy "(1).
Again, Lord Atkinson while dealing with the merits of the case made the following observations : "If the legislature chooses to enact that he can be deprived of his liberty and incarcerated or interned for certain things for which he could not have been heretofore incarcerated or interned, that enactment and the orders made under it if intra vires do not infringe upon the Habeas Corpus Acts or take away any right conferred by Magna Charta . ,, (2).
This passage read with the previous passage quoted by me will show that both internment and incarceration were re garded as "restrictions on the freedom of movement "and that deprivation of liberty and restriction on freedom of move ment were used as alternative expressions bearing the same meaning.
The same conclusion is to be drawn by reference to the regulations made in the last world war under the Emergency Powers (Defence)Act, 1939.
The regulation which directly dealt with detention orders was 18 B.
This regulation and a number of other regulations have been placed in Part I under the heading" Restrictions (1) (2) 153 On movements and activities of persons .
" The classifica tion is important, because it meets two principal arguments advanced in this case.
It shows firstly that detention is a form of restriction and secondly that it is a restriction on movement.
I have noticed that" movement" is used in plural, and the heading also refers to restrictions on activities, but, having regard to the subjects classified under this head, movement undoubtedly refers to physical movement and includes such movements as entering a particu lar locality, going from one place to another, etc.
, i.e., the very things to which article 19 (1) (d) is said to have reference.
In Liversidge 's case, in construing the provi sions of the Act of 1939, Viscount Maugham observed as follows : "The language of the Act of 1939 (above cited) shows beyond doubt that Defence Regulations may be made which must deprive the subject "whose detention appears to the Secre tary of State to be expedient in the interests of public safety" of all his liberty of movement while the regulations remain in force"(1).
Thus Viscount Maugham also considered detention to be synonymous with deprivation of liberty of movement.
The classification that we find in the Defence of the Realm Regulations was with a little verbal modification adopted in the Defence of India Rules, and we find that here also rule 26, which dealt with preventive detention, has been placed under the heading "Restriction of movements and activities of persons.
" A somewhat similar classification has also been adopted in a series of Provincial Acts and Ordinances relating to maintenance of order [see section 2 of the Bihar Maintenance of Public Order.
Act, 1949, section 16 of the West Bengal Security Act, 1948, section 4 of the East Punjab Public Safety Act, 1949, section 2 of the Madras Maintenance of Public Order Act, 1947, section 3 of the U.P. Maintenance of Public Order Temporary Act, 1947, and section 2 of the Bombay Public Security Measures Act, 1947.
In these Acts and Ordinances, preventive detention and certain (1) 154 other forms of restriction on movement such as internment, externment, etc. have been classed together and dealt with more or less on the same footing, and sometimes they have been dealt with in different clauses of the same section.
In one of the Acts, the same advisory board is to deal with the case of a detenue as well as that of an externed person, and there are also similar provisions giving them the right to represent their case to the Government.
I will now assume for the sake of argument that the freedom of movement to which reference is made in article 19 (1) (d) has nothing to do with personal liberty and that the words which occur in the article bear the restricted meaning attributed to them by the learned Attorney General and some of my colleagues.
It seems to me that even on this assump tion, it is difficult to arrive at any conclusion other than what I have already arrived at.
There can be no doubt that preventive detention does take away even this limited free dom of movement directly and substantially, and, if so, I do not see how it can be argued that the right under article 19 (1) (d) is not infringed if the alternative interpretation is accepted.
We have only to ask ourselves: Does a person who is detained retain even a fraction of his freedom of movement in howsoever restricted sense the term may be used and does he not lose his right to move freely from one place to another or visit any locality he likes as a necessary result of his detention ? I think I should refer here once more to the fact that in the Defence of the Realm Regula tions and Defence of India Rules, preventive detention is classed under the heading "Restriction of movements and activities." "Movement" is here used in plural and refers to that very type of movement which is said to be protected by article 19 (1) (d), moving from one State or place to another, visiting different localities, etc.
One of the objects of 'preventive detention is to restrain the person detained from moving from place to.
place so that he may not spread disaffection or indulge in dangerous activities in the ' places he visits.
The same consideration applies to the cases of persons who are interned or externed.
Hence, externment, 155 internment and certain other forms of restriction on move ment have always been treated as kindred matters belonging to the same group or family and the rule which applies to one must necessarily apply to the other.
It is difficult to hold that the case of externment can possibly be dealt with on a different footing from the case of preventive deten tion.
I am however interested to find that the Patna and Bombay High Courts have held that a person who is externed can successfully assert that the right granted to him under article 19 (1) (d) has been violated.
This view has not been seriously challenged before us, and, if it is correct, I really do not see how it can be held that preventive deten tion is also not a direct invasion of the right guaranteed in article 19 (1) (d).
Perhaps, one may pause here to ask what kind of laws were in contemplation of the framers of the Constitution when they referred to laws imposing re strictions in the public interest in article 19 (5).
I think the war laws and the Provincial Acts and Ordinances to which I have already referred must have been among them, these being laws which expressly purport to impose restrictions on movements.
If so, we should not overlook the fact that preventive detention was an inseparable part of these laws and was treated as a form of restriction on movement and classified as such.
It seems to me that when the matter is seriously considered, it would be found that the interpreta tion of the learned Attorney General attracts the operation of article 13 (2) no less strongly and directly than the interpretation I have suggested, and I prefer the latter only because I consider that it is legally unsound to treat what is inseparably bound up with and is the essential element in the legal concept 1of personal liberty as a wholly separate and unconnected entity.
But, as I have already indicated, it will be enough for the purpose of this case if we forget all about personal liberty and remember only that detention is, as is self evident and as has been pointed out by Viscount Maugham and other eminent judges, another name for depriving a person of all his "liberty of movement.
" It was pointed out in the course of the arguments 156 that preventive detention not only takes away the right in article 19 (1) (d) but also takes away all the other rights guaranteed by article 19 (1), except the right to hold, acquire and dispose of property.
Where exactly this argu ment is intended to lead us to, I cannot fully understand, but it seems to me that it involves an obvious fallacy, because it overlooks the difference in the modes in which preventive detention operates on the right referred to in sub clause (d) and other sub clauses of article 19 (1).
The difference is that while preventive detention operates on freedom of movement directly and inevitably, its operation on the other rights is indirect and consequential and is, often only notional.
One who is preventively detained is straightaway deprived of his right of movement as a direct result of his detention, but he loses the other rights only in consequence of his losing freedom of movement.
Beside% while freedom of movement is lost by him in all reality and substance, some of the other rights may not be lost until he wishes to exercise them or is interested in exercising them.
A person who is detained may not be interested in freedom of association or may not pursue any profession, occupation, trade or business.
In such a case, the rights referred to are lost only in theory and not as a matter of substance.
I wish only to add that when I said that I was not able to understand the full force of the argument which I have tried to deal with, what I had, in mind was that if preventive detention sweeps away or affects almost all the rights guaranteed in article.
19 (1), the matter deserves very serious consideration and we cannot lightly lay down that article 13 (2) does not come into operation.
Being fully alive to the fact that it is a serious matter to be asked to declare a law enacted by Parliament to be unconstitutional, I have again and again asked myself the question: What are we to put in the scales against the construction which I am inclined to adopt and in favour of the view that preventive detention does not take away the freedom of movement guaranteed in article 19 (1) (d)? The inevitable answer has always been that while in one of the scales 157 we have plain and unambiguous language, the opinion eminent jurists, judicial dicta of high authority, constitu tional practice in the sense that no Constitution refers to any freedom of movement apart from personal liberty, and the manner in which preventive detention has been treated in the very laws on which our law on this subject is based, all that we can put in the opposite scale is a vague and ill rounded apprehension that some fearful object such as the revision of the Penal .Code is looming obscurely in the distant horizon, the peculiar objection that the mere men tion of the scheduled tribes will alter the meaning of certain plain words, the highly technical and unreal dis tinction between restriction and deprivation and the assump tion not warranted by any express provision that a person who is preventively detained cannot claim the right of freedom of movement because he is not a free man and certain other things which, whether taken singly or ,collectively, are too unsubstantial to carry any weight.
In these circum stances, I am strongly of the view that article 19 (1)(d) guarantees the right of freedom of movement in its widest sense, that freedom of movement being the essence of person al liberty, the right guaranteed under the article is really a right to personal liberty and that preventive detention is a deprivation of that right.
I am also of the view that even on the interpretation suggested by the learned Attor ney General, preventive detention cannot but be held to be a violation of the right conferred by article 19 ,(1) (d).
In either view, therefore, the law of preventive detention is subject to such limited judicial review as is permitted under article 19 (5).
The scope of the review is simply to see whether any particular law imposes any unreasonable restrictions.
Considering that the restrictions are imposed on a most valuable right, there is nothing revolutionary in 'the legislature trusting the Supreme Court to examine whether an Act which infringes upon that right is within the limits of reason.
I will now pass on to the consideration of article 21, which runs as follows : "No person shall be deprived of his life or personal 158 liberty except according to procedure established by law.
" Here again, our first step must be to arrive at a clear meaning of the provision.
The only words which cause some difficulty in the proper construction of the article are "procedure established by law." The learned Attorney General contended before us that the word "law" which is used in article 21 means State made law or law enacted by the State.
On the other hand, the learned counsel for the petitioner strongly contended that the expression "procedure established by law" is used in a much wider sense and approximates in meaning to the expres sion "due process of law" as interpreted by the Supreme COurt of America in the earliest times and, if that is so, it means exactly what some of the American writers mean to convey by the expression "procedural due process." In the course of the arguments, the learned Attorney General referred us to the proceedings in the Constituent Assembly for the purpose of showing that the article as originally drafted contained the words "without due process of law" but these words were subsequently replaced by the words "except according to procedure established by law." In my opinion, though the proceedings or discussions in the Assembly are not relevant for the purpose of construing the meaning of the expressions used in article 21, especially when they are plain and unambiguous, they are relevant to show that the Assembly intended to avoid the use of the expression "without due process of law.
" That expression had its roots in the expression "per legem terrae" (law of the land) used in Magna Charta in 1215.
In the reign of Edward III, 'however, the words "due process of law" were used in a statute guaranteeing that no person will be de prived of his property or imprisoned or indicted or put to death without being brought in to answer by due process of law (28, Edward III, Ch.
The expression was after wards adopted in the American Constitution and also in the Constitutions of some of the constituent States, though some of the States preferred to use the 159 words "in due course of law" or "according to the law of the land." [See Cooley on "Constitutional Limitations," 8th Edn.
II, pages 734 51.
In the earliest times, the American Supreme Court construed "due process of law" to cover matters of procedure only, but gradually the meaning of the expression was widened so as to cover substantive law also, by laying emphasis on the word "due.
" The expression was used in such a wide sense that the judges found it difficult to define it and in one of the cases it was ob served as follows : "It would be difficult and perhaps impossible to give to those words a definition, at once accurate, and broad enough to cover every case.
This difficulty and perhaps impossi bility was referred to by Mr. Justice Miller in Davidson vs New Orleans, where the opinion was expressed that it is wiser to ascertain their intent and application by the 'gradual process of judicial inclusion and exclusion, ' as the cases presented for decision shall require, with the reasoning on which such decisions may be rounded:" Missouri Pacific Railway Co. vs Humes (1).
It seems plain that the Constituent Assembly did not adopt this expression on account of the very elastic meaning given to it, but preferred to use the words "according to procedure established by law" which occur in the Japanese Constitution framed in 1946.
It will not be out of place to state here in a few words how the Japanese Constitution came into existence.
It appears that on the 11th October, 1945.
General McArthur directed the Japanese Cabinet to initiate measures for the preparation of the Japanese Constitution, but, as no progress was made, it was.
decided in February, 1946, that the problem of constitutional reform should be taken over by the Government Section of the Supreme Commander 's Headquar ters.
Subsequently the Chief of this Section ,and the staff drafted the Constitution with the help of American constitu tional lawyers who were called to assist the Government Section in the task.
This Constitution, as a learned writer has remarked, bore (1) ; at page 513.
21 160 on almost every page evidences of its essentially Western origin, and this characteristic was especially evident in the preamble "particularly reminiscent of the American Declaration of Independence, a preamble which, it has been observed, no Japanese could possibly have conceived or written and which few could even understand" [See Ogg and Zink 's "Modern Foreign Governments"].
One of the character istics of the Constitution which undoubtedly bespeaks of direct American influence is to be found in a lengthy chap ter, consisting of 31 articles, entitled "Rights and Duties of the People," which provided for the first time an effec tive "Bill of Rights" for the Japanese people.
The usual safeguards have been provided there against apprehension without a warrant and against arrest or detention without being informed of the charges or without adequate cause (articles 33 and 34).
Now there are two matters which deserve to be noticed : (1) that the Japanese Constitution was framed wholly under American influence; and (2) that at the time it was framed the trend of judicial opinion in America was in favour of confining the meaning of the expression "due process of law" to what is expressed by certain American writers by the somewhat quaint but useful expression "proce dural due process.
" That there was such a trend would be clear from the following passage which I quote from Carl Brent Swisher 's "The Growth of Constitutional Power in the United States" (page 107.): "The American history of its interpretation falls into three periods.
During the first period, covering roughly the first century of government under the Constitution, due process was interpreted principally as a restriction upon procedure and largely the judicial procedure by which the government exercised its powers.
During the second period, which, again roughly speaking, extended through 1936, due process was expanded to serve as a restriction not merely upon procedure but upon the substance of the activities in which the government might engage.
During the third period, extending from 1936 to date, the use of due 161 process as a substantive restriction has been largely sus pended or abandoned, leaving it principally in its original status as a restriction upon procedure.
" In the circumstances mentioned, it seems permissible to surmise that the expression "procedure established by law" as used in the Japanese Constitution represented the current trend of American judicial opinion with regard to "due process of law," and, if that is so, the expression as used in our Constitution means all that the American writers have read into the words "procedural due process." But I do not wish to base any conclusions upon mere surmise and will try to examine the whole question on its merits.
The word "law" may be used in an abstract or concrete sense.
Sometimes it is preceded by an article such as "a" or "the" or by such words as "any," "all," etc., and sometimes it is used without any such prefix.
But, generally, the word "law" has a wider meaning when used in the abstract sense without being preceded by an article.
The question to be decided is whether the word "law" means nothing more than statute law.
Now whatever may be the meaning of the expression "due process of law," the word "law" is common to that expression as well as "procedure established by law" and though we are not bound to adopt the construction put on "law" or "due process of law" in America, yet since a number of eminent American Judges have devoted much thought to the subject, I am not prepared to hold that we can derive no help from their opinions and we should completely ignore them.
I will therefore in the first instance set out certain quotations from a few of the .decisions of the American Supreme Court construing the word "law" as used in the expression "due process of law," in so far as it bears on the question of legal procedure.
(1) "Although the legislature may at its pleasure provide new remedies or change old ones, the power is never theless subject to the condition that it cannot remove certain ancient land marks, or take away certain fundamen tal rights which have been always 162 recognized and observed in judicial procedures:" Bardwell vs Collins (1).
(2) ' 'By the law of the land is most clearly intended the general law: a law which hears before it condemns, which proceeds upon inquiry and renders judgments only after trial.
The meaning is that every citizen shall hold his life, liberty and property, and immunities under the protection of the general rules which govern society:" Dartmouth College Case (2).
(3) "Can it be doubted that due process of law signifies a right to be heard in one 's defence ? If the legislative department of the government were to enact a statute confer ring the right to condemn the citizen without any opportuni ty whatever of being heard, would it be pretended that such an enactment would not be violative of the Constitution ? If this be true, as it undoubtedly is, how can it be said that the judicial department.
the source and fountain of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be viola of the Constitution ? If such power obtains, then the judicial department of the government sitting to uphold and enforce the Constitution is the only one possessing a power to disregard it.
If such authority exists then in conse quence of their establishment, to compel obedience to law and enforce justice, Courts possess the right to inflict the very wrongs which they were created to prevent:" Hovey vs Elliott(3).
(4) "It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his say in Court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard.
Judgment without such citation and opportunity wants all the attributes of a judicial determi nation; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered:" Gatpin vs Page(4).
Thus, in America, the word "law" does not mean merely State made law or law enacted by the State and does not exclude certain fundamental principles of (1) ; (3) ; at page 417.
(2) (4) 163 justice which inhere in every civilized system of law and which are at the root of it.
The result of the numerous decisions in America has been summed up by Professor Willis in his book on "Constitutional Law" at page 662, in the statement that the essentials of due process are: (1) no tice, (2) opportunity to be heard, (3) an impartial tribu nal, and (4) orderly course of procedure.
It is pointed out by the learned author that these essentials may assume different forms in different circumstances, and so long as they are conceded in principle, the requirement of law will be fulfilled.
For example, a person cannot require any particular form or method of hearing, but all that he can require is a reasonable opportunity to be heard.
Similarly, an impartial tribunal does not necessarily mean a judicial tribunal in every case.
So far as 'orderly course of proce dure is concerned, he explains that it does not require a 'Court to strictly weigh the ,evidence but it does require it to examine the entire record to ascertain the issues, to discover whether there are facts not reported and to see whether or not the law has been correctly applied to facts.
The view expressed by other writers is practically the same as that expressed by Professor Willis, though some of them do not expressly refer to the fourth element, viz., orderly course of procedure.
The real point however is that these four elements are really different aspects of the same right, viz., the right to be heard before one is condemned.
So far as this right is concerned, judicial opinion in England appears to be the same as that in America.
In Eng land, it would shock one to be told that a man can be de prived of his personal liberty without a fair trial or hearing.
Such a case can happen if the Parliament expressly takes away the right in question in an emergency as the British Parliament did during// the last two world wars in a limited number of cases.
I will refer here to a few cases which show that the fundamental principle that a person whose right is affected must be heard has been observed not only in cases involving personal liberty but also 'in proceedings affecting other rights, even though they may have 164 come before administrative or quasi judicial tribunals.
Cooper vs The Wadsworth Board of Works (1)was a case under an Act which empowered the District Board to alter or demol ish a house where the builder had neglected to give notice of his intention.
seven days before proceeding to lay or dig the foundation.
Acting upon this power, the Board directed the demolition of a building without notice to the builder, but this was held to be illegal.
Byles 5.
in dealing with the matter observed as follows : "I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punish ment as well as the remedy.
That being so, a long course of decisions, beginning with Dr. Bentley 's case, and ending with some very recent cases, establish that although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.
The judgment of Mr. Justice Fortescue, in Dr. Bentley 's case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present.
He says, "The. objection for want of notice can never be got over.
The laws of God and man both give the party an opportunity to make his defence, if he has any.
" In the same case Erie C.J. observed : "It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard, is limited to a judicial proceeding.
I do not quite agree with that; . the law, I think, has been applied to many exercises of power which in common under standing would not be at all more a judicial proceeding than would be the act of the District Board in ordering a house to be pulled down." The observations made by Erie C.J. were quoted and applied by Sir Robert Collier in Smith vs The ' Queen (2), and the observations of Lord Campbell in Regina vs The Archbishop of Canterbury (3) were to the. same effect.
(1) ; (2) 3 A.C. 614.
(3) 1E.& E. 559.
165 A similar opinion was expressed by Sir GeorgeJessel in Fisher vs Keane (1), Labouchere vs Earl of Wharncliffe (2), and Russell vs Russell (3).
In the last mentioned case, he observed as follows : "It [Wood vs Woad (4)] contains a very valuable state ment by the Lord Chief Baron as to his view of the mode of administering justice by persons other than Judges who have judicial functions to perform which I should have been very glad to have had before me on both those club cases that I recently heard, namely, the case of Fisher vs Keane and the case of Labouchere vs Earl of Wharncliffe.
The passage I mean is this, referring to a committee: 'They are bound in the exercise of their functions by the rule expressed in the maxim "audi alteram partem," that no man should be condemned to consequences without having the opportunity of making his defence.
This rule is not confined to the con duct of strictly legal ' tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals '.
" This opinion was quoted with approval by Lord Macnaghten in Lapointe vs L 'Association etc.
de Montreal (5).
In that case, on an application for pension by the appellant, who had been obliged to resign, the Board of Directors, without any judicial inquiry into the circumstances, resolved to refuse the claim on the ground that he was obliged to tender his resignation.
This procedure was condemned by Lord Macnaghten as being "contrary to rules of society and above all contrary to the elementary principles of justice.
" These observations of Lord Macnaghten were referred to and relied on in The King vs Tribunal of Appeal under the Hous ing Act, 1919 (6).
In that case, a company proposed to build a picture house and the local authority having prohibited 'the building, the company appealed under the Housing (1) H. Ch. D. 353.
(4) [1874] L.R. 9 exhibit 190.
(2) 13 Oh. D. 346.
(5) (3) (6) 166 (Additional Powers) Act, 1919, which contained a provision that an appeal could in certain cases be properly determined without a hearing and that the appellate Court could dis pense with the hearing and determine the appeal summarily.
It was held that the meaning of rule 7 was that the tribunal on appeal might dispense with an oral hearing, not that they might dispense with a hearing of any kind, and that they were bound to give the appellants a hearing in the sense of an opportunity to make out a case.
The Earl of Reading in delivering the judgment observed: "The principle of law applicable to such a case is well stated by Kelly C.B. in Wood vs Woad in a passage which is cited with approval by Lord Macnaghten in Lapointe vs L ' Association etc.
de Montreal . " In Local Government Board vs Arlidge(1), the Local Government dismissed an appeal by a person against whom a closing order had been made under Housing, Town Planning, &c. Act, without an oral hearing and without being allowed to see the report made by the Board 's Inspector upon 'public local inquiry.
The House of Lords did not interfere with the order on the ground that the appeal had been dealt with by an administrative authority whose duty was to enforce obligations on the individual in the interests of the commu nity and whose character was that of an organization with executive functions.
The principle however was conceded and lucidly set forth that when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially, and they must deal with the question referred to them without bias and must give to each of the parties an opportunity of presenting its case, and that the decision must be come to in the spirit and with the sense of respon sibility of a tribunal whose duty it is to mete out justice.
Commenting upon this case, which is generally regarded as an extreme case, Mr. Gavin Simonds, who afterwards became a member of the House of Lords observes : (1) [1915] A.C.120.
167 "I think you would agree that if the subjectmatter of such proceedings as arc here indicated was the liberty of the subject, or indeed his life, you would regard such a judicial procedure as outrageous.
" (See C.K. Allen 's "Law and Orders," page 167).
I have particularly referred to cases which were before administrative tribunals, because I have to deal in this case with preventive detention which is said to be an execu tive act and because I wish to point out that even before executive authorities and administrative tribunals an order cannot generally be passed affecting one 's rights without giving one such hearing as may be appropriate to the circum stances of the case.
I have only to add that Halsbury after enumerating the most important liberties which are recog nized in England, such as right of personal freedom, right to freedom of speech, right of public meeting, etc.
, adds : "It seems to me that there should be added to this list the following rights which appear to have become well estab lished the right of the subject to have any case affecting him tried in accordance with the principles of natural justice, particularly the principles that a man may not be a judge in his own cause, and that no party ought to be con demned unheard, or to have a decision given against him unless he has been given a reasonable opportunity of putting forward his case . "(Halsbury 's Laws of England, 2nd Edition, volume 6, page 392).
The question is whether the principle that no person can be condemned without a hearing by an impartial tribunal which is well recognized in all modern civilized systems of law and which Halsbury puts on a par with well recognized fundamental rights cannot be regarded as part of the law of this country.
I must confess that I find it difficult to give a negative answer to this question.
The principle being part of the British system of law and procedure which we have inherited, has been observed in this country for a very long the and is also deeply rooted in our ancient history, being the basis of the 168 panchayat system from the earliest times.
The whole of the Criminal Procedure Code, whether it deals with trial of offences or with preventive or quasiadministrative measures such as are contemplated in sections 107, 108, 109, 110 and 145, is based upon the foundation of this principle, and it is difficult to see that it has not become part of the "law of the land" and does not inhere in our system of law.
If that is so, then "procedure established by law" must include this principle, whatever else it may or may not include.
That the word "law" used in article 21 does not mean only State made law is clear from the fact that though there is no statute laying down the complete procedure to be adopted in contempt of Court cases, when the contempt is not within the view of the Court, yet such procedure as now prevails in these cases is part of our law.
The statute law which regulates the procedure of trials and enquiries in criminal cases does not specifically provide for arguments in certain cases, but it has always been held that no decision should be pronounced without hearing arguments.
In a number of cases, it has been held that though there may be no specific provision for notice in the statute, the provision must be read into the law.
I am aware that some Judges have ex pressed a strong dislike for the expression "natural jus tice" on the ground that it is too vague and elastic, but where there are well known principles with no vagueness about them, which all systems of law have respected and recognized, they cannot be discarded merely because they are in the ultimate analysis found to be based on natural jus tice.
That the expression "natural justice" is not unknown to our law is apparent from the fact that the Privy Council has in many criminal appeals from this country laid down that it shall exercise its power of interference with the course of criminal justice in this country when there has been a breach of principles of natural justice or departure from the requirements of justice.
[See In re Abraham Mallory Dillet (1), Taba Singh vs King Emperor C), George Gfeller vs The (1) 12 A.C. 459.
(2) I.L.R. 48 Born.
515. 169 King(1), and Bugga and others vs Emperor(2).
In the present case, there is no vagueness about the right claimed which is the right to have one 's guilt or innocence considered by an impartial body and that right must be read into the words of article 21.
Article 21 purports to protect life and person al liberty, and it would be a precarious protection and a protection not worth having, if the elementary principle of law under discussion which, according to Halsbury is on a par with fundamental rights, is to be ignored and excluded.
In the course of his arguments, the learned counsel for the petitioner repeatedly asked whether the Constitution would permit a law being enacted, abolishing the mode of trial permitted by the existing law and establishing the procedure of trial by battle or trial by ordeal which was in vogue in olden times in England.
The question envisages something which is not likely to happen, but it does raise a legal problem which can perhaps be met only in tiffs way that if the expression "procedure established by law" simply means any procedure established or enacted by statute it will be difficult to give a negative answer to the question, but ii the word "law" includes what I have endeavoured to show it does, such an answer may be justified.
It seems to me that there is nothing revolutionary in the doctrine that the words "procedure established by law" must include the four principles set out in Professor Willis ' book, which, as I have already stated, are different aspects of the same principle and which have no vagueness or uncertainty about them.
These principles, as the learned author points out and as the authorities show, are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits.
I have only to add that it has not been seriously controverted that "law" in this article means valid law and "procedure" means certain definite rules of proceeding and not something which is a mere pretence for procedure.
I will now proceed to examine article 22 of the Consti tution which specifically deals with the subject (1) A.I.R. 1943P.C. 211.
(2) A.I.R. 1919P. C. 108.
170 of preventive detention.
The first point to be noted in regard to this article is that it does not exclude the operation of articles 19 and 21, and it must be read subject to those two articles, in the same way as articles 19 and 21 must be read subject to article 22.
The correct position is that article 22 must prevail in so far as there are specific provisions therein regarding preventive detention, but, where there are no such provisions in that article, the operation of articles 19 and 21 cannot be excluded.
The mere fact that different aspects of the same right have been dealt with in three different articles will not make them mutually exclusive except to the extent I have indicated.
I will now proceed to analyse the article and deal with its main provisions.
In my opinion, the main provisions of this article are : (1) that no person can be detained beyond three months without the report of an advisory board [clause 4 (a) ]; (2) that the Parliament may prescribe the circumstances and the class or classes of cases in which a person may be detained for more than three months without obtaining the opinion of an advisory board [clause 7 (a)]; (3) that when a person is preventively detained, the author ity making the order of detention shall communicate to such person the grounds on which the order is made and shall afford him the earliest opportunity of making a representa tion against the order [clause (5) ]; and (4) that the Parliament may prescribe the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention [clause 7 (b) ].
The last point does not require any consideration in this case, but the first three points do require considera tion.
In connection with the first point, the question arises as to the exact meaning of the words "such detention" occur ring in the end of clause 4 (a).
Two alternative interpre tations were put forward: (1) "such detention" means preven tive detention; (2) "such detention" means detention for a period longer than three months.
If the first interpreta tion is correct, then the function of the advisory board would be to go into the merits of the case of each person and simply 171 report whether there was sufficient cause for his detention.
According to the other interpretation, the function of the advisory board will be to report to the government whether there is sufficient cause for the person being detained for more than three months.
On the whole, I am inclined to agree with the second interpretation.
Prima facie, it is a seri ous matter to detain a person for a long period (more than three months) without any enquiry or trial.
But article 22 (4) (a) provides that such detention may be ordered on the report of the advisory board.
Since the report must be directly connected with the object for which it is required, the safeguard provided by the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is not to apply its mind to the vital ques tion before the government, namely, whether prolonged deten tion (detention for more than three ' months) is justified or not.
Under article 22 (4) (a), the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty ninth day.
It would be some what farcical to provide, that after a man has been detained for eighty nine days, an advisory board is to say whether ' his initial detention was justified.
On the other hand, the determination of the question whether prolonged detention (detention for more than three months)is justified must necessarily involve the determination of the question wheth er the detention was justified at all, and such an interpre tation only can give real meaning and effectiveness to the provision.
The provision being in the nature of a protection or safeguard, I must naturally lean towards the interpreta tion which is favourable to the subject and which is also in accord with the object in view.
The next question which we have to discuss relates to the meaning and scope of article 22 (7)(a) which runs as follows: "Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining 172 the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4).
" The question is what is meant by "circumstances" ' and "class or classes of cases" used in this provision.
This question has arisen because of the way in which these ex pressions appear to have been interpreted and applied in the Act of Parliament with which we are concerned.
As the matter is important and somewhat complicated, I shall try to express my meaning as clearly as possible even at the risk of some repetition, and, in doing so, I must necessarily refer to the impugned Act as well as Lists I and III of the Seventh Schedule of the Constitution, under which Parliament had jurisdiction to enact it.
Item 9 of List I Union List shows that the Parliament has power to legislate on preventive detention for reasons connected with (1) defence, (2) foreign affairs, and (3) security of India.
Under List III Concurrent List the appropriate item is item 3 which shows that law as to preventive detention can be made for reasons connected with (1) the security of the State, (2) the maintenance of public order, and (3) the maintenance of supplies and services essential to the community.
The impugned Act refers to all the subjects mentioned in Lists I and III in regard to which law of preventive detention can be made.
Section 3 (1)of the Act, the substance of which has already been mentioned, is important, and I shall reproduce it verbatim.
"The Central Government or the State Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essen tial to the community, or 173 (b) if satisfied with respect to any person who is a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
" It will be noticed that all the subjects of legislation concerning preventive detention occurring in item of List I are grouped in sub clause (1) of clause (a).
The subjects in this group are three in number and, for convenience of reference, I shall hereafter refer to them as A, B and C.
In sub .clause (ii), we find grouped two of the matters referred to in item 3 of List III, these being security of the State and the maintenance of public order.
These two subjects, I shall refer to as D and E.
In sub clause (iii), reference has been made to the third matter in item 3 of List III, and I shall refer to this subject as F. With this classification, let us now turn to the Constitution itself.
On reading articles 22 (4) and 22 (7) together, it would be clear that so long as article 22 (4) (a) holds the field and Parliament does not act under clause (7) (a) of article 22, there must be an advisory board in every case, i.e., if the legislation relates to groups A to F, as it does here, there must be an advisory board for all these groups.
Article 22 (7) however practically engrafts an excep tion.
It states in substance that the Parliament may by an Act provide for preventive detention for more than three months without reference to an advisory board, but in such cases it shall be incumbent on the Parliament to prescribe (1) the circumstances and (2) the class or classes of cases in which such course is found to be necessary.
If the case contemplated in clause (4)(a)is the rule and that contem plated 'in clause (7) (a) is the exception, then the circum stances and the class or classes of cases must be of a special or extraordinary nature, so as to take the case out of the rule and bring it within the exception.
It is always 174 possible to draw the line between the normal or ordinary and the abnormal or extraordinary cases.
and this is what, in my opinion, the Parliament was expected to do under clause (7) (a).
I do not think that it was ever intended that Parliament could at its will treat the normal as the abnor mal or 'the rule as the exception.
But this is precisely what has been done in this case All the items on which preventive legislation is possible excepting one, i.e., A to E, have been put within the exception, and only one, F, which relates to maintenance of supplies and services essen tial to the community, has been allowed to remain under the rule.
In other words, it is provided that there shall be an advisory board only for the last category, F, but no provi sion having been made for the other categories, A to E, it may be assumed that the advisory board has been dispensed with in those cases.
The learned Attorney General maintained that it would have been open to the Parliament to dispense with the advisory board even for the category F, and if such a course had been adopted it would not have affected the validity of the Act.
This is undoubtedly a logical position in the sense that it was necessary for him to go as far as this to justify his stand; but, in my opinion, the course adopted by the Parliament in enacting section 12 of the impugned Act is not what is contemplated under article 22 (7) (a) or is permitted by it.
The circumstances to be prescribed must be special and extraordinary circumstances and the class or classes of cases must be of the same na ture.
In my opinion, the Constitution never contemplated that the Parliament should mechanically reproduce all or most of the categories A to F almost verbatim and not apply its mind to decide in what circumstances and in what class or classes of cases the safeguard of an advisory board is to be dispensed with.
I may state here that two views are put forward before us as to how clauses (4) (a) and 7 (a) of article 22 are to be read: (1) that clause (4) (a) lays down the rule that in all cases where detention for more than three months is ordered, it should be done in consultation with and on the report of the advisory 175 board, and clause (7) (a) lays down an exception to this rule by providing that Parliament may pass an Act permitting detention for more than three months without reference to an advisory board; (2) that clauses (4)(a) and (7) (a) are independent clauses making two separate and alternative provisions regarding detention for more than three months, in one case on the report of an advisory board and in other case without reference to an advisory board.
Looking at the substance and not merely at the words, I am inclined to hold that clause (7) (a) practically engrafts an exception on the rule that preventive detention for more than three months can be ordered only on the report of an advisory board, and so far I have proceeded on that footing.
But it seems to me that it will make no difference to the ulti mate conclusion, whichever of the two views we may adopt.
Even on the latter view, it must be recognized that the law which the Constitution enables the Parliament to make under article 22 (7) (a) would be an exceptionally drastic law, and, on the principle that an exceptionally drastic law must be intended for an exceptional situation, every word of what I have said so far must stand.
Clause (7) (a) is only an enabling provision, and it takes care to provide that the Parliament cannot go to the extreme limit to which it is permitted to go without prescribing the class or classes cases and the circumstances to which the extreme law would be applicable.
It follows that the class or classes of cases and the circumstances must be of a special nature to require such legislation.
It was urged that the word "and" which occurs between "circumstances" and "class or classes of cases" is used in a disjunctive sense and should be read as "or," and by way of illustration it was mentioned that when it is said that a person may do this and that, it means that he is at liberty to do either this or that.
I do not think that this argu ment is sound.
I think that clause (7)(a) can be accurately paraphrased somewhat as follows : " Parliament may dispense with an advisory board, but in that case it shall prescribe the circumstances and the class or 23 176 classes of cases . . "If this is the meaning, then ' 'and" must be read as "and" and not as "or"; and "may" must be read as "shall.
" Supposing it was said that Parliament may prescribe the time and place for the doing of a thing, then can it be suggested that both time and place should not be prescribed ? It seems obvious to me that the class or classes of cases must have some reference to the persons to be detained or to their activities and movements or to both. "Circumstances" on the other hand refer to something extra neous, such as surroundings, background, prevailing condi tions, etc., which might prove a fertile field for the dangerous activities of dangerous persons.
Therefore the provision clearly means that both the circumstances and the class or classes of cases (which are two different expres sions with different meanings and connotations and cannot be regarded as synonymous) should be prescribed, and prescrip tion of one without prescribing the other will not be enough.
As I have already stated, such law as can be enact ed under article 22 (7) (a) must involve, by reason of the extreme limit to which it can go, serious consequences to the persons detained.
It will mean (1) prolonged detention, i.e., detention for a period longer than three months, and (2) deprivation of the safeguard of an advisory board.
Hence article 22 (7) (a) which purports to be a protective provi sion will cease to serve its object unless it is given a reasonable interpretation.
To my mind, what it contemplates is that the law in question must not be too general but its scope should be limited by prescribing both the class or classes of cases and the circumstances.
It was contended that the expression "class or classes of cases" is wide enough to enable the Parliament to treat any of the categories mentioned in Lists I and III, items 9 and 3 respectively, (i.e., any of the categories A to F) as constituting a class.
At first sight, it seemed to me to be a plausible argument,, but the more I think about it the more unsound it appears to me.
The chief thing to be remem bered is what I have already emphasized more than once, viz., that a special or extreme type of law must be limited to special classes of cases and circumstances.
Under the 177 Constitution, the Parliament has to prescribe "the class or classes," acting within the limits of the power granted to it under Lists I and III.
The class or classes must be its own prescription and must be so conceived as to justify by their contents the removal of an important safeguard provid ed by the Constitution.
Prescribing is more than a mere mechanical process.
It involves a mental effort to select and adapt the thing prescribed to the object for which it has to be prescribed.
We find here that what is to be prescribed is "class or classes" (and also "circumstances ").
We also find that what the law intends to provide is prolonged detention (by which words I shall hereafter mean detention for more than three months) and elimination of the advisory board.
The class or classes to be prescribed must therefore have a direct bearing on these matters and must be so selected and stated that any one by looking at them may say : " That is the reason why the law has prescribed prolonged detention without reference to an advisory board.
" In other words, there must be something to make the class or classes prescribed fit in with an extreme type of legisla tion some element of exceptional gravity or menace, which cannot be easily and immediately overcome and therefore necessitates prolonged detention; and there must be some thing to show that reference to an advisory board would be an undesirable and cumbersome process and wholly unsuitable for the exceptional situation to which the law applies.
Perhaps a simple illustration may make the position still clearer.
Under the Lists, one of the subjects on which Parliament may make a law of preventive detention is "matter connected with the maintenance of public order.
" The Act simply repeats this phraseology and states in sec tion 3: "with a view to preventing him (the person to be detained) from acting in a manner prejudicial to the main tenance of public order.
" This may be all right for section 3, but section 12 must go further.
An act prejudicial to.
the maintenance of public order may be an ordinary act or it may be an act of special gravity.
I think that article 22 (7)(a) contemplates that the graver and 178 more heinous types of acts falling within the category of acts prejudicial to the maintenance of public order (or other heads) should be prescribed so as to define and cir cumscribe the area of an exceptional piece of legislation.
That some kind of sub classification (if I may be per mitted to use this word) of the categories A to F was possi ble can be illustrated by reference to regulation 18 ]3 of the British Defence of the Realm Regulations.
This regula tion was made under an Act of 1039 which authorized "the making of regulations for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of public safety or the defence of the realm.
" The two matters "public safety" and "defence of the realm" are analogous to some of the heads stated in Lists I and III.
It will be instructive to note that under these two heads, regulation 18 B has set forth several subheads or class or classes of cases in which preventive detention could be ordered.
These classes are much more specific than what we find in section a of the impugned Act and therefore there is less chance of misuse by the executive of the power to order preventive detention.
The classes set out are these : (1) If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associa tions, (2) if the Secretary of State has reasonable cause to believe any person to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts, (3) if the Secretary of State has reasonable cause to believe any person to have been or to be a member of, or to have been or to be active in the furtherance of the objects of, any such organization as is hereinafter mentioned . (a) the organization is subject to foreign influence or control, (b) the persons in control of the organization have or have had associations with, persons concerned in the government of, or sympathies with the system of government of, any Power with which His Majesty is at war, and in either case there is danger of the utilization of the organization for pur poses prejudicial to the public safety, etc., (4) if the Secretary of State has reasonable cause to believe that the recent conduct of any person for the time being in an area or any words recently written or spoken by such a person expressing sympathy with the enemy, indicates or indicate that person is likely to assist the enemy.
I have only to point out that the scope within which preventive detention can be legislat ed upon in this country is much larger than the scope indi cated in the British Act under which Regulation 18 B was framed, and therefore there is more scope for specification of the circumstances as well as the class or classes of cases under the impugned Act.
But all that has been done is that words which occur in the legislative Lists have been taken and transferred into the Act.
What I have stated with regard to class or classes of cases also applies to the circumstances which are also to be prescribed under article 22 (7) (a).
These circumstances are intended to supply the background or setting in which the dangerous activities of dangerous persons might prove specially harmful.
They must be special circumstances which demand a specially drastic measure and under which reference to an advisory board might defeat the very object of preven tive action.
The evident meaning of article 22 (7) (a) seems to be that the picture will not be complete without mentioning both the classes and the circumstances.
There was some discussion at the Bar as to what kind of circumstances might have been specified.
It is not for me to answer this question, but I apprehend that an impending rebellion or war, serious disorder in a particular area such as has induced the Punjab Government to declare certain areas as "disturbed areas," tense communal situation, prevalence of sabotage or widespread political dacoities and a variety of other matters might answer the purpose the Constitution had in view.
I will now try to sum up the result of a somewhat pro tracted discussion into which I had to enter merely to clarify the meaning of a very important provision of the Constitution which has, in my opinion, been completely misunderstood by the framers of the 180 impugned Act.
It appears to me that article 22 deals with three classes of preventive detention : (1) preventive detention for three months; (2) preventive detention for more than three months on the report of the advisory board; and (3) preventive detention for more than three months without reference to the advisory board.
If one has to find some kind of a label for these class es for a clear understanding of the subject, one may label them as "dangerous," "more dangerous" and "most danger ous.
" Now so far as the first two classes are concerned, there is nothing to be prescribed under the Constitution Apparently, the authors of the Constitution were not much concerned about class No. (1), and they thought that in so far as class No. (2) was concerned the provision that a reference to the advisory board was necessary coupled with the provision that detention was not to exceed the maximum period which may be fixed by the Parliament was enough.
But they did take care to make a special provision for class No. (3), and it is extermly important for the liberty of the subject as well as for the smooth working of the Constitu tion that this provision should not be lightly treated but should receive a well considered and reasonable construc tion.
It is elementary that the rigour of a law should correspond to or fit the gravity of the evil or danger it aims at combating, and it is also evident that the law which the Parliament has been permitted to enact under article 22 (7) (a) can, so far as rigour is concerned, go to the I farthest limit.
It follows that the law must have been intended for exceptionally grave situations and exigencies.
Hence the authors of the Constitution have made it necessary that the Parliament should put certain specifications into the Act which it is empowered to pass under article 22 (7) (a), so that by means of these specifications the necessity for enacting so drastic a law should be apparent on the face of it, and its application should be confined to the classes and circumstances specified.
The Act must prescribe (1) "c]ass or classes of cases" which are to have reference to the persons.
181 against whom the law is to operate and their activities and movements and (2) "circumstances" which would bring into prominence the conditions and the backgrounds against which dangerous activities should call for special measures.
By means of such two fold prescription, the sphere for the application of the law will be confined only to a special type of cases it will be less vague, less open to abuse and enable those who have to administer it to determine objec tively when a condition has arisen to justify the use of the power vested in them by the law.
This, in my opinion, is the true meaning and significance of article 22 (7) (a) and any attempt to whittle it down will lead to deplorable results.
Having stated my views as to the construction of article 22 (7) (a), I propose to consider at once whether section 12 of the impugned Act conforms to the requirements of that provision.
In my opinion, it does not, because it fails to prescribe either the circumstances or the class or classes of cases in the manner required by the Constitution.
It does not prescribe circumstances at all, and, though it purports to prescribe the class or classes, it does so in a manner showing that the true meaning of the provision from which the Parliament derived its power has not been grasped.
I have sufficiently dwelt on this part of the case and shall not repeat what I have already said.
But I must point out that even if it be assumed that the view advanced by the learned Attorney General is correct and it was within the competence of Parliament to treat any of the categories mentioned in items 9 and 3 of Lists I and III as constitut ing a class and to include it without any qualification or change, the impugned section cannot be saved on account of a two fold error : .
(1) the word "and" which links "class or classes" with "circumstances" in article 22 (7) (a) has been wrongly construed to mean "or ;" and (2) the distinction between "circumstances" and "class or classes" has been completely ignored and they are used as interchangeable terms.
The first error appears to me to be quite a serious one, because though the Constitution lays down two require ments and insists 182 on the prescription of circumstances as well as class or classes, it has been assumed in enacting section 12 that prescription of one of them only will be enough.
The other error is still more serious and goes to the root of the matter.
There can be no doubt that circumstances and class or classes are two different expressions and have different meanings, but the Act proceeds on the assumption that cir cumstances are identical with class or classes, as will appear from the words "any person detained in any of the following classes of cases or under any of the following circumstances" used in the section.
I have already shown how important the specification of circumstances is in legislation of such an extreme and drastic character.
There fore, to confuse "classes" with "circumstances" and to omit to mention "circumstances" at all are in my opinion grave errors.
There can, in my opinion, be no escape from the conclusion that section 12 of the Act by which a most impor tant protection or safeguard conferred on the subject by the Constitution has been taken away, is not a valid provision, since it contravenes the very provision in the Constitution under which the Parliament derived its competence to enact it.
I will now briefly deal with article 22 (5) which makes it incumbent on the authority ordering preventive deten tion to communicate to the person detained the grounds on which the order has been made and to give him the earliest opportunity of making a representation against the order.
It must be remembered that this provision is intended to afford protection to and be a safeguard in favour of a detained person, and it cannot be read as limiting any rights which he has under the law or any other provisions of the Consti tution.
If article 21 guarantees that before a person is deprived of his liberty he must be allowed an opportunity of establishing his innocence before an impartial tribunal, that right still remains.
In point of fact, there is no express exclusion of that right in the Constitution and no prohibition against constituting an impartial tribunal.
On the other hand, the right to make a representation which has 183 been granted under the Constitution, must carry with it the right to the representation being properly considered by an impartial person or persons.
There must therefore be some machinery for properly examining the cases of the detenus and coming to the conclusion that they have not been de tained without reason.
If this right had been expressly taken away by the Constitution, there would have been an end of the matter, but it has not been expressly taken away, and I am not prepared to read any implicit deprivation of such a valuable right.
The mere reference to an advisory board in article 22 (4) (a) does not, if my interpretation of the provision is correct, exclude the constitution of a proper machinery for the purpose of examining the cases of detenus on merits.
The constitution of an advisory board for the purpose of reporting whether a person should be detained for more than three months or not is a very different thing from constituting a board for the purpose of reporting whether a man should be detained for a single day.
In the view I take, all that Parliament could do under clause (7) (a) of article 22 was to dispense with an advisory board for the purpose contemplated in clause (4) (a) of that article and not to dispense with the proper machinery, by whichever name it may be called, for the purpose of examining the merits of the case of a detained person.
It was argued that article 22 is a code by itself and the whole law of preventive detention is to be found within its four corners.
I cannot however easily subscribe to this sweeping statement.
The article does provide for some mat ters of procedure, but it does not exhaustively provide for them.
It is said that it provides for notice, an opportuni ty to the detenu to represent his case, an advisory board which may deal with his case, and for the maximum period beyond which a person cannot be detained.
These points have undoubtedly been touched, but it cannot be said that they have been exhaustively treated.
The right to represent is given, but it is left to the legislature to provide the machinery for dealing with the representation.
The advisory board has been mentioned, but 24 184 it is only to safeguard detention for a period longer than three months.
There is ample latitude still left to the Parliament, and if the Parliament makes use of that latitude unreasonably, article 19 (5) may enable the Court to see whether it has transgressed the limits of reasonableness.
I will now proceed to deal with the Act in the light of the conclusions I have arrived at.
So far as section 3 of the Act is concerned, it was contended that it is most unreasonable, because it throws a citizen at the mercy of certain authorities, who may at their own will order his detention and into whose minds we cannot probe to see wheth er there is any foundation for the subjective satisfaction upon which their action is to rest.
I am however unable to accept this argument.
The administrative authorities who have to discharge their responsibilities have to come to quick decisions and must necessarily be left to act on their own judgment.
This principle is by no means unreasonable and it underlies all the preventive or quasi administrative measures which are to be found in the Criminal Procedure Code.
Under section 107 of that code, it is left to the discretion of the magistrate concerned to determine whether in his opinion there is sufficient ground for proceeding against any person who is likely to occasion a breach of the peace.
Under section 145 also, his initial action depends upon his personal satisfaction.
Therefore I do not find anything wrong or unconstitutional in section 3 of the Act.
But I must point out that it is a reasonable provision only for the first step, i.e., for arrest and initial detention, and must be followed by some procedure for testing the so called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds.
I do not also find anything radically wrong in section 7 of the Act, which makes it incumbent on the authority con cerned to communicate to a detenu the grounds on which the order has been made and to 185 afford him the earliest opportunity of making a representa tion against the order.
Section 10 which provides that the advisory board shall make its report within ten weeks from the date of the detention order is in conformity with arti cle 22 (4) (a) of the Constitution, and the only comment which one can make is that Parliament was not obliged to fix such a long period for the submission of a report and could have made it shorter in ordinary cases.
The real sections which appear to me to offend the Constitution are sections 12 and 14.
I have already dealt with the principal objec tion to section 12, while discussing the provisions of article 22 (7) (a) and I am of the opinion that section 12 does not conform to the provisions of the Constitution and is therefore ultra vires.
I also think that even if it be held that it technically complies with the requirements of article 22 (7) (a), Parliament has acted unreasonably in exercising its discretionary power without applying its mind to essential matters and thus depriving the detenus of the safeguard of an advisory board which the Constitution has provided in normal cases.
So far as section 14 is con cerned, all my colleagues have held it to be ultra vires, and, as I agree with the views expressed by them, I do not wish to encumber my judgment by repeating in my own words what has been said so clearly and so well by them.
Section 14 may be severable from the other provi sions of the Act and it may not be possible to grant any relief to the petitioner on the ground that section 14 is invalid.
But I think that section 12 goes to the very root of the legislation inasmuch as it deprives a detenu of an essential safeguard, and in my opinion the petitioner is entitled to a writ of habeas corpus on the ground that an essential provision of the Constitution has not been com plied with.
This writ will of course be without prejudice to any action which the authorities may have taken or may hereafter take against the petitioner under the penal law I have to add this qualification because there were allega tions of his being involved in some criminal cases but the actual facts were not clearly brought out before us.
186 I have only to add a few concluding remarks to my judg ment.
In studying the provisions of the impugned Act, I could not help instituting a comparison in my own mind between it and similar legislation in England during the last two world wars.
I could not also help noticing that the impugned Act purports to be a peacetime Act, whereas the legislation to which I have referred was enacted during the war.
During the first war as well as the second, a number of persons were detained and a number of cases were brought to Court in connection with their detention, but the two lead ing cases which will be quoted again and again are Rex vs Halliday (1) and Liversidge vs Sir John Anderson(2).
We are aware that in America certain standards which do not conform to ordinary and normal law have been applied by the Judges during the period of the war and sometimes they are compen dionsly referred to as being included in "war power.
" The two English cases to which I have referred also illustrate the same principle, as will appear from two short extracts which I wish to reproduce.
In Rex vs Halliday (3), Lord Atkinson observed as follows : " However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the ' war, or escape from national plunder or enslavement.
" In Liversidge vs Sir John Anderson (4), Lord Macmillan struck the same note in these words : "The liberty which we so 'justly extol is itself the gift of the law and as Magna Charta recognizes may by the law be forfeited or abridged.
At a time when it is the undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country 's cause it may well be no matter for surprise that there should be confided to the Secretary of State a discretionary power of enforcing the relatively mild precaution of detention.
" (1) [1917] A.C.260.
(3) ; 271. ; (4) ; at p. 257. 187 These passages represent the majority view in the two cases, but the very elaborate judgments of Lord Shaw in Rex vs Halliday and that of Lord Atkin in Liversidge vs Sir John Anderson show that there.
was room for difference of opinion as well as for a more dispassionate treatment of the case and the points involved in it.
It is difficult to say that there is not a good substratum of sound law in the celebrat ed dictum of Lord Atkin that even amidst the clash of arms the laws are not silent and that they speak the same lan guage in war as in peace.
However that may be, what I find is that in the regulations made in England during the first war as well as the second war there was an elaborate provi sion for an advisory board in all cases without any excep tion, which provided a wartime safeguard for persons de prived of their liberty.
There was also a provision in the Act of 1939 that the Secretary of State should report at least once in every month as to the action taken under the regulation including the number of persons detained under orders made thereunder.
I find that these reports were printed and made available to the public.
I also find that the Secretary of State stated in the House of Commons on the 28th January, 1943, that the general order would be to allow British subjects detained under the Regulation to have consultations with their legal advisers out of the hearing of an officer.
This order applied to consultations with barristers and solicitors but not to cases where solicitors sent to interview a detained person a clerk who was not an officer of the High Court.
The impugned Act suffers in com parison, on account of want of such provisions, though, so far as I can see, no great harm was likely to have been caused by setting up a machinery composed of either adminis trative or judicial authorities for examining the cases of detained persons so as to satisfy the essentials of fairness and justice.
The Act also suffers in comparison with some of the later Provincial Acts in which the safeguard of an advisory board is , expressly provided for.
I find that there is a provision in section 12 (2) of the Act for the review of the cases of detenus after six months, but this is quite different 188 from examining the merits of the case.
The object of such a review is obviously to find out whether by reason of any change in the circumstances, a review of the original order is required.
I hope that in pointing out the shortcomings of the Act I will not be misunderstood.
I am aware that both in Eng land and in America and also in many other countries, there has been a reorientation of the old notions of individual freedom which is gradually yielding to social control in many matters.
I also realize that those who run the State have very onerous responsibilities, and it is not correct to say that emergent conditions have altogether disappeared from this country.
Granting then that private rights must often be subordinated to the public good, is it not essen tial in a free community to strike a just balance in the matter ? That a person should be deprived of his personal liberty without a trial is a serious matter, but the needs of society may demand it and the individual may often have to yield to those needs.
Still the balance between the maintenance of individual rights and public good can be struck only if the person who is deprived of his liberty is allowed a fair chance to establish his innocence, and I do not see how the establishment of an appropriate machinery giving him such a chance can be an impediment to good and just government.
PATANJALI SASTRI J. This is an application under arti cle 32 of the Constitution of India for releasing the petitioner from detention in jail without trial under directions purporting to be issued by the Government of Madras under the , and it has the distinction of being the first application invoking the guaranteed protection of this Court as the guardian of Fundamental Rights against alleged infringement of the petitioner 's right to freedom of movement.
As the case involved issues of great public importance and breaking of new ground it was argued with thoroughness and ability on both sides, reference being made to more or less analogous provisions of the Constitutions of 189 other countries and in particular the Constitution of the United States of America.
The petitioner had been under detention previously under orders passed by the said Government under the Madras Main tenance of Public Order Act, 1947, but as the validity of that Act and all other similar local public safety enact ments had been questioned in some of the High Courts in India after the new Constitution came into force, the Par liament enacted a comprehensive measure called the Preven tive Detention Act, 1950, (hereinafter referred to as the impugned Act) extending to the whole of India with a certain exception not material here.
The Act came into force on 25th February 1950, and, on the 27th February, the Government of Madras, in purported exercise of the powers conferred by the impugned Act and in supersession of earlier orders, directed the detention of the petitioner, and the order was served on him on 1st March.
The petitioner contends that the impugned Act and in particular sections 3, 7, 10, 11, 19,, 13 and 14 thereof take away or abridge the fundamental right to freedom of movement in contravention of article 13 (2) of the Constitu tion and is, therefore, void as declared therein.
Article 13 is one of a fasciculus of articles which are comprised in part III of the Indian Constitution headed "Fundamental Rights.
" This Part forms a new feature of the Constitution and is the Indian "Bill of Rights.
" It is modelled on the first ten Amendments of the American Con stitution which declare the fundamental rights of the American citizen.
Article 12, which is the first article in this Part, defines "the State" as including the Governments and Legislatures of the Union and the States as well as all local and other authorities against which the fundamental rights are enforceable, and article 13 (1) declares that all existing laws inconsistent with the provisions of Part III shall, to the extent of the inconsistency, be void.
Clause (2) of the article, on which the petitioner 's con tention is primarily founded reads as follows: 190 "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
" As the constitutional inhibition against deprivation or abridgement relates only to "the rights conferred by this Part," it is necessary first to ascertain the nature and extent of the right which, according to the petitioner, Part III has conferred on him, and, secondly, to determine wheth er the right so ascertained has been taken away or abridged by the impugned Act or by any of its provisions.
The first question turns on the proper interpretation of the relevant articles of the Constitution, and the second involves the consideration of the provisions of the impugned Act.
Mr. Nambiar appearing for the petitioner advanced three main lines of argument.
In the first place, the right to move freely throughout the territory of India referred to in article 19 (1)(d) is of the very essence of personal liber ty, and inasmuch as the detention authorised by the impugned Act was not a "reasonable restriction" which Parliament could validly impose on such right under clause (5) of the article, the impugned Act is void.
Alternatively, the petitioner had a fundamental right under article 21 not to be deprived of his personal liberty except according to procedure established by law, and the impugned Act by autho rising detention otherwise than in accordance with proper procedure took away that right and was therefore void.
And, lastly, the provisions of the impugned Act already re ferred to were ultra vires and inoperative as Parliament in enacting them has overstepped the ]imitations placed on its legislative power by article 22 clauses (4) to (7).
Accordingly, the first question for consideration is whether article 19 (1) (d) and (5) is applicable to the present case.
"Liberty," says John Stuart Mill, "consists in doing what one desires.
But the liberty ' of the individual must be thus far limited he must not make him self a nuisance to others.
" Man, as a rational being, desires to do many things, but in a civil society his de sires have to be controlled, regulated 191 and reconciled with the exercise of similar desires.
by other individuals.
Liberty has, therefore, to be limited in order to be effectively possessed.
Accordingly, article 19, while guaranteeing some of the most valued phases or elements of liberty to every citizen as civil1 rights, pro vides for their regulation for the common good by the State imposing certain "restrictions" on their exercise.
The power of locomotion is no doubt an essential element of personal liberty which means freedom from bodily restraint, and detention in jail is a drastic invasion of that liberty.
But the question is: Does article 19, in its setting in Part III of the Constitution, deal with the deprivation of per sonal liberty in the sense of incarceration ? Sub clause (d) of clause (1) does not refer to freedom of movement simplic iter but guarantees the right to move freely "throughout the territory of India." Sub clause (e) similarly guaran tees the right to reside and settle in any part of the territory of India.
And clause (5) authorises the imposi tion of "reasonable restrictions" on these rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
Reading these provisions together, it is reasonably clear that they were designed primarily to emphasise the factual unity of the territory of India and to secure the right of a free citizen to move from one place in India to another and to reside and settle in any part of India unhampered by any barriers which nar row minded provincialism may seek to interpose.
The use of the word "restrictions" in the various sub clauses seems to imply, in the context, that the rights guaranteed by the article are still capable of being exercised, and to exclude the idea of incarceration though the words "restriction" and "deprivation" are sometimes used as interchangeable terms, as restriction may reach a point where it may well amount to deprivation.
Read as a whole and viewed in its setting among the group of provisions (articles 19 22) relating to "Right to Freedom," article 19 seems to my mind to pre suppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum 192 of personal freedom on which alone the enjoyment of these rights necessarily rests.
It was said that subclause (f) would militate against this view, as the enjoyment of the right "to acquire, hold and dispose of property" does not depend upon the owner retaining his personal freedom.
This assumption is obviously wrong as regards moveable proper ties, and even as regards immoveables he could not acquire or dispose of them from behind the prison bars; nor could he "hold" them in the sense of exercising rights of possession and control over them which is what the word seems to mean in the context.
But where, as a penalty for committing a crime or otherwise, the citizen is lawfully deprived of his freedom, there could no longer be any ques tion of his exercising or enforcing the rights referred to in clause (1).
Deprivation of personal liberty in such a situation is not, in my opinion, within the purview of article 19 at all but is dealt with by the succeeding arti cles 20 and 21.
In other words, article 19 guarantees to the citizens the enjoyment of certain civil liberties while they are free, while articles 20 22 secure to all persons citizens and non citizens certain constitutional guarantees in regard to punishment and prevention of crime.
Different criteria are provided by which to measure legisla tive judgments in the two fields, and a construction which would bring within article 19 imprisonment in punishment of a crime committed or in prevention of a crime threatened would, as it seems to me, make a reductio ad absurdum of that provision.
If imprisonment were to be regarded as a "restriction" of the right mentioned in article 19 (1)(d), it would equally be a restriction on the rights mentioned by the other subclauses of clause (1), with the result that all penal laws providing for imprisonment as a mode of punish ment would have to run the gauntlet of clauses (2) to (6) before their validity could be accepted.
For instance,the law which imprisons for theft would, on that view, fall to be justified under clause (2) as a law sanctioning restric tion of freedom of speech and expression.
Indeed, a Divi sion Bench of the Allahabad High Court,in a recent unreport ed decision brought to our notice 193 applied the test of undermining the security of the State or tending to overthrow it in determining the validity or otherwise of the impugned Act.
The learned Judges construed article 19 as covering cases of deprivation of personal liberty and held, logically enough, that inasmuch as the impugned Act, by authorising preventive detention, infringed the right to freedom of speech and expression, its validity should be judged by the reservations in clause (2), and, as it failed to stand that test, it was unconstitutional and void.
Mr. Nambiar did not seek to go so far.
He drew a dis tinction between the right conferred by sub clause (d) and those conferred by the other sub clauses.
He urged, refer ring to Blackstone 's Commentaries, that personal liberty consisted "in moving one 's person to whatever place one 's inclination might direct," and that any law which de prived a person of such power of locomotion was a direct invasion of the right mentioned in sub clause (d), whereas it inter fered only indirectly and consequentially with the rights mentioned in the other sub Clauses.
There is no substance in the distinction suggested.
It would be illogi cal, in construing article 19, to attribute to one of the sub clauses a scope and effect totally different from the scope and effect of the others or to draw a distinc . tion between one right and another in the group.
All the rights mentioned in clause (1) are equally essential elements in the liberty of the individual in any civilised and democrat ic community, and imprison, ment operates as an extinction of all of them alike.
It cannot, therefore, be said that deprivation of personal liberty is an infringement of the right conferred by sub clause (d) alone but not of the others.
The learned Judges of the Allahabad High Court realised this and were perfectly logical in holding that the constitutional validity of a law providing for deprivation of personal liberty or imprisonment must be judged by the tests laid down not only in clause (5) of article 19 but also in the other clauses including clause (2), though their major premise that deprivation of personal liberty was a "restriction" within the meaning of article 19 is, in my judgment, erroneous.
194 It was said that preventive detention being a drasic re striction of the right to move freely was, in its pith and substance," within article 19 (1) (d) read with clause (5) and not within article 21 which deals with crime and its punishment and prevention.
There is no room here, in my opinion, for the application of the rule of "pith and sub stance.
" As pointed out by the Privy Council in Prafulla Kumar Mukherjee vs The Bank of Commerce Ltd., Khulna (1), approving the observations of the Federal Court in Subrah manyam Chettiar vs Muttuswamy Goundan (2), the rule was evolved by the Board for determining whether an impugned statute was, in its true character, legislation with respect to matters within the jurisdiction of one legislature or another in a scheme of divided legislative power.
No such question arises here.
What the Court has to ascertain is the true scope and meaning of article 19 in the context of Part III of the Constitution, in order to decide whether depriva tion of personal liberty falls within that article, and the pith and substance rule will be more misleading than helpful in the decision of that issue.
Article 19, as I have already indicated, guarantees protection for the more important civil liberties of citizens who are in the enjoyment of their freedom, while at the same time laying down the re strictions which the legislature may properly impose on the exercise of such rights, and it has nothing to do with deprivation of personal liberty or imprisonment which is dealt with by the succeeding three articles.
There is also another consideration which points to the same conclusion.
The ]Drafting Committee of the Constituent Assembly, to whose Report reference was freely made by both sides during the argument, recommended "that the word liber ty should be qualified by the insertion of the word 'person al ' before it, for otherwise it might be construed very widely so as to include even the freedoms already dealt with in article 13" (now article 19).
The acceptance of this suggestion shows that whatever may be the generally accepted (1) 74 I.A. 23.
(2) [1940] F.C.E. 188.
195 connotation of the expression "personal liberty," it was used in article 21 in a sense which excludes the freedoms dealt with in article 19, that is to say, personal liberty in the context of Part III of the Constitution is something distinct from the freedom to move freely throughout the territory of India.
It was further submitted that article 19 declared the substantive rights of personal liberty while article 21 provided the procedural safeguard against their deprivation.
This view of the correlation between the two articles has found favour with some of the Judges in the High Courts which have had occasion to consider the constitutional validity of the impugned Act.
It is, however, to be ob served that article 19 confers the rights therein specified only on the citizens of India, while article 21 extends the protection of life and personal liberty to all persons citizens and noncitizens alike.
Thus, the two articles do not operate in a conterminous field, and this is one reason for rejecting the correlation suggested.
Again, if article 21 is to be understood as providing only proce dural safeguards, where is the substantive right to personal liberty of non citizens to be found in the Constitution ? Are they denied such right altogether ? If they are to have no right of personal liberty, why is the proce dural safeguard in article 21 exended to them ? And where is that most fundamental right of all, the right to life, provided for in the Constitution ? The truth is that arti cle 21, like its American prototype in the Fifth and Four teenth Amendments of the Constitution of the United States, presents an example of the fusion of procedural and substan tive rights in the same provision.
The right to live, though the most fundamental of all, is also one of the most difficult to define and its protection generally takes the form of a declaration that no person shall be deprived of it save by due process of law or by authority of law.
"Process" or "procedure" in this context connotes both the act and the manner of proceeding to take away a man 's life or per sonal liberty.
And the first and essential step in a proce dure established by law for such deprivation must be a law made by a competent legislature 196 Authorising such deprivation.
This brings me to the consid eration of articles 21 and 22 to which was deroted the greater part of the debate at the Bar.
These articles run as follows: "21.
No person shall be deprived of his life or person al liberty except according to procedure established by law.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses '(1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who, are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention: Provided that nothing in this sub clause shall ' autho rise the detention of any person beyond the maximum period prescribed by any law made by parliament under sub clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7).
197 (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, commu nicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law provid ing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4)." Mr. Nambiar urged that the word "law" in article 21 should be understood, not in the sense of an enactment but as signifying the immutable and universal principles of natural justice the jus naturale of the civil law and that the expression "procedure established by law" meant the same thing as that famous phrase "due process of law" in the American Constitution in its procedural aspect.
Numerous American decisions were cited to show that the phrase implied the basic requirements of (1) an objective and ascertainable standard of conduct to which it is possi ble to conform, (2) notice to the party of the accusation against him, (3) a reasonable opportunity for him to estab lish his innocence, and (4) an impartial tribunal capable of giving an unbiased judgment Mr. Nambiar conceded that these requirements might have to be modified or adapted to suit the nature of the particular proceeding and the object it had in 198 view, as for instance, in a case of preventive detention, previous notice, which might result in the person concerned going underground might be dispensed with Learned counsel insisted that these requirements, being the very core of the principles of natural justice which transcended all State made laws, must be substantially complied with by any law governing the process of deprivation of life or personal liberty, subject, of course, to any express provision in the Constitution sanctioning their relaxation or dispensation in any case or class of cases.
He also appealed to the Pream ble of the Constitution as the guiding star in its interpre tation to support his thesis that, in view of the democratic Constitution which the people of India have purported to give themselves guaranteeing to the citizens certain funda mental rights which are justiciabke, the provisions of Part III must be construed as being paramount to the legislative will, as otherwise the socalled fundamental right to life and personal liberty would have no protection against legis lative action, and article 13 12) would be rendered nugato ry.
There can be no doubt that the people of India have, in exercise of their sovereign will as expressed in the Pream ble, adopted the democratic ideal which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights, socalled, I apprehend, because they have been re tained by the people and made paramount to the delegated powers, as in the American model.
Madison (who played a prominent part in framing the First Amendment of the Ameri can Constitution) pointing out the distinction, due to historical reasons, between the American and the British ways of securing "the great and essential rights of the people," observed "Here they are secured not by laws para mount to prerogative but by Constitutions paramount to laws:" Report on the Virginia Resolutions, quoted in Near vs Minnesota (1).
(1) ; 109 This has been translated into positive law in Part III of the Indian Constitution, and I agree that in construing these provisions the high purpose and spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights should be borne in mind.
This, howev er, is not to say that the language of the provisions should be stretched to square with this or that constitutional theory in disregard of the cardinal rule of interpretation of any enactment, constitutional or other, that its spirit, no less than its intendment should be collected primarily from the natural meaning of the words used.
Giving full effect to these principles, however, I am unable to agree that the term "law" in article 21 means the immutable and universal principles of natural justice. "Procedure established by law" must be taken to refer to a procedure which has a statutory origin, for no procedure is known or can be said to have been established by such vague and uncertain concepts as "the immutable and universal principles of natural justice.
" In my opinion, "law" in article 21 means "positive or State made law." No doubt, the American Judges have adopted the other connotation in their interpretation of the due process clause in the Fifth and Fourteenth Amendments of the Ameri can Constitution (" Nor shall any person be deprived of life, liberty or property without due process of law ").
But that clause has an evolutionary history behind it.
The phrase has been traced back to 28 Edw.
III Ch. 3, and Coke in his Institutes identified the term with the expression "the law of the land" in the Great Charter of John.
Even in England where the legislative omnipotence of Parliament is now firmly established, Coke understood these terms as implying an inherent limitation on all legislation,and ruled in Dr. Bonham 's Case (1) that "the common law will control Acts of Parliament and sometimes adjudge them to be utterly void when they are against common right and reason." Though this doctrine was later discarded in England as being "a warning (1) (a).
26 200 rather than an authority to be followed" [per Willes J. in Lee vs Dude and Torrington Ry.
(1)] it gained ground m America, at first as a weapon in the hands of the Revolu tionists with which to resist the laws of Parliament, and later as an instrument in the hands of the Judges for estab lishing the supremacy of the judiciary [see Calder vs Bull (" ')].
In the latter half of the 19th century, this doc trine of a transcendental common law or natural justice was absorbed in the connotation of the phrase "due process of law" occurring in the Fifth and Fourteenth Amendments.
By laying emphasis on the word" due," interpreting "law" as the fundamental principles of natural justice and giving the words "liberty" and "property" their widest meaning, the Judges have made the due process clause into a general restriction on all legislative power.
And when that power was threatened with prostration by the excesses of due process, the equally vague and expansive doctrine of "police power," i.e., the power of Government to regulate private rights in public interest, was evolved to counteract such excesses.
All this has been criticised as introducing great uncertainty in the state of the law in that country, for no one could be sure how due process of law would affect a particular enactment.
A century after the phrase had been the subject of judicial interpretation one learned Judge observed in 1877 that it was incapable of precise definition and that its intent and application could only be ascer tained by "the gradual process of inclusion and exclusion" [Davidson vs New Orleans (3)]and, as recently as 1948, another Judge referred to the difficulty of "giving defi niteness to the vague contours of due process" and "of spinning judgment upon State action out of that gossamer concept:" Haley vs State of Ohio (4).
It is not a matter for surprise, therefore, that the Drafting Committee appointed by the Constituent Assembly of India recommended the substitution of the expression "except according to procedure (1) , 582.
(3) 96 U.S. 97. ; (4) 332 U.S. 596.
201 established by law" taken from the Japanese Constitution, 1946, for the words "without due process of law" which occurred in the original draft, "as the former is more specific.
" In their Report the Committee added that they have "attempted to make these rights (fundamental rights) and the. limitations to which they must necessarily be subject as definite as possible, since the Courts may have to pronounce upon them" (para. 5).
In the face of all these considerations, it is difficult to accept the suggestion that "law" in.
article 21 stands for the jus naturale of the civil law, and that the phrase "according to procedure established by law" is equivalent to due process of law in its procedural aspect, for that would have the effect of introducing into our Constitution those "subtle and elusive criteria" implied in that phrase which it was the deliberate purpose of the framers of our Constitution to avoid.
On the other hand, the interpretation suggested by the Attorney General on behalf of the intervener that the ex pression means nothing more than procedure prescribed by any law made by a competent legislature is hardly more accept able.
"Established" according to him, means prescribed, and if Parliament or the Legislature of a State enacted a proce dure, however novel and ineffective for affording the ac cused person a fair opportunity of defending himself, it would be sufficient for depriving a person of his life or personal liberty.
He submitted that the Constituent Assem bly definitely rejected the doctrine of judicial supremacy When it rejected the phrase "due process of law" and made the legislative will unchallengeable, provided only "some procedure" was laid down.
The Indian Constitution having thus preferred the English doctrine of Parliamentary supremacy, the phrase "procedure established by law" must be construed in accordance with the English view of due process of law, that is to say, any procedure which Parliament may choose to prescribe.
Learned counsel drew attention to the speeches made by several members of the Assembly on the floor of the House for explaining, as he put it, the "his torical background.
" A speech 202 made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental processes lying behind the majority vote which carried the bill.
Nor is it reasonable to assume that the minds of all those legislators were in accord.
The Court could only search for the objec tive intent of the legislature primarily in the words used in the enactment, aided by such historical material as reports of statutory committees, preambles etc.
I attach no importance, therefore, to the speeches made by some of the members of the Constituent Assembly in the course of the debate on article 15 (now article 21).
The main difficulty I feel in accepting the construction suggested by the Attorney General is that it completely stultifies article 13 (2) and, indeed, the very conception of a fundamental right.
It is of the essence of that con ception that it is protected by the fundamental law of the Constitution against infringement by ordinary legislation.
It is not correct to say that the Constitution has adopted the doctrine of Parliamentary supremacy.
So far, at any rate, as Part III is concerned, the Constitution, as I have already observed, has accepted the American view of funda mental rights.
The provisions of articles 13 and 32 make this reasonably clear.
Could it then have been the inten tion of the framers of the Constitution that the most impor tant fundamental rights to life and personal liberty should be at the mercy of legislative majorities as, in effect, they would be if "established" were to mean merely "pre scribed ?" In other words, as an American Judge said in a similar context, does the constitutional prohibition in article 13 (2) amount to no more than "You shall not take away life or personal freedom unless you choose to take it away," which is mere verbiage.
It is no sound answer to say that, if article 21 conferred no right immune from legisla tive invasion, there would be no question of contravening article 13 (2).
The argument seems, to my mind, to beg the question, for it assumes that the article affords no such immunity.
It is said that article 21 affords no protection against competent legislative action in 203 the field of substantive criminal law, for there is no provision for judicial review, on the ground of reasonable ness or otherwise, of such laws, as in the case of the rights enumerated in article 19.
Even assuming it to be so the construction of the learned Attorney.
General would have the effect of rendering wholly ineffective and illusory even the procedural protection which the article was un doubtedly designed to afford.
It was argued that "law" in article 31 which provides that no person shall be deprived of his property "save by authority of law" must mean enacted law and that if a person 's property could be taken away by legislative action, his right to life and personal liberty need not enjoy any greater immunity.
The analogy is mis leading.
Clause (2) of article 31 provides for payment of compensation and that right is justiciable except in the two cases mentioned in clauses (4) and (6) which are of a tran sitory character.
The constitutional safeguard of the right to property in the said article is, therefore, not so illu sory or ineffective as clause (1) by itself might make it appear, even assuming that" law" there means ordinary legis lation.
Much reliance was placed on the Irish case The King vs The Military Governor of Hare Park Camp (1) where the Court held that the term "law" in article 6 of the Irish Constitu tion of 1922 which provides that "the liberty of the person is inviolable and no person shall be deprived of his liberty except in accordance with law" meant a law enacted by the Parliament, and that therefore the Public Safety Act of 1924 did not contravene the Constitution.
The Court followed The King vs Halliday(2) where the House of Lords by a majority held that the Defence of the Realm (Consolidation) Act, 1914, and the Regulations framed thereunder did not infringe upon the Habeas Corpus Acts and the Magna Carta "for the simple reason that the Act and the Orders become part of the law of the land.
" But that was because, as Lord Dunedin pointed out "the British Constitution has entrusted to the two Houses of parliament subject to the assent (1) [19241 2 I.R. 104.
(2) [1917] A.C. 260.
204 of the King, an absolute power untrammelled by any written instrument obedience to which may be compelled by some judicial body," whereas the Irish Constitution restricted the legislative powers of the Irish Parliament by a formal declaration of funda mental rights and by providing for a judicial review of legislation in contravention of the Constitution (article 65).
This radical distinction was overlooked.
The Attorney General further submitted that, even on his interpretation, article 21 would be a protection against violation of the rights by the executive and by individuals, an d that would be sufficient justification for the article ranking as a fundamental safeguard.
There is no substance in the suggestion.
As pointed out in Eshugbayi Eleko vs Gov ernment of Nigeria (Officer Administering) (1), the execu tive could only act in pursuance of the powers given by law and no constitutional protection against such action is really needed.
Even in monarchical Britain the struggle between prerogative and law has long since ended in favour of the latter.
"In accordance with British jurisprudence" said Lord Atkin in the case cited above, "no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice.
" As for protection against individuals, it is a misconception to think that constitutional safeguards are directed against individuals.
They are as a rule directed against the State and its organs.
Protection against violation of the rights by individuals must be sought in the ordinary law.
It is therefore difficult to accept the suggestion that article 21 was designed to afford protection only against infringements by the executive or individuals.
On the other hand,the insertion of a declaration of Fundamental Rights in the forefront of the Constitution, coupled with an express prohibition against legislative interference with these rights (article 13) and the provision of a constitutional sanction for the enforcement of such prohibition by means of a judicial review (article 32) is, in my (1) ; 205 opinion, a clear and emphatic indication that these rights are to be paramount to ordinary State made laws.
After giving the matter my most careful and anxious consideration, I have come to the conclusion that there are only two possible solutions of the problem.
In the first place, a satisfactory via media between the two extreme positions contended for on either side may be found by stressing the word "established" which implies some degree of firmness, permanence and general acceptance, while it does not exclude origination by statute. "Procedure estab lished by law" may well be taken to mean what the Privy Council referred to in King Emperor vs Benoari Lal Sharma (1) as "the ordinary and well established criminal proce dure," that is to say, those settled usages and normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of criminal procedure in the coun try.
Their Lordships were referring to the distinction between trial by special Courts provided by an Ordinance of the Governor General and trial by ordinary Courts under the Criminal Procedure Code.
It can be no objection to this view that the Code prescribes no single and uniform proce dure for all types of cases but provides varying procedures for different classes of cases.
Certain basic principles emerge as the constant factors common to all those proce dures, and they form the core of the procedure established by law.
I realise that even on this view, the life and liberty of the individual will not be immune from legisla tive interference, for a competent legislature may change the procedure so as to whittle down the protection if so minded.
But, in the view I have indicated, it must not be a change ad hoc for any special purpose or occasion, but a change in the general law of procedure embodied in the Code.
So long as such a change is not effected, the protection under article 21 would be available.
The different measures of constitutional protection which the fundamental right to life and personal liberty will enjoy under article 21 as interpreted in the three ways (1) ,175.
206 referred to above will perhaps be best illustrated by a concrete example.
Suppose that article 22 (1) was not there and Parliament passed an Act, as a temporary measure, taking away in certain cases the right of an accused person to be defended by a legal practitioner.
According to the petition er 's learned counsel the Act would be void as being contrary to the immutable principles of natural justice embodied in article 21, whereas on the construction contended for by the Attorney General, the Act would be perfectly valid, while, on the view I have indicated above, the Act would be bad, but if the denial of such right of defence is made a normal feature of the ordinary law of criminal procedure by abro gating section 340 (1)of the Code, article 21 would be powerless to protect against such legislative action.
But in a free democratic republic such a drastic change in the normal law of procedure, though theoretically possi ble, would be difficult to bring about, and that practical difficulty will be the measure of the protection afforded by article 21.
It was said that the safeguards provided in clauses (1) and (2) of article 22 are more or less covered by the provisions of the Criminal Procedure ' Code, and this overlapping would have been avoided if article 21 were intended to bear the construction as indicated above.
The argument overlooks that, while the provisions of the Code would be liable to alteration by competent legislative action, the safeguards in clauses (1)and (2) of article 22, being constitutional, could not be similarly dealt with: and this sufficiently explains why those safeguards find a place in the Constitution.
The only alternative to the construction I have indi cated above, if a constitutional transgression is to be avoided, would be to interpret the reference to "law" as implying a constitutional amendment pro tanto, for it is only a law enacted by the procedure provided for such amend ment (article 368) that could modify or override a fundamen tal right without contravening article 13 (2).
207 The question next arises as to how far the protection under article 21, such as it has been found to be, is avail able to persons under preventive detention.
The learned Attorney General contended that article 21 did not apply to preventive detention at all, as article 22 clauses (4) to (7) formed a complete code of constitutional safeguards in respect of preventive detention,and, provided only these provisions are conformed to, the validity of any law relat ing to preventive detention could not be challenged.
I am unable to agree with this view.
The language of article 21 is perfectly general and covers deprivation of personal liberty or incarceration, both for punitive and preventive reasons.
If it was really the intention of the framers of the Constitution to exclude the application of article 21 to cases of preventive detention, nothing would have been easier than to add a reference to article 21 in clause (3) of article 22 which provides that clauses (1) and (2) of the latter shall not apply to any person who is arrested or detained under any law providing for preventive detention Nor is there anything in the language of clauses (4) to (7) of article 22 leading necessarily to the inference that article 21 is inapplicable to preventive detention.
These clauses deal only with certain aspects of preventive deten tion such as the duration of such detention, the constitu tion of an advisory board for reviewing the order of deten tion in certain cases, the communication of the grounds of detention to the person detained and the provision of an opportunity to him of making a representation against the order.
It cannot be said that these provisions form an exhaustive code dealing with all matters relating to preven tive detention and cover the entire area of protection which article 21, interpretedin the sense I have indicated above, would afford to the person detained.
I am, therefore, of opinion that article 21 is applicable to preventive deten tion as well.
I will now proceed to examine whether the impugned Act or any of its provisions under which the petitioner has been ordered to be detained, takes away any of the rights con ferred by articles 21 and 22 or infringes the protection afforded thereby.
The 208 outstanding fact to be borne in mind in this connection is that preventive detention has been given a constitutional status.
This sinister looking feature, so strangely out of place in a democratic constitution which invests personal liberty with the sacrosanctity of a fundamental right and so incompatible with the promises of its preamble is doubtless designed to prevent an abuse of freedom by anti sOcial and subversive elements which might imperil the national welfare of the infant Republic.
It is in this spirit that clauses (3) to (7) of article 22 should, in my opinion, be con strued and harmonised as far as possible with article 21 so as not to diminish unnecessarily the protection afforded for the legitimate exercise of personal liberty.
In the first place, as already stated, clause (3) of article 22 excludes a, person detained under any law providing for preventive detention from the benefit of the safeguards provided in clauses (1) and (2) No doubt clause (5) of the same article makes some amends for the deprivation of these safeguards in that it provides for the communication to the person detained the grounds on which the order has been made and for an opportunity being afforded to him of making a representation against the order, but the important right to consult and to be defended by a legal practitioner of his choice is gone.
Similarly, the prohibition against detention in custody beyond a period of 24 hours without the authority of a magistrate has also been taken away m cases of preventive detention.
It was not disputed that, to the extent to which the express provisions of clauses (4) to (7) authorised the abrogation or abridgement of the safeguards provided under other articles or substitution of other safeguards in a modified form, those express provisions must rule.
Of the four essentials of the due process on which Mr. Nambiar insisted, (which also form part of the ordinary and established procedure under the Criminal Procedure Code, though I cannot agree that they are immutable and beyond legislative change) the requirements of notice and an opportunity to establish his innocence must, as already stated, be taken to have 209 been provided for by clause (5)of article 22.
As for an ascertainable standard of conduct to which it is possible to conform, article 22 makes no specific provision in cases of preventive detention, and if such a safeguard can be said to be implicit in the procedure established by law in the sense explained above in preventive detention cases, it could no doubt be invoked.
This point will be considered presently in dealing with provisions of the impugned Act.
The only other essential requirement, and the most essen tial of all, is an impartial tribunal capable of giving an unbiassed verdict.
This, Mr. Nambiar submitted, was left unprovided for by article 22, the advisory board referred to in clause (4) (a) being, according to him, intended to deal solely with the question of duration of the detention, that is to say, whether or not there was sufficient cause for detaining the person concerned for more than three months, and not with judging whether the person detained was innocent.
A tribunal which could give an unbiassed judg ment on that issue was an essential part of the protection afforded by article21 in whichever way it may be interpret ed, and reference was made in this connection to the preven tive provisions of the Criminal Procedure Code (Ch. VIII).
The impugned Act, not having provided for such a tribunal contravened article 21 and was therefore void.
It will be seen that the whole of this argument is based on the major premise that the advisory board mentioned in clause (4) (a) of article 22 is not a tribunal intended to deal with the issue of justification of detention.
Is that view correct? It was argued that the words "sufficient cause for such detention" in sub clause (a) of clause (4) had reference to the detention beyond three months mentioned in clause (4) and that this view was supported by the language of sub clause (a) of clause (7) whereby Parliament is authorised to prescribe the circumstances under 'which and the class or classes of cases in which a person may be detained for a period longer than three months without the opinion of an advisory board.
In other words, learned counsel submitted, 210 the combined effect of clauses (4) and (7) was that no person could be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law autho rising detention for such period even without the opinion of an advisory board.
Thus, these two clauses were concerned solely with the duration of the preventive detention, and so was the advisory board which those clauses provided for that purpose.
I am unable to accept this view.
I am inclined to think that the words "such detention" in sub clause (a) refer back to the preventive detention mentioned in clause (4) and not to detention for a longer period than three months.
An advisory board, composed as it has to be of Judges or lawyers, would hardly be in a position to judge how long a person under preventive detention, say, for reasons connected with defence, should be detained.
That must be a matter for the executive authorities, the Depart ment of Defence, to determine, as they alone are responsible for the defence of the country and have the necessary data for taking a decision on the point.
All that an advisory board can reasonably be asked to do, as a safeguard against the misuse of the power, is to judge whether the detention is justified and not arbitrary or mala fide.
The fact that the advisory board is required to make its report before the expiry of three months and so could submit it only a day or two earlier cannot legitimately lead to an inference that the board was solely concerned with the issue whether or not the detention should continue beyond that period.
Before any such tribunal could send in its report a reasonable time must elapse, as the grounds have to be communicated to the person detained, he has to make his representation to the detaining authority which has got to be placed before the board through the appropriate departmental channel.
Each of these steps may, in the course Of official routine, take some time, and 'three months ' period might well have been thought a reasonable period to allow before the board could be required to submit its report.
211 Assuming, however, that the words "such detention" had reference to the period of detention, there is no apparent reason for confining the enquiry by the advisory board to the sole issue of duration beyond three months without reference to the question as to whether the detention was justified or not.
Indeed, if is difficult to conceive how a tribunal could fairly judge whether a person should be detained for more than three months without at the same time considering whether there was sufficient cause for the detention at all.
I am of opinion that the advisory board referred to in clause (4) is the machinery devised by the Constitution for reviewing orders for preventive detention in certain cases on a consideration of the representations made by the persons detained.
This is the view on which Parliament has proceeded in enacting the impugned Act as will be seen from sections 9 and 10 thereof, and I think it is the correct view.
It follows that the petitioner cannot claim to have his case judged by any other impartial tribu nal by virtue of article 21 or otherwise.
Mr. Nambiar, however, objected that, on this view, a law could authorise preventive detention for three months with out providing for review by any tribunal, and for even longer periods if Parliament passed an Act such as is con templated in sub clause (a) of clause (7).
That may be so, but, however deplorable such a result may be from the point of view of the person detained, there could be no remedy if, on a proper construction of clauses (4) and (7), the Consti tution is found to afford no higher protection for the personal liberty of the individual.
Turning next to the provisions of the impugned Act, whose constitutional validity was challenged, it will be necessary to consider only those provisions which affect the petitioner before us.
In the first place, it was contended that section 3, which empowers the Central Government or the State Government to detain any person if it is "satisfied" that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to (among other 212 things) the security of the State or the maintenance of public order, cannot be said to comply with the procedure established by law, as the section prescribes no objective and ascertainable standard of conduct to which it will be possible to conform, but leaves it to the will and pleasure of the Government concerned to make an order of detention.
TIm argument proceeds on the assumption that the procedure established by law is equivalent to the due process of law.
I have already endeavoured to show that it is not Apart from this, the argument overlooks that for the purposes of preventive detention it would be difficult, if not impossi ble to lay down objective rules of conduct failure to conform to which should lead to such detention.
As tim very term implies, the detention in such cases is effected with a view to prevent the person concerned from acting prejudi cially to certain objects which the legislation providing for such detention has in view.
Nor would it be practicable to indicate or enumerate in advance what acts or classes of acts would be regarded as prejudicial.
The responsibility for the security of the State and the maintenance of public order etc.
having been laid on the executive Government it must naturally be left to that Government to exercise the power of preventive detention whenever they think the occa sion demands it.
Section 12 came in for a good deal of criticism.
That section, which governs the duration of thepetitioner 's detention reads as follows : "Duration of detention in certain cases.
Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to: (a) the defence of India, relations of India with for eign powers or the security of India; or (b) the security of a State of the maintenance of public order.
213 (2) The case of every person detained under a detention order to which the provisions of sub section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State Government, by such Govern ment, and where the order was made by any officer specified in sub section (2)of section 3, by the State Government to which such officer is subordinate, in consultation with a person who is, or has been, or is qualified to be appointed as a Judge of a High Court nominated in that behalf by the Central Government or the State Government, as the case may be.
" It was urged that this did not comply with the require ments of clause (7) of article 22 as it merely repeated the "matters" or legislative topics mentioned in Entry 9 of List I and Entry 3 of List III of the Seventh Schedule to the Constitution.
What Parliament has to do under clause(7) of article 22 is to prescribe "the circumstances under which and the class or classes of cases in which" a person may be detained for a period longer than three months without obtaining the opinion of an advisory board.
It was said that clause (4) (a) provided for ordinary cases of preventive detention Where such detention could not continue beyond three months without obtaining the opinion of an advisory board, whereas clause (7) (a) made provision for special cases of detention for more than three months with out the safeguard of the advisory board 's opinion, for aggravated forms of prejudicial conduct.
In other words, clause (4) (a) laid down the rule and clause (7) (a) enacted an exception.
It was therefore necessary for Parliarnent to indicate to the detaining authority for its guidance the more aggravated forms of prejudicial activity, and mere mention of the subjects in respect of which Parliament is authorised under the legislative lists to make laws in respect of preventive detention could hardly afford any guidance to such authority and should not be regarded as sufficient compliance with the requirements of clause (7).
There is a two fold fallacy in 214 this argument.
In the first place, the suggested correla tion between clause (4) (a) and clause (7) (a) as enacting a rule and an exception is, as a matter of construction, without foundation.
Reading clauses (4) and (7) together it is reasonably clear that preventive detention could last longer in two cases: (1) where the opinion of an advisory board is obtained, subject however to a prescribed period [sub clause (a)of clause (4)] and (2) where a person is detained under a law made by Parliament under sub clauses (a) and (b) of clause (7) [sub clause (b) of clause (4)].
These are two distinct and independent provisions.
It is significant that sub clause (b) of clause (4) is not worded as a proviso or an exception to sub clause (a) of the same clause as it would have been if it was intended to operate as such.
The attempt to correlate clause (4)(a)and clause (7) (a) as a rule and an exception respectively is opposed both to the language and the structure of those clauses. 'Secondly, the argument loses sight of the fact that clause (7) deals with preventive detention which is a purely precautionary measure which "must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof" [ per Lord Atkinson in Rex vs Halliday (1) ].
The remarks I have ' already made with reference to the absence of any objective rules of conduct in section 3 of the impugned Act apply also to this criticism of section 12.
It would be difficult, if not impracticable, to mention the variouscircumstances, or to enumerate the various class es of cases exhaustively in which a person should be de tained for more than three months for preventive purposes, except in broad outline.
Suppose a person belongs to.
an organization pledged to violent and subversive activity as its policy.
Beyond his membership of theparty the person might have done nothing until he1 was arrested and detained.
But if released he might indulge in anything from the mild est form of prejudicial activity, like sticking an objec tionable handbill on a hoarding, to the most outrageous acts of sabotage.
(1) ; , 275. 215 How could the insertion in section 12 of a long series of categories of aggravated forms of prejudicial activities, or the enumeration of the various circumstances in which such activities are likely to be indulged in, be of any assist ance to the detaining authority in determining whether the person concerned should be detained for three months or for a longer period ? All that would be necessary and suffi cient for him to know for coming to a decision on the point is that the person is a member of such an organisation and will probably engage in subversive activities prejudicial to the security of the State or the maintenance of public order or, in other words, he belongs to class (b) in section 12.
While enumeration and classification in detail would un doubtedly help in grading punishment for offences committed, they would not be of much use in fixing the duration of preventive detention.
Sufficient guidance in such cases could be given by broadly indicating the general nature of the prejudicial activity which a person is likely to indulge in, and that in effect is what Parliament has done in sec tion 12.
Reference was made in this connection to Rule 34 of the Defence of India Rules framed under the Defence of India Act, 1939, where "prejudicial act" is defined by enumeration.
But it was also for the purpose of prohibiting such acts [ Rule 38 sub rule (1) ] and making them offences (sub rule 5).
And even there, the definition had to end in a residuary clause sweeping in acts likely "to prejudice the efficient prosecution of the war, the defence of British India or, the public safety or interest.
" In Lists I and III of the Seventh Schedule to the Constitution six topics are mentioned in respect of which Parliament could make laws providing for preventive detention, and section 12 of the impugned Act mentions five of them as being the classes of cases or the circumstances in which longer detention is authorised.
I fail to see why this could not be regarded as a broad classification of cases or a broad description of circumstances where Parliament considers longer detention to be justifiable.
A class can well be designated with refer ence to the end which one desires to secure, and the matters referred to as classes (a) 216 and (b) of sub section (1) of section 12 being clearly the objects which Parliament desired to secure by enacting the section, it seems to me that the classification with refer ence to such general aims does not contravene article 22 (7).
It was argued that Parliament did not, in enacting section 12, perform its duty of prescribing both the circumstances and the class or classes of cases where detention without obtaining the advisory board 's opinion could be for a period longer than three months.
The use of the disjunctive "or" between the word "circumstances" and the words "class or classes of cases" showed, it was said, that Parliament proceeded on the view that it need not prescribe both.
This was in contravention of article 22 (7) which used the con junctive "and" between those words.
There is no substance in this objection.
As I read article 22 (7) it means that Parliament may prescribe either the circumstances or the classes of cases or both, and in enacting section 12 Parliament evidently regarded the matters mentioned in clause (a) and (b) of sub section (1) as sufficiently indic ative both of the Circumstances under which and the classes in which a person could be detained for the longer period.
To say, for instance, that persons who are likely to act prejudicially to the defence of India may be detained beyond three months is at once to "prescribe a class of persons in which and the circumstances under which" a person may be detained for the longer period.
In other words, the classi fication itself may be such as to amount to a sufficient description of the circumstances for purposes of clause (7).
The circumstances which would justify precautionary deten tion beyond three months without recourse to an advisory board must be far too numerous for anything approaching an exhaustive enumeration, and it can, in my judgment, be no objection to the validity of section 12 that no circum stances are mentioned apart from the matters referred to in clauses (a) and (b) of sub section (1).
It would indeed be singular for the Court to strike down a parliamentary enact ment because in its opinion a 217 certain classification therein made is imperfect or the mention of certain circumstances is unspecific or inade quate.
Lastly, Mr. Nambiar turned his attack on section 14 which prohibits the disclosure of the grounds of detention communicated to the person detained and of the representa tion made by him against the order of detention, and debars the Court from allowing such disclosure to be made except for purposes of a prosecution punishable under sub section (2) which makes it an offence for any person to disclose or publish such grounds or representation without the previous authorisation of the Central Government or the State Government as the case may be.
The petitioner com plains that this provision nullifies in effect the rights conferred upon him under clause (5) of article 22 which entitles him to have the grounds of his detention communi cated to him and to make a representation against the order.
If the grounds are too vague to enable him to make any such representation, or if they are altogether irrelevant to the object of his detention, or are such as to show that his detention is not bona fide, he has the further right of moving this Court and this remedy is also guaranteed to him under article 32.
These rights and remedies, the petitioner submits, cannot be effectively excercised, if he is prevent ed on pain of prosecution, from disclosing the grounds to the Court.
There is great force in this contention.
All that the Attorney General could say in answer was that if the other provisions of the Act were held to be valid, it would not be open to the Court to examine the sufficiency of the grounds on which the executive authority was "satisfied" that detention was necessary, as laid down in Machindar Shivaji Mahar vs The King (1), and so the petitioner could not complain of any infringement of his rights by reason of section 14 which enacted only a rule of evidence.
The argument overlooks that it was recognised in the decision referred to above that it would be open to the Court to examine the grounds of detention in order to see whether they were relevant to the object which the legislature had (1) 218 in view, such as, for instance, the prevention of acts prejudicial to public safety and tranquillity, or were such as to show that the detention was not bona fide.
An examina tion of the grounds for these purposes is made impossible by section 14, and the protection afforded by article 22 (5) and article 32 is thereby rendered nugatory.
It follows that section 14 contravenes the provisions of article 22 (5) and article 32 in so far as it prohibits the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or the repre sentation made by him against the order of detention, and prevents the Court from examining them for the purposes aforesaid, and to that extent it must be held under article 13 (2) to be void.
This however, does not affect the rest of the Act which is severable.
As the petitioner did not disclose the grounds of his detention pending our decision on this point he will now be free to seek his remedy, if so advised, on the basis of those grounds.
In the result, the application fails and is dismissed.
MAHAJAN J.
The people of India having solemnly resolved to constitute India into a Sovereign Democratic Republic on the 26th day of November 1949 gave to themselves a Constitution which came into force on the 26th January 1950.
This is the first case in which this Court has been called upon to determine how far the Constitution has secured personal liberty to the citizens of this country.
A.K. Gopalan, the petitioner, who was already under the custody of the Superintendent, Central Jail, Cuddalore, was served with an order of detention under section 3 (1) of the (Act IV of 1950) on the 27th February 1950.
It was said in the order that the Governor of Madras was satisfied that it was necessary to make the order with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order.
On 20th March 1950 a petition was presented to this Court under article 32 219 of the Constitution praying for the issue of a writ of habeas corpus directing the State of Madras to produce him before the Court and to set him at liberty.
A writ was accordingly issued.
The return to the writ is that the detention is legal under Act IV of 1950, enacted by Parlia ment.
The petitioner contends that the Act abridges and infringes certain provisions of Part III of the Constitution and is thus outside the constitutional limits of the legis lature and therefore void and unenforceable.
The matter is one of great importance both be cause the legislative power expressly conferred by the 7th Schedule has been impugned and because the liberty of the citizen is seriously affected.
The decision of the question whether Act IV of 1950 takes away or abridges the rights conferred by Part III of the Constitution depends on a consideration of two points: (1) In what measure has the Constitution secured person al liberty to a citizen of India, and.
(2) has the impugned legislation in any way taken away or abridged the rights so secured and if so, to what extent ? Act IV of 1950 provides for preventive detention in certain cases and it has been enacted as a temporary meas ure.
It will cease to have effect on 1st April 1951.
It empowers the Central Government and the State Governments to make an order directing a person to be detained with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers or the security of India.
It also gives power to detain a person who acts in any manner prejudicial to the security of the State or the maintenance of public order or the maintenance of supplies and services essential to the community.
It came into force on 26th February 1950 and was enacted by virtue of the powers conferred on Parliament by article 22 clause (7) of Part III of the Constitution read with the entries in the 7th Schedule.
There can be no doubt that the legislative will expressed herein 220 would be enforceable unless the legislature has failed to keep within its constitutional limits.
It is quite obvious that the Court cannot declare a statute unconstitutional and void simply on the ground of unjust and oppressive provi sions or because it is supposed to violate natural, social or political rights of citizens unless it it can be shown that such injustice is prohibited or such rights are guaranteed or protected by the Constitution.
It may also be observed that an Act cannot be declared void because in the opinion of the Court it is opposed to the spirit supposed to pervade the Constitution but not so expressed in words.
It is difficult on any general principles to limit the omnipo tence of the sovereign legislative power by judicial inter position except in so far as the express words of a written Constitution give that authority.
Article 13 (2) of our Constitution gives such an authority and to the extent stated therein.
It says that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void.
Preventive detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of the democratic countries of the world.
It was stated at the Bar that no such law was in force in the United States of America.
In England for the first time during the first world war certain regulations framed under the Defence of the Realm Act provided for preventive detention at the satisfaction of the Home Secretary as a war measure and they ceased to have effect at the conclusion of hostilities.
The same thing happened during thesecond world war.
Similar regulations were introduced during the period of the war in India under the Defence of India Act.
The Government of India Act, 1935, conferred authority on the Central and Provincial Legislatures to enact laws on this subject for the first time and since then laws on this subject have taken firm root here and have become a permanent part of the statute book of this country.
Curiously enough, this subject has found place in the Constitution in the.
221 chapter on Fundamental Rights.
Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th Schedule mention the scope of legislative power of Parliament in respect of this topic.
The jurisdiction, however, to enact these laws is subject to the provisions of Part III of the Constitu tion.
Article 22 in this Part provides : "(1 ) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention: Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period pre scribed by any law made by Parliament under sub clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, commu nicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to, disclose facts which such authority considers to be against the public interest to disclose, (7) parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law provid ing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4).
" The question of the constitutional validity of the impugned statute has to be approached with great caution in view of these provisions of the Constitution and has to be considered with patient attention.
The benefit of reasona ble doubt has to be resolved in favour of legislative ac tion, though such a presumption is not conclusive It seems that the subject of preventive detention became the particu lar concern of the Constitution because of its intimate connection with deprivation of personal liberty to protect which certain provisions were introduced in the Chapter on Fundamental Rights and because of the conditions prevailing in the newly born Republic.
Preventive detention means a complete negation of freedom of movement and of personal liberty and is incompatible with both those subjects and yet it is placed in the same compartment with them in Part III of the Constitution.
223 Though the Constitution has recognized the necessity of laws as to preventive detention it has also provided certain safeguards to mitigate their harshness by placing fetters on legislative power conferred on this subject.
These are (1) That no law can provide for detention for a period of more than three months unless the sufficiency for the cause of the detention is investigated by an advisory board within the said period of three months.
This provision limits legislative power in the matter of duration of the period of detention.
A law of preventive detention would be void if it permits detention for a longer period than three months without the intervention of an advisory board.
(2) That a State law cannot authorize detention beyond the maximum period prescribed by Parliament under the powers given to it in clause (7).
This is a limitation on the legislative power of the State legislature.
They cannot make a law authorizing preventive detention for a longer period than that fixed by Parliament.
(3) That Parliament also cannot make a law authorizing detention for a period beyond three months without the intervention of an advisory board unless the law conforms to the conditions laid down in clause (7) of article 22.
Provision also has been made to enable Parliament to make laws for procedure to be followed by advisory boards.
This is a safeguard against any arbitrary form of procedure that may otherwise find place in State laws.
Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by clause (5) of article 22.
A person detained under a law of preventive detention has a right to obtain information as to the grounds of his detention and has also the right to make a representation protesting against an order of preventive detention.
This right has been guaranteed independently of the duration of the period of detention and irrespective of the existence or non existence of an advisory board.
No machinery, however, has been provided or expressly 29 224 mentioned for dealing with this representation.
It seems to me that when a constitutional right has been conferred as a necessary consequence, a constitutional remedy for obtaining redress in case of infringement of the right must be pre sumed to have been contemplated and it could not have been intended that the right was merely illusory and that a representation made may well find place in cold storage.
Consideration of the representation made by virtue of clause (5) by an unbiassed authority is, m my opinion, a necessary consequence of the guaranteed right contained herein.
The right has been conferred to enable a detained person to establish his innocence and to secure justice, and no jus tice can be said to be secured unless the representation is considered by some impartial person.
The interpretation that I am inclined to place on clause (5) of article 22 is justi fied by the solemn words of the declaration contained in the Preamble to the Constitution.
It is this declaration that makes our Constitution sublime and it is the guarantees mentioned in the chapter on Fundamental Rights that make it one of the greatest charters of liberty and of which the people, of this country 'may well be proud.
This charter has not been forced out of unwilling hands of a sovereign like the Magna Carta but it has been given to themselves by the people of the country through their Constituent Assem bly.
Any interpretation of the provisions of Part III of the Constitution without reference to this solemn declara tion is apt to lead one into error.
If the right of repre sentation given to a detained person by clause (5) of arti cle 22 is a guaranteed right and has been given for the purpose of securing justice, then it follows that no justice can be held secured to him unless an unbiassed person considers the merits of the representation and gives his opinion on the guilt or the innocence of the persons detained.
In my view, the right cannot be defeated or made elusive by presuming that the detaining authority itself will consider the representation with an unbiassed mind and will render justice.
That would in a way make the prosecu tor a judge in the case and such a procedure is repugnant.
to all notions 225 of justice.
The Constitution has further curtailed the rights given in clause (5) by providing in clause (6) a privilege on the detaining authority of witholding facts which the said authority considers not in public interests to disclose.
This privilege has been conferred for the security of the State and possibly for the security of the Constitution itself, but in view of these stringent provi sions no additional clogs can be put on the proper consider ation of the representation of the detained person by pre suming that the detaining authority itself will properly consider the representation.
It has also to be remembered in this context that a person subjected to the law of pre ventive detention has been deprived of the rights conferred on persons who become subject to the law of punitive deten tion [vide clauses (1) and (2) of article 22].
He has been denied the right to consult a lawyer or be defended by him and he can be kept in detention without being produced before a magistrate.
Having examined the provisions of article 22, I now proceed to consider the first question that was canvassed before us by the learned Attorney General, i.e., that arti cle 22 of the Constitution read with the entries in the 7th Schedule was a complete Code on the subject of preventive detention, and that being so, the other articles of Part III could not be invoked in the consideration of the validity of the impugne 'd statute.
It was conceded by the learned coun sel for the petitioner that to the extent that express provisions exist in article 22 on the topic of preventive detention those provisions would prevail and could not be controlled by the other provisions of Part III.
It was, however, urged that on matters on which this article had made no special provision on this topic the other provisions of Part III of the Constitution had application, namely, articles 10 and 21 and to that extent laws made on this subject were justiciable.
In order to draw the inference that the framers of the Constitution intended the provisions as regards preventive detention in article 22 to be self contained a clear indication of such an intention has to be gathered.
If the provisions embodied in this article have dealt 226 with all the principal questions that are likely to arise in matters of procedure or on questions of the reasonableness of the period of detention, the inference of such an indica tion would be irresistible.
Ordinarily when a subject is expressly dealt with in a constitution in some detail, it has to be assumed that the intention was to exclude the application of the general provisions contained therein elsewhere.
Express mention of one thing is an exclusion of the other.
Expressio unius est exclusio alterius.
I am satisfied on a review of the whole scheme of the Constitu tion that the intention was to make article 22 self con tained in respect of the laws on the subject of preventive detention.
It was contended that all the articles in the Constitution should be read in an harmonious manner and one article should not be read as standing by itself and as having no connection with the other articles in the same part.
It was said that they were all supplementary to one another.
In this connection it was argued that a law made under article 22 would not be valid unless it was in accord with the provisions of article 21 of the Constitution.
This article provides that no person shall be deprived of life or liberty ' except according to procedure established by law.
It was contended that in substance the article laid down that no person will be deprived of life or liberty without having been given a fair trial or a fair hearing and that unless a law of preventive detention provided such a hearing that law would be in contravention of this article and thus void.
Conceding for the sake of argument (but without expressing any opinion on it ) that this contention of the learned counsel is correct, the question arises whether there is anything in article 22 which negatives the application of article 21 as above construed to a law on preventive detention.
In my opinion, sub clause (5) of article 22 read with clauses (1) and (2) leads to the inference that the contention raised by the learned counsel is unsound.
Clause (5), as already stated, provides that notice has to be given to a detenu of the grounds of his detention.
It also provides a limited hearing inasmuch as it gives him an opportunity to 227 establish his innocence.
As, in my opinion, the considera tion of a representation made by a detained person by an unbiassed authority is implicit in clause (5) it gives to the detained person all that he is entitled to under the principles of natural justice.
The right to consult and to be represented by a counsel of his own choice has been denied in express terms to such a person by the Constitu tion.
He is also denied an opportunity of appearing before a magistrate.
When the Constitution has taken away certain rights that ordinarily will be possessed by a detained person and in substitution thereof certain other rights have been conferred on him even in the matter of procedure, the inference is clear that the intention was to deprive such a person of the right of an elaborate procedure usually pro vided for in judicial proceedings.
Clause (6) of article 22 very strongly supports this conclusion.
There would have been no point in laying down such detailed rules of proce dure in respect of a law of preventive detention if the intention was that such a law would be subject to the provi sions of article 21 of the Constitution.
In its ultimate analysis the argument of the learned counsel for the peti tioner resolves itself to this: that the impugned statute does not provide for an impartial tribunal for a considera tion of the representation of the detained person and to this extent it contravenes article 21 of the Constitution.
As discussed above, in ray opinion, such a provision is implicit within article 22 itself and that being so, the application of article 21 to a law made under article 22 is excluded.
It was next contended that a law of preventive detention encroaches on the right of freedom of movement within the territory of India guaranteed to a citizen under article 19 (1) (d) and that being so, by reason of the provisions of sub clause (5) of article 19 it was justiciable on the ground of reasonableness.
It is true, as already pointed out, that a law of preventive detention is wholly incompati ble with the right of freedom of movement of a citizen.
Preventive detention in substance is a negation of the freedom of locomotion guaranteed under article 19 (1) (d) but it cannot be said that it merely restricts it.
Be that as it may, the 228 question for consideration is whether it was intended that article 19 would govern a law made under the provisions of article 22.
Article 19 (5) is a saving and an enabling provision.
It empowers Parliament to make a law imposing reasonable restriction on the right of freedom of movement while article 22 (7) is auother enabling provision empower ing Parliament to make a law on the subject of preventive detention in certain circumstances.
If a law conforms to the conditions laid down in 'article 22 (7), it would be a good law and it could not have been intended that that law validly made should also conform itself to the provisions of article 19 (5).
One enabling provision cannot be considered as a safeguard against another enabling provision.
Article 13 (2) has absolutely no application in such a situation.
If the intention of the constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have trou bled itself by expressly making provision in article 22 about the precise scope of the limitation subject to which such a law could be made and by mentioning the procedure that the law dealing with that subject had to provide.
Some of the provisions of article 22 would then have been redun dant, for instance, the provision that no detention can last longer than three months without the necessity of such detention being examined by an advisory board.
This provi sion negatives the idea that the deprivation of liberty for a period of three months without the consultation of the advisory board would be justiciable on the ground of reason ableness.
Again article 22 has provided a safeguard that if an advisory board has to be dispensed with, it can only be so dispensed with under a law made by Parliament and that Parliament also in enacting such a law has to conform to certain conditions.
This provision would have ' been unnec essary in article 22 if a law on this subject was justicia ble.
In sub clause (b) of clause (7) of article 22 provision has been made enabling Parliament to fix the maximum period for which a person can be detained under a law on the sub ject of preventive detention.
Under 229 this express provision it is open to Parliament to fix any period, say, even a period of five to ten years as the maximum period of detention of a person.
Can it be said that in view of this express provision of the Constitution such a law was intended to be justiciable by reason of article 19 (5) ? Duration of detention is the principal matter in preventive detention laws which possibly could be examined on the touchstone of reasonableness under article 19 (5), but this has been expressly excluded by express provisions in article 22.
In my judgment, therefore, an examination of the provisions of article 22 clearly suggests that the intention was to make it self contained as regards the law of preventive detention and that the validity of a law on the subject of preventive detention cannot be exam ined or controlled either by the provisions of article 21 or by the provisions of article 19 (5) because article 13 (2) has no application to such a situation and article 22 is not subject to the provisions of these two articles.
The Consti tution in article 22 has gone to the extent of even provid ing that Parliament may by law lay down the procedure to be followed by an advisory board.
On all important points that could arise in connection with the subject of preventive detention provision has been made in article 22 and that being so, the only correct approach in examining the validi ty of a law on the subject of preventive detention is by considering whether the law made satisfied the requirements of article 22 or in any way abridges or contravenes them and if the answer is in the affirmative, then the law will be valid, but if the answer is in the negative, the law would be void.
In expressing the view that article 22 is in a sense self contained on the law of preventive detention I should not however be understood as laying down that the framers of the article in any way overlooked the safeguards laid down in article 21.
Article 21, in my opinion.
lays down sub stantive law as giving protection to life and liberty inas much as it says that they cannot be deprived except accord ing to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty 230 as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such depriva tion.
This article gives complete ' immunity against the exercise of despotic power by the executive.
It further gives immunity against invalid laws which contravene the Constitution.
It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty.
It negatives the idea of fantastic, arbitrary and oppressive forms of proceedings.
The principles there fore underlying article 21 have been kept in view in draft ing article 22.
A law properly made under article 22 and which is valid in all respects under that article and lays down substantive as well as adjective law on this subject would fully satisfy the requirements of article 21, and that being so, there is no conflict between these two articles.
The next question that arises for decision is whether there is anything in Act IV of 1950 which offends against the provisions of article 22 of Part III of the Constitu tion.
The learned counsel for the petitioner contended that section 3 of the Act was bad inasmuch as it made "satisfaction of the Government" as the criterion for de taining a person.
It was said that as section 3 laid down no objective rule of conduct for a person and as people were not told as to what behaviour was expected of them, the result was that it could not be known what acts a person was expected to avoid and what conduct on his part was prejudi cial to the security of the State or the maintenance of ' public order; in other words, it was argued that section 3 left the determination of the prejudicial act of a person to the arbitrary judgment of the Government and that even the officer who was to administer this law had been furnished no guide and no standard of conduct in arriving at his own satisfaction whether the conduct was prejudicial to the security of the State etc.
This criticism of the learned counsel, in my opinion, is not valid, It is no doubt true that a detention order depends on the satisfac tion of the ' 231 Government but this provision is in accordance with article 22 of the Constitution which to my mind contemplates detention on the satisfaction of the executive authority.
By its very nature the subject is such that it implies detention on the judgment of the authority entrusted with the making of the order.
The whole intent and purpose of the law of preventive detention would be defeated if satis faction of the authority concerned was subject to such an objective standard and was also subject to conditions as to legal proof and procedure.
In the 7th Schedule jurisdiction to make the law on this subject has been given for reasons connected with defence etc.
and the maintenance of public order.
These are subjects which concern the life and the very existence of the State.
Every citizen is presumed to know what behaviour is prejudicial to the life of the State or to its existence as an ordered State.
Considering that the State is presumed to have a government that conducts itself in a reasonable way and also presuming that its officers usually will be reasonable men, it cannot be said that in making "satisfaction of the government" as the standard for judging prejudicial acts of persons who are subject to the law of preventive detention section 3 in any way contravenes article 22 of the constitution.
Section 7 of the impugned Act gives full effect to the provisions of article 22 sub clause (5) and enacts that representation has to be made to the Central or State Gov ernment as the case may be.
It was impeached on the ground that no machinery has been provided herein to consider and adjudicate on the merits of the representation.
To this extent, as already indicated, the law is defective.
In the absence of a machinery for the investigation of the conten tions raised in the representation it may be open to the detenu to move this Court under article 32 for a proper relief.
It is, however, unnecessary to express any opin ion as to the precise remedy open to a detained person in this respect.
The absence of a provision of this nature in the statute however would not make the law wholly void.
Section 9 of the Act makes reference 30 232 to the advisory board obligatory in cases falling under sub clause (iii) of clause (a) or clause (b) of sub section (1) of section a within six weeks of the order.
The proce dure to be followed by the advisory board is laid down in section 10.
Parliament has been authorized to lay down such a procedure to be followed by an advisory board in sub clause (c) of clause (7).
It was contended that the law had not provided a personal hearing to the detenu before an advisory board, nor had it given him a right to lead evi dence to establish his innocence.
In my opinion, this criticism is not sound and does not in any way invalidate the law.
The advisory board has been given the power to call for such information as it requires even from the person detained.
It has also been empowered to examine the materi al placed before it in the light of the facts and arguments contained in the representation.
The opportunity afforded is not as full as a person gets under normal judicial proce dure but when the Constitution itself contemplates a special procedure being prescribed for preventive detention cases, then the validity of the law on that subject cannot be impugned on the grounds contended for.
Section 11 of the Act was also impugned on the ground that it offended against the Constitution inasmuch as it provided for preventive detention for an indefinite period.
This section in my opinion has to be read in the background of the provision in sub clause (3) of section 1 of the Act which says that the Act will cease to have effect on 1st April, 1951.
Besides, the words "for such period as it thinks fit" do not in any way offend against the provisions of article 22 wherein Parliament has been given the power to make a law fixing the maximum period for preventive deten tion.
It has to be noted that Parliament has fixed a period of one year as the maximum period for the duration of detention where detention has to be without reference to an advisory board.
In my opinion, there is nothing in section 11 which is outside the constitutional limits of the powers of the supreme legislature.
233 It is section 12 of the Act which was assailed by the learned counsel for the petitioner rather vehemently.
This section is of a very controversial character.
It has been enacted on the authority of clause (7) of article 22 and runs thus : "(1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceed ing one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to (a) the defence of India, relations of India with for eign powers or the security of India; or (b) the security of a State or the maintenance of public order.
(2) The case of every person detained under a detention order to which the provisions of sub section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State Government, by such Govern ment, and where the order was made by any officer specified in sub section (2) of section a, by the State Government to which such officer is subordinate, in consultation with a person who is, or has been, or is qualified to be appointed as, a Judge of a High Court nominated in that behalf by the Central Government or the State Government, as the case may be." The section purports to comply with the conditions laid down in clause (7) of article 22.
It was, however, argued that in substance and reality it has failed to comply with any of the conditions laid down therein; that it neither mentions the circumstances under which nor the classes of cases in which preventive detention without recourse to the machinery of an advisory board could be permitted.
The crucial question for consideration is whether section 12 mentions any circumstances under which or defined the class es of cases in which authority was conferred by clause (7) 234 to dispense with an advisory board.
So far as I have been able to gather from opinions of text book writers on the subject of classification, the rule seems clear that in making classification of cases there has to be some rela tionship to the classification to the objects sought to be accomplished.
The question for consideration therefore is what object was sought to be accomplished when the Constitu tion included clause (7) in article 22.
It seems clear that the real purpose of clause (7) was to provide for a contin gency where compulsory requirement of an advisory board may defeat the object of the law of preventive detention.
In my opinion, it was incorporated in the Constitution to meet abnormal and exceptional cases, the cases being of a kind where an advisory board could not be taken into confidence.
The authority to make such drastic legislation was entrusted to 'the supreme legislature but with the further safeguard that it can only enact a law of such a drastic nature provided it prescribed the circumstances under which such power had to be used or in the alternative it prescribed the classes of cases or stated a determinable group of cases in which this could be done.
The intention was to lay down some objective standard for the guidance of the detaining authority on the basis of which without consultation of an advisory board detention could be ordered beyond the period of three months.
In this connection it has to be remembered that the Constitution must have thought of really some abnormal situation and of some dangerous groups of persons when it found it necessary to dispense with a tribu nal like an advisory board which functions in camera and which is not bound even to give a personal hearing to the detenu and whose proceedings are privileged.
The law on the subject of preventive detention in order to avoid even such an innocuous institution could only be justified on the basis of peculiar circumstances and peculiar situations which had to be objectively laid down and that was what in my opinion was intended by clause (7).
If the peculiarity lies in a situation outside 'the control or view of a de tained person, then it may be said that the description of such a situation would 235 amount to a prescription of the circumstances justifying the detention for a longer period than three months by a law without the intervention of an advisory board '.
If, however, the abnormality relates to the conduct and character of the activities of a certain determinable group of persons, then that would amount to a class of cases which was contemplated to be dealt with under clause (7).
In such cases alone arbitrary detention could be held justifiable by law beyond a period of three months.
It was argued by the learned counsel for the petitioner that the phrase "circumstances under which, and the classes of cases in which" used in clause (7) had to be construed in a cumulative sense; on the other hand, the learned Attorney General contended that the word "and" had been used in this clause in the same sense as "or." He further argued that even if the word "and" is not given that meaning the true construction of the phrase was that Parliament could prescribe either the circumstances or the classes of cases for making a law on the subject of preventive detention authorizing detention for a longer period than three months without the machinery of an advisory board.
In Full Bench Reference No. 1 of 1950, Das Gupta J. of the Calcutta High Court held that the intention of the legislature in enacting the clause was that the law of preventive detention author izing detention for a longer period than three months with out the intervention of an advisory board had to fulfil both the requirements laid down in clause (7) and not only one of the requirements in the alternative.
The same view has been expressed by my brother Sir Fazl Ali.
I share this view with him.
I would, however, like to consider this matter from a different aspect on the assumption that the contention raised by the learned Attorney General is right.
Dealing first with the question whether section 12 mentions any circumstances, so far as I have been able to see, it does not prescribe any circumstances unless it can be said that the prejudicial acts for reasons connected with the security of State, maintenance of public order, etc.
are both the circumstances as well as 236 the classes of cases.
In my opinion, this line of approach cannot be held to be correct in the construction of clause (7) of article 22.
I am inclined to agree with the learned Attorney General that the phrase "circumstances under which" means some situation extraneous to the detenu 's own acts, in other words, it means some happening in the country with which the detenu is not concerned, such as a situation of tense communal feelings, an apprehended internal rebellion or disorder, the crisis of an impending war or apprehended war, etc.
In such a situation the machinery of an advisory board could be dispensed with because it may become cumber some or it may hamper the exercise of necessary powers.
In this view of the matter I have no hesitation in holding that no circumstances have been stated in section 12, though the section ostensibly says so.
If it was permissible to con jecture, it seems that the draftsman of section 12 ' repeated the words of clause ' (7) of article 22 without an applica tion of his mind to the meaning of those words and as the legislation was passed in haste to meet an emergent situa tion, it suffers from the defects which all hasty legisla tion suffer from.
I now proceed to consider whether section 12 has classi fied the cases in which detention for a longer period beyond three months could be suffered by a citizen without the benefit of the machinery of an advisory board.
The section has placed five subjects out of the legislative list within its ambit and these are described as the classes of cases.
The question is whether it can be said that a mere selection of all or any of the categories of the subjects for reasons connected with which a law of preventive detention could be ' made under the 7th Schedule amounts to a classification of cases as contemplated in clause (7) of article 22.
Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th Schedule lay down the ambit of legislative power of Parliament on the subject of preventive detention on the following six subjects : (1) Defence of India, (2) Foreign Affairs, (a) Security of India, (4) Security of the State, (5) Mainten 237 ance of public order, (6) Maintenance of supplies and serv ices essential to the community.
Clause (4) of article 22 enjoins in respect of all the six subjects that no law can provide for preventive deten tion for a longer period than three months without reference to an advisory board.
Clause (7) gives permission to make a law for dispensing with an advisory board by a prescription of the circumstances and by a prescription of the classes of cases in which such a dispensation can be made.
The legis lative authority under clauses (4) and (7)in my opinion, extends to all these six subjects.
The normal procedure to be followed when detention is intended to be beyond a period of three months in respect of the six subjects is provided in sub clause (4) The extraordinary and unusual procedure was intended, to be adopted in certain abnormal cases for which provision could be made by a parliamentary statute under clause (7).
It seems to me, however, that section 12 of Act IV of 1950 has reversed this process quite contrary to the intention of the Constitution.
By this section Act IV of 1950 has dispensed with the advisory board in five out of the six subjects above mentioned and the compulsory procedure of an advisory board laid down in clause (4) of article 22 has been relegated to one out of these six sub jects.
This has been achieved by giving a construction to the phrase "circumstances under which and the classes of cases in which" so as to make it co extensive and cotermi nous with the "subjects of legislation.
" In my opinion, this construction of clause (7) is in contravention of the clear provisions of article 22, and makes clause (4) of article 9,2 to all intents and purposes nugatory.
Such a construction of the clause would amount to the Constitution saying in one breath that a law of preventive detention cannot provide for detention for a longer period than three months without reference to an advisory board and at the same breath and moment saying that Parliament, if it so chooses, can do so in respect of all or any of the subjects mentioned in the legislative field.
If that was so, it would have been wholly unnecessary to provide such a safe guard in the Constitution on a matter 238 which very seriously affects personal liberty.
On the other hand, it would be a reasonable construction of the clause to hold that the Constitution authorized Parliament that in serious classes of cases or in cases of those groups of persons who are incorrigible or whose activities are secret the procedure of an advisory board may well be dispensed with, that being necessary in the interests of the State.
On the other construction as adopted by the framers of section 12, the Constitution need not have troubled itself by con ferring an authority on Parliament for making such a law.
Moreover, if that was the intention, it would have in very clear words indicated this by drafting article 22 clause (4) thus: "Unless otherwise provided by Parliament no law provid ing for preventive detention shall authorize detention for a longer period than three months unless an Advisory Board has investigated the sufficiency of the cause of such detention.
" The words "Unless otherwise provided for by Parliament" would have been in accord with the construction which the framers of section 12 have placed on article 22 clause (7).
I am further of the opinion that the construction placed by the learned Attorney General on clause (7) of article 22 and adopted by the framers of Act IV of 1950 creates a very anomalous situation.
The matter may be examined from the point of view of the law of preventive detention for reasons connected with supplies and services essential to the life of the community.
This subject has been put under section 9 in Act IV of 1950.
Suppose a tense situation arises and there is a danger of the railway system being sabotaged and it becomes necessary to pass detention orders against cer tain persons.
According to Act IV of 1950 in such a serious state of affairs the procedure of an advisory board is compulsory, while on the other hand, if there is an appre hension of disturbance of public order by reason of a wrong decision of an umpire at a cricket match or on account of conduct of persons celebrating the festival of Holi, then detention beyond three 239 months can be ordered without reference to an advisory board.
Could such an anomalous result be in the contempla tion of the framers of the Constitution ? The construction that I am inclined to place on the section is in accord with the scheme of the law of punitive detention.
Hurt is an offence under the Indian Penal Code and this is one of the subjects of punitive detention.
The cases on the subject have been classified in different groups, namely, simple hurt, grievous hurt, grievous hurt with dangerous weapons, grievous hurt to extort a confession, grievous hurt to restrain a public officer from doing his duty, grievous hurt by a rash act, and grievous hurt on provocation.
Even simple hurt has been classified in different categories.
The sub ject of assault has also been similarly dealt with.
Sections 352 to 356 deal with cases classified according to the gravity of the offence, i.e., cases of simple assault, assault on a public servant, assault on women, assault in attempt to 'commit theft, assault for wrongfully confining a person and assault on grave provocation have been separately grouped.
Another illustration is furnished by the Criminal Procedure Code in the preventive sections 107 to 110.
These deal with different groups of persons; vagrants are in one class, habitual offenders in another, bad characters in the third and disturbers of peace in the fourth.
It seems that it is on lines similar to these that it must have been contemplated by the Constitution that classes of cases would be prescribed by Parliament, but this has not been done.
The Constitution has recognised varying scales of duration of detention with the idea that this will vary with the nature of the apprehended act, detention for a period of three months in ordinary cases, detention for a longer period than three months with the intervention of an adviso ry board in more serious cases, while detention for a longer period than three months without the intercession of an advisory board for a still more dangerous class and for acts committed in grave situations.
It can hardly be said that all cases of preventive detention for reasons connected with the maintenance of public order stand on the same footing in the degree of gravity and deserve the same 240 duration of detention and all cases connected with the maintenance of supplies and services essential to the life of the community stand in the matter of their gravity on such a footing as to require a lenient treatment.
It is true that in a sense all persons who act prejudicially to the defence of India may be comprehensively said to form one group and similarly persons who act prejudicially to the maintenance of supplies and services essential to the life of the community may form another class but the question is, whether it was in this comprehensive sense that classifica tion was intended by the Constitution in clause (7) or was it intended in a narrower and restricted sense ? It has to be remembered that the law under clause (7) was intended to provide detention for a longer period and such a law very seriously abridges personal liberty and in this situation giving a narrower and restricted meaning to this expression will be in accordance with well established canons of con struction of statutes.
The wide construction of clause (7) of article 22 brings within the ambit of the clause all the subjects in the legislative list and very seriously abridges the personal liberty of a citizen.
This could never have been the inten tion of the framers of the Constitution.
The narrow and restricted interpretation is in accord with the scheme of the article and it also operates on the whole field of the legislative list and within that field it operates by demar cating certain portions out of each subject which requires severe treatment.
If I may say so m conclusion, section 12 treats the lamb and the leopard in the same class because they happen to be quadrupeds.
Such a classification could not have been in the thoughts of the Constitution makers when clause (7) was introduced in article 22.
For the reasons given above, I am of the opinion that section 12 of Act IV of 1950 does not fulfil the requirements of clause (7) of article 22 of the Constitution and is not a law which falls within the ambit of that clause.
That being so, this section of Act IV of 1950 is void and by reason of it the detention of the petitioner cannot be justified.
There is no other provision in 241 this law under which he can be detained for any period whatsoever.
It was argued that it was neither practicable nor possi ble to make a classification on any definite basis in the case of apprehended acts of persons whose activities are of a prejudicial character to the maintenance of public order or to the security of the State or to the defence of India.
This contention to my mind is not sound.
Such a classifica tion was made in the rules under the Defence of India Act by defining "a prejudicial act" in regulation 34.
Mere difficulty in precisely ascertaining the groups or in defin ing objectively the conduct of such groups is no ground for not complying with the clear provisions of the statute or for disobeying it.
I see no difficulty whatsoever if a serious effort was made to comply with the provisions of clause (7).
I cannot see that the compulsory requirement of an advisory board is likely to lead to such disastrous or calamitous results that in all cases or at least in five out of the six subjects of legislation it becomes necessary to dispense with this requirement.
The requirement of an advi sory board is in accordance with the preamble of the Consti tution and is the barest minimum that can make a law of preventive detention to some little degree tolerable to a democratic Constitution.
Such a law also may have some justification even without the requirement of an advisory board to meet certain defined dangerous situations or to deal with a class of people who are a danger to the State but without such limitation the law would be destructive of all notions of personal liberty.
The Constitution must be taken to have furnished an adequate safeguard to its citi zens when it laid down certain conditions in clause (7) and it could not be considered that it provided no safeguard to them at all and that the words used in clause (7) were merely illusory and had no real meaning.
Section 14 of Act IV of 1950 has been impugned on the ground that it contravenes and abridges the provisions of articles 22 (5) and 32 of the Constitution.
This section is in these terms: 242 "(1) No Court shall except for the purposes of a prose cution for an offence punishable under subsection (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order, and notwithstanding anything con tained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or repre sentation made, or the proceedings of an advisory board or that part of the report of an advisory board which is confi dential.
(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section (1): Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.
" This section is in the nature of an iron curtain around the acts of the authority making the order of preventive detention.
The Constitution has guaranteed to the detained person the right to be told the grounds of detention.
He has been given a right to make a representation [vide arti cle 22 (5)], yet section 14 prohibits the disclosure of the grounds furnished to him or the contents of the representa tion made by him in a Court of law and makes a breach of this injunction punishable with imprisonment.
Article 32 (1) of the Constitution is in these terms : "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
" 243 Sub section (4) says : "The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitu tion." Now it is quite clear that if an authority passes an order of preventive detention for reasons not connected with any of the six subjects mentioned in the 7th Schedule, this Court can always declare the detention illegal and release the detenu, but it is not possible for this Court to func tion if there is a prohibition against disclosing the grounds which have been served upon him.
It is only by an examination of the grounds that it is possible to say wheth er the grounds fall within the ambit of the legislative power contained in the Constitution or are outside its scope.
Again something may be served on the detenu as being grounds which are not grounds at all.
In this contingency it is the right of the detained person under article 32 to move this Court for enforcing the right under article 22 (5) that he be given the real grounds on which the detention order is based.
This Court would be disabled from exercis ing its functions under article 32 and adjudicating on the point that the grounds given satisfy the requirements of the sub clause if it is not open to it to see the grounds that have been furnished.
It is a guaranteed right of the person detained to have the very grounds which are the basis of the order of detention.
This Court would be entitled to examine the matter and to see whether the grounds furnished are the grounds on the basis of which he has been detained or they contain some other vague or irrelevant material.
The whole purpose of furnishing a detained person with the grounds is to enable him to make a representation refuting these grounds and of proving his innocence.
In order that this Court may be able to safeguard this fundamental right and to grant him relief it is absolutely essential that the detenu is not prohibited under penalty of punishment to disclose the grounds to the Court and no injunction by law can be issued to this Court disabling it from having a look at the grounds.
Section 14 creates a substantive offence if the grounds are disclosed and it also lays a duty on the Court not 244 to permit the disclosure of such grounds.
It virtually amounts to a suspension of a guaranteed right provided by the Constitution inasmuch as it indirectly by a stringent provision makes administration of the law by this Court impossible and at the same time it deprives a detained person from obtaining justice from this Court.
In my opin ion, therefore, this section when it prohibits the disclo sure of the grounds contravenes or abridges the rights given by Part III to a citizen and is ultra vires the powers of Parliament to that extent.
The result of the above discussion is that, in my opin ion, sections 12 and 14 of Act IV of 1950 as above indicated are void and the decision of the detenu 's case has to be made by keeping out of sight these two provisions in the Act.
If sections 12 and 14 are deleted from the impugned legislation, then the result is that the detention of the petitioner is not legal.
The statute has not provided for detention for a period of three months or less in such cases as it could have done under article22 (4) of the Constitu tion and that being so, the petitioner cannot be justifia bly detained even for a period of three months.
I would accordingly order his release.
In view of the decision above arrived at I do not con sider it necessary to express any opinion on the other points that were argued at great length before us, namely, (1)what is 'the scope and true meaning of the expression "procedure established by law" in article 21 of the Consti tution, and (2) what is the precise scope of articles 19 (1) (d) and 19 (5)of the Constitution.
MUKHERJEA J. This is an application under article 32 of the Constitution praying for a writ of habeas corpus upon the respondents with a view to release the petitioner who, it is alleged, is being unlawfully detained in the Central Jail, Cuddalore, within the State of Madras.
The petitioner, it is said, was initially arrested in Malabar on 17th of December, 1947, and prosecution was started against him on various charges for having 245 delivered certain violent speeches.
While these criminal cases were going on, he was served with an order of deten tion under the Madras Maintenance of Public Order Act on 22nd April, 1948.
This order of detention was held to be illegal by the Madras High Court, but on the same day that the judgment was pronounced, a second order of detention was served upon him.
On his moving the High Court again for a writ of habeas corpus in respect to the subsequent order, his application was dismissed on the ground that as he was not granted bail in one of the three criminal cases that were pending against him, the detention could not be said to be unlawful.
Liberty, however, was given to him to renew his application if and when his detention under the criminal proceedings ceased.
In two out of the three criminal cases the trial before the magistrate ended on February 23, 1949, and the petitioner was sentenced to rigorous imprisonment for 6 months in each of the cases.
These sentences, however, were set aside in appeal on 26th September, 1949.
As re gards the third case, he was tried by the Sessions Judge of North Malabar and sentenced to rigorous imprisonment for 5 years but this sentence was reduced to 6 months ' imprison ment by the Madras High Court on appeal.
The petitioner made a fresh application to the High Court praying for a writ of habeas corpus in respect of his detention under the Madras Maintenance of Public Order Act and this application, which was heard after he had served out his sentences of imprisonment referred to above, was dismissed in January, 1950.
On 25th February, 1950, the was passed by the Parliament and on the 1st of March follow ing, the the detention of the applicant under the Madras Maintainance of Public Order Act was cancelled and he was served with a fresh order of detention under section 3 (1) of the .
On behalf of the respondents the detention of the petitioner is sought to be justified on the strength of the of 1950.
The position taken up on behalf of the petitioner on the other hand is that the said Act is invalid and ultra vires the conStitution by reason of its being in conflict with certain 246 fundamental rights which are guaranteed by the Constitution.
It is argued, therefore, that the detention of the peti tioner is invalid and that he should be set at liberty.
The contentions that have been but forward by Mr. Nambi ar who appeared in support of the petition, may be classi fied under four heads.
His first contention is that as preventive detention is, in substance, a restriction on the free movements of a person throughout the Indian territory, it comes within the purview of article 19 (1) (d) of Part III of the Constitution which lays down the fundamental rights.
Under clause (5) of the article, any restriction imposed upon this right of free movement must be reasonable and should be prescribed in the interests of the general public.
The question as to whether it is reasonable or not is a justiciable matter which is to be determined by the Court.
This being the legal position, the learned Counsel invites us to hold that the main provisions of the impugned Act, particularly those which are contained in sections 3, 7, 10, 11, 12, 13 and 14 are wholly unreasonable and should be invalidated on that ground.
The second contention advanced by the learned Counsel is that the impugned legislation is in conflict with the provi sion of article 21 of the Constitution inasmuch as it pro vides for deprivation of the personal liberty of a man not in accordance with a procedure established by law.
It is argued that the word 'law ' here does not mean or refer to any particular legislative enactment but it means the gener al law of the land, embodying those principles of natural justice ' with regard to procedure which are regarded as fundamental, in all systems of civilised jurisprudence.
It is conceded by the learned counsel that the proce dure, if any, with regard to preventive detention as has been prescribed by article 22 of the Constitution which itself finds a place in the chapter on Fundamental Rights must override those general rules of procedure which are contemplated by article 21 but with regard to matters for which no provision is made in article 22, the general provi sion made in article 21 247 must apply.
He has indicated in course of his arguments what the essentials of such procedure are and the other point specifically raised in this connection is that the provision of section 12 of the is in conflict with article 22 (7) of the Constitution.
The last argument in support of this application is that the provisions of sections 3 and 14 of the Preventive Deten tion Act are invalid as they take away and render completely nugatory the fundamental right to constitutional remedies as is provided for in article 32 of the Constitution.
In discussing these points it should be well to keep in mind the general scheme of the Indian Constitution relating to the protection of the fundamental rights of the citizens and the limitations imposed in this respect upon the legis lative powers of the Government.
The Constitution of India is a written Constitution and though it has adopted many of the principles of the English Parliamentary system, it has not accepted the English doctrine of the absolute supremacy of Parliament in matters of legislation.
In this respect it has followed the American Constitution and other systems modelled on it.
Notwithstanding the representative charac ter of their political institutions, the Americans regard the limitations imposed by their Constitution upon the action of the Government, both legislative and executive, as essential to the preservation of public and private rights.
They serve as a check upon what has been described as the despotism of the majority; and as was observed in the case of Hurtado vs The People of California (1) "a government which holds the lives, the liberty and the property of its citizens, subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism.
" In India it is the Constitution that is supreme and Parliament as well as the State Legislatures must not only act within the limits of their respective legislative spheres as demarcated in the three (1) ; 32 248 lists occuring in the Seventh Schedule to the Constitution, but Part III of the Constitution guarantees to the citizens certain fundamental rights which the legislative authority can on no account transgress.
A statute law to be valid must, in all cases, be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is unconstitutional or not.
Article 13 (2) is imperative on this point and provides expressly that the State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contra vention of this clause shall, to the extent of the contra vention, be void.
Clause (1) of the article similarly invalidates all existing laws which are inconsistent with the provisions of this Part of the Constitution.
The fundamental rights guaranteed by the Constitution have been classified under seven heads or categories.
They are: (1) Right to equality; (2) Right to freedom; (3) Right against exploitation; (4) Right to freedom of religion; (5) Cultural and educational rights; (6) Right to property; and (7) Right to constitutional remedy.
The arrangement differs in many respects from that adopted in the American Constitution and bears a likeness on certain points to similar declarations in the Constitutions of other countries.
Of the different classes of fundamental rights spoken of above, we are concerned here primarily with right to freedom which is dealt with in four articles beginning from article 19 and also with the right to constitutional remedy which is embodied in article 32.
Article 10 enumerates certain forms of liberty or free dom, the protection of which is guaranteed by the Constitu tion.
In article 20, certain protections are given in cases of persons accused of criminal offences.
Article 21 lays down in general terms that no person shall be deprived of his life or personal liberty, except 249 according to procedure established by law.
Article 22 pro vides for certain additional safeguards in respect to arrest and detention and by way of exception to the rules so made, makes certain special provisions for the particular form of detention known as Preventive Detention.
The first contention advanced by Mr. Nambiar involves a consideration of the question as to whether Preventive Detention, which is the subject matter of the impugned legislative enactment, comes within the purview of article 19 (1) (d) of the Constitution, according to which a right to move freely throughout the territory of India is one of the fundamental rights guaranteed to all citizens.
If it comes within that sub clause, it is not disputed that clause (5) of article 19 would be attracted to it and it would be for the courts to decide whether the restrictions imposed upon this right by the Parliament are reasonable restric tions and are within the permissible limits prescribed by clause (5) of the article.
There is no authoritative definition of the term 'Pre ventive Detention ' in Indian law, though as description of a topic of legislation it occurred in the Legislative Lists of the Government of India Act, 1935, and has been used in Item 9 of List I and Item 3 of List III in the Seventh Schedule to the Constitution.
The expression has its origin in the language used by Judges or the law Lords in England while explaining the nature of detention under Regulation 14 (B) of the Defence of Realm Consolidation Act, 1914, passed on the outbreak of the First World War; and the same lan guage was repeated in connection with the emergency regula tions made during the last World War.
The word ' preventive ' is used in contradistinction to the word ' punitive. ' To quote the words of Lord Finlay in Rex vs Halliday(1), "it is not a punitive but a precautionary measure.
" The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it.
No offence is proved, nor any charge formulated; and the justification of such detention is suspicion (1) ; at p. 269.
250 or reasonable probability and not criminal conviction which can only be warranted by legal evidence (1).
Detention in such form is unknown in America.
It was resorted to in England only during war time but no country in the world that I am aware of has made this an integral part of their Constitution as has been done in India.
This is undoubtedly unfortunate, but it is not our business to speculate on questions of policy or to attempt to explore the reasons which led the representatives of our people to make such a drastic provision in the Constitution itself, which cannot but be regarded as a most unwholesome encroachment upon the liberties of the people.
The detention of a man even as a precautionary measure certainly deprives him of his personal liberty, and as article 21 guarantees to every man, be he a citizen or a foreigner, that he shall not be deprived of his life and personal liberty, except in accordance with the procedure established by law, the requirements of article 21 would certainly have to be complied with, to make preventive detention valid in law.
What these requirements are I will discuss later on.
Article 22 comes immediately after arti cle 21.
It secures to all persons certain fundamental rights in relation to arrest and detention, and as already said, by way of exception to the rights thus declared, makes certain specific provisions relating to preventive deten tion.
The subject of preventive detention is specified in and constitutes Item No. 9 in the Union legislative List and it also forms Item No. 3 in the Concurrent List.
Under article 246 of the Constitution, the Parliament and the State Legislatures are empowered to legislate on this sub ject within the ambit of their respective authorities.
Clause(3) of article 22 expressly enjoins that the protec tive provisions of clauses (1) and (2) of the article would not be available to persons detained under any law providing for preventive detention.
The only fundamental rights which are guaranteed by the Constitution in the matter of preven tive detention and which to that extent impose restraints upon the exercise of legislative powers in that respect are (1) Vide Lord Macmillan in Liversidge vs Anderson ; at p. 254.
251 contained in clauses (4) to (7) of article 22.
Clause (4) lays down that no law of preventive detention shall autho rise the detention of a person for a period longer than three months, unless an advisory board constituted in the manner laid down in sub clause (a) of the clause has report ed before the expiration of the period that there is suffi cient cause for such detention.
The period of detention cannot, in any event, exceed the maximum which the Parlia ment is entitled to prescribe under clause (7) (b).
The Parliament is also given the authority to prescribe the circumstances and the class of cases under which a person can be detained for a period longer than three months under any law of preventive detention without obtaining the opin ion of the advisory board.
There is one safeguard provided for all cases which is contained in clause (5) and which lays down that the authority making the order of detention shall, as soon as possible communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
But even here, the authority while giving the grounds of detention need not disclose such facts which it considers against public interest to disclose.
The question that we have to consider is whether a law relating to preventive detention is justiciable in a Court of law on the ground of reasonableness under article 19 (5) of the Constitution inasmuch as it takes away or abridges the right to free movement in the territory of India guaran teed by clause (1) (d)of the article.
It will be seen from what has been said above that article 22 deals specifically with the subject of preventive detention and expressly takes away the fundamental rights relating to arrest and detention enumerated in clauses (1) and (2) of the article from per sons who are detained under any law which may be passed by the Parliament or State Legislatures acting under article 246 of the Constitution read with the relevant items in the legislative lists.
I will leave aside for the moment the question as to how far the court can examine the reasonable ness or otherwise of the procedure that is prescribed by any law relating 252 to preventive detention, for that would involve a considera tion of the precise scope and meaning of article.
21; but this much is beyond controversy that so far as substantive law is concerned, article 22 of the Constitution gives a clear authority to the legislature to take away the funda mental rights relating to arrest and detention, which are secured by the 'first two clauses of the article.
Any legis lation on the subject would only have to conform to the requirements of clauses (4) to (7) and provided that is done, there is nothing in the language employed nor in the context in which it appears which affords any ground for suggestion that such law must be reasonable in its character and that it would be reviewable by the Court on that ground.
Both articles 19 and 22 occur in the same Part of the Con stitution and both of them purport to lay down the fundamen tal rights which the Constitution guarantees.
It is well settled that the Constitution must be interpreted in a broad and liberal manner giving effect to all its parts, and the presumption should be that no conflict or repugnancy was intended by its framers.
In interpreting the words of a Constitution, the same principles undoubtedly apply which are applicable in construing a statute, but as was observed by Lord Wright in James vs Commonwealth of Australia ( 1 ), "the ultimate result must be determined upon the actual words used not in vacuo but as occurring in a single complex instrument in which one part may throw light on the other." "The Constitution," his Lordship went on saying, "has been described as the federal compact and the construction must hold a balance between all its parts.
" It seems to me that there is no conflict or repugnancy between the two provisions of the Constitution and an exami nation of the scheme and language of the catena of articles which deal with the rights to freedom would be sufficient to show that what clause (1) (d) of article 19 contemplates is not freedom from detention, either punitive or preventive; it relates to and speaks of a different aspect or phase of civil liberty.
(1) at p. 613.
253 Article 19, which is the first of this series of arti cles, enumerates seven varieties or forms of freedom begin ning with liberty of speech and expression and ending ' with free right to practise any trade, profession or business.
The rights declared it articles 19 to 22 do not certainly exhaust the whole list of liberties which people possess under law.
The object of the framers of the Constitution obviously is to enumerate and guarantee those forms of liberty which come under well known categories recognised by constitutional writers and are considered to be fundamental and of vital importance to the community.
There cannot be any such thing as absolute or uncon trolled liberty wholly freed from restraint, for that would lead to anarchy and disorder.
The possession and enjoyment of all rights, as was observed by the Supreme Court of America in Jacobson vs Massachusetts (1), are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, general order and morals of the community.
The question, therefore arises in each case of adjusting the conflicting interests of the individual and of the society.
In some cases, restrictions have to be placed upon free exercise of individual rights to safeguard the interests of the society; on the other hand, social control which exists for public good has got to be restrained, lest it should be misused to the detriment of individual rights and liberties.
Ordinarily, every man has the liberty to order his life as he pleases, to say what he will, to go where he will, to follow any trade, occupation or calling at his pleasure and to do any other thing which he can lawfully do without let or hindrance by any other person.
On the other hand for the very protection of these liberties the society must arm itself with certain powers.
No man 's liberty would be worth its name if it can be violated with impunity by any wrong doer and if his property or possessions could be preyed upon by a thief or a marauder.
The society, therefore, has got to exercise certain powers for the protection of these liber ties and to arrest, search, imprison and (1) ; 254 punish those who break the law.
If these powers are ' prop erly exercised, they themselves are the safeguards of free dom, but they can certainly be abused.
The police may arrest any man and throw him into prison without assigning any reasons; they may search his belongings on the slightest pretext; he may be subjected to a sham trial and even pun ished for crimes unknown to law.
What the Constitution, therefore, attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social control.
To me it seems that article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law, so that they may not conflict with public welfare or general morality.
On the other hand articles 20, 21 and 22 are primarily concerned with penal enactments or other laws under which personal safety or liberty of persons could be taken away in the interests of the society and they set down the limits within which the State control should be exer cised.
Article 19 uses the expression ' 'freedom" and men tions the several forms and aspects of it which are secured to individuals, together with the limitations that could be placed upon them in the general interests of the society.
Articles 20, 21 and 22 on the other hand do not make use of the expression "freedom" and they lay down the restrictions that are to be placed on State control where an individual is sought to be deprived of his life or personal liberty.
The right to the safety of one 's life and limbs and to enjoyment of personal liberty, in the sense of freedom from physical restraint and coercion of any sort, are the inher ent birthrights of a man.
The essence of these rights consists in restraining others from interfering with them and hence they cannot be described in terms of "freedom" to do particular things.
There is also no question of imposing limits on the activities of individuals so far as the exer cise of these rights is concerned.
For these reasons, I think, these rights have not been mentioned in article 19 of the Constitution.
An individual can be deprived of his life or personal liberty only by action 255 of the State, either under the provisions of any penal enactment or in the exercise of any other coercive process vested in it under law.
What the Constitution does there fore is to put restrictions upon the powers of the State, for protecting the rights of the individuals.
The re straints on State authority operate as guarantees of indi vidual freedom and secure to the people the enjoyment of life and personal liberty which are thus declared to be inviolable except in the manner indicated in these articles.
In my opinion, the group of articles 20 to 22 embody the entire protection guaranteed by the Constitution in relation to deprivation of life and personal liberty both with regard to substantive as well as to procedural law.
It is not correct to say, as I shah show more fully later on, that article 21 is confined to matters of procedure only.
There must be a substantive law, under which the State is empow ered to deprive a man of his life and personal liberty and such law must be a valid law which the legislature is compe tent to enact within the limits of the powers assigned to it and which does not transgress any of the fundamental rights that the Constitution lays down.
Thus a person cannot be convicted or punished under an ex post facto law, or a law which compels the accused to incriminate himself in a crimi nal trial or punishes him for the same offence more than once.
These are the protections provided for by article 20.
Again a law providing for arrest and detention must conform to the limitations prescribed by clauses (1) and (2) of article 22.
These provisions indeed have been withdrawn expressly in case of preventive detention and protections of much more feeble and attenuated character have been substi tuted in their place;but this is a question of the policy adopted by the Constitution which does not concern us at all.
The position, therefore, is that with regard to life and personal liberty, the Constitution guarantees protection to this extent that no man could be deprived of these rights except under a valid law passed by a competent legislature within the limits mentioned above and in accordance with the procedure which such law lays down.
Article 19, on the other hand, 256 enunciates certain particular forms of civil liberty quite independently of the rights dealt with under article 21.
Most of them may be connected with or dependent upon person al liberty but are not identical with it; and the purpose of article 19 is to indicate the limits within which the State could, by legislation, impose restrictions on the exercise of these rights by the individuals.
The reasonableness or otherwise of such legislation can indeed be determined by the Court to the extent laid down in the several clauses of article 19, though no such review is permissible with regard to laws relating to deprivation of life and personal liber ty.
This may be due to the fact that life and personal freedom constitute the most vital and essential rights which people enjoy under any State and in such matters the pre cise and definite expression of the intention of the legislature has been preferred by the Constitution to the variable standards which the judiciary might lay down.
We find the rights relating to personal liberty being de clared almost in the same terms in the Irish Consti tution article 40 (1) (4) (1) of which lays down that "no citizen shall be deprived of his personal liberty save in accordance with law.
" In the Constitution of the Free City of Danzig, "the liberty of the person has been declared to be inviolable and no limitation or deprivation of personal liberty may be imposed by public authority except by virtue of a law" (vide article 74).
Article 31 of the Japanese Constitution is the closest parallel to article 21 of the Indian Constitution and the language is almost identical.
This is the scheme adopted by the Constitution in dealing with the rights to freedom described in the chapter on fundamental rights and in my opinion, therefore, the proper test for determining the validity of an enactment under which a person is sought to be deprived of his life and personal liberty has to be found not in article 19, but in the three following articles of the Constitution.
Article 20 of course has no application so far as the law relating to preventive detention is concerned.
Mr. Nambiar 's endeavour throughout has been to 257 establish that article 19 (1) (d) of the Constitution read with article 19 (5) enunciates the fundamental rights of the citizens regarding the substantive law of personal liberty, while article 21 embodies the protection as regards proce dural law.
This, in my opinion, would be looking at these provisions from a wrong angle altogether.
Article 19 cannot be said to deal with substantive law merely, nor article 21 with mere matters of procedure.
It cannot also be said that the provisions of article 19 (1) (d) read with clause (5) and article 21 are complementary to each other.
The con tents and subject matter of the two provisions are not identical and they proceed on totally different princi ples.
There is no mention of any "right to life" in article 19, although that is the primary and the most important thing for which provision is made in article 21.
If the contention of the learned counsel is correct, we would have to hold that no protection is guaranteed by the Constitution as regards right to life so far substantive law is con cerned.
In the second place, even if freedom of movement may be regarded as one of the ingredients of personal liberty, surely there are other elements included in the concept and admittedly no provision for other forms of personal liberty are to be found in article 19 (5) of the Constitution.
Furthermore article 19 is applicable to citizens only, while the rights guaranteed by article 21 are for all per sons.
citizens as well as aliens.
The only proper way of avoiding these anomalies is to interpret the two provisions as applying to different subjects and this would be the right conclusion if we have in mind the scheme which under lies this group of articles.
I will now turn to the language of article 19 (1) (d) and see whether preventive detention really comes within its purview.
Article 19 (1) (d) provides that all citizens shall have the right to move freely throughout the territory of India.
The two sub clauses which come immediately after sub clause (d) and are intimately connected with it, are in these terms: "(e) To reside and settle in any part of the territory of India; 258 (f) to acquire, hold and dispose of property." Clause (5)relates to all these three sub clauses and lays down that nothing in them shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clause either in the interests of the general public or for the protection of the interests of any scheduled tribe.
I agree with the learned Attorney General that in con struing article 19 (1) (d) stress is to be laid upon the expression "throughout the territory of India," and it is a particular and special kind of right, viz., that of free movement throughout the Indian territory, that is the aim and object of the Constitution to secure.
In the next sub clause, right tO reside and settle "in any part of the territory of India" is given and here again the material thing is not the right of residence or settlement but the right to reside or settle in any part of the Indian territo ry.
For an analogous provision, we may refer to article 301 which says that subject to the other provisions of this Part, commerce and intercourse throughout the territory of India shall be free.
The meaning of sub clause (d) of arti cle 19 (1) will be clear if we take it along with sub clauses (e) and (f), all of which have been lumped together in clause (5) and to all of which the same restrictions including those relating to protecion of the interest of any scheduled tribe have been made applicable.
It will be remembered that these rights are available only to citizens.
To an alien or foreigner, no guarantee of such rights has been given.
Normally all citizens would have the free right to move from one part of the Indian territory to another.
They can shift their residence from one place to any other place of their choice and settle anywhere they like.
The right of free trade, commerce and intercourse throughout the territory of India is also secured.
What the Constitu tion emphasises upon by guaranteeing these rights is that the whole of Indian Unian in spite of its being divided into a number of States is really one unit as far as the citizens of the Union are concerned.
All the 259 citizens would have the same privileges and the same facilities for moving into any part of the territory and they can reside or carry on business anywhere they like; and no restrictions either inter State or otherwise would be allowed to set up in these respects between one part of India and another.
So far as free movement throughout the territory is concerned, the right is subject to the provision of clause (5), under which reasonable limitation may be imposed upon these liberties in the interests of the general public or protection of any scheduled tribe.
The interests of the public which necessitates such restrictions may be of var ious kinds.
They may be connected with the avoidance of pestilence or spreading of contagious diseases; certain places 'again may be kept closed for military purposes and there may be prohibition of entry into areas which are actual or potential war zones or where disturbances of some kind or other prevail.
Whatever the reasons might be, it is necessary that these restrictions must be reasonable, that is to say, commensurate with the purpose for which they are laid down.
In addition to general interest, the Constitu tion has specified the protection of the interests of the scheduled tribes as one of the factors which has got to be taken into consideration in the framing of these restric tions.
The scheduled tribes, as is well known, are a back ward and unsophisticated class of people who are liable to be imposed upon by shrewd and designing persons.
Hence there are various provisions disabling them from alienating even their own properties except under special conditions.
In their interest and for their benefit, laws may be made restricting the ordinary right of citizens to go or settle in particular areas or acquire property in them.
The refer ence to the interest of scheduled tribe makes it quite clear that the free movement spoken of in the clause relates not to general rights of locomotion but to the particular right of shifting or moving from one part of the Indian territory to another, without any sort of discriminatory barriers.
This view will receive further support if we look to some analogous provisions ,in the Constitution of 260 other countries.
It will be seen that sub clauses (d) (e) and (f)of article 19 (1) are embodied in almost identical language in one single article, viz., article 75 of the Constitution of the Free City of Danzig.
The article runs as follows: "All nationals shall enjoy freedom of movement within the free city and shall have the right to stay and to settle at any place they may choose, to acquire real property and to earn their living in any way.
This right shall not be curtailed without legal sanctions.
" The several rights are thus mentioned together as being included in the same category, while they are differentiated from the "liberty of the person" which is "described to be inviolable except by virtue of a law" in article 74 which appears just previous to this article.
An analogous provi sion in slightly altered language occurs in article 111 of the Constitution of the German Reich which is worded in the following manner: All Germans enjoy the right of change of domicile within the whole Reich.
Every one has the right to stay in any part of the Realm that he chooses, t6 settle there, acquire landed property and pursue any means of livelihood.
" Here again the right to personal liberty has been dealt with separately in article 114.
A suggestion was made in course of our discussions that the expression "throughout the territory of India" occurring in article 19 (1) (d) might have been used with a view to save Passport Regulations or to emphasise that no rights of free emigration are guaran teed by the Constitution.
The suggestion does not seem to me to be proper.
No State can guarantee to its citizens the.
free right to do anything outside its own territory.
This is true of all the fundamental rights men tioned in article 19 and not merely of the right of free movement.
Further it seems to me that the words "throughout the territory of India" have nothing to do with rights of emigration.
We find that both in the Danzig as well as in the German Constitution, where similar words have been used with regard to the excercise of the right of free movement throughout the.
261 territory, there are specific provisions which guarantee to all nationals the free right of emigration to other coun tries (vide article 76 of the Danzig Constitution and arti cle 112 of the Constitution of the German Reich).
In my opinion, therefore, preventive detention does not come either within the express language or within the spirit and intendment of clause (1) (d) of article 19 of the Constitu tion which deals with a totally different aspect or form of civil liberty.
It is true that by reason of preventive detention, a man may be prevented from exercising the right of free movement within the territory of India as contemplated by article 19 (1) (d) of the Constitution, but that is merely incidental to or consequential upon loss of liberty resulting from the order of detention.
Not merely the right under clause (1) (d), but many of the other rights which are enumerated under the other sub clauses of article 19 (1) may be lost or suspended so long as preventive detention continues.
Thus a detenu so long as he is under detention may not be able to practise any profession, or carry on any trade or business which he might like to do; but this would not make the law providing for preventive detention a legislation taking away or abridging the rights under article 19 (1) (g) of the Constitution and it would be absurd to suggest that in such cases the validity of the legislation should be tested in accordance with the requirement of clause (6) of article 19 'and that the only restrictions that could be placed upon the person 's free exercise of trade and profession are those specified in that clause.
Mr. Nambiar concedes that in such cases we must look to the substance of the particular legis lation and the mere fact that it incidentally trenches upon some other right to which it does not directly relate is not material.
He argues, however, that the essence or substance of a legislation which provides for preventive detention is to take away or curtail the right of free move ments and in fact, "personal liberty" according to him, connotes nothing else but unrestricted right of locomotion.
The learned counsel refers in this connection to certain passages in Blackstone 's Commentaries on the Laws of Eng land, where 262 the author discusses what he calls the three absoluterights inherent in every Englishman, namely, rights of personal security, personal liberty and property.
"Personal security", according to Blackstone, consists in a person 's legal and uninterrupted enjoyment of his life, his limb, his body, his health and his reputation; whereas "personal liberty" consists in the power of locomotion, of changing of situation or moving one 's person to whatsoever place one 's own inclination may direct without imprisonment or restraint unless by due course of law (1).
It will be seen that Blackstone uses the expression "personal liberty" in a somewhat narrow and restricted sense.
A much wider and larger connotation is given to it by later writers on con stitutional documents, particularly in America.
In ordinary language "personal liberty" means liberty relating to or concerning the person or body of the individual; and "per sonal liberty" in this sense is the antithesis of physical restraint or coercion.
According to Dicey, who is an acknowledged authority on the subject "personal liberty" means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification(2).
It is, in my opinion, this negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory.
In this connection, it may not be irrelevant to.
point out that it was in accordance with the recommendation of the 'Drafting Committee that the word "personal" was inserted before "liberty" in article 15 of the Constitution which now stands as article 21.
In the report of the Drafting Commit tee it is stated that the word "liberty" should be quali fied by the insertion of the word "personal" before it; otherwise, it might be construed very widely so as to in clude even the freedoms already dealt with in article 13.
Article.
13, it should be noted, is the present article 19.
If the views of the Drafting Committee were accepted by the (1) Vide Chase 's Blackstone, 4th Edn, pp. 68, 73.
(2) Vide Dicey on Constitutional Law, 9th Edn, pp.
207 208.
263 Constituent Assembly, the intention obviously was to exclude the contents of article 19.
from the concept of "personal liberty" as used in article 21.
To what extent the meaning of words used in the Constitution could be discovered from reports of Drafting Committee or debates on the floor of the House is a matter not quite free from doubt and I may have to take up this matter later on when discussing the meaning of the material clause in article 21 of the Constitution.
It is enough to say at this stage that if the report of the Drafting Committee is an appropriate material upon which the interpretation of the words of the Constitution could be based, it certainly goes against the contention of the applicant and it shows that the words used in article 19 (1) (d) of the Constitution do not mean the same thing as the expression "personal liberty" in article 21 does.
It is well known that the word " 'liberty" standing by itself has been given a very wide meaning by the Supreme Court of the United States of America.
It includes not only personal freedom from physical restraint but the right to the free use of one 's own property and to enter into free contractual relations, In the Indian Constitution, on the other hand, the expression "personal liberty" has been deliberately used to restrict it to freedom from physical restraint of person by incarceration or otherwise.
Apart from the report of the Drafting Committee, that is the plain grammatical meaning of the expression as I have already explained.
It may not, I think, be quite accurate to state that the operation of article 19 of the Constitution is limited to free citizens only and that the rights have been described in that article on the presupposition that the citizens are at liberty.
The deprivation of personal liberty may entail as a consequence the loss or abridgement of many of the rights described in article 19, but that is because the nature of these rights is such that free exercise of them is not possible in the absence of personal liberty.
On the other hand, the right to hold and dispose of property which is in subclause (f) of article 19 (1) and which is not dependent on full possession of personal liberty by the owner may 264 not be affected if the owner is imprisoned or detained.
Anyway, the point is not of much importance for purposes of the present discussion.
The result is that, in my opinion, the first contention raised by Mr. Nambiar cannot succeed and it must be held that we are not entitled to examine the reasonableness or otherwise of the and see whether it is within the permissible bounds specified in clause (5) of article 19.
I now come to the second point raised by Mr. Nambiar in support of the application; and upon this point we had arguments of a most elaborate nature addressed to us by the learned counsel on both sides, displaying a considerable amount of learning and research.
The point, however, is a short one and turns upon the interpretation to be put upon article 21 of the Constitution, which lays down that "no person shall be deprived of his . . personal liberty, except according to procedure established by law.
" On a plain reading of the article the meaning seems to be that you cannot deprive a man of his personal liberty, unless you follow and act according to the law which provides for deprivation of such liberty.
The expression "procedure" means the manner and form of enforcing the law.
In my opinion, it cannot be disputed that in order that there may be a legally established procedure, the law which establish es it must be a valid and lawful law which the legislature is competent to enact in accordance with article 245 of the Constitution and the particular items in the legislative lists which it relates to.
It is also not disputed that such law must not offend against the fundamental rights which are declared in Part III of the Constitution.
The position taken up by the learned Attorney General is that as in the present case there is no doubt about the competency of that Parliament to enact the law relating to preventive detention which is fully covered by Item 9 of List I, and Item 3 of List III, and as no question of the law being reasonable or otherwise arises for consideration by reason of the fact that article 19 (1) (d) is not attracted to this case, the law must be held to be a valid piece of legisla tion and if the procedure 265 laid down by it has been adhered to, the validity of the detention cannot possibly be challenged.
His further argu ment is that article 22 specifically provides for preventive detention and lays down fully what the requirements of a legislation on the subject should be.
As the impugned Act conforms to the requirements of article 22, no further ques tion of its validity under article 21 of the Constitution at all arises.
The latter aspect of his arguments, I will deal with later on.
So far as the main argument is concerned,the position taken up by Mr. Nambiar is that article 21 refers to 'procedure only and not to substan tive law the procedure, however, must be one which is established by law.
The expression "law" in this context does not mean or signify, according to the learned counsel, any particular law enacted by the legislature in conformity with the requirements of the Constitu tion or otherwise possessing a binding authority.
It refers to law in the abstract or general sense in the sense of jus and not lex and meaning thereby the legal principles or fundamental rules that lie at the root of every system of positive law including our own, and the authority of which is acknowledged in the jurisprudence of all civilised coun tries.
It is argued that if the word "law" is interpret ed in the sense of any State made law, article 21 could not rank as a fundamental right imposing a check or limitation on the legislative authority of the Government.
It will be always competent to the legislature to pass a law laying down a thoroughly arbitrary and irrational procedure opposed to all elementary principles of justice and fairness and the people would have no protection whatsoever, provided such procedure was scrupulously adhered to.
In support of this argument the learned counsel has relied upon a large number of American cases, where the Supreme Court of America ap plied the doctrine of "due process of law" as it appears in the American Constitution for the purpose of invalidating various legislative enactments which appeared to that Court to be capricious and arbitrary and opposed to the fundamen tal principles of law.
266 It may be noted here that in the original draft of the Indian Constitution the words used in article 15 (which now stands as article 21) were "in accordance with due process of law." The Drafting Committee recommended that in place of the "due process" clause, the expression "according to procedure established by law" should be substituted.
The present article 21 seems to have been modeled on article 31 of the Japanese Constitution, where the language employed is "no person shall be deprived of 'life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law." Mr. Nambiar argues that the expression "procedure established by law" in article 21 of the Constitution bears the same meaning as the "due process" clause does in America, restricted only to this extent, viz., that it is limited to matters of procedure and does not extend to questions of substantive law.
To appre ciate the arguments that have been advanced for and against this view and to fix the precise meaning that is to be given to this clause in article 21, it would be necessary to discuss briefly the conception of the doctrine of "due process of law" as it appears in the American Constitution and the way in which it has been developed and applied by the Supreme Court of America.
In the history of Anglo American law, the concept of "due process of law" or what is considered to be its equiva lent "law of the land" traces its lineage far back into the beginning of the 13th century A.D.
The famous 39th chapter of the Magna Charta provides that "no free man shall be taken or imprisoned or disseized, or outlawed or exiled or in any way destroyed; nor shall we go upon him nor send upon him but by the lawful judgment of his peers and by the law of the land." Magna Charta as a charter of English liberty was confirmed by successive English monarchs and it is in one of these confirmations (28 Ed.
III, Chap.
3) known as "Statute of Westminster of the liberties of London", that the expression "due process of law" for the first time appears.
Neither of these phrases was explained or defined in any of the 267 documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning.
In substance, they guaranteed that persons should not be imprisoned without proper indictment and trial by peers, and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made (1).
These concepts came into America as part of the rights of Englishmen claimed by the colonists.
The expression in one form or other appeared in some of the earlier State Constitutions and the exact phrase "due process of law" came to be a part of the Federal Constitution by the Fifth Amendment which was adopted in 1791 and which provided that "no person shall. be deprived of life, liberty or property without due process of law.
" It was imposed upon the State Constitution in almost identical language by the Fourteenth Amendment in the year 1868.
What "due process of law" exactly means is difficult to define even at the present day, The Constitution contains no description of what is "due process of law" nor does it declare the principles by application of which it could be ascertained.
In Twining vs New Jersey (2) the Court ob served: "Few phrases in the law are so elusive of exact appre hension as this.
This COurt has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise.
" It is clear, however, that the requirement of "due process of law" in the United States Constitution imposes a limitation upon all the powers of Government, legislative as well as executive and judicial.
Applied in England only as protection against executive usurpation and royal tyranny, in America it became a bulwark against arbitrary legislation (3).
(1) Vide Willoughby on the Constitution of the United States, Vol.
III, p. 1087.
(2) (3) Vide Hurtando vs People of California, ; at p. 532.
268 As it is a restraint upon the legislative power and the object is to protect citizens against arbitrary and capri cious legislation, it is not within the competence of the Congress to make any process a "due process of law" by its mere will; for that would make the limitation quite nugato ry.
As laid down in the case cited above, "it is not any act legislative in form that is law; law is something more than mere will exerted as an act of power.
" It means and signifies the general law of the land, the settled and abid ing principles which inhere in the Constitution and lie at the root of the entire legal system.
To quote the words of Daniel Webster in a famous argument before.the Supreme Court (1): "By the law of the land is most clearly intended the general law a law which hears before it condemns, which proceeds upon enquiry and renders judgment only after trial.
The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.
" What these principles of general law are nobody has ever attempted to enumerate.
To a large extent they are the principles of English common law and modes of judicial pro ceedings obtaining in England, the traditions of which came along with the settlers in America.
Some Judges seem to have alluded to the principles of natural justice in ex plaining what is meant by general law or "law of the land," though the doctrine of a law of nature did not obtain a firm footing at any time.
In Wynehamer vs New York (2), Justice Hubbard declared himself opposed to the judiciary attempting to set bounds to the legislative authority or declaring a statute invalid upon any fanciful theory of 'higher law or first principles of natural right outside of the Constitu tion.
Coke 's dictum of a supreme fundamental law which obviously referred to principles of English common law cer tainly did exercise considerable influence upon the minds of the American Judges (3) and there are observations in some cases (1) Darmouth College case, 4 Wheaton p. 518.
(2) (3) Willis on Constitutional Law, p. 647.
269 which go to suggest that the principles of natural justice were regarded as identical with those of common law, except where the rules of common law were not considered to be of fundamental character or were not acted upon as being un suited to the progress of time or conditions of the American Society (1).
In the case of Loan Association vs Topeka (2), it was observed that there are limitations upon powers of Government which grow out of the essential nature of free Governments implied reservations of individual rights without which the social compact could not exist and which are respected by all Governments entitled to the name.
What is hinted at, is undoubtedly the old idea of a social com pact under which political institutions were supposed to come into being; and the suggestion is that when the Ameri cans formed themselves into a State by surrendering a por tion of their rights which they possessed at that time and which presumably they inherited from their English ancestors, there were certain rights of a fundamental character still reserved by them which no State could possibly take away.
As has been said already, "due process of law" has never been defined by Judges or Jurists in America.
The best description of the expression would be to say that it means in each particular case such an exercise of the powers of Government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs (3).
In the actual application of the clause relating to "due process of law" to particular cases the decisions of the Supreme Court of America present certain peculiar and unusu al features and there is total lack of uniformity and consistency in them.
Ever since the appearance of the clause in the Fifth Amendment and down to the middle of the 19th century, it was interpreted as a restriction on proce dure, and particularly the judicial procedure, by which the Government (1) Cooley 's Constitutional Limitations, Vol.
II, p. 73940.
(2) 20 Wall, p. 655.
(3) Cooley 's Constitutional Limita tions, Vol.
II, p. 741.
270 exercises its powers.
Principally it related to the proce dure by which persons were tried for crimes and guaranteed to accused persons the right to have a fair trial in compli ance with well established criminal proceedings.
The same principle applied to the machinery or proceeding by which property rights were adjudicated and by which the powers of eminent domain and taxation were exercised.
During this period it was not considered to have any bearing on substan tial law at all.
Change, however, came in and the period that followed witnessed a growing recognition of the doctrine that sub stantive rights of life, liberty and property are protected by the requirement of due process of law against any depri vation attempted at by legislative authority; and the polit ical and economic conditions of the country accounted to a great extent for this change in judicial outlook.
The close of the civil war brought in a new period of industrial development leading to accumulation of large capital in the hands of industrialists and the emergence of a definite labouring class.
New and important problems arose which the States attempted to deal with by various laws and regu lations.
Some of them seem to have been ill advised and arbitrary and there was a clamour amongst businessmen against what they described as legislative encroachments upon their vested private rights.
The Supreme Court now began to use the rule of due process of law as a direct restraint upon substantial legislation and any statute or administrative act, which imposed a limitation upon rights of private property or free contractual relations between the employers and employed, was invalidated as not being in accordance with due process of law (1).
What constituted a legitimate exercise of the powers of legislation now came to be a judicial question and no statute was valid unless it was.
reasonable in the opinion of the Court.
The question of reasonableness obviously depends largely upon the.
ideas of particular individuals and the Courts or rather the majority of Judges thus marshalled their own (1) Vide Encyclopaedia of the Social Sciences, Vol.
V, pp. 265 67.
271 views of social and economic policy in deciding the reasona bleness or otherwise of the statutes.
In the language of a well known writer, the Courts became a kind of negative third chamber both to the State Legislatures and the Con gress(1).
To what extent the Courts laid stress upon the doctrine of freedom of contract is illustrated in the case of Lochner vs New York(2).
In that case the question arose as to the validity of a labour legislation which prohibited the employment of persons in certain fields of activity for more than 60 hours a week.
Lochner was indicted for violat ing this law by employing a man in his Biscuit and Cake Factory who was to work more than 60 hours in a week.
The Court by a majority of 5 to 4 held the statute to be invalid on the ground that the "right to purchase or sell labour is part of the liberty protected by the Amendment unless there are circumstances which excluded the right.
" That decision has been criticized not merely on the ground that it rested upon an economic theory which to quote the language of Holmes J., who was one of the dissentient Judges "was not entertained by a large part of the country;" but it ignored that such regulation was necessary for protecting the health of the employees, that is to say, it was in substance an exercise of police powers with a view to accomplish some object of public interest(s).
It may be mentioned here that while the due process doctrine was being extended by judicial pronouncements, the doctrine of police power which operates to some extent as a check upon the "due process" clause was simultaneously gaining importance.
Roughly speaking, police power may be defined as "a right of a Government to regulate the conduct of its people in the interests of public safety, health, morals and convenience.
Under this authority, a Government may make regulations concerning the safety of building, the regulation of traffic, the reporting of incurable diseases, the inspection of markets, the sanitation of factories, the hours of work for women (1) Vide Kelley and Harbinson on the American Constitution, p. 539. 198 u.s. 45.
Vide Willoughby on the Constitution of the U.S., Vol.
III, p. 271.
272 and children, the sale of intoxicants and such other matters ,,(1).
Here again, the extent to which the Court can inter fere with exercise of police powers by the State has not been clearly defined by judicial pronouncements.
The doc trine generally accepted is that although any enactment by legislature under the guise of exercise of police powers would not necessarily be constitutional, yet if the regula tion has a direct relation to its proposed object which is the accomplishment of some legitimate public purpose, the wisdom or policy of the legislation should not be examined by the Courts.
The rule is not without its exceptions but it is not necessary to elaborate them for our present pur pose(2).
The later decisions, though not quite uniform, reveal the growing influence of the police power doctrine.
It may be said that since 1936 there has been a definite swing of the judicial pendulum in the other direction.
In the case of West Coast Hotel Company vs Parrish(3) which related to the legality of a Statute for regulating the minimum wages of women, Chief Justice Hughes, who delivered the opinion of the Court, observed as follows: "In each case the violation alleged by those attack ing minimum wage regulation for women is deprivation of freedom of contract.
What is the freedom? The Constitution does not speak of freedom of contract.
It speaks of liberty and prohibits the deprivation of liberty without due process of law.
In prohibiting that deprivation the Constitution does not recognise an absolute and uncontrol lable liberty.
Liberty in each of its phases has its histo ry and connotation.
But the liberty safeguarded is liberty in a social organisation which requires the protection of law.
against the evils which menace the health, safety, morals and welfare of the people.
" In the succeeding years the indications certainly are that the requirement of due process of law as a substantial restriction on Government control is becoming a thing of the past and the rule is being restricted more (1) Vide Munroe The Government of the U.S., p. 522.
(2) Vide Willoughby on the Constitution of the U.S. Vol.
III, pp.
1709 70.
(3) ; 273 and more to its original procedural meaning.
What will happen in future cannot certainly be predicted at this stage(1).
Thus it will be seen that the "due process" clause in the American Constitution came to be used as a potent in strument in the hands of the judiciary for exercising con trol over social legislation.
The judicial pronouncements are not guided by any uniform principle, and the economic and social ideas of the Judges, who form the majority in the Supreme Court for the time being, constitute, so to say, the yard stick for measuring the reasonableness or otherwise of any enactment passed during that period.
No writer of American Constitutional Law has been able uptil now to evolve anything like a definite and consistent set of prin ciples out of the large mass of cases, where the doctrine of "due process of law" has been invoked or applied.
It is against this background that we must consider how the constitution makers in India dealt with and gave final shape to the provisions, on an analogous subject in the Indian Constitution.
In the Draft Constitution, article 15 (which now stands as article 21) was apparently framed on the basis of the 5th and 14th Amendments in the American Constitution.
The article was worded as follows: "No person shall be deprived of his life or liberty without due process of law.
" The Drafting Committee in their report recommended a change in the language of this article.
The first sugges tion was that the word "personal" shall be inserted before the word "liberty" and the second was that the expression "in accordance with procedure established by law" shall be substituted for "due process of law," the reason given being that the former expression was more specific.
The learned Attorney General has placed before us the debates in the Constituent Assembly centering round the adoption of this recommendation of the Drafting Committee and he has referred us to the (1) Swisher The Growth of Constitutional Power in the United States, pp. 123 25.
274 speeches of several members of the Assembly who played an important part in the shaping of the Constitution.
As an aid to discover the meaning of the words in a Consti tution, these debates are of doubtful value. ' 'Resort can be had to them" ' says Willoughby, ' 'with great caution and only when latent ambiguities are to be solved.
The proceed ings may be of some value when they clearly point out the purpose of the provision.
But when the question is of ab stract meaning, it will be difficult to derive from this source much material assistance in interpretation"(1).
The learned Attorney General concedes that these debates are not admissible to explain the meaning of the words used and he wanted to use them only for the purpose of showing that the Constituent Assembly when they finally adopted the recommendation of the Drafting Committee, were fully aware of the implications of the differences between the old form of expression and the new.
In my opinion, in interpreting the Constitution, it will be better if such extrinsic evi dence is left out of account.
In matters like this, differ ent members act upon different impulses and from different motives and it is quite possible that some members accepted certain words in a particular sense, while others took them in a different light.
The report of the Drafting Committee, however,has been relied upon by both parties and there are decided authori ties in which a higher value has been attached to such reports than the debates on the floor of the House.
In Caminetti vs United States (2), it is said that reports to Congress accompanying the introduction of proposed law may aid the Courts in reaching the true meaning of the legisla tion in case of doubtful interpretation.
The report is extremely short.
It simply says that the reason for the suggested change is to make the thing more specific.
I have no doubt in my mind that if the "due process" clause which appeared in the original draft was finally retained by the Constituent Assembly, it could be safely presumed that the framers of the Indian (1) Vide Willoughby on the Constitution of the United States, p. 64.
(2) ; 275 Constitution wanted that expression to bear the same sense as it does in America.
But when that form was abandoned and another was deliberately substituted in its place, it is not possible to say that in spite of the difference in the language and expression, they should mean the same thing and convey the same idea.
Mr. Nambiar 's contention is that in view of the somewhat uncertain and fluidic state of law as prevails in America on the subject, the Drafting Committee recommended an alteration for the purpose of making the language more specific and he would have us hold that it was made specific in this way, namely, that instead of being extended over the whole sphere of law, substantive as well as adjective, it was limited to procedural law mere ly.
That is the reason, he says, why instead of the word "process" the expression "procedure" was adopted, but the word "law" means the same thing as it does in the "due process" clause in America and refers not to any State made law but to the fundamental principles which are inherent in the legal system and are based upon the immutable doctrines of natural justice.
Attractive though this argument might at first sight appear, I do not think that it would be possible to accept it as sound.
In the first place, it is quite clear that the framers of the Indian Constitution did not desire to intro duce into our system the elements of uncertainty, vagueness and changeability that have grown round the "due process" doctrine in America.
They wanted to make the provision clear, definite and precise and deliberately chose the words" procedure established by law," as in their opinion no doubts would ordinarily arise about the meaning of this expression.
The indefiniteness in the application of the "due process" doctrine in America has nothing to do with the distinction between substantive and procedural law.
The uncertainty and elasticity are in the doctrine itself which is a sort of hidden mine, the contents of which nobody knows and is merely revealed from time to time to the.
judicial conscience of the Judges.
This theory, the Indian Constitu tion deliberately discarded 276 and that is why they substituted a different form in its place which, according to them, was more specific.
In the second place, it appears to me that when the same words are not used, it will be against the ordinary canons of con struction to interpret a provision in our Constitution in accordance with the interpretation put upon a somewhat analogous provision in the Constitution of another country, where not only the language is different, but the entire political conditions and constitutional set up are dissimi lar.
In the Supreme Court of America, stress has been laid uniformly upon the word "due" which occurs before and quali fies the expression "process of law.
" "Due" means " what is just and proper" according to the circumstances of a particular case.
It is this word which introduces the varia ble element in the application of the doctrine; for what is reasonable in one set of circumstances may not be so in another and a different set.
In the Indian Constitution the word "due" has been deliberately omitted and this shows clearly that the Constitution makers of India had no inten tion of introducing the American doctrine.
The word "estab lished" ordinarily means "fixed or laid down" and if "law" means, as Mr. Nambiar contends, not any particular piece of law but the indefinite and indefinable principles of natural justice which underlie positive systems of law, it would not at all be appropriate to use the expression "established," for natural law or natural justice cannot establish anything like a definite procedure.
It does not appear that in any part of the Constitution the word "law" has been used in the sense of "general law" connoting what has been described as the principles of natural justice outside the realm of positive law.
On the other hand, the provision of ' article 31 of the Constitu tion, which appears in the. chapter on Fundamental Rights, makes it clear that the word "law" is equivalent to State made law and to deprive a person of his property, the au thority or sanction of such law is necessary.
As has been said already, the provision of article 21 of.
the Indian Constitution reproduces, save in one particular, the 277 language of article 31 of the Japanese Constitution and it is quite clear from the scheme and provisions of the Japa nese Constitution that in speaking of law it refers to law passed or recognised as such by the State.
In the Irish Constitution also, there is provision in almost similar language which conveys the same idea.
Article 40 (4) (1) provides that "no citizen shall be deprived of his personal liberty save in accordance with law," and by law is certain ly meant the law of the State.
Possibly the strongest argument in support of Mr. Nambi ar 's contention is that if law is taken to mean State made law, then article 21 would not be a restriction on legisla tion at all.
No question of passing any law abridging the right conferred by this article could possibly arise and article 13 (2) of the Constitution would have no operation so far as this provision is concerned.
To quote the words of an American Judge it would sound very much like the Constitution speaking to the legislature that the latter could not infringe the right created by these articles unless it chose to do so (1).
Apparently this is a plausible argument but it must be admitted that we are not concerned with the policy of the Constitution.
The fundamental rights not merely impose limitations upon the legislature, but they serve as checks on the exercise of executive powers as well, and in the matter of depriving a man of his personal liberty, checks on the high handedness of the executive in the shape of pre venting them from taking any step, which is not in accord ance with law, could certainly rank as fundamental rights.
In the Constitutions of various other countries, the provi sions relating to protection of personal liberty are couched very much in the same language as in article 21.
It is all a question of policy as to whether the legislature or the judiciary would have the final say in such matters and the Constitution makers of India deliberately decided to place these powers in the hands of the legislature.
Article 31 of the Japanese Constitution, upon which article 21 of our Constitution is modelled, also (1) Vide per Bronson 5.
in Taylor vs Porte 4 Hill 1<0.
278 proceeds upon the same principle.
The Japanese Constitu tion, it is to be noted, guarantees at the same.
time other rights in regard to arrest, detention and access to Court which might serve as checks on legislative authority as well.
Thus article 32 provides: "No person shall be denied the right of access to the Courts.
" Article 34 lays down: "No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel, nor shall he be detained without adequate cause; and upon demand of any person, such cause must be immediately shown in open Court in his presence and in the.
presence of his counsel.
" It was probably on the analogy of article 34 of the Japanese Constitution that the first two clauses of article 22 of the Indian Constitution were framed.
Article 22 was not in the original Draft Constitution at all; and after the "due process" clause was discarded by the Constituent Assem bly and the present form was substituted in its place in article 21, article 22 was introduced with a view to provide for some sort of ' check in matters of arrest and detention and the protection it affords places limitations upon the authority of the legislature as well.
These protections indeed have been denied to cases of preventive detention but that again is a question of policy which does not concern us as a Court.
My conclusion, therefore, is that in article 21 the word "law" has been used in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice.
The article presupposes that the law is a valid and binding law under the provisions.
of the Constitution having regard to the competency of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for.
In the view that I have taken, the question raised by Mr. Nambiar that the is invalid, by reason of the fact that the procedure it lays 279 down is not in conformity with the rules of natural justice, does not fall for consideration.
It is enough, in my opin ion, if the law is a valid law which the legislature is competent to pass and which does not transgress any of the fundamental rights declared in of the Constitution.
It is also unnecessary to enter into a discussion on the question raised by the learned Attorney General as to wheth er article 22 by itself is a self contained Code with regard to the law of Preventive Detention and whether or not the procedure it lays down is exhaustive.
Even if the procedure is not exhaustive, it is not permissible to supplement it by application of the rules of natural justice.
On the third point raised by Mr. Nambiar, the only question, therefore, which requires consideration is whether section 12 of the is ultra vires of the Constitution by reason of its being not in conformity with the provision of article 22 (7)(a).
Article 22 (7) (a) of the Constitution empowers the Parliament to prescribe the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an advisory board in accordance with the provisions of sub clause (a) of clause (4).
Section 12 of the which purports to be an enact ment in pursuance of article 22 (7) (a) of the Constitution provides as follows: "(1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an advisory board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to (a) the defence of India, relations of India with for eign powers or the security of India; or (b) the security of a State or the maintenance of public order.
" It will be noticed that there are altogether six 36 280 heads or subjects in the two Items in the legislative lists, namely, Item No. 9 of List I and Item No. 3 of List III which deal with preventive detention.
Item No. 9 of List I mentions reasons connected with defence, foreign affairs and security of India, while Item No. 3 of List III speaks of reasons connected with security of a State, the maintenance of public order and the maintenance of supplies and services essential to the community.
With the exception of the last head; all the remaining five have been listed in section 12 of the preventive Detention Act and they have been mentioned both as circumstances and classes of cases in which deten tion for more than three months would be permissible without the opinion of any advisory board.
Mr. Nambiar 's argument is that the mentioning_ of five out of the six legislative heads in section 12 does not amount to prescribing the circumstances under which, or the classes of cases in which, a person could be detained for more than three months as contemplated by article 22 (7) (a).
It is also contended that in view of the fact that the two items "circumstances" and "classes" are separated by the conjunction "and," what the Constitution really contemplated was that both these items should be specified and a statement or specification of any one of them would not be a proper compliance with the provisions of the clause.
It is further pointed out that the mentioning of the same matters as "circumstances" or "classes" is not warranted by article 22 (7) of the Consti tution and is altogether illogical and unsound.
I must say that section 12 has been drafted in a rather clumsy manner and certainly it could have been framed in a better and more proper way.
Under article 22(7)(a), the Parliament may specify the circumstances under which, and the classes of cases in which, the necessity of placing the cases of detention for examination by the advisory board could be dispensed with.
By "classes of cases" we mean certain determinable groups, the individuals comprised in each group being related to one another in a particular way which constitutes the determining factor of that group.
"Circumstances" on the other hand 281 connote situations or conditions which are external to the persons concerned.
Preventive detention can be provided for by law for reasons connected with six different ,matters specified in the relevant items in the legislative lists, and whatever the reasons might be, there is a provision contained in article 22 (4) (a) which lays down that deten tion for more than three months could not be permitted except with the sanction of the advisory board.
An alterna tive however has been provided for by clause (b) and Parlia ment has been given the option to take away the protection given by clause (a) and specify the circumstances and the cases when this rule will not apply.
I am extremely doubt ful whether the classification of cases made by Parliament in section 12 of the Act really fulfils the object which the Constitution had in view.
The basis of classification has been the apprehended acts of the persons detained described with reference to the general heads mentioned in the items in the legislative lists as said above.
Five out of the six heads have been taken out and labelled as classes of cases to which the protection of clause (4) (a) of the article would not be available.
It is against common sense that all forms of activities connected with these five items are equally dangerous and merit the same drastic treatment.
The descriptions are very general and there may be acts of various degrees of intensity and danger under each one of these heads.
Although I do not think that section 12 has been framed with due regard to the object which the Constitution had in view, I am unable to say that the section is invalid as being ultra vires the Constitution.
The Constitution has given unfettered powers to Parliament in the matter of making the classifications and it is open to the Parliament to adopt any method or principle as it likes.
If it chose the principle implied in the enumeration of subjects under the relevant legislative heads, it cannot be said that Parliament has exceeded its powers.
I am also unable to hold that both "circumstances" as well as "classes" have to be prescribed in order to 282 comply with the requirement of sub clause (a) of article 22 (7).
The sub clause (a) of the article lays down a purely enabling provision and Parliament, if it so chooses, may pass any legislation in terms of the same.
Where an optional power is conferred on certain authority to perform two separate acts, ordinarily it would not be obligatory upon it to perform both; it may do either if it so likes.
Here the classes have been specified and the classes apparently are composed of persons who are detained for the purpose of preventing them from committing certain apprehended acts.
I am extremely doubtful whether the classes themselves could be described as "circumstances" as they purport to have been done in the section.
"Circumstances" would ordinarily refer to conditions like war, rebellion, communal disturbances and things like that, under which extra precaution might be :necessary and the detention of suspected persons beyond the period of three months without the sanction of the advisory board might be justified.
It is said that the likelihood of these persons committing the particular acts which are specified might constitute "circumstances.
" In my opinion, that is not a plain and sensible interpretation.
But whatev er that may be, as I am of opinion that it is not obligatory on Parliament to prescribe both the circumstances and the classes of cases, I am unable to hold that section 12 is ultra vires the Constitution because the circumstances are not mentioned.
As I have said at the beginning, the draft is rather clumsy and I do not know why Parliament used the word "or" when in the Constitution itself the word "and" has been used.
In the fourth and last point raised by Mr. Nambiar the principal question for consideration is the validity of section 14 of the .
Subsection (1)of section 14 prohibits any Court from allowing any statement to be made or any evidence to be given before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or any representation made by him against such order.
It further provides that no Court shall be 283 entitled to require any public officer to produce before it or to disclose the substance of any such communication or representation made or the proceedings of an advisory board or that part of the report of an advisory board which is confidential.
Sub section (2) further provides that: "It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the ' case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section (1): Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.
" The provisions of this section are obviously of a most drastic character.
It imposes a ban on the Court and pre vents it from allowing any statement to be made or any evidence produced before it of the substance of any communi cation made to the detenu apprising him of the grounds upon which the detention order was made.
The Court is also incompetent to look into the proceedings before the advisory board or the report of the latter which is confidential.
Further the disclosure of such materials has been made a criminal offence punishable with imprisonment for a term which may extend to one year.
Mr. Nambiar 's contention is that these restrictions render utterly nugatory the provi sions of article 32 of the Constitution which guarantees to every person the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution.
It is not disputed that the petitioner has the right of moving this Court for a writ of habeas corpus, and unless the Court is in a position to look into and examine the grounds upon which the detention order has been made, it is impossible for it to come to any deci sion on the point and pass a proper judgment.
Though the right to move this 284 Court is not formally taken away, the entire proceedings are rendered ineffective and altogether illusory.
On behalf of the respondent, it is pointed out that article 32 guarantees only the right to constitutional remedy for enforcement of the rights which are declared by the Constitution.
If there are no rights under the Constitution, guaranteed to a person who is detained under any law of preventive deten tion, no question of enforcing such rights by an ap proach to this Court at all arises.
I do not think that this argument proceeds on a sound basis; and in my opinion, section 14 does take away and materially curtails some of the fundamental rights which are guaranteed by the Constitu tion itself.
Article 22, clause (5), of the Constitution lays down as a fundamental right that when a person is detained for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representa tion against the order.
Under clause (6), the authority need not disclose such facts as it considers to be against public interest to disclose.
But so far as the grounds are concerned, the disclosure is not prohibited under any cir cumstance.
It is also incumbent upon the detaining authori ty to afford a detenu the earliest opportunity of making a representation against the detention order.
It has been held in several cases, and in my opinion quite rightly, that if the grounds supplied to a detained person are of such a vague and indefinite character that no proper and adequate representation could be made in reply to the same, that itself would be an infraction of the right which has been given to the detenu under law.
In my opinion, it would not be possible for the Court to decide whether the provisions of article 22, clause (5), have been duly complied with and the fundamental right guaranteed by it has been made avail able to the detenu unless the grounds communicated to him under the provisions of this article are actually produced before the Court.
Apart from this, it is also open to.
the person detained to contend that the detention 285 order has been a main fide exercise of power by the detain ing authority and that the grounds upon which it is based, are not proper or relevant grounds which would justify detention under the provisions of the law itself.
These rights of the detenu would for all practical purposes be rendered unenforceable if the Court is precluded from look ing into the grounds which have been supplied to him under section 7 of the .
In my opinion, section 14 of the does materially affect the fundamental rights declared under of the Constitution and for this reason it must be held to be illegal and ultra vires.
It is not disputed, however, that this section can be severed from the rest of the Act without affecting the other provisions of the Act in any way.
The whole Act cannot, therefore, be held to be ultra vires.
Mr. Nambiar has further argued that section 3 of the Act also contravenes the provisions of article 32 of the Consti tution, for it makes satisfaction of the particular authori ties final in matters of preventive detention and thereby prevents this Court from satisfying itself as to the propriety of the detention order.
This contention cannot succeed as no infraction of any fundamental right is in volved in it.
As has been pointed out already, this Court cannot interfere unless it is proved that the power has been exercised by the authorities in a mala fide manner or that the grounds are not proper or relevant grounds which justify detention.
The provisions are undoubtedly harsh, but as they do not take away the rights under articles 21 and 22 of the Constitution, they cannot be held to be illegal or ultra vires.
The result, therefore, is that, in my opinion, the must be declared to be intra vires the Constitution with the exception of section 14 which is held to be illegal and ultra vires.
The present petition, however, must stand dismissed, though it may be open to the petitioner to make a fresh application if he so chooses and if the grounds that have been supplied to him under section 7 of the Act do furnish adequate reasons for making such application.
286 DAS J. I am likewise of opinion that this application should be dismissed.
The contention of learned counsel appearing in support of this application is that the provisions of the (Act IV of 1950), are extremely drastic and wholly unreasonable and take away or, in any event, considerably abridge the fundamental rights conferred on the citizens by the provisions of of the Constitution and that this Court should declare the Act wholly void under article 13 (2) of the Constitution and set the petitioner at liberty.
It is necessary to bear in mind the scope and ambit of the powers of the Court under the Constitution.
The powers of the Court are not the same under all Constitutions.
In England Parliament is supreme and there is no limitation upon its legislative powers.
Therefore, a law duly made by Parliament cannot be challenged in any Court.
The English Courts have to interpret and apply the law; they have no authority to declare such a law illegal or unconstitutional.
By the American Constitution the ' legislative power of the Union is vested in the Congress and in a sense the Congress is the supreme legislative power.
But the written Constitu tion of the United States is supreme above all the three limbs of Government and, therefore, the law made by the Congress, in order to be valid, must be in conformity with the provisions of the Constitution.
If it is not, the Supreme Court will intervene and declare that law to be unconstitutional and void.
As will be seen more fully hereafter, the Supreme Court of the United States, under the leadership of Chief Justice Marshall, assumed the power to.
declare any law unconstitutional on the ground of its not being in "due process of law," an expression to be found in the Fifth Amendment (1791) of the United States Constitution and the Fourteenth Amendment (1868) which related to the State Constitutions.
It is thus that the Supreme Court established its own supremacy over the executive and the Congress.
In India the position of the Judiciary is some where in 287 between the Courts in England and the United States.
While in the main leaving our Parliament and the State Legisla tures supreme in their respective legislative fields, our Constitution has, by some of the articles, put upon the Legislatures certain specified limitations some of which will have to be discussed hereafter.
The point to be noted, however, is that in so far as there is any limitation on the legislative power, the Court must, on a complaint being made to it, scrutinise and ascertain whether such limitation has been transgressed and if there has been any transgression the Court will courageously declare the law unconstitution al, for the Court is bound by its oath to uphold the Consti tution.
But outside the limitations imposed on the legisla tive powers our Parliament and the State Legislatures are supreme in their respective legislative fields and the Court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature.
Our Constitution, unlike the English Constitution, recognises the Court 's supremacy over the legislative authority, but such supremacy is a very limited one, for it is confined to the field where the legislative power is circumscribed by limitations put upon it by the Constitution itself.
Within this restrict ed field the Court may, on a scrutiny of the law made by the Legislature, declare it void if it is found to have trans gressed the constitutional limitations.
But our Constitu tion, unlike the American Constitution, does not recognise the absolute supremacy of the Court over the legislative authority in all respects, for outside the restricted field of constitutional limitations our Parliament and the State Legislatures are supreme in their respective legislative fields and in that wider field there is no scope for the Court in India to play the role of the Supreme Court of the United States.
It is well for us to constantly remember this basic limitation on our own powers.
The impugned Act has been passed by Parliament after the Constitution came into force.
Article 246 gives exclusive power to Parliament to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule and it gives exclusive power to 288 the State Legislatures to make laws with respect to any of the matters specified in List II of that Schedule.
It also gives concurrent power to Parliament as well as to the State Legislatures to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule.
Residuary powers of legislation are vested in parliament under article 248.
The first thing to note is that under Entry 9 of List I the parliament and under Entry 3 in List III both parliament and the State Legislatures are empowered to make laws for preventive detention for reasons connected with the several matters specified in the respective entries.
This legisla tion is not conditioned upon the existence of any war with a foreign power or upon the proclamation of emergency under Part XVIII of the Constitution.
Our Constitution has, there fore, accepted preventive detention as the subjectmatter of peacetime legislation as distinct from emergency legisla tion.
It is a novel feature to provide for preventive detention in the Constitution.
There is no such provision in the Constitution of any other country that I know of.
Be that as it may, for reasons good or bad, our Constitution has deliberately and plainly given power to Parliament and the State Legislatures to enact preventive detention laws even in peacetime.
To many of us a preventive detention law is odious at all times but what I desire to emphasise is that it is not for the Court to question the wisdom and policy of the Constitution which the people have given unto themselves.
This is another basic fact which the Court must not overlook.
The next thing to bear in mind is that, if there were nothing else in the Constitution, the legislative powers of Parliament and the State Legislatures in their respective fields would have been absolute.
In such circumstances the Court would have been entitled only to scrutinise whether Parliament or the State Legislature had, in making a partic ular law, over . stepped its legislative field and en croached upon the legislative field of the other legislative power, but could not have otherwise questioned the validity of any law made by the parliament or the State Legislatures.
289 Thus under Entry 9 of List I the Parliament and under Entry 3 of List III the Parliament and the State Legislature could make as drastic a preventive detention law as it pleased.
Such a law might have authorised a policeman, not to speak of a District Magistrate or Sub Divisional Magistrate or the Commissioner of Police, to take a man, citizen or non citi zen, into custody and keep him in detention for as long as he pleased.
This law might not have made any provision for supplying to the detenu the grounds of his detention or affording any opportunity to him to make any representation to anybody or for setting up any advisory board at all.
Likewise, under Entries 1 and 2 in List III the Parliament or the State Legislature might have added as many new and novel offences as its fancy might have dictated and provided for any cruel penalty ranging from the maiming of the limbs to boiling to death in oil or repealed the whole of the Code of Criminal Procedure and provided for trial by battle or ordeal or for conviction by the verdict of a sorcerer or a soothsayer.
Such law might have forbidden any speech criti cising the Government, however mildly, or banned all public meetings or prohibited formation of all associations under penalty of law.
Under Entry 33 of List I the Parliament might have made a law for acquiring anybody 's properties for the purposes of the Union without any compensation and under Entry 36 in List III the State Legislature could do the same subject to the provisions of Entry 42 in List III which empowers the making of a law laying down principles for payment of compensation which might be anything above noth ing.
Under Entry 81 Parliament could have made any law restricting or even prohibiting inter State migration so that a Bengali would not be able to move into and settle in Bihar or vice versa.
It is needless to multiply instances of atrocious laws which Parliament or the State Legislature might have made under article 246 read with the different lists if there were nothing else in the Constitution.
Our Legislatures, subject to the limitation of distribution of legislative powers, would have been as supreme in their respective legislative fields as the 290 English Parliament is and has been.
The Court in India, in such event, would have had to take the law duly made, inter pret it and apply it.
It would not have been entitled to utter a word as to the propriety of the particular law, although it might have shuddered at the monstrous atrocities of such law.
Our Constitution, however, has not accepted this abso lute supremacy of our Parliament or the State Legislature.
Thus by article 245 (1) the legislative power is definitely made "subject to the provisions of this Constitution.
" Turning to the Constitution, article 13 (2) provides as follows: "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
" This clearly puts a definite limitation on the wide legislative powers given by article 246.
It is certainly within the competency of the Court to judge and declare whether there has been any contravention of this limitation.
In this respect again the Court has supremacy over the Legislature.
From the provisions so far referred to, it clearly follows that there are two principal limitations to the legislative power of parliament, namely, (i) that the law must be within the legislative compe tence of parliament as prescribed by article 246; and (ii) that such law must be subject to the pro visions of the Constitution and must not take away or abridge the rights conferred by Part III.
There can be no question and, indeed, the learned Attorney General does not contend otherwise that both these matters are justiciable and it is open to the Courts to decide whether Parliament has transgressed either of the limitations upon its legislative power.
Learned counsel for the petitioner does not say that the impugned Act is ultra vires the legislative powers of Parliament as prescribed by article 246.
His contention is that the impugned Act is void 291 because it takes away or abridges the fundamental rights of citizens conferred by Part III of the Constitution.
It is, therefore, necessary to ascertain first the exact nature, extent and scope of the particular fundamental right insist ed upon and then to see whether the impugned Act has taken away or, in any way, abridged the fundamental right so ascertained.
Civil rights of a person are generally divided into two classes, namely, the rights attached to the person (jus personarum) and the rights to things, i.e., property (jus rerum).
Of the rights attached to the person, the first and foremost is the freedom of life, which means the right to live, i.e., the right that one 's life shall not be taken away except under authority of law.
Next to the freedom of life comes the freedom of the person, which means that one 's body shall not be touched, violated, arrested or imprisoned and one 's limbs shall not be injured or maimed except under authority of law.
The truth of the matter is that the right to live and the freedom of the person are the primary rights attached to the person.
If a man 's person is free, it is then and then only that he can exercise a variety of other auxiliary rights, that is to say, he can, within certain limits, speak what he likes, assemble where he likes, form any associations or unions, move about freely as his "own inclination may direct," reside and settle anywhere he likes and practise any profession or carry on any occupation, trade or business.
These are attributes of the freedom of the person and are consequently rights attached to the person.
It should be clearly borne in mind that these are not all the rights attached to the person.
Besides them there are varieties of other rights which are also the attributes of the freedom of the person.
All rights attached to the person are usually called personal liberties and they are too numerous to be enumerated.
Some of these auxiliary rights are so important and fundamental that they are re garded and valued as separate and independent rights apart from the freedom of the person.
Personal liberties may be compendiously summed up as the right to do as one pleases within the law.
I 292 say within the law because liberty is not unbridled licence.
It is what Edmund Burke called "regulated freedom." Said Montesquieu in Book III, Ch. 3, of his Spirit of the Laws: "In Governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will.
We must have continually present to our minds the difference between independence and liberty.
Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow citizens would enjoy the same power.
" To the same effect are the following observations of Webster in his Works Vol.
II, p. 393: "Liberty is the creation of law, essentially different from that authorised licentiousness that trespasses on right.
It is a legal and refined idea, the offspring of high civilization, which the savage never understands, and never can understand.
Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have.
It is an error to suppose that liberty consists in a paucity of laws . .
The working of our complex system, full of checks and restraints on legislative, executive and judicial power is favourable to liberty and justice.
These checks and restraints are so many safeguards set around individual rights and interests.
That man is free who is protected from injury.
" Therefore, putting restraint on the freedom of wrong doing of one person is really.
securing the liberty of the intended victims.
To curb the freedom of the saboteur of surreptitiously removing the fish plates from the railway lines is to ensure the safety and liberty of movement of the numerous innocent and unsuspecting passengers.
Therefore, restraints on liberty should be judged not only subjectively as applied to a few individuals who come within their opera tions but also objectively as securing the liberty of a far greater number of individuals.
Social interest in individu al 293 liberty may well have to be subordinated to other greater social interests.
If a law ensures and protects the greater social interests then such law will be a wholesome and beneficent law although it may infringe the liberty of some individuals, for it will enure for the greater liberty of the rest of the members of the society.
At the same time, our liberty has also to be guarded against executive, legislative as well as judicial usurpation of powers and prerogatives.
Subject to certain restraints on individuals and reasonable checks on the State every person has a varie ty of personal liberties too numerous to be cataloged.
As will be seen more fully hereafter, our Constitution has recognised personal liberties as fundamental rights.
It has guaranteed some of them under article 19 (1) but put re straints on them by clauses (2) to (6).
It has put checks on the State 's legislative powers by articles 21 and 22.
It has by providing for preventive detention, recognised that individual liberty may be subordinated to the larger social interests.
Turning now to the Constitution I find that Part III is headed and deals with "Fundamental Rights" under seven heads, besides, "General" provisions (articles 12 and 13), namely "Right to Equality" (articles 14 to 18), "Right to Freedom" (articles 19 to 22), "Right against Exploitation" (articles 23 and 24), "Right to Freedom of Religion" (articles 25 to 28), "Cultural and Educational Rights" (articles 29 and 30), "Right to Property" (article 31), "Right to Constitutional Remedies" (articles 32 to 35).
Under the heading "Right to Freedom" are grouped four arti cles, 19 to 22.
Article 19 (1) is in the following terms : " (1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property; and 294 (g) to practise any profession, or to carry on any occupation, trade or business.
" It will be noticed that of the seven rights protected by clause (1) of article 19, six of them, namely, (a), (b), (c), (d), (e) and (g) are what are said to be rights at tached to the person (jus personarum).
The remaining item, namely, (f) is the right to property (jus rerum).
If there were nothing else in article 19 these rights would have been absolute rights and the protection given to them would have completely debarred parliament or any of the State Legisla tures from making any law taking away or abridging any of those rights.
But a perusal of article 19 makes it abun dantly clear that none of the seven rights enumerated in clause (1) is an absolute right, for each of these rights is liable to be curtailed by laws made or to be made by the State to the extent mentioned in the several clauses (2) to (6) of that article.
Those clauses save the power of the State to make laws imposing certain specified restrictions on the several rights.
The nett result is that the unlimit ed legislative power given by article 246 read with the different legislative lists in the Seventh Schedule is cut down by the provisions of article 19 and all laws made by the State with respect to these rights must, in order to be valid, observe these limitations.
Whether any law has in fact transgressed these limitations is to be ascertained by the Court and if in its view the restrictions imposed by the law are greater than what is permitted by clauses (2) to (6) whichever is applicable the Court will declare the same to be unconstitutional and, therefore, void under article 13.
Here again there is scope for the application of the "intel lectual yardstick" of the Court.
If, however, the Court finds, on scrutiny, that the law has not overstepped the constitutional limitations, the Court will have to uphold the law, whether it likes the law or not.
The first part of the argument is put broadly, namely, that personal liberty is generally guaranteed by the Consti tution by article 19 (1) and that the , has imposed unreasonable 295 restrictions thereon in violation of the provisions of clauses (2) to (6) of that article.
The very first question that arises, therefore, is as to whether the freedom of the person which is primarily and directly suspended or de stroyed by preventive detention is at all governed by arti cle 19 (1).
If personal liberty as such is guaranteed by any of the sub clauses of article 19 (1) then why has it also been protected by article 21 ? The answer suggested by learned counsel for the petitioner is that personal liberty as a substantive right is protected by article 19 (1) and article 21 gives only an additional protection by prescrib ing the procedure according to which that right may be taken away.
I am unable to accept this contention.
If this argument were correct, then it would follow that our Consti tution does not guarantee to any person, citizen or non citizen, the freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the sub clauses of clause (1) of article 19.
It is retorted in reply that no constitution or human laws can guarantee life which is the gift of God who alone can guar antee and protect it.
On a parity of reasoning no Constitu tion or human laws can in that sense guarantee freedom of speech or free movement, for one may be struck dumb by disease or may lose the use of his legs by paralysis or as a result of amputation.
Further, what has been called the procedural protection of article 21 would be an act of supererogation, for when God takes away one 's life, whatever opportunity He may have had given to Adam to explain his conduct before sending him down, He is not likely in these degenerate days to observe the requirements of notice or fair trial before any human tribunal said to be required by article 21.
The fifth Amendment and the Fourteenth Amendment of the American Constitution give specific protection to life as a substantive right.
So does article 31 of the Japanese Constitution of 1946.
There is no reason why our Constitution should not do the same.
The truth is that article 21 has given that protection to life as a substan tive right and that, as will be seen hereafter, that article properly understood does not purport to prescribe any par ticular procedure at all.
The 38 296 further astounding result of the argument of counsel for the petitioner will be that the citizen of India will have only the rights enumerated in article 19, clause (1) and no other right attached to his person.
As I have already stated, besides the several rights mentioned in the several sub clauses of article 19 (1) there are many other personal liberties which a free man, i.e., a man who has the freedom of his person, may exercise.
Some of those other rights have been referred to by Harries C.J. of Calcutta in his unreported judgment in Miscellaneous Case No. 166 of 1950 (K.shitindra vs The Chief Secretary of West Bengal) while referring the case to a Full Bench in the following words : "It must be remembered that a free man has far more and wider rights than those stated in article 19 (1) of the Constitution.
For example, a free man can eat what he likes subject to rationing laws, work as much as he likes or idle as much as he likes.
He can drink anything he likes subject to the licensing laws and smoke and do a hundred and one things which are not included in article 19.
If freedom of person was the result of article 19, then a free man would only have the seven rights mentioned in that article.
But obviously the free man in India has far greater rights.
" I find myself in complete agreement with the learned Chief Justice on this point.
If it were otherwise, the citizen 's right to eat what he likes will be liable to be taken away by the executive fiat of the Civil Supply Depart ment without the necessity of any rationing laws.
The Government may enforce prohibition without any prohibition laws or licensing laws and so on.
I cannot accept that our Constitution intended to give no protection to the bundle of rights which, together with the rights mentioned in sub clauses (a) to (e) and (g) make up personal liberty.
In deed, I regard it as a merit of our Constitution that it does not attempt to enumerate exhaustively all the personal rights but uses the compendious expression "personal liber ty" in ' article 21, and protects all of them.
It is pointed out that in the original draft the word "liberty" only was used as in the American 297 Constitution but the Drafting Committee added the word "personal" to make it clear that what was being protected by what is now article 21 was not what had already been pro tected by what is now article 19.
If it were permissible to refer to the Drafting Committee 's report, it would be anoth er answer to the contentions of learned counsel for the petitioner that personal liberty as a substantive right was protected by article 19.
I do not, however, desire to base my judgment on the Drafting Committee 's report and I express no opinion as to its admissibility.
Whatever the intentions of the Drafting Committee might have been, the Constitution as finally passed has in article 21 used the words "personal liberty" which have a definite connotation in law as I have explained.
It does not mean only liberty of the person but it means liberty or the rights attached to the person (jus personarum).
The expressions "freedom of life" or "personal liberty" are not to be found in article 19 and it is strain ing the language of article 19 to squeeze in personal liber ty into that article.
In any case the right to life cannot be read into article 19.
Article 19 being confined, in its operation, to citizens only, a non citizen will have no protection for his life and personal liberty except what has been called the procedural protection of article 21.
If there be no substantive right what will the procedure protect ? I recognise that it is not imperative that a foreigner should have the same privileges as are given to a citizen, but if article 21 is construed in the way I have suggested even a foreigner will have equal protection for his life and personal liberty before the laws of our country under our Constitution.
I am unable, there fore, for all the reasons given above, to agree that person al liberties are the result of article 19 or that that article purports to protect all of them.
It is next urged that the expression "personal liberty" is synonymous with the right to move freely and, therefore, comes directly under article 19 (1) (d).
Reference is made to the unreported dissenting judgment of Sen J. of Calcutta in Miscellaneous Case No. 166 of 1950 while referring that case to a Full Bench.
298 In his judgment Sen J. quoted the following passage from Blackstone 's Commentaries : "Next to personal security the law of :England regards, asserts and preserves, the personal liberty of individuals.
This personal liberty consists in the power of locomotion, of changing situation, or moving one 's person to whatsoever place one 's own inclination may direct, without imprisonment or restraint, unless by due course of law." (Page 73 of George Chase 's Edition (4th Edition) of Blackstone, Book I, Chapter I.
On the authority of the above passage the learned Judge concluded that personal liberty came within article 19 (1)(d).
I am unable to agree with the learned Judge 's con clusion.
On a perusal of Chapter I of Book I of Black stone 's Commentaries it will appear that the]earned commen tator divided the rights attached to the person (jus person arum) into two classes, namely, "personal security" and "personal liberty.
" Under the head "personal security" Blackstone included several rights, namely, the rights to ' life, limb, body, health and reputation, and under the head "personal liberty" he placed only the right of free move ment.
He first dealt with the several rights classified by him under the head "personal security" and then proceeded to say that next to those rights came personal liberty which according to his classification consisted only in the right of free locomotion.
There is no reason to suppose that in article 21 of our Constitution the expression "personal liberty" has been used in the restricted sense in which Blackstone used it in his Commentaries.
If "personal liber ty" in article 21 were synonymous with the right to move freely which is mentioned in article 19 (1) (d), then the astounding result will be that only the last mentioned right has what has been called the procedural protection of arti cle 21 but none of the other rights in the other sub clauses of article 19 (1) has any procedural protection at all.
According to learned counsel for the petitioner the proce dure required by article 21 consists of notice and a right of hearing before an impartial tribunal.
Therefore, accord ing to him, a man 's right of movement cannot be taken away without giving him notice and a fair trial 299 before an impartial tribunal but he may be deprived of his freedom of speech or his property or any of his other rights without the formality of any procedure at all.
The proposi tion has only to be stated to be rejected.
In my judgment, article '19 protects some of the important attributes of personal liberty as independent rights and the expression "personal liberty" has been 'used in article 21 as a compen dious term including within its meaning all the varieties of rights which go to make up the personal liberties of men.
Learned counsel for the petitioner next contends that personal liberty undoubtedly means or includes the freedom of the person and the pith and substance of the freedom of the person is right to move about freely and consequently a preventive detention law which destroys or suspends the freedom of the person must inevitably destroy or suspend the right of free movement and must necessarily offend against the protection given to the citizen by article 19 (1)(d) unless it satisfies the test of reasonableness laid down in clause (5).
The argument is attractive and requires serious consideration as to the exact purpose and scope of sub clause (d) of article 19 (1).
There are indications in the very language of article 19 (1) (d) itself that its purpose is to protect not the gener al right of free movement which emanates from the freedom of the person but only a specific and 'limited aspect of it, namely, the special right of a free citizen of India to move freely throughout the Indian territory, i.e., from one State to another within the Union.
In other words, it guarantees, for example, that a free Indian citizen ordinarily residing in the State of West Bengal will be free to move from West Bengal to Bihar or to reside and settle in Madras or the Punjab without any let or hindrance other than as provided in clause (5).
It is this special right of movement of the Indian citizen in this specific sense and for this particu lar purpose which is protected by article 19 (1) (d).
It is argued on the authority of a decision of a Special Bench of the Calcutta High Court presided over by Sen J. in Sunil Kumar vs The Chief 300 Secretary of West Bengal (1) that the words "through .
out the territory of India" occurring in that sub clause only indicate that our Constitution does not guarantee to its citizens the right of free movement in or into foreign territory and that those words have been added to save passport restrictions.
I am unable to accept this interpre tation.
Our Constitution cannot possibly give to any of its citizens any right of free movement in a foreign country and it was wholly superfluous to specifically indicate this in the Constitution, for that would have gone without saying.
The words "throughout the territory of India" are not used in connection with most of the other sub clauses of clause (1) of article 19.
Does such omission indicate that our Constitution guarantees to its citizens freedom of speech and expression, say, in Pakistan ? Does it guarantee to.
its citizens a right to assemble or to form associations or unions in a foreign territory ? Clearly not.
Therefore, it was not necessary to use those words in sub clause (d) to indicate that free movement in foreign countries was not being guaranteed.
It is said that by the use of those words the Constitution makes it clear that no1 guarantee was being given to any citizen with regard to emigration from India without a passport and that the freedom of movement was restricted within the territory of India.
Does the omission of those words from article 19 (1) (a) indicate that the citizen of India has been guaranteed such freedom of speech and expression as will enable him to set up a broadcasting station and broadcast his views and expressions to foreign lands without a licences ? Clearly not.
Dropping this line of argument and adopting a totally new line of argument it is said that by the use of the words "throughout the territory of India" the Constitution indicates that the widest right of free movement that it could possibly give to its citizens has been given.
then, the omission of those words from the other subclauses indicate that the Constitution has kept back some parts of those rights even beyond the limits of the qualifying clauses that follow ? Do not those other rights prevail throughout the Indian territory ? (1) 301 Clearly they do, even without those words.
Therefore, those words must have been used in sub clause (d) for some other purpose.
That other purpose, as far as I can apprehend it, is to indicate that free movement from one State to another within the Union is protected so that Parliament may not by a law made under Entry 81 in List I curtail it beyond the limits prescribed by clause (5) of article 19.
Its purpose, as I read it, is not to provide protection for the general right of free movement but to secure a specific and special right of the Indian citizen to move freely throughout the territories of India regarded as an independent additional right apart from the general right of locomotion emanating from the freedom of the person.
It is a guarantee against unfair discrimination in the matter of free movement of the Indian citizen throughout the Indian Union.
In short, it is a protection against provincialism.
It has nothing to do with the freedom of the person as such.
That is guaranteed to every person, citizen or otherwise, in the manner and to the extent formulated by article 21.
Clause (5) of article 19 qualifies sub clause (d) of clause (1) which should, therefore, be read in the light of clause (5).
The last mentioned clause permits the State to impose reasonable restrictions on the exercise of the right of free movement throughout the territory of India as ex plained above.
Imposition of reasonable restrictions clearly implies that the right of free movement is not entirely destroyed but that parts of the right remain.
This reasona ble restriction can be imposed either in the interest of the general public or for the protection of the interests of any Scheduled Tribe.
The Scheduled Tribes usually reside in what are called the Scheduled Areas.
The provision for imposing restriction on the citizens ' right of free movement in the interests of the Scheduled Tribes clearly indicates that the restriction is really on his right of free movement into or within the Scheduled Areas.
It means that if it be found necessary for the protection of the Scheduled Tribes the citizens may be restrained from entering into or moving about in the Scheduled Areas, although they are left quite free to move about elsewhere.
This restraint may well be 302 necessary for the protection of the members of the, Sched uled Tribes who are generally impecunious and constitute a backward class.
They may need protection against money lenders or others who may be out to exploit them.
They may have to be protected against their own impecunious habits which may result in their selling or mortgaging their hearths and homes.
Likewise, the free movement of citizens may have to be restricted in the interest of the general public.
A person suffering from an infectious disease may be prevent from moving about and spreading the disease.
and regulations for his segregation in the nature of quarantine may have to be introduced.
Likewise, healthy people may be prevented, in the interests of the general public, from entering a plague infected area.
There may be protected places, e.g., forts or other strategic places, access where to may have to be regulated or even prohibited in the inter ests of the general public.
The point to be noted, however, is that when free movement is thus restricted, whether in the interest of the general public or for the protection of the Scheduled Tribes, such restriction has reference gener ally to a certain local area which becomes the prohibited area but the right of free movement in all other areas in the Union is left unimpaired.
The circumstance that clause (5) contemplates only the taking away of a specified area and thereby restricting the field of the exercise of the right conferred by subclause (d) of clause (1) indicates to my mind that subclause (d)is concerned, not with the freedom of the person or the general right of free movement but with a specific aspect of it regarded as an independent right apart from the freedom of the person.
In other words in sub clause (d)the real emphasis is on the words "throughout the territory of India.
" The purpose of article 19 (1) (d) is to guarantee that there shall be no State barrier.
It gives protection against provincialism.
It has nothing to do with the freedom of the person as such.
Finally, the ambit and scope of the rights protected by article 19 (1) have to be considered.
Does it protect the right of free movement and the other 303 personal rights therein mentioned in all circumstances irrespective of any other consideration ? Does it not postulate a capacity to exercise the rights ? Does its protection continue even though the citizen lawfully loses his capacity for exercising those rights ? How can the continuance of those personal rights be compatible with the lawful detention of the person ? These personal rights and lawful detention cannot go together.
Take the case of a person who has been properly convicted of an offence punish able under a section of the Indian Penal Code as to the reasonableness of which there is no dispute.
His right to freedom of speech is certainly impaired.
Under clause (2) the State may make a law relating to libel, slander, defama tion, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.
Any law on any of these matters contemplated by this clause certainly must have some direct reference to speech and expression.
It means that the law may directly curtail the freedom of speech so that the citizen may not talk libel or speak contemptuously of the Court or express indecent or immoral sentiments by speech or other forms of expression or utter seditious words.
To say that every crime undermines the security of the State and, therefore, every section of the Indian Penal Code, irrespective of whether it has any reference to speech or expression, is a law within the meaning of this clause is wholly unconvincing and betrays only a vain and forlorn attempt to find an explanation for meeting the argument that any conviction by a Court of law must necessarily infringe article 19 (1) (a).
There can be no getting away from the fact that a detention as a result of a conviction impairs the freedom of speech far beyond what is permissible under clause (2) of article 19.
Likewise a detention on lawful conviction impairs each of the other personal rights men tioned in sub clauses (b) to (e) and (g) far beyond the limits of clauses (8) to (6).
The argument that every section of the Indian Penal Code irrespective of whether it has any reference to any of the rights referred to in sub clauses (b) to (e) and (g) is a law imposing 304 reasonable restriction on those several rights has not even the merit of plausibility.
There can be no doubt that a detention as a result of lawful conviction must necessari ly impair the fundamental personal rights guaranteed by article 19 (1) far beyond what is permissible under clauses (2) to (6) of that article and yet nobody can think of questioning the validity of the detention or of the section of the Indian Penal Code under which the sentence was passed.
Why ? Because the freedom of his person having been lawfully taken away, the convict ceases to be entitled to exercise the freedom of speech and expression or any of the other personal rights protected by clause (1) of article 19.
On a parity of reasoning he cannot, while the detention lasts, exercise any other personal right, e.g., he cannot eat what he likes or when he likes but has to eat what the Jail Code provides for him and at the time when he is by Jail regulations required to eat.
Therefore, the conclusion is irresistible that the rights protected by article 19 (1), in so far as they relate to rights attached to the person, i.e., the rights referred to in sub clauses (a) to (e) and (g), are rights which only a free citizen, who has the freedom of his person unimpaired, can exercise.
It is pointed out, as a counter to the above reasonings, that detention as a result of a lawful conviction does not deprive a person of his right to acquire or hold or dispose of his property mentioned in sub clause (f).
The answer is simple, namely, that that right is not a right attached to the person (jus personrum) and its existence is not depend ent on the freedom of the person.
Loss of freedom of the person, therefore, does not suspend the right to property.
But suppose a person loses his property by reason of its having been compulsorily acquired under article 31 he loses his right to hold that property and cannot complain that his fundamental right under sub clause (f) of clause (1) of article 19 has been infringed.
It follows that the rights enumerated in article 19 (1) subsist while the citizen has the legal capacity to exercise them.
If his capacity to exercise them is gone, by reason of a lawful conviction with respect to the rights 305 in sub clauses (a) to (e) and (g), or by reason of a lawful compulsory acquisition with respect to the right in sub clause (f), he ceases to have those rights while his inca pacity lasts.
It further follows that if a citizen 's free dom of the person is lawfully taken away otherwise than as a result of a lawful conviction for an offence, that citizen, for precisely the same reason, cannot exercise any of the rights attached to his person including those enumerated in sub clauses (a) to (e) and (g) of article 19 (1).
In my judgment a lawful detention, whether punitive or preventive, does not offend against the protection conferred by article 19 (1) (a) to (e) and (g), for those rights must necessarily cease when the freedom of the person is lawfully taken away.
In short, those rights end where the lawful detention be gins.
So construed, article 19 and article 21 may, there fore, easily go together and there is, in reality, no con flict between them.
It follows, therefore, that the validi ty or otherwise of preventive detention does not depend on, and is not dealt with by, article 19.
To summarise, the freedom of the person is not the result of article 19.
Article 19 only deals with ' certain particu lar rights which, in their origin and inception, are attributes of the freedom of the person but being of great importance are regarded as specific and independent rights.
It does not deal with the freedom of the person as such.
Article 19 (1) (d) protects a specific aspect of the right of free locomotion, namely, the right to move freely throughout the territory of India which is regarded as a special privilege or right of an Indian citizen and is protected as such.
The protection of article 19 is co termi nous with the legal capacity of a citizen to exercise the rights protected thereby, for sub clauses (a) to (e) and (g) of article 19 (1) postulate the freedom of the person which alone can ensure the capacity to exercise the rights pro tected by those sub clauses.
A citizen who loses the free dom of his person by being lawfully detained, whether as a result of a conviction for an offence or as a result of preventive detention loses his capacity to exercise those rights and, therefore, has none of the rights which sub clauses (a) to (e) and (g) may protect.
306 In my judgment article 19 has no bearing on the question of the validity or otherwise of preventive detention and, that being so, clause (5) which prescribes a test of reasonable ness to be defined and applied by the Court has no applica tion at all.
Article 19 being thus out of the way, I come to article 20 which is concerned with providing protection against what are well known as ex post facto laws, double jeopardy and self incrimination.
This article constitutes a limitation on the absolute legislative power which would, but for this article, be exercisable by Parliament or the State Legisla tures under article 246 read with the legislative lists.
If the Legislature disobeys this limitation the Court will certainly prevent it.
Article 20 has no bearing on preven tive detention laws and I pass on.
Article 21 runs thus: "21.
No person shall be deprived of his life or person al liberty except according to procedure established by law.
" The contention of learned counsel for the petitioner is that by this article the Constitution offers to every per son, citizen or non citizen, only a procedural protection.
According to the argument, this article does not purport to give any protection to life or personal liberty as a sub stantive right but only prescribes a procedure that must be followed before a person may be deprived of his life or personal liberty.
I am unable to accept this contention.
Article 21, as the marginal note states, guarantees to every person "protection of life and personal liberty.
" As I read it, it defines the substantive fundamental right to which protection is given and does not purport to prescribe any particular procedure at all.
That a person shall not be deprived of his life or personal liberty except according to procedure established by law is the substantive fundamental right to which protection is given by the Constitution.
The avowed object of the article, as I apprehend it, is to define the ambit of the right to life and personal liberty which is to be protected as a fundamental right.
The right to life and 307 personal liberty protected by article 21 is not an absolute right but is a qualified right a right circumscribed by the possibility or risk of being lost according to procedure established by law.
Liability to deprivation according to procedure established by law is in the nature of words of limitation.
The article delimits the right by a reference to its liability to deprivation according to procedure estab lished by law and by this very definition throws a corre sponding obligation on the State to follow a procedure before depriving a man of his life and personal liberty.
What that procedure is to be is not within the purpose or purview of this article to prescribe or indicate.
The claim of learned counsel for the petitioner is that article 21 prescribes a procedure.
This procedure, accord ing to learned counsel, means those fundamental immutable rules of procedure which are sanctioned or well established by principles of natural justice accepted in all climes and countries and at all times.
Apart from the question whether any rule of natural procedure exists which conforms to the notions of justice and fair play of all mankind at all times, it has to be ascertained whether the language of article 21 will permit its introduction into our Constitu tion.
The question then arises as to what is the meaning of the expression "procedure established by law.
" The word "procedure" in article 21 must be taken to signify some step or method or manner of proceeding leading up to the depriva tion of life or personal liberty.
According to the language used in the article, this procedure has to be "established by law.
" The word "establish" according to the Oxford English Dictionary, Vol.
III, p. 297, means, amongst other things, "to render stable or firm ; to strengthen by materi al support; to fix, settle, institute or ordain permanently by enactment or agreement." According to Dr. Annandale 's edition of the New Gresham Dictionary the word "establish," means, amongst other things, "to found permanently; to institute; to enact or decree; to ordain; to ratify; to make firm.
" It follows that the word "established" in its ordi nary natural sense means, amongst other things, "enacted." "Established by law" will, 308 therefore, mean "enacted by law.
" If this sense of the word "established" is accepted, then the word "law" must mean State made law and cannot possibly mean.
the principles of natural justice, for no procedure can be said to have ever been "enacted" by those principles.
When section 124 A of the Indian Penal Code speaks of "Government established by law," surely it does not mean "Government set up by natural justice.
" Therefore, procedure established by law must, I apprehend, be procedure enacted by the State which, by its definition in article 12, includes parliament.
There is no escape from this position if the cardinal rule of construc tion, namely, to give the words used in a statute their ordinary natural meaning, is applied.
And this construction introduces no novelty or innovation, for at the date of the Constitution the law of procedure in this country.
both civil and criminal, was mainly if not wholly, the creature of statute.
The Hindu or Muhammadan laws of procedure were abrogated and replaced by the Code of Civil Procedure or the Code of Criminal Procedure.
Therefore, procedure established by law is quite compatible with procedure enact ed by law.
If, however, the word "established" is taken to mean "sanctioned" or "settled" or "made firm" then the question will arise as to the meaning of the word "law" in that context.
Reference is made to Salmond 's Jurisprudence, 10th Edition, p. 37, showing that the term "law" is used in two senses and it is suggested that the word "law" in the expression "established by law "means law in its abstract sense of the principles of natural justice.
It is "jus" and not "lex," says learned counsel for the petitioner.
It is pointed out that both the English and the Indian law in many cases, some of which have been cited before us, have recog nised and applied the principles of natural justice and that this Court should do the same in interpreting tim provisions of our Constitution.
I find it difficult to let in princi ples of natural justice as being within the meaning of the word "law," having regard to the obvious meaning of that word in the other articles.
Article 14 certainly embodies a principle of natural justice which ensures to.
309 every person equality before the law.
When natural jus tice speaks of and enjoins equality before the law, that law must refer to something outside natural justice, and must mean the State made laws.
It is only when the State law gives equality to every person that that law is said to be in accordance with natural justice.
There can be no doubt that the words "in accordance with law" in article 17 have reference to State law.
Likewise, the word "law" in article 20 (1) can mean nothing but law made by the State.
The same remark applies to the words "in accordance with law" in articles 23, 31 and 32.
Natural justice does not impose any tax and, therefore, the word "law" in articles 265 and 286 must mean State made law.
If this be the correct meaning of the word "law" then there is no scope for intro ducing the principles of natural justice in article 21 and "procedure established by law" must mcan procedure estab lished by law made by the State which, as defined, includes Parliament and the Legislatures of the States.
We have been referred to a number of text books and decisions showing the development of the American doctrine of "due process of law" and we have been urged to adopt those principles in our Constitution.
The matter has to be considered against its historical background.
The English settlers in different parts of America had carried with them the English common law as a sort of personal law regulating their rights and liberties inter se as well as between them and the State.
After the War of Independence the Constitu tions of the United States were drawn up in writing.
The majority of those who framed the Constitution were lawyers and had closely studied the Commentaries of the great Eng lish jurist Blackstone, who in his famous commentaries had advocated the separation of the three limbs of the State, namely, the executive, the legislature and the judiciary.
Montesquit 's Spirit of Laws had already been published wherein he gave a broader and more emphatic expression to the Aristotelian doctrine of separation of powers.
The experience of the repressive laws of Parliament had im pressed upon the framers of the American Constitution the 310 belief that it was the habit of all legislative bodies to grasp and exercise powers that did not belong to them.
The interference of the colonial governors with legislation and the judiciary was also real.
This sad experience coupled with the political philosophy of the time induced the fram ers of the American Constitutions to adopt safeguards not only against the executive but also against the legislature.
(See Munro on the Government of the United States, 5th Edition, Chapter IV, p. 53 et seq.).
Says Judge Cooley in his Constitutional Limitations, 6th Edition, Vol.
II, Chap ter XI, p. 755: "The people of the American States, holding the sover eignty in their own hands, have no occasion to exact any pledges from any one for a due observation of individual rights; but the aggressive tendency of power is such that they have deemed it of no small importance, that, in framing the instruments under which their governments are to be administered by their agents, they should repeat and re enact this guarantee, and thereby adopt it as a principle of constitutional protection.
" There can be little doubt that the people of the differ ent States in America intended not to take any risk as to their life, liberty or property even from the legislature.
As Munro puts it at pp.
58 61 : "The framers of the Constitution set boundaries to the powers of the Congress, and it was their intent that these limitations should be observed.
But how was such observance to be enforced by the Courts ? The statesmen of 1767 did not categorically answer that question.
" The Constitution was silent and there was no express provision as to who was to serve as umpire in case the Congress overstepped the limits of its legislative powers.
By the 5th Amendment what is now known as the "due process clause" was introduced in the Federal Constitution and by the 14th Amendment a similar clause was adopted in the State Constitutions.
Some of the State Constitutions used the words "due course of law," some repeated the words of Magna Charta, namely, "the law of the land" but most of 311 them used the expression "due process of law.
" All the expressions meant the same thing, namely, that no person should be deprived of his life, liberty or property except in due process of law.
The Constitution by this clause gave the Supreme Court an opportunity to take upon itself the function of declaring the national laws unconstitutional.
And the Supreme Court, under the leadership of Chief Justice John Marshall, seized this opportunity and assumed the right to say the last word on questions of constitutionality, and possesses that right to day: (Munro, p. 62).
The expression "due process of law" has been interpreted by the American Courts in different ways at different times.
Carl Brent Swisher in his book on the Growth of Constitutional Power in the United States at p. 107 says, with reference to the development of the doctrine of due procedure: "The American history of its interpretation falls into three periods.
During the first period covering roughly the first century of Government under the Constitution "due process" was interpreted "principally as a restriction upon procedure and largely the judicial procedure by which the Government exercised its powers.
During the second period,which, again roughly speaking, extended through 1936, "due process" was expanded to serve as a restriction not merely upon procedure but upon the substance of the activi ties in which the Government might engage.
During the third period extending from 1936 to date, the use of "due process" as a substantive restriction has been largely suspended or abandoned, leaving it principally in its original status as a restriction upon procedure.
" In the guise of interpreting "due process of law" the American Courts went much further than even Lord Coke ever thought of doing.
The American Courts gradually arrogated to themselves the power to revise all legislations.
In the beginning they confined themselves to insisting on a due procedure to be followed before a person was deprived of his life, liberty or property.
In course of time, "due process of law" came to be applied to personal liberty, to social control, to procedure 40 312 to jurisdiction and to substantive law: (Willis, p. 642).
In the words of Munro "due process of law" became a sort of palladium covering all manner of individual rights.
A_II the while the Supreme Court refused to define the phrase, but used it to enable it to declare unconstitutional any Act of legislation which it thought unreasonable: (Willis, p. 657).
In Holden vs Hardy (1) we find the following observa tions: "This Court has never attempted to define with precision the words ' due process of law . . .
It is suffi cient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.
"In Taylor vs Peter (2) Bronson J. observed: "The words 'by the law of the land ' as used in the Constitution, do not mean a statute passed for the purpose of working the wrong.
That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense.
The people would be made to say to the two Houses: ' You shall be vested with the legis lative power of the.
State, but no one shall be disenfran chised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose.
In other words you shall not do the wrong unless you choose to do it. '" It was thus that the Supreme Court of the United States firmly established its own supremacy over the other two limbs of the State, namely, the executive and the Congress.
In the words of John Dickinson quoted in Munro at p. 61, "The Judges of Aragon began by setting aside laws and ended by making them." And all this sweeping development could only be possible because of the presence of one little word "due" which, in its content, knows no bound and is not subject to any fixed definition.
Whenever a substantive law or some procedure laid down in any law did not find favour with the majority of the learned Judges of the Supreme Court it was not reasonableand, therefore, it was not "due." (1) ; at p. 389.
(2) 4 Hill 140, 145. 313 The very large and nebulous import of the word "due" was bound to result in anomalies, for what was not "due" on one day according to the Judges then constituting the Supreme Court became "due" say 20 years later according to the new Judges who then came to occupy the Bench, for the Court had to adapt the Constitution to the needs of the society which were continually changing and growing.
The larger content of due process of law, which included both procedural and substantive due process of law, had of necessity to be narrowed down, for social interest in personal liberty had to give way to social interest in other matters which came to be considered to be of more vital interest to the commu nity.
This was achieved by the Supreme Court of the United States evolving the new doctrine of police powers a pecul iarly American doctrine.
The police powers are nowhere exhaustively defined.
In Chicago B. & Q. Ry.
vs Drainage Commissioner (1) ,, police power" has been stated to "em brace regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety." Reference in this connection may be made to Cooley 's Constitutional Limitations, 8th Edition, Vol.
II, p. 1223 and to Chapter XXVI of Willis at p. 727.
The nett result is that the all inclusive and indefina ble doctrine of due process of law has in America now been brought back to its original status of a procedural due process of law by the enunciation and application of the new doctrine of police power as an antidote or palliative to the former.
Who knows when the pendulum will swing again.
Turning now to what has been called the procedural due process of law it will be found that the matter has been described in different languages in different cases.
In Westervelt vs Gregg (2) Edwards J. defined it thus: "Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules 204 u.s. 561,592.
(2) 314 and forms which have been established for the protection of private rights.
" A more specific definition of the expression "the law of the land" meaning procedural due process was given by Web ster appearing as counsel for the plaintiff in error in the Trustees of Dartmouth College vs Woodward (1): "By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial.
The meaning is that every citizen shall hold his life, liberty, property, and.
immunities, under the protection of the general rules which govern society.
Everything which may pass under the form of an enactment is not therefore to be considered the law of the land." Willis in Ch.
XXIII, p. 661, says: "The guarantee of due process of law as a matter of procedure means that no part of a person 's personal liberty, including ownership, shall be taken away from him except by the observance of certain formalities.
Hence its object is the protection of the social interest in personal liberty.
" At p. 662 Willis enumerates the requirements of the procedural due process of law as follows:(1) notice.
(2) opportunity to be heard, (3) an impartial tribunal, and (4) an orderly course of procedure.
In short, the procedural due process requires that a person who is to be deprived of his life, liberty or property shall have had "his day in Court.
" This according to Willough by p. 736, means: "(1) that he shall have had due notice, which may be actual or constructive, of the institution of the proceed ings by which his legal rights may be affected; (2) that he shall be given a reasonable opportunity to appear and defend his rights, including the right himself to testify, to produce witnesses, and to introduce relevant documents and other evidence, (3) that the tribunal in or before which his rights are adjudicated is so constituted as to give reasona ble assurance of its.
(1) ; at p. 579; 4 L. Edn. 629 at p. 645.
315 honesty and impartiality; and (4) that it is a Court of competent jurisdiction.
" It will be noticed that the fourth item of Willoughby is different from the fourth item of Willis.
Such, in short, are the history of the development of the doctrine of the process of law in the United States and the requirements of the procedural due process as insisted on by the Supreme Court of that country.
Learned counsel for the petitioner before us does not contend that we should import this American doctrine of due process of law in its full glory but that we should adopt the procedural part of it and insist that no person shall be deprived of his life or personal liberty except by the observance of the formalities which justice and fair play require to be observed.
The arguments of learned counsel for the petitioner are attractive and in the first blush certainly appeal to our sentiment but on serious reflection I find several insuperable objections to the introduction of the American doctrine of procedural due process of law into our Constitution.
That doctrine can only thrive and work where the legislature is subordinate to the judiciary in the sense that the latter can sit in judgment over and review all acts of the legislature.
Such a doctrine can have no application to a field where the legislature is supreme.
That is why the doctrine of "due process of law" is quite different in England where Parliament is supreme.
This difference is pointedly described by Mathews J. in Joseph Hurtado vs People of California (1) at p. 531: "The concessions of Magna Charta were wrung from the King as guarantees against oppression and usurpation of his prerogatives.
It did not enter into the minds of the barons to provide security against their own body or in favour of the commons by limiting the power of Parliament, so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates and other arbitrary Acts of legisla tion which occur so frequently in English history, were never regarded as inconsistent with the law of the land, for, notwithstanding what was attributed to Lord Coke in.
Bonham 's (1) ; 316 case, , 118 (a),] the omnipotence of Parliament over the Common Law was absolute, even against common right and reason.
The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons.
In this country written Constitutions were deemed essen tial to protect the rights and liberties of the people against the encroachments of power delegated to their gov ernments and the provisions of Magna Charta were incorporat ed in the bills of rights.
They were limitations upon all the powers of government, legislative as well as executive and judicial.
" This basic distinction between the two systems should never be lost sight of, if confusion of thought is to be avoided.
Although our Constitution has imposed some limita tions on the legislative authorities, yet subject to and outside such limitations our Constitution has left our Parliament and the State Legislatures supreme in their respective legislative fields.
In the main, subject to the limitations I have mentioned, our Constitution has preferred the supremacy of the Legislature to that of the Judiciary.
The English principle of due process of law is, therefore, more in accord with our Constitution than the American doctrine which has been evolved for serving quite a differ ent system.
The picturesque language of Bronson J. quoted above, while that is quite appropriate to the American Constitution which does not recognise the supremacy of the Congress, is wholly out of place in, and has no applica tion to, a Constitution such as ours, which, subject only to certain restrictions, recognises the supremacy of the Legis latures in their respective fields.
In the next place, it is common knowledge that our Constitution makers deliberate ly declined to adopt the uncertain and shifting American doctrine of due process of law and substituted the words ' "except in due process of law" that were in the original draft by the more specific expression "except in accordance with procedure established by law.
" To try to bring in the American doctrine, in spite of this fact, will be to stulti fy the intention of the Constitution as expressed in 317 article 21.
In the third place, in view of the plain meaning of the language of that article as construed and explained above it is impossible to let in what have been called the principles of natural justice as adopted in the procedural due process of law by the American Supreme Court.
Again, even the all pervading little word "due" does not find a place in article 21 so as to qualify the procedure.
It speaks of procedure and not "due" procedure and, therefore, "the intellectual yardstick" of the Court is definitely ruled out.
Finally, it will be incongruous to import the doctrine of due process of law without its palliative, the doctrine of police powers.
It is impossible to read the last mentioned doctrine into article 21.
It has also been suggested as a compromise that this Court should adopt a middle course between the flexible principles of natural justice as adopted by the American doctrine of due process of law and the unbending rigidity of mere State made laws.
h is said that we have our Code of Criminal Procedure which embodies within its provisions certain salutary principles of procedure and we must insist that those underlying principles should be regarded as procedure established or settled by our positive law.
But who will say what are those fundamental principles? What principles.
do I reject as inessential and what shall I adopt as fundamental ? What is fundamental to me today may not appear to be so to another Judge a decade hence, for principles give way with changing social conditions.
In America it was suggested that due process of law should be taken to mean the general body of common law as it stood at the date of the Constitution.
In Bardwell vs Collins (1) it was negatived in the following words: " 'Due process of law ' does not mean the general body of the law, common and statute, as it was at the time the Constitution took effect; for that would deny the legisla ture power to change or amend the law in any particular.
" The Court, however, brought in principles of (1) 318 natural justice under the due process clause.
To sanctify what I may to day regard as the basic principles underlying our Code of Criminal Procedure will be to make them immuta ble and to prevent the legislature even to improve upon them.
This is nothing but imposing on the legislature a limitation which the Constitution has not placed on it.
I do not think it is a permissible adventure for the Court to undertake.
It is a dangerous adventure, for it will bring about stagnation which means ruin.
We must accept the Con stitution which is the supreme law.
The Constitution has by article 21 required a procedure and has prescribed certain minimum requirements of procedure in article 22.
To add to them is not to interpret the Constitution but to recast it according to our intellectual yardstick and our unconscious predilections as to what an ideal Constitution should be.
Article 21, in my judgment, only formulates a substan tive fundamental right to life and personal liberty which in its content is not an absolute right but is a limited right having its ambit circumscribed by the risk of its being taken away by following a procedure established by law made by the appropriate legislative authority and the proximate purpose of article 21 is not to prescribe any particular procedure.
It is to be kept in mind that at the date when the Constitution came into effect we had the Indian Penal Code creating diverse offences and a conviction for any of them would deprive a person of his personal liberty.
Under article 246 read with Entry 1 of the Concurrent List, Par liament or any State Legislature could add more offences and create further means for taking away personal liberty.
But all this deprivation of personal liberty as a result of a conviction could only be done by following the procedure laid down by the Code of Criminal Procedure.
Again, at the date of this Constitution there were preventive detention laws in almost every province and a person could be deprived of his personal liberty under those laws.
Those laws, however, provided a procedure of a sort which had to be followed.
Therefore, before the Constitution came into force, personal liberty could be taken away 319 only by following the procedure enacted by the Criminal Procedure Code in the case of punitive detention or by the procedure enacted by the different Security Acts in case of preventive detention.
Power, however, has been given to Parliament and the State Legislatures under article 246 read with Entry 2 of the Concurrent List to make laws with re spect to Criminal Procedure.
If that article stood by itself the Parliament or the State Legislature could repeal the whole of the Criminal Procedure Code and also do away even with the skeleton procedure provided in the Security Acts.
If article 246 stood by itself then the appropriate legislative authority could have taken away the life and personal liberty of any person without any procedure at all.
This absolute supremacy of the legislative authority has, however, been cut down by article 21 which delimits the ambit and scope of the substantive right to life and person al liberty by reference to a procedure and by article 22 which prescribes the minimum procedure which must be fol lowed.
In this situation the only power of the Court is to determine whether the impugned law has provided some proce dure and observed and obeyed the minimum requirements of article 29.
and if it has, then it is not for the Court to insist on more elaborate procedure according to its notion or to question the wisdom of the legislative authority in enacting the particular law, however harsh, unreasonable, archaic or odious the provisions of that law may be.
It is said that if this strictly technical interpreta tion is put upon article 21 then it will not constitute a fundamental right at all and need not have been placed in the chapter on Fundamental Rights, for every person 's life and personal liberty will be at the mercy of the Legislature which, by providing some sort of a procedure and complying with the few requirements of article 22, may, at any time, deprive a person of his life and liberty at its pleasure and whim.
There are several answers to this line of argument.
Article 21 as construed by me will, if nothing else, cer tainly protect every person against the executive and as such will be as much a fundamental right deserving 411 320 a place in the Constitution as the famous 39th Chapter of the Magna Charta was and is a bulwark of liberty in English law.
It appears to me that article 21 of our Constitution read with article 32 also gives us some protection even against the legislative authority in that a person may only be deprived of his life and personal liberty in accordance with procedure which, although enacted by it, must at least conform to the requirements of article 22.
Subject to this limitation our parliament or any State Legislature may enact any law and provide any procedure it pleases for depriving a person of his life and personal liberty under article 21.
Such being the meaning of that article and the ambit and extent of the fundamental right of life and personal liberty which the people of this country have given unto themselves, any law for depriving any person of his life and personal liberty that may be made by the appropriate legislative authority under article 246 and in conformity with the requirements of article 22 does not take away or abridge any right conferred by article 21, for the very right conferred by that article is circumscribed by this possi bility or risk and, therefore, such law cannot be regarded as violating the provisions of article 13 (2).
Our Constitution is a compromise between Parliamentary supremacy of England and the supremacy of the Supreme Court of the United States.
Subject to the limitations I have mentioned which are certainly justiciable, our Constitution has ac cepted the supremacy of the legislative authority and, that being so, we must be prepared to face occasional vagaries of that body and to put up with enactments of the nature of the atrocious English statute to which learned counsel for the petitioner has repeatedly referred, namely, that the Bishop of Rochester 's cook be boiled to death.
If Parliament may take away life by providing for hanging by the neck, logi cally there can be no objection if it provides a sentence of death by shooting by a firing squad or by guillotine or in the electric chair or even by boiling in oil.
A procedure laid down by the legislature may offend against the Court 's sense of justice and fair play 821 and a sentence provided by the legislature may outrage the Court 's notions of penology, but that is a wholly irrelevant consideration.
The Court may construe and interpret the Constitution and ascertain its true meaning but once that is done the Court cannot question its wisdom or policy.
The Constitution is supreme.
The Court must take the Constitu tion as it finds it, even if it does not accord with its preconceived notions of what an ideal Constitution should be.
Our protection against legislative tyranny, if any, lies in ultimate analysis in a free and intelligent public opinion which must eventually assert itself.
The conclusion I have arrived at does not introduce any novelty, for in many other Constitutions the supremacy of the legislature is recognised in the matter of depriving a person of his life, liberty and property.
The English Democratic Constitution is one in point.
Take the Constitu tion of the Irish Free State.
Article 40 (4) (i) provides that no citizen shall be deprived of personal liberty save in accordance with law, and article 50 (5) guarantees that the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.
The words "in accordance with law" in both the above clauses must mean the same thing and I have no doubt in my mind, reading clause (5)that it means in accordance with the State made law, for we have not been referred to any rule prescribed by natural justice regulating searches of, or entry into, dwelling houses.
Article 107 (2) of the Czechoslovakian Constitution uses the words "in accordance with law" which, read with clause (1) of that article, obviously means the law to be made which will form part of the Constitution.
Take the Constitution of the Free City of Danzig.
Article74 of that Constitution which is in Part II headed "Fundamental Bights and Duties" provides as follows: "The liberty of the person shall be inviolable.
No limitation or deprivation of personal liberty may be imposed by public authority, except by virtue of a law.
" 322 The word" law" clearly cannot, in the context,mcan princi ples of natural justice Again, article 75 of that Consti tution protects the freedom of movement within the Free City and the right to stay and to settle at any place, to acquire real property and to earn a living.
It concludes by saying that this right shall not be curtailed without legal sanctions.
Legal sanctions, in this context, can only mean sanctions of the City laws.
Article 114 of the Weimar Constitution is on the same lines and expressed in almost the same language as article 74 of the Danzig Constitution.
Take the Japanese Constitution of 1946 from which our arti cle 21 is reputed to have been taken.
Article XXXI of that Constitution says: No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according to procedure established by law.
" Surely the words "except according to procedure established by law" in their application to the imposition of criminal penalty must mean State made law and the same words in the same sentence in the same article cannot, according to ordi nary rules of construction of statutes, mean a different thing in their application to deprivation of life or liber ty.
I am aware that it is not right to construe one Consti tution in the light of another and that is not my purpose when I refer to the other Constitutions; but I do think that after reading the relevant provisions of other written Con stitutions one sees quite clearly that there is no pressing special reason applicable to or inherent in written Consti tutions which requires the importation of the principles of natural justice or of the American doctrine of due process of law into our Constitution.
The several Constitutions referred to above have not adopted that American doctrine but have been content with leaving the life and liberty of their citizens to the care of the laws made by their legis latures.
It is no novelty if our Constitution has done the same.
For all these reasons, in spite of the very able and attractive arguments of the learned counsel for the peti tioner which I freely acknowledge, I am not convinced that there is any scope for the introduction into article 21 of our 323 Constitution of the doctrine of due process of law even as regards procedure.
I may or may not like it, but that is the result of our Constitution as I understand it.
The learned Attorney General has referred to certain debates in the Constituent Assembly on the original clause which has now become article 21, not as evidence to be used in interpreting the language of article 21 but as disclos ing the historical background.
His purpose, he says, is to show that the framers of our Constitution had the essential difference in the meaning of the phrases "due process of law" and "according to procedure established by law" clearly explained to them, that they knew that the former implied the supremacy of the judiciary and the latter the supremacy of the legislature and with all that knowledge they deliber ately agreed to reject the former expression and adopt the latter.
As, in my opinion, it is possible to interpret the language of article 21 on the ordinary rules of interpreta tion of statutes, I do not think it is at all necessary to refer to the debates.
As I do not propose to refer to, or rely on, the debates for the purposes of this case, I express no opinion on the question of the admissibility or otherwise of the debates.
I now pass on to article 22.
The contention of learned counsel for the petitioner is that article 21 by reason of the last few words, "according to procedure established by law" attracts the four requirements of the American proce dural due process of law as summarised by Willis to which reference has been made earlier, and that those require ments, except to the extent they have been expressly abro gated or modified by article 22, must be strictly followed before a person may be deprived of his life or personal liberties.
I have already stated for reasons set forth above, that there is no scope for introducing any rule of natural justice or the American procedural due process of law or any underlying principle of our Code of Criminal Procedure into that article.
This being the conclusion I have arrived at, the major premise assumed by learned coun sel for the petitioner is missing and this 324 line of argument does not begin and cannot be accepted.
The learned Attorney General, on the other hand.
has at one stage of his argument, urged that article 21 has nothing to do with preventive detention at all and that preventive detention is wholly covered by article 22 (4) to (7) which by themselves constitute a complete code.
I am unable to accede to this extreme point of view also.
The true posi tion, as I apprehend it, lies between the two extreme views.
Article 21, to my mind, gives protection to life and person al liberty to the extent therein mentioned.
It does not recognise the right to life and personal liberty as an absolute right but delimits the ambit and scope of the right itself The absolute right is by the definition in that article cut down by the risk of its being taken away in accordance with procedure established by law.
It is this circumscribed right which is substantively protected by article 21 as against the executive as well as the legislature, for the Constitution has conditioned its depri vation by the necessity for a procedure established by law made by itself.
While subclauses (2) to (6) of article 19 have put a limit on the fundamental rights of a citizen, articles 21 and 22 have put a limit on the power of the State given under article 246 read with the legislative lists.
Under our Constitution our life and personal liberty are balanced by restrictions on the rights of the citizens as laid down in article 19 and by the checks put upon the State by articles 21 and 22.
preventive detention deprives a person of his personal liberty as effectively as does punitive detention and, therefore, personal liberty, circum scribed as it is by the risk of its being taken away, re quires protection against punitive as well as preventive detention.
The language of article 21 is quite general and is wide enough to give its limited protection to personal liberty against all forms of detention.
It protects a person against preventive detention by the executive without the sanction of a law made by the legislature.
It prevents the legislature from taking away a person 's personal liberty except in accordance with procedure established by law, although such 325 law is to be by itself.
If, as contended by the learned Attorney General and held by me, article 19 only protects the rights of a free citizen as long as he is free and does not deal with total deprivation of personal liberty and if, as contended by the learned Attorney General, article 21 does not protect a person against preventive detention then where is the protection for life and personal liberty as substantive rights which the procedural provisions of arti cle 22 may protect ? What is the use of procedural protec tion if there is no substantive right ? In my judgment article 21 protects the substantive rights by requiring a procedure and article 22 gives the minimum procedural pro tection.
Clauses (1) and (2) of article 22 lay down the procedure that has to be followed when a man is arrested.
They ensure four things: (a) right to be informed regarding grounds of arrest, (b) right to consult, and to be defended by, a legal practitioner of his choice, (c) right to be produced before a magistrate within 24 hours and (d) freedom from detention beyond the said period except by order of the magis trate.
These four procedural requirements are very much similar to the requirements of the procedural due process of law as enumerated by Willis.
Some of these salutary protections are also to be found in our Code of Criminal Procedure.
If the procedure has already been prescribed by article 21 incorporating the principles of natural justice or the principles underlying our Code of Criminal Procedure what was the necessity of repeating them in clauses (1) and (2) of article 22 ? Why this unnecessary overlapping ? The truth is that article 21 does not prescribe any particular procedure but in defining the protection to life and person al liberty merely envisages or indicates the necessity for a procedure and article 22 lays down the minimum rules of procedure that even Parliament cannot abrogate or overlook.
This is so far as punitive detention is concerned.
But clause (3) of article 22 expressly provides that none of the procedure laid down in clauses (1) and (2) shall apply to an alien enemy or to a person who is arrested or detained under any law providing for preventive detention.
It is thus expressly 326 made clear that a detenu need not be produced before the magistrate and he is not to have the assistance of any lawyer for consultation or for defending him.
Such being the express provision of our Constitution nobody can question its wisdom.
So I pass on.
Clauses (4), (5), (6) and (7) of article 22 in terms relate to preventive detention.
Article 246 authorises the appropriate legislature to make a law for preventive deten tion in terms of Entry 9 in List I and/or Entry 3 in List III of the Seventh Schedule.
On this legislative power are imposed certain limitations by article 22 (4) to (7).
According to this the legislature, whether it be Parliament or a State Legislature, is reminded that no law made by it for preventive detention shall authorise the detention of a person for a longer period than three months except in two cases mentioned in sub clauses (a) and (b).
The proviso to sub clause (a) and sub clause (b) refer to a law made only by Parliament under clause (7).
Under clause (7) it is Parliament alone and not any State Legislature that may prescribe what are specified in the three subclauses of that clause.
Although a State Legislature may make a law for preventive detention in terms of Entry 3 in List III of the Seventh Schedule no such law may authorise detention for more than three months unless the provisions of sub clauses (a)and (b) of clause (4) sanction such detention.
Even a law made by Parliament cannot authorise detention for more than three months unless it is a law made under the provi sions of clause (7).
In short, clause (4) of article 22 provides a limitation on the legislative power as to the period of preventive detention.
Apart from imposing a limitation on the legislative power, clause (4) also pre scribes a procedure of detention for a period longer than three months by providing for an advisory board.
Then comes clause (5).
It lays down the procedure that has to be fol lowed when a person is detained under any law providing for preventive detention, namely, (a) the grounds of the order of detention must be communicated to the detenu as soon as may be, and (b) the detenu must be afforded the earliest opportunity of making a representation against 327 the order.
The first requirement takes the place of notice and the second that of a defence or hearing.
These are the only compulsory procedural requirements laid down by our Constitution.
There is nothing to prevent the Legislature from providing an elaborate procedure regulating preventive detention but it is not obliged to do so.
If some procedure is provided as envisaged by article 21 and the compulsory requirements of article 22 are obeyed and carried out nobody can, under our Constitution, as I read it, complain of the law providing for preventive detention.
Learned counsel for the petitioner concedes that the four requirements of procedural due process summarised by Willis will have to be modified in their application to preventive detention.
Thus he does not insist on a prior notice before arrest, for he recognises that such a require ment may frustrate the very object of preventive detention by giving an opportunity to the person in question to go underground.
The provision in clause (5) for supplying grounds is a good substitute for notice.
He also does not insist that the Tribunal to judge the reasonableness of the detention should be a judicial tribunal.
He will be satis fied if the tribunal or advisory board, as it is called in article 22 of the Constitution, is an impartial body and goes into the merits of the order of detention and its decision is binding on the executive government.
He insists that the detenu must have a reasonable and effective oppor tunity to put up his defence.
He does not insist on the assistance of counsel, for that is expressly taken away by the Constitution itself.
But he insists on what he calls an effective opportunity of being heard in person before an impartial tribunal which will be free to examine the grounds of his detention and whose decision should be binding alike on the detenu and the executive authority which detains.
The claim may be reasonable but the question before the Court is not reasonableness or otherwise of the provisions of article 22 (4) to (7).
Those provisions are not justicia ble, for they are the provisions of the Constitution itself which is supreme over everybody.
42 328 The Court can only seek to find out, on a proper construc tion, what protection has in fact been provided.
The Consti tution has provided for the giving of the grounds of deten tion although facts as distinguished from grounds may be withheld under clause (6) and the right of representation against the order of detention.
It has provided for the duration of the detention.
There the guaranteed fundamental procedural rights end.
There is no provision for any trial before any tribunal.
One cannot import the condition of a trial by any tribunal from the fact that a right of repre sentation has been given.
The right to make representation is nothing more than the right to "lodge objections" as provided by the Danzig Constitution and the Weimar Constitu tion.
The representations made will no doubt be considered by the Government.
It is said a prosecutor cannot be himself the judge.
Ordinarily, the orders of detention will in a great majority of cases be made by the District Magistrate or Sub Divisional Officer or the Commissioner of Police.
The representation of the detenu goes to the Government.
Why should it be assumed that a high government official at the seat of the government will not impartially consider the representation and judge the propriety of the order of detention made by local officials ? Clause (5) does not imperatively provide for any oral representation which a hearing will entail.
Indeed the exclusion of the provisions of clauses (1) and (2) negatives any idea of trial or oral defence.
The Court may not, by temperament and training, like this at all but it cannot question the wisdom or the policy of the Constitution.
In my judgment as regards pre ventive detention laws, the only limitation put upon the legislative power is that it must provide some procedure and at least incorporate the minimum requirements laid down in article 22 (4) to (7).
There is no limitation as regards the substantive law.
Therefore, a preventive detention law which provides some procedure and complies with the require ments of article 22 (4) to (7) must be held to be a good law, however odious it may appear to the Court to be.
329 Learned counsel for the petitioner contends that the impugned Act does not comply with even the bare requirements of article 22 (4) to (7).
It is pointed out that section 3 of the Act does not lay down any objective test but leaves it to the authority to define and say whether a particular person comes within the legislative heads.
In other words, it is contended that Parliament has not legislated at all but has delegated its legislative powers to the executive authorities.
I do not think there is any substance in this contention.
In the first place this is not an objection as to procedure but to substantive law which is not open to the Court 's scrutiny.
In the next place this contention over looks the basic distinction between the delegation of power to make the law and the conferring of an authority and discretion as to its execution to be exercised under and in pursuance of the law.
The impugned Act has specifically set forth an ascertainable standard by which the conduct of a particular person is to be judged by the detaining authori ty.
It is next urged that section 12 of the Act does not comply with the requirements of clause (7) of article 22 for two reasons, namely (i) that clause (7) contemplates a law prescribing the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months and then another law thereafter providing for preventive detention for a period longer than three months; and (ii) that under clause (7) Parliament must prescribe both the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months.
As regards the first point I do not see why Parliament must make two laws, one laying down the principles for longer detention and another for detention for such longer period.
It may be that a State cannot provide for longer detention until Parliament 330 has made the law, but I can see no reason why Parliament cannot do both by the same Act.
In fact, clause (4) (b) contemplates the detention itself to be in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7).
Therefore, the detention can well be under the very law which the Parliament makes under sub clauses (a) and (b) of clause (7).
As to the second point the argument is that Parliament has a discre tion under clause (7) to make a law and it is not obliged to make any law but when our Parliament chooses to make a law it must prescribe both the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months.
I am unable to construe clause (7) (a) in the way suggested by learned counsel for the petitioner.
It is an enabling provision empowering Parliament to prescribe two things.
Parliament may prescribe either or both.
H a father tells his delicate child that he may play table tennis and badminton but not the strenuous game of football, it obviously does not mean that tim child, if he chooses to play at all, must play both table tennis and badminton.
It is an option given to the child.
Likewise, the Constitution gives to Parliament the power of prescribing two things.
Parliament is not obliged to prescribe at all but if it chooses to prescribe it may prescribe either or both.
Clause 7 (a), in my opinion, has to be read distributively as follows: The Parliament may prescribe the circumstance under which a person may be detained for a period longer than three months and Parlia ment may prescribe the class or classes of cases in which a person may be detained for a period longer than three months.
That appears to me to be consonant with sound rules of construction.
Further, the circumstances and the class or classes of cases may conceivably coalesce.
Indeed the Full Bench case No. 1 of 1950 before the Calcutta High Court (Kshitindra Narayan vs The Chief Secretary) itself indicates that the same provision may be read as circumstances or as a classification.
In that case learned counsel conceded that section 12 had prescribed the circumstances but his com plaint was that it had not 331 prescribed the class or classes of cases.
The majority of the Court repelled this contention.
One learned Judge howev er, held that section 12 had prescribed the class or classes of cases but had not prescribed the circumstances.
It is, therefore, clear that the classification itself may indicate the circumstances.
Again, the classification may be on a variety of bases.
It may be according to provinces the detenus come from.
It may be according to the age of the detenus.
It may be according to the object they are supposed to have in view or according to the activities they are suspected to be engaged in.
In this case Parliament has taken five out of the six legislative heads and divided them into two categories.
The detenus are thus classified ac cording to their suspected object or activities endangering the several matters specified in the section.
I do not see why classification cannot be made on the footing of the objectives of the detenus falling in some of the legislative heads, for each legislative head has a specific connotation well understood in law.
If I am correct that there has been a classification then the fact that a person falls within one or the other class may well be the circumstances under which he may be detained for a period longer than three months.
I do not consider it right, as a matter of con struction, to read any further limitation in clause 7 (a) of article 22.
In my judgment Par]lament was not obliged under clause (7) to prescribe both circumstances and classes, and in any case has in fact and substance prescribed both.
I am conscious that a law made by Parliament under article 22 (7)will do away with the salutary safeguard of the opinion of an advisory board.
But it must be remembered that our Constitution itself contemplates that in certain circumstances or for certain class or classes of detenus even the advisory board may not be safe and it has trusted Parliament to make a law for that purpose.
Our preference for an advisory board should not blind us to this aspect of the matter.
It is true that circumstances ordinarily relate to extraneous things, like riots, commotion, 332 political or communal or some sort of abnormal situation and it is said that the framers of the Constitution had in mind some such situation when the advisory board might be done away with.
It is also urged that they had in mind that the more dangerous types of detenus should be denied the privi lege of the advisory board.
I am free to confess that prescription of specific circumstances or a more rigid and definite specification of classes would have been better and more desirable.
But that is crying for the ideal.
The Constitution has not in terms put any such limitation as regards the circumstances or the class or classes of cases and it is idle to speculate as to the intention of the Constitution makers, who, by the way, are the very persons who made this law.
It is not for the Court to improve upon or add to the Constitution.
If the law duly made by Parlia ment is repugnant to good sense, public opinion will compel Parliament to alter it suitably.
Finally, an objection is taken that section 14 of the impugned Act takes away or abridges the right of the detenu to move this Court by appropriate proceedings.
Both clauses (1) and (2) of article 32 speak of enforcement of rights conferred by Part III.
The right to move this Court is given to a person not for the sake of moving only but for moving the Court for the enforcement of some rights conferred by Part III and this Court has been given power to issue direc tions or orders or writs for the enforcement of any of such rights.
In order, therefore, to attract the application of article 32, the person applying must first satisfy that he has got a right under Part III which has to be enforced under article 32.
I have already said that article 19 does not deal with the freedom of the person.
I have also said that articles 21 and 22 provide for protection by insisting on some procedure.
Under article 22 (5) the authority making the order of detention is enjoined, as soon as may be, to communicate to the detenu the grounds on which that order has been made.
This provision has some purpose, name ly, that the disclosure of the grounds will afford the detenu the 333 opportunity of making a representation against the order.
Supposing the authority does not give any grounds at all as distinct from facts referred to in Clause (6).
Surely, the detenu loses a fundamental right because he is prevented from making a representation against the order.
of deten tion.
Suppose the authority hands over to the detenu a piece of paper with some scribblings on it which do not amount to any ground at all for detention.
Then also the detenu can legitimately complain that his right has been infringed.
He can then come to the Court to get redress under article 32, but he cannot show to the Court the piece of paper with the scribblings on it under section 14 of the Act and the Court cannot judge whether he has actually got the grounds which he is entitled to under article 22 (5).
such a case the detenu may well complain that both his substantive right under article 22 (5) ' as well as his right to constitutional remedies under article 32 have been in fringed.
He can complain of infringement of his remedial rights under article 32, because he cannot show that there has been an infringement of his substantive right under article 22 (5).
It appears to me, therefore, that section 14 of the Act in so far as it prevents the detenu from disclosing to the Court the grounds communicated to him is not in conformity with Part III of the Constitution and is, therefore, void under article 13 (2).
That section, howev er, is clearly severable and cannot affect the whole Act.
On this question the views of Meredith C.J. and Das J. of Patna in Criminal Miscellaneous No. 124 of 1950 (Lalit Kumar Barman vs The State) and the majority of the learned Judges of the Calcutta High Court in Full Bench Case No. 1 of 1950 (Kshitindra Narayan vs The Chief Secretary) appear to be correct and sound.
For the reasons I have given above, in my opinion, the impugned Act is a valid law except as to section 14 in so far as it prevents the grounds being disclosed to the Court.
The petitioner before us does not complain that he has not got proper grounds.
Further, the period of his detention under the impugned Act 334 has not gone beyond three months and, in the circumstances, this application should, in my opinion, stand dismissed.
Petition dismissed.
Agent for the petitioner: section Subrahmanyam.
Agent for the State of Madras and Union of India: P.A. Mehta.
| The petitioner who was detained under the Preventive Detention Act (Act IV of 1950) applied under article 32 of the Constitution for a writ of habeas corpus and for his release from detention, on the ground that the said Act contravened the provisions of articles 13, 19, 21 and 22 of the Constitu tion and was consequently ultra rites and that his detention was therefore illegal: Held, per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ.
(FAZL ALI and MAHAJAN JJ.
dissentinq) that the preventive Detention Act, 1950, with the exception of Sec.
14 thereof did not contravene any of the Articles of the Constitution and even though Sec.
14 was ultra rites inas much as it contravened the provisions of article 9.9, (5) of the Constitution, as this section was severable from the remaining sections of the Act, the invalidity of Sec.
14 did not affect the validity of the Act as a whole, and the detention of the petitioner was not illegal.
FAZL ALl and MAHAJAN JJ.
Section 12, of the Act was also ultra vires, and since it contravened the very provi sion in the 89 Constitution under which the Parliament derived its compe tence to enact the law, the detention was illegal.
Held, by the Full Court (KANIA CJ., FAZL ALI, PATANJALI SASTRI, MAHAJAN, MUKHERJEA and DAS JJ.) Section 14 of the , contravenes the provisions of article 9.9.
(5) of the Constitution in so far as it prohibits a person detained from disclosing to the Court the grounds on which a detention order has been made or the representation made by him against the order of detention, and is to that extent ultra vires and void.
Per KANIA C.J., PATANJALI SASTRI, MAHAJAN, MUKHERJEA and DAS JJ.
(FAZL ALI J. dissenting).
Article 19 of the Consti tution has no application to a law which relates directly to preventive detention even though as a result of an order of detention the rights referred to in sub cls.
(a) to (e) and (g) in general, and sub cl.
(d) in particular, of cl.
(1) of article 19 may be restricted or abridged; and the constitution al validity of a law relating to such detention cannot therefore, be judged in the light of the test prescribed in el.
(5) of the said Article.
DAS J. Article 19 (1) postulates a legal capacity to exercise the rights guaranteed by it and if a citizen loses the freedom of his person by reason of lawful detention as a result of a conviction for an offence or otherwise he cannot claim the right s under sub cls.
(a) to (e) and (g) of article 19 (1); likewise if a citizen 's property is compulsorily ac quired under article 31, he cannot claim the right under sub el.
(f) of article 19 (1) with respect to that property.
In short the rights under sub cls.
(a) to (e) and (g) end where lawful detention begins and therefore the validity of a preventive detention Act cannot be judged by Arc.
19 (5).
MAHAJAN J. Whatever be the precise scope of article 19 (1) (d) and Art.19(5) the provisions of article 19(5) do not apply to a law relating to preventive detention, inasmuch as 'there is a special self contained provision in article 22 regulating it.
FAZL ALI.J.
Preventive detention is a direct infringe ment of the right guaranteed in article 19 (1) (d), even if a narrow construction is placed on the said sub clause, and a law relating to preventive detention is therefore subject to such limited judicial review as is permitted by article 19 (5).
Per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ.
(FAZL ALl J. dissenting).
The concept of the right "to move freely throughout the territory of India" referred to in article 19 (1) (d), of the Constitution is entirely differ ent from the concept of the right to "personal liberty" referred to in article 21, and article 19 should not, therefore, be read as controlled by the provisions of article 21.
The view that article 19 guarantees substantive rights and article 21 prescribes the procedure is incorrect.
DAs J. Article 19 protects some of the important attributes of personal liber ty as independent rights and the expression "personal liber ty" is used in article 21 as a compendious term 90 including within Rs meaning all varieties of rights which go to make up the personal liberties of men.
FAZL ALl J. Even if it be assumed that article 19 (1) (d) does not refer to " personal liberty" and that it bears the restricted meaning attributed to it,that is to say, R signi fies merely the right to move from one locality to another, preventive detention must be held to affect this limited right of movement directly and substantially.
One of the objects of preventive detention is to restrain a person detained from moving from place to place so that he may not spread disaffection or indulge in dangerous activities in the places he visits.
The same consideration applies to the cases of persons who are interned or externed.
Hence, externment, interment and certain other forms of restriction on movement have always been treated as kindred matters belonging to the same group or family, and the rule which applies to one must necessarily apply to the others.
Per KANIA C. J ,, PATANJALI SASTRI and DAS 35.
(MAHAJAN 3.
dissenting).
Article 22 does not form a complete code of constitutional safeguards relating to preventive detention.
To the extent that provision is made in article 9.9, it cannot be controlled by article 9,1; but on points of procedure which expressly or by necessary implication are not dealt with by article 22, article 9.1 will apply.
DAS J. article
21 protects substantive rights by requiring a procedure and article 9.9.
lays down the minimum rules of procedure that even the Parliament cannot abrogate or overlook.
MAHAJAN J. article
99. contains a self contained code of constitutional safeguards relating to preventive detention and cannot be examined or controlled by the provisions of article 21.
The principles underlying article 21 are however kept in view in article 22 and there is no conflict between these articles.
MUKHERJEA J. Even assuming that article 22 is not a self contained code relating to preventive detention and that article 21 would apply, it is .not permissible to supplement article 22 by the application of rules of natural justice.
FAZL ALI J. article
22. does not form an exhaustive code by itself relating to preventive detention.
Parliament can make further provi sions and if it has done so article 19 (5) may be applied to see if those provisions have transgressed the bounds of reasonableness.
Per KANIA C.J., MUKHERJEA and DAS JJ.
(FAZL ALI J. dis senting).
In article 9.1 the word 'law" has been used in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice; and "procedure established by law" means procedure established by law made by the State, that is to say, the Union Parliament or the Legislatures of the States.
It is not proper to construe this expression in the light of the meaning given to.the expression "due process of law" in the American Constitution by the Supreme Court of America.
FATANJALI SASTRI cl. "Law" in article 21 does not mean the jus naturale of civil law but means 91 positive or State made law.
"Procedure established by law" does not however mean any procedure which may be prescribed by a competent legislature, but the ordinary well estab lished criminal procedure, i.e., those settled.
usages and normal modes of procedure sanctioned by the Criminal Proce dure Code, which is the general law of criminal proce dure in this country.
The only alternative to this con struction, if a constitutional transgression is to be avoid ed is to interpret the reference to "law" as implying a constitutional 'amendment pro tanto, for it is only a law enacted by the procedure provided for such amendment that could modify or override a fundamental right without contra vening article 13 (2).
FAZL, ALI J.
There is nothing revolutionary in the view that "procedure established by law "must include the four principles of elementary justice which inhere in and are at the root of all civilized systems of law, and which have been stated by the American Courts and jurists as consisting in (1) notice, (2) opportunity to be heard, (3) impartial tribunal and (4) orderly course of procedure.
These four principles are really different aspects of the same right, namely, the right to be heard before one is condemned.
Hence the words "procedure established by law ", whatever its exact meaning be, must necessarily include the principle that no person shall be condemned without hearing by an impartial tribunal.
Per KANIA C.J., FAZL ALI, PATANJALI SASTRI, MAHAJAN and DAS JJ.
Section 3 of the , does not delegate any legislative power to an executive officer but merely confers on such officer a discretion to enforce the law made by the legislature, and is not there fore invalid on this ground.
The fact that the section does not provide an objective standard for determining whether the requirements of law have been complied with, is not a ground for holding that it is invalid.
FAZL ALI J. Section 3 is however a reasonable provision only for the first step, i.e., for arrest and initial detention and must be followed by some procedure for testing the so called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds.
Per KANIA C. J., MAHAJAN and DAS JJ.
Section 7 of the said Act is not invalid merely because it does not provide for an oral hearing or an opportunity to lead evidence but only gives right to make a representation.
Right to an oral hearing and right to give evidence are not necessarily implied in the right to make a representation given by article 22.
Per KANIA C.J., and MAHAJAN J.
The provision contained in Sec.
11 that a person may be detained for such period as the 12 A 92 State thinks fit does not contravene article 22 (7) and it is not therefore invalid.
Per KANIA.
C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ.
(FAZL ALI and MAHAJAN JJ.
dissenting).
Article 22 (7) means that Parliament may prescribe either the circumstances under which, or the class or classes of cases in which, a person may be detained for a period longer than three months without reference to an advisory board.
It is not necessary that the Parliament should prescribe both.
The matters referred to in clauses (a) and (b) of sub see.
(1) of Sec. 12 constitute a sufficient description of such circumstances or classes of cases and Section 12 is not therefore open to the objection that it does not comply with article 22 (7) DAS J. Parliament has in act and substance prescribed both in clauses (a) and (b) of sub sec.
(1) of Sec. 12.
FAZL ALI and MAJAN JJ.
Article 22 (7) Means that both the circumstances and the class or classes of cases (which are two different expressions with different meanings and connotations) should be prescribed, and the prescription of one without the other will not be enough.
The enumeration of the subjects for reasons connected with which a law of preventive detention could be made contained in els.
(a) and (b) of sub see.
(1) of Sec.12 does not amount to prescribing the circumstances under which, or the class or classes of cases in which, a person can be detained for more than three months.
Per KANIA C.J.
While it is not proper to take into consideration the individual opinions of members of Parlia ment or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted.
PATANJAYLI SASTRI J.
In construing the provisions of an Act, speeches made in the course of the debates on the bill should not be taken into consideration.
MUKHERJEA J.
In construing the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value may be placed on the report of the Drafting Committee.
|
Appeal No. 42 of 1948.
Appeal against the judgment and decree dated the 21st April, 1943, of the High Court of Judicature at Patna (Fazl Ali C.J. and S.C. Chatterji J.) in First Appeal No. 17 of 1939 arising out of decree dated the 19th July, 1939, of the Subordinate Judge at Puri in Original Suit No. 62 of 1936.
Manohar Lal (G. P. Das, with him) for the appellant.
B.N. Das (Sri Kant Mahanti, with him) for the respond ents.
March 27.
The dispute in this appeal is between the fishermen residing in nine villages of Kills Marichpur, a permanently settled zamindari in the Puri Collectorate (Orissa State) and the Raja of Aul, the owner of seven annas, seven pies, and ten karants share in the zamindari.
The other sharers in the zamindari are defendants 19 to 29.
Within the ambit of the estate flows "Devi Nadi" with its several branches and tributaries.
Three fisheries ' 'Madhur dia, "Marichpurdia" and "Maladia" appertain to this es tate.
The controversy in this appeal concerns the fishery known as the "Madhurdia" fishery.
In the year 1936, three suits, Nos. 62, 63 and 64, were brought by the Raja of Aul against defendants 1 to 18 on behalf of themselves and other fishermen residing in the nine villages of Killa Marichpur for a declaration in re spect of his rights in the three above mentioned fisheries.
All these suits were decided in his favour by the trial court.
The defendants preferred no appeal in suits 63 and 64, with the result that the controversy regarding the two fisheries involved in these two suits stands concluded by the decision of the trial court.
In suit No. 62 of 1936, however, the 433 defendants preferred an appeal to the High Court and it was partially allowed.
The decree of the trial Judge in favour of the plaintiff was modified and it was held that the defendants had exclusive rights as tenants at will to fish in this fishery during the Hilsa season (Margasir to Bai sakh) and that the plaintiff was not entitled to a declara tion or an injunction in respect of that period.
The plain tiff thereupon obtained leave to appeal to His Majesty in Council and that appeal is now before us for decision.
It was alleged in the plaint that the proprietors of Marichpur zamindari are the exclusive owners of the fishery in question and have all along been exercising their right of catching fish in the same sometimes by employing fisher men and sometimes by letting out the fishery to them, that the plaintiff has ever since his acquisition of the zamind ari interest been the owner in khas possession of the fish ery right according to his share in the zamindari, that the defendants fishermen were never in possession of the said fishery, nor have they any right to it, that in the year 1918 they started proceedings under section 145, Criminal Procedure Code, to create evidence of their possession but in spite of those proceedings the plaintiff continued to be in possession of the fishery and has been catching fish by employing fishermen, that by taking advantage of the fact that there are several co sharers in the zamindari and there is mismanagement of the estate, the defendants wrong fully and unlawfully trespassed on the fishery from time to time between May, 1933, and November, 1933, and disturbed the plaintiff in the enjoyment of his right and have caused loss to him and his co sharers by catching large quantity of fish without any leave or licence.
On these allegations, the plaintiff claimed a declaration to the effect that defendants 1 to 18 in their personal and representative capacity have no right or title in the fishery known as "Madhurdia" fishery or to the fishery in the southern por tion of the area recorded as the river block, Risilo and Husgarh.
Prayer was also made for the grant of a perpetual injunction restraining the defendants from 434 fishing in the above fishery and in the above mentioned blocks and for the award of a sum of money by way of damages and on account of price of fish.
, The defendants contested the allegations made in the plaint and asserted that the fishermen of Killa Marichpur including the principal defendants and their ancestors, about 846 persons in all, have all along remained in undis turbed actual physical possession of the fishery known as "Charkhatia" alias "Madhurdia" fishery on a fixed annual rental of Rs. 135 7 0, and have a right to remain in posses sion in perpetuity on payment of that rent; that they have acquired this right in all possible ways, i.e., by grant, custom, adverse possession and easement.
On these pleadings of the parties the trial Judge framed as many as nine issues, the material ones being issues 6 and 7, which are in these terms : "6.
Has the plaintiff any title to the disputed fishery ? 7.
Have the defendants Nos. 1 to 18 acquired any right, by adverse possession, prescription or custom ?" The trial Judge on these issues held that the defendants neither in their personal nor in their representative capac ity had any right or title in the fishery in question and issued a permanent injunction against them from fishing in it.
The claim for damages was disallowed.
It was observed by the learned Judge that the defendants did not claim the right to catch all the fish found in the fishery but that they had confined their claim in respect to Hilsa fish only during the Hilsa season between the months of Margasir and Baisakh (November to April) and that as regards the other varieties of fish found in these waters during the rest of the year they did not assert any right to catch fish.
He also observed that 'the defendants did not deny that the plaintiff was the owner of the zamindari and as such owner of the soil and of the waters of the fishery, but that they claimed a subordinate right, i.e., the right of fishing in the 435 waters belonging to the plaintiff and his co sharers during the Hilsa season to the exclusion of the plaintiff and his co sharers.
In view of these contentions the onus was laid on the defendants to prove their permanent right of fishing in these waters by grant, custom, prescription or adverse possession and it was held that the defendants failed to discharge the onus that rested on them.
Acquisition of the right by grant, prescription and adverse possession was held not provable in law in favour of an indeterminate and fluc tuating body of persons.
The claim for permanent tenancy in the fishery was negatived on the ground that there was no evidence to show that the tenancy came by descent to these 846 persons from the persons who actually took it in the year 1842, or that it was obtained from all the sixteen anna landlords, or that there was any fixity of rent.
It was further said that there was no certainty as to who were the owners of the right, as to the local area over which the right was to be exercised, as to the measure of the right and of the periods during which the right could be exercised and that in these circumstances the defendants ' claim could not be upheld.
The defendants ' contention that under article 47 of the Indian Limitation Act the plaintiff had lost his right was held unsustainable and the plea of custom was ruled out on the ground that the custom alleged would be of an unreasonable kind.
All the questions raised in the trial court excepting the question of custom were canvassed by the defendants before the High Court.
The High Court in a judgment, by no means clear or satisfactory, reached the conclusion that the defendants since the time of their predecessors had all along been fishing in the disputed fishery as of right under a lost grant and that the plaintiff 's story that he had been in enjoyment of the fishery was not true and that the de fendants ' right to fish in the disputed fishery was estab lished.
One would have thought that in view of this finding the plaintiff 's suit would have been dismissed 436 but this did not happen.
The High Court proceeded to find that though from the evidence it appeared that the right was being exercised by the defendants or their predecessors from a very long time, that is to say, from the year 1842, yet there was no evidence to justify the inference that they had got a permanent right.
The defendants ' plea therefore that they were permanent tenants of the fishery in dispute was not upheld.
As regards the defendants ' contention that the plaintiff was bound by the order passed in proceedings under section 145, Criminal Procedure Code, it was found that he not having challenged that order within the prescribed period, his right to khas possession of the disputed fishery except to the extent of five pice share was extinguished under section 28 of the Limitation Act but that his proprie tary right subsisted as it was never denied.
It was further held that the plaintiff 's right to khas possession of this fishery was also extinguished by operation of article 144 of the Indian Limitation Act.
Plaintiff 's evidence that he had been catching fish during the Hilsa season by employing other fishermen was disbelieved and it was held that the defendants had been exercising exclusive right to fish in the disputed fishery during the Hilsa season adversely to the plaintiff and the other co sharers for more than twelve years.
In spite of these findings the High Court reached the somewhat strange conclusion that the defendants acquired by adverse possession a mere tenancy at will and that it could be determined by the entire body of landlords and the plain tiff being only a co sharer could not bring the present suit in his own behalf and it had not the effect of determining the tenancy and hence the plaintiff could not be granted the declaration and the injunction restraining the defendants from fishing during the Hilsa season.
As regards the point raised by the plaintiff that by reason of the change in the course of the river the fishery in dispute was not the same regarding which an order was made under section 145 proceed ings or in which the defendants have been exercising their right, it was held that this contention was without force because 437 the river was identical and the channels, whether old or new, which comprise the Madhurdia or Charikhati fishery, have always formed one connected sheet of water and that fishing in different parts of such a connected sheet of water comprised in the same fishery can hardly be said to be a separate act of aggression so as to disturb the continuity or extent of adverse possession and that the fishermen though a fluctuating body, have unity of interest and pos session and could not be described as several independent trespassers.
As a result of these findings the decree of the trial Judge was modified and the plaintiff was given a permanent injunction restraining the principal defendants from fishing in the disputed fishery except during the Hilsa season (Margasir to Baisakh) during which the defendants were declared to have exclusive right of fishing.
Against the decision of the High Court no appeal was pre ferred by the defendants though they had only been found to be in possession of the fishery in the status of mere ten ants at will.
The plaintiff challenged this decision and contested the finding that the defendants were lawfully in possession of the fishery and could exercise their right of fishing during the Hilsa season exclusively.
The real grievance of the plaintiff seems to be that by the decision under appeal the High Court has declared a fluctuating body of persons tenants at will, and that such a tenancy cannot be determined as its constitution is liable to vary with each birth and death and with influx or efflux of fishermen to and from these villages.
It was argued that the High Court has erroneously found that the defendants were in possession of the fishery and were in enjoyment of the fishing right under a lost grant and that the plaintiff 's right to khas possession of the fishery had been extin guished by operation of articles 47 and 144 of the Limita tion Act read with section 28 of the Act.
It was contended that from the evidence placed on the record the only correct conclusion to draw was that from time to time some fishermen were allowed tot fish in these waters by a number of land lords 438 on payment of rent but that the present defendants were not the descendants of those fishermen who were occasionally granted leave to fish and that those isolated acts of letting the fishery were not connected with one another and from these it could not be inferred that the defendants or their predecessors were in continuous possession of the fishery on payment of a fixed rent and that the present defendants were mere trespassers and had no right to fish in the disputed fishery.
It was further contended that no title of any kind could be presumed to exist in the defend ants to the fishery in suit and on the basis of a lost grant as in this case there was no capable grantee and that even title by adverse possession or prescription could not be acquired by them as they form an indeterminate and fluctuat ing body of persons.
As regards the finding of the High Court that the plaintiff 's suit was barred by article 47 of the Limitation Act and his title to khas possession was extinguished by operation of the provisions of section 28 of the Indian Limitation Act, it was contended that the pro ceedings that took place in the year 1918 were wrongly labelled under section 145, Criminal Procedure Code, and that in substance the order made in those proceedings fell within the ambit of section 147 of the Code and therefore article 47 had no application to the case and the plaintiff was not bound to bring his suit within three years of that order to enforce his right.
It was further contended that the order could only benefit the parties impleaded in those proceedings and the other defendants could not derive any assistance from it, that in any case the order could not bind the plaintiff to the extent of the share purchased by him from co sharers not made parties in those proceedings and that the river having changed its course in the year 1925, the fishery as it stood in 1918 was no longer in existence and in ,the substituted fishery the plaintiff 's right could not be held to have been extinguished by the effect of the order made in section 145, Criminal Procedure Code, proceedings.
The learned counsel for the respondents contended that the defendants had in the status of 439 tenants an exclusive right to fish in the fishery 'and were entitled to remain in enjoyment of it on payment of a fixed rent of Rs. 135 7 0 in perpetuity, that the plaintiff 's right of fishing in the fishery during Hilsa season had become extinguished by operation of article 47 and article 144 of the Indian Limitation Act.
It was denied that by a change in the course of the river, if any, the defendants ' right had in any way been affected.
In order to appreciate the respective contentions of the parties it is necessary to state a few facts which emerge from the documentary evidence produced in the case.
The State of Orissa came under the British rule in the year 1803.
A revenue settlement of the State was made in 1904 05.
From the village note prepared during the settle ment, it appears that Killa Marichpur was Originally owned by one Padmalav Mangaraj and that during the time of his great grandson Balabhadra Mangaraj the estate was sold in auction for satisfaction of debts incurred by him and was purchased by (1) Mohan Bhagat, (2) Chakradhar Mahapatra, and (3) the ancestors of one Haziran Nisa Bibi in equal shares.
From the jamabandi of the year 1842 (Exhibit C) it appears that the jalkor income of Killa Marichpur zamindari at that time was Rs. 135 7 0, and this was being realised from Hari Behera and Brundu Anukul Singh, two fishermen.
It is not clear from this document in what status they were paying this amount and what was the nature of their tenancy.
Exhibit A is a kabuliyat of the year 1845 by Brundu Anukul Singh and Hari Behera in favour of Babu Mohan Bhagat and Bibi Mobarak Nisa, and it shows that these two fishermen took a lease of the fishing right in Devi river on payment of Rs. 135 as rent, from the landlords.
It was stated there in that these fishermen will catch fish from these waters according to former custom and will pay "machdia sarbara" of Rs. 135 in accordance with the instalments.
There is no indication in the kabuliyat that these two persons were executing it in a representative capacity or that the lease taken by them was of a permanent character or 440 that the rent payable was not liable to enhancement in the future.
It was contended on behalf of the defendants that these two persons executed the kabuliyat in a representative capacity and on behalf of all the fishermen who originally resided in four villages of Killa Marichpur and who subse quently came to reside in the nine villages mentioned in the plaint.
The only evidence placed on the record in support of the suggestion and relied upon by the High Court is the statement of D.W. 11 who was born some time in the year 1873, about 28 years after the execution of the kabuliyat and who has no special means of knowledge to depose as to the relationship of persons mentioned in the kabuliyat with the defendants in the present case or to know the capacity of persons who executed the kabuliyat.
It is not possible therefore to hold that the kabuliyat was executed in a representative capacity by these two persons and on behalf of all the persons interested in the present controversy.
There is no evidence on the record to prove the state of affairs of this fishery between the years 1845 and 187 a Reliance was placed by the defendants on a number of rent receipts produced by them in evidence.
The first of these is dated 30th 'March, 1873, and was executed by one of the Mahapatra co sharers on account of the instalment of fishery rent of "Charkhati" paid through Hari Behera and Rama Behera in the sum of Rs. 8 12 0.
All the co sharers were not par ties to this receipt and it is not stated what was the total rent payable for the whole fishery.
On the 11th May, 1875, another receipt was executed by Bibi Masudannisa and Others, co sharers of five anna four pies in the zamindari in favour of Hari Behera and Ananta Behera and others for a sum of Rs. 18.
It seems that different co sharers were giving permis sion to different persons to fish in the fishery on payment of certain sums of money.
There is no evidence whatsoever connecting the receipt of 1873 given by two co sharers to two persons with the receipt given by another set of co sharers to these two persons and it is not possible to say that these payments were made towards a fixed 441 rent of Rs. 135 7 0 payable for the whole fishery.
The state of affairs of this fishery between 1876 to 1893 remains shrouded in mystery as no evidence for that period has been filed on the record.
On the 1st May, 1894, Mohan Bhagat 's descendant gave a receipt to Pandab Behera and Phagu Behera for Rs. 10, which was to be set off against fishery rent.
It is difficult to connect this receipt with the other receipts or to treat it as evidence in support of the de fendants ' case of a permanent tenancy.
Similar receipts by different co sharers in favour of different persons were executed on the 1st May, 1895, 5th May, 1896, 9th May, 1897, and 22nd October, 1899; but in none of those receipts is any mention made of any fixed rental of Rs. 135 7 O for the fishery in respect of the whole year and payable to all the landlords.
A printed rent receipt on behalf of one of the proprietors to Hurshi Behera and Agani Behera of village Alsahi was given on the 22nd October, 1899.
The receipt relates to payment of twelve annas as arrears of fishery rent and in the receipt it is stated that the cash rent payable was Rs. 150.
This receipt, if it relates to the rent payable to all the co sharers, is inconsistent with the defendants ' case that the fishery had been leased out from time immemorial on a fixed rent of Rs. 135 7 0.
On the 23rd August, 1902, a receipt was given on behalf of nine anna seven pie co sharers in the zamindari to Maguni Behera and Ram Behera of Kalia Kona and to Sapani Behera of some other village in the sum of Rs. 83 12 11 stating that the amount of total rent of which Rs. 83 12 11 was the fractional share of these landlords was a sum of Rs. 135 7 0.
It was contend ed on behalf of the defendants that the sum of Rs. 135 7 0 mentioned in this receipt was the identical amount that was mentioned in the jamabandi of 1842 as payable to the zamin dars as income of the jalker and from this entry an infer ence should be drawn that the fishery had been continuously leased for this sum from 1842 to the date of this receipt.
The coincidence relied upon undoubtedly exists, but on that basis it is not possible to draw the reference suggested as such an inference would be 442 of a conjectural nature.
All these receipts are consist ent with the contention of the plaintiff that from time to time different co sharers permitted different fishermen to fish in the fishery on payment of a certain rental.
A re ceipt similar to the one above mentioned was also executed on the 5th March, 1906, by certain co sharers owning eight pies in the zamindari in favour of some fishermen, the annual rent being Rs. 135 7 0.
The "Remarks Column" states that if the rent is more than mentioned therein, the further amount due would be made good.
Same remarks are applicable to this receipt as to the previous one.
The next rent re ceipt is dated 19th April, 1907, and is for a sum of Rs. 168 6 0.
No inference either way can be drawn from this receipt.
On the 21st June, 1912, a receipt was given in favour of twelve persons in respect of rent for the year 1317.
The receipt was given by the nine anna seven pie co sharer in the zamindari but it is not clear how this amount was made up.
On the 4th February, 1914, a receipt was given by an eight pie co sharer in the zamindari to 174 persons, described as tenants and residing in different villages of the zamindari for a sum of Rs. 5 13 6 as rent for the year 1319.
The entry in the "Remarks" column is similar to the receipt above mentioned.
The amount of annual rent is mentioned as Rs. 135 7 0 and it is stated that it is being paid in accordance with a decree of court No. 181.
It is difficult to connect this receipt with the other documents previously discussed.
Another receipt dated 30th March, 1914, was given by nine anna seven pie co sharers in the fishery to twelve persons for the year 1320.
It seems to us that these occasional receipts given to different persons by different sets of co sharers can lead to no definite conclu sion in regard to the rights of the parties.
They are con sistent with the case argued on behalf of the plaintiff that by leave and licence a number of fishermen used to fish in ' the waters from time to time and they do not necessarily lead to the inference of the existence of a permanent tenan cy of the fishery in favour of the defendants on a fixed rent of Rs. 135 7 0.
443 By a registered deed dated 24th May, 1914, the plaintiff for the first time acquired an eight pie interest in the zamindari in the name of Smt.
Mahisthali Patamahadei, his wife, from one Balaram Das Bhagat, a descendant of Mohan Bhagat.
Subsequently he in his own name and sometimes in the name of the Rani purchased some further shares in the za mindari and eventually became the owner of seven anna seven pie and ten kranth share in it.
The acquisition of interest by the plaintiff (Raja of Aul) in the zamindari coincides with the period of the first world war, the aftermath of which was a rise in prices.
Fish which was a cheap commodity and brought no appreciable income to the fishermen or to the owners became a source of considerable income and this circumstance led to disputes between the owners of the fishery and the fishermen.
A number of letters of the years 1914 to 1918 have been proved on behalf of the plaintiff showing that he was deriving income from this fishery.
Similar letters for subsequent periods have also been proved but no regular accounts of the income so realized were produced in the case.
The enhanced income of the fishery created a scramble for its possession between the landlords and the fishermen and there was an apprehension of a breach of peace which resulted in proceedings under section 145, Criminal Procedure Code.
A report was made to the police on the 11th February, 1918, that a dispute had arisen which was likely to cause a breach of the peace between the landlords of Killa Marichpur and twelve fishermen in regard to the possession of Charikhati fisheries in Debi river.
The Magis trate on receipt of the police report issued notice to the parties for the 10th February, 1018, and decided the case on the 10th June, 1918.
From his order it appears that notice was given to all concerned and they were invited to put their respective claims as regards the facts of the actual possession of the fishery in dispute before him.
On behalf of certain co sharers evidence was led to prove that they were in possession of the fishery through one Sundari Behera and other fishermen numbering about 100.
The Rani 444 of Aul who had then eight pie interest in the zamindari as benamidar of her husband led evidence to establish that she was in possession of the fishery through fishermen employed by her agent.
Ram Behera, Hrushi Behera and other fishermen of the second party, twelve in number, led evidence to show that they were in possession of the fishery on payment of rent and that the owners of the zamindari had never been in actual possession of the fishery.
The Magistrate found that this contention was true.
He disbelieved the story of the witnesses produced by the Rani of Aul, and also rejected the testimony of the witnesses produced by other owners.
Some Aul fishermen were produced on behalf of the Rani but their evidence was also not accepted.
The same kind of documentary evidence that has been placed on this record on behalf of the plaintiff was also placed before the Magistrate but it was not accepted by him.
From these proceedings, it further appears that all the sixteen anna owners of Killa Marichpur issued a notice to the second party, the fishermen, for surrendering possession of the fishery with effect from September, 1917, but after service of notice they took no legal steps to eject them from possession of the fishery; on the other hand, they took the law into their own hands and made attempts to take forcible possession of the fishery.
These attempts, however, were unsuccessful.
The result of these proceedings was that the Magistrate found that the fishermen (the second party) were in possession of the disputed fishery and he directed ' the issue of an order declaring their possession until evicted therefrom in due course of law and forbidding all disturbance of such posses sion until such eviction.
This order indicates that though all the landlords were not named as parties in the case, yet all of them had notice of the proceedings and all of them were actually interested in turning out the fishermen from possession by forcible means, and notice had been given to them on behalf of all of them.
It also appears from those proceedings that though one dozen people were named as second party in the case, there were certain other persons also interested in the 445 fishery along with them, but it is difficult to ascertain their number, names and addresses from these proceedings.
Evidence has been led on behalf of the plaintiff to prove that after the determination of these proceedings the plain tiff has been deriving income from this fishery by leasing his right through the agency of fishermen of Aul.
The High Court has not placed any reliance on this evidence and, in our opinion, rightly.
It is not possible to believe that after a successful fight in the criminal court, the fisher men would have allowed the men of the Raja or of the Rani to fish in these waters during the Hilsa season.
Both parties led oral evidence to prove that each party exercised exclu sive right of fishing during Hilsa season in the fishery.
We have been taken through the evidence and after examining it, have reached the conclusion that it is of an unsatisfactory character and valuable rights cannot be decided on its footing.
No steps were taken by the landlords to question the order of the Magistrate within three years from its date as required by article 47 of the Limitation Act.
The land lords, however, refused to receive any rent from these persons after the termination of the proceedings and they have been depositing it in court under the provisions of the Orissa Tenancy Act.
The last purchase by the Raja of Aul of some interest in the zamindari was made in the year 1935 and having acquired by this date a substantial interest in it and having discov ered that the fishery was a paying proposition, he brought this suit in the year 1986 on the allegations set out above and asserted that since about three years the defendants had started disturbing his possession of the fishery in dispute.
In the circumstances mentioned above this assertion cannot be taken seriously.
In order to get out of the effects of the proceedings under section 145, Criminal Procedure Code, he alleged that he had been in possession of the fishery in spite of the proceedings taken under that section and that his possession had only been disturbed recently.
The evi dence on this point was 446 rejected by the High Court and we see no reason to disagree with that finding.
It is now convenient to consider the different points canvassed before us by the learned counsel appearing on behalf of the parties.
We find it difficult to uphold the view of the High Court that the defendants were in posses sion of the disputed fishery under a lost grant.
This doc trine has no application to the case of inhabitants of particular localities seeking to establish rights of User to some piece of land or water.
As pointed out by Lord Rad cliffe in Lakshmidhar Misra vs Rangalal(1) the doctrine of lost grant originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user and that since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant, and that a right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant, there being no admissible grantees.
Reference in this connection may be made to a Bench decision of the Calcutta High Court in Asrabulla vs Kiamatulla(2), wherein the law on this subject has been examined in some detail.
In that case the question arose whether the right of pasturage claimed by a whole body of villagers could be acquired by grant, express or presumed.
After an examination a number of English and Indian cases it was held that no lost grant could be presumed in favour of a fluctuating and unascertained body of persons who constitute the inhabitants of a village and that such a right could only be acquired by custom.
The defendants in this case are a fluctuating body of persons and their number increases or decreases by each birth or death or by influx or efflux of fishermen to or from these villages.
From the evidence of D.W. 11 it appears that formerly the Kouts (fishermen) claiming the right to fish were residents of four villages, then some of them shifted to other villages on account of their (1) A.I.R. 1950 P.C. 56.
(2) A.I.R. 1937 Cal.
447 houses being washed away, and settled themselves in other villages.
At the time of the suit they were residing in nine villages.
He further deposed that during the last ten or twelve years there were 600 bohanias and that their families increased, their present number being 846.
It is in evidence that since this evidence was given their number has gone up to 1500.
From the documentary evidence it appears that up to the year 1918 their number was not very large.
Only twelve persons were impleaded in the section 145, Criminal Procedure Code, proceedings and it was said that there were some more interested.
The maximum number given in one or two receipts is 174.
It is again not possible to hold that the fishermen residing in these villages are a corporate body and that being fishermen by profession it has the effect of incorpo rating them.
We find ourselves unable to subscribe to the view of the High Court that the defendants constitute some kind of a unit simply because they are a body having a common interest to fish in this fishery; unless the defend ants fishermen form a corporate body, or it is found that a trust was created for their benefit, such a body of persons could acquire no right by the doctrine of lost grant.
A right to fish from the fishery based on mere inhabitancy is capable of an increase almost indefinite and if the right exists in a body which might increase in number, it would necessarily lead to the destruction of the subject matter of the grant.
Moreover, there could not be a valid grant to a body so incapable of succession in any reasonable sense of the word so as to confer a right upon each succeeding inhab itant.
For the reasons given above, the defendants ' right to remain in possession of the fishery on the basis of a lost grant or on the basis of prescription or adverse possession stands negatived.
All that appears from the evidence is that a number of fishermen from time to time have been exercising the right of fishing with the leave and licence of some of the owners.
This is not sufficient for the acquisition of the right either by 448 adverse possession or by prescription.
Further, no finding can be given in their favour as the evidence does not estab lish that they have been paying uniformly the same amount of rent.
The next finding of the High Court that the landlords have lost their right to khas possession of the fishery in dispute by reason of the operation of article 47 of the Indian Limitation Act is, in our opinion, sound.
The High Court, however, was not right in holding that the order made in the section 145, Criminal Procedure Code, proceedings was not binding on the plaintiff to the extent of five pies share.
Its true scope and effect do not seem to have been fully appreciated.
The order appears to have been made after notice to all the landlords and was brought about by reason of the action of all of them and binds the full sixteen anna interest in the zamindari.
In clear and unambiguous terms the Magistrate declared that the second party were in exclu sive possession of the disputed fishery and that the land lords had no right to disturb their possession and they were directed to bring a suit to establish their right to posses sion.
This they failed to do with the result that the order became final and the right of the landlords to get into possession of the fishery became extinguished.
This order therefore affirmed the defendants ' possession of the fishery on payment of a certain rental.
This right, however, can only be exercised by those who were parties to the section 145, Criminal Procedure Code, proceedings or their succes sors in interest.
It was argued by the learned counsel for the appellant that the proceedings that took place in the year 1918 were in substance under section 147, Criminal Procedure Code, and were wrongly labelled under section 145 of the Code.
We are not able to accede to this contention because the dispute raised in the year 1918 related to possession of the fishery itself and was a dispute ,concern ing any water or the boundaries thereof in the language of section 145, Criminal Procedure Code.
Sub section 2 of section 145 provides that for the purpose of the section the expression "land or water" includes fisheries.
It 449 was then argued that in any case the benefit of the order made under section 145, Criminal Procedure Code, could only be taken by the persons in whose favour that order was made and that it could not operate for the benefit of all the 846 fishermen represented by the eighteen defendants or in favour of all fishermen who would come to reside in these nine villages in times to come.
In our opinion, this con tention has force and the High Court was in error in holding otherwise.
There is no evidence whatsoever to show that besides the twelve persons mentioned as second party in the section 145, Criminal Procedure Code, proceedings who else was represented by them and we are therefore bound to hold that the benefit of that order can only be given to those defendants who are represented by those twelve persons.
The learned counsel for the appellant gave us a list of the persons who were parties in section 145 proceedings and of those out of the defendants who stand in their shoes.
According to this list, defendants 1, 2, 3, 5, 6, 7, 9 and 12 are the persons who themselves or through their predeces sors in interest were parties in the former case and are entitled to the benefit of the result of those proceedings.
All the other defendants, whether impleaded personally in this suit or in a representative capacity, or those whom they represent, are not entitled to take advantage of those proceedings.
The result therefore is that the defendants above mentioned only are entitled to remain in possession of the fishery on payment of a rent of Rs. 135 7 0 per annum till it is enhanced in due course of law or for good cause they lose their right to remain in possession of the fish ery.
In an earlier litigation it has been decided that the right to possession of the fishery for fishing during Hilsa season is not assignable or transferable, it however can be enjoyed by the heirs and successors.
The contention that there has been a change in the course of the river and that the fishery now in dispute is not the same fishery which was in dispute in the proceedings of 1918 cannot be sustained.
We see no reason to differ from the view of the High Court 450 that the change in the course of the river has not in any way affected the defendants ' possession, as the channels, whether old or new, which comprise the Madhurdia or Chark hati fishery form one connected sheet of water.
It is well settled that the fish follow the course of the river and the fishermen follow the fish.
It was then argued that an exclusive right of fishing could not be acquired in respect of a particular kind of fish and during any particular season.
This argument is not tenable in view of section 145, Criminal Procedure Code, proceedings.
Moreover an exclusive right of fishing in a given place means that no other person has a coextensive right with the claimant of the right.
The mere fact that some other person has a right to a particular class of fish in the fishery or that another person is entitled to fish at a certain time of the year does not destroy the right of exclusive fishing in any manner (Vide Halsbury 's Laws of England, Hailsham Edn., Vol. 15, para. 59).
The result is that the appeal is allowed partially, the decree of the High Court is modified and the plaintiff 's suit for a declaration and injunction is decreed as follows: (i) It is declared that the plaintiff is entitled to fish in the disputed fishery except during the Hilsa season (Margasir to Baisakh) during which season defendants 1, 2, 3, 5, 6, 7, 9 and 12 have an exclusive right of fishing in the fishery in respect to Hilsa fish which right they can exercise either personally or with the help of other fisher men, on payment of a rent of Rs. 135 7 0 per year till it is enhanced in due course of law or for good cause they lose their right to remain in possession of the fishery; (ii) The defendants are restrained from interfering with his right of fishing during the months during which the defendants named above have not the exclusive right of fishing; (ii) That defendants other than defendants 1,2, 3, 5, 6, 7, 9 and 12 have no right of any kind whatsoever 451 in this fishery and cannot interfere with the plaintiff 's right.
In the circumstances of the case we will make no order as to costs of the appeal.
Appeal allowed in part.
| A right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant, there being no ascertainable grantees.
The doctrine of lost grant originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user and since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant.
Where all that appeared from the evidence was that the fishermen who were residents of certain villages had been for a long time exercising the right of fishing in certain rivers which flowed through a zemindari with the consent of some of the zemindars: Held, that the fishermen residing in these villages cannot be treated as a corporate body or a kind of unit in whose favour a lost grant could be presumed or who could acquire a right to fish either by adverse possession or by prescription.
Where, however, there were proceedings under section 145 of the Criminal Procedure Code between the zemindars and certain fishermen and the Magistrate found that the fisher men were in possession of the disputed fishery and he di rected the issue of an order declaring their possession until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction, and no steps were taken by the zemindars to set aside the order of the Magistrate within three years as required by article 47 of the Limitation Act: Held.
, that so far as the fisher men who were parties to the proceedings under section 145, the order of the Magistrate had become final and they were entitled to remain in possession of the fishery.
An exclusive right of fishing in a given place means that no other person has a co extensive right with the claimant of the right.
The mere fact that some other person has a right to a particular class of fish in the fishery or that another person is 56 432 entitled to fish at a certain time of the year does not destroy the right of exclusive fishing in any manner.
|
ppeal (Civil Appeal No. 57 of 1950) from a judgment and decree of the High Court of Judicature at Bombay dated 1st April, 1948, in Appeal No. :365 of 1947 reversing a judgment of the Joint Civil Judge at Ahmedabad, dated 14th October, 1947, in Suit No. 174 of 1945.
B. Somayya (Jindra Lal, with him) for the appel lants.
C.K. Daphtary (Sri Narain Andley, with him) for the respondents.
February 23.
The judgment of the Court was deliv ered by MAHAJAN J.
The appellants are owners of a property known as "Bharat Bhuvan Theatre" at Ahmedabad.
The respond ents are the lessees of the said theatre.
The term of the lease was to expire on the 2nd 222 December, 1945, unless the lessees gave to the land lords three months previous notice in writing of their intention of exercising their option of renewal of the lease for a further period of two years.
On the 13th December, 1945, the appellants filed the suit out of which this appeal arises for ejectment of the respondents and for recovery of certain amounts.
This suit was decreed on the 14th October, 1947, on the following findings: (1) that the respondents had not exercised the option of the renewal of the lease according to the stipulations contained in the lease, (2) that they had committed breaches of the terms of the lease, and (3) that they were not protected by the Rent Restriction Act.
An enquiry was directed into the amount of mesne prof its.
The respondents filed an append in the High Court against the decree of the Joint Civil Judge on the 10th November, 1947.
The appeal was heard by a Bench of the High Court (Weston and Dixit JJ.) on the 26th February, 1948, and was decided on the 1st April, 1948.
The judgment and decree of the Joint Civil Judge were reversed and the plaintiff 's suit was dismissed.
The High Court affirmed the finding of the trial court on the first point and held in agreement with it that the respondents had not proved that they gave three months previous notice in writing to the appellants for renewal of the lease as required by clause 4 (2) of the lease.
It reversed the finding of the trial Judge on the point that the respondents had committed breaches of the terms contained in clause 2 (20) of the lease.
Finally, it reached the conclusion that although the decree appealed from was right on the date it was made, yet in view of the altered circumstances created by reason of coming into operation of Act LVII of 1947 the appellants were not enti tled to recovery of possession of the suit premises.
Being aggrieved by the judgment of the High Court, the appellants obtained a certificate and filed an appeal in this court on the 7th March, 1949, and it is now before us for decision.
It was contended before the High Court that the appeal being in the nature of a rehearing, it should be 223 decided in accordance with the provisions of Act LVII of 1947 which came into force on the 13th February, 1948, and not in accordance with the provisions of the Act in force at the time when the decree was passed by the trial court.
In other words, the contention was that there having been a change in the law after the date of the decree passed by the trial Judge and before the appeal was heard, the rights of the parties should be determined in accordance with the law as it stood on the date of the hearing of the appeal.
The High Court gave effect to this contention and set aside the decree made for ejectment of the respondents.
Learned counsel for the appellants challenged the deci sion of the High Court before us on three grounds: (1) that assuming that the appeal had to be decided by the High Court in accordance with the provisions of Act LVII of 1947, the provisions of that Act had no application to pending ap peals which had been excluded from its ambit; (9,)that Act LVII of 1947 had been amended by Bombay Act III of 1949 and that the appeal pending in this court should be decided in accordance with the provisions of the amended Act which excluded pending appeals from the purview of Act LVII of 1947; and (3) that the High Court wrongly reversed the trial court 's finding that the respondents had committed breaches of the terms contained in clause 2 (20) of the lease.
The learned counsel for the respondents besides controverting the contentions raised on behalf of the appellants contended that both the courts had erred in holding that the respondents had not proved that they exer cised the option of renewal of the lease according to the stipulations contained therein.
In our opinion, the decision of the appeal depends solely on the construction of sections 12 and 50 of Act LVII of 1947.
The question to decide is whether the Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, which was enacted on the 19th January, 1948, and which came into force on the 13th February, 1948, has applica tion to 29 224 pending appeals or whether its retrospective effect is limited to cases mentioned in section 50 of the Act.
The point whether the option of renewal was exercised according to the covenants of the lease is concluded by a concurrent finding of fact and nothing that Mr. Daphthary said in support of his contention in any way shakes that finding.
The case must therefore be decided on the assump tion that the respondents did not exercise the option given to them under the lease for its renewal.
We are also not impressed with the argument of the learned counsel for the appellants that the High Court wrongly reversed the finding of the trial Judge on the point that the respondents commit ted breaches of the terms of the tease.
We should not howev er be taken to concur in all the reasons given by the High Court for reversing that finding.
Whether the High Court was right in holding that the provisions of Act LVII of 1947 have application to appeals pending at the time when that Act came into force; the answer to this question depends on the construction to be placed on sections 12 and 50 of Act LVII of 1947.
Section 12 of the Act is in these terms: " (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.
(2) No suit for recovery of possession shall be insti tuted by a landlord against a tenant on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the .
(3) No decree for eviction shall be passed in any such suit if, at the hearing.
of the suit, the tenant pays or tenders in court the standard rent or permitted increases then due together with the costs of the suit.
225 Explanation In any case where there is a dispute as to the amount of standard rent or permitted increases recovera ble under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the court under sub section (3) of section 11 and thereafter pays or tenders the amount or rent or permitted increases specified in the order made by the court.
" This is the substantive section giving protection to the tenant against ejectment.
Section 50 which occurs in dealing with miscellaneous matters is the repeal section.
It repeals the Act of 1939 and the Act of 1944, and while repealing these statutes it provides as follows: "Provided that all suits and proceedings (other than execution proceedings and appeals) between a landlord and a tenant relating to the recovery or fixing of rent or posses sion of any premises to which the provisions of apply and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for, or possession of, the accommodation provided in a hotel or lodging house situate in an area to which applies, which are pending in any Court, shall be transferred to and continued before the courts which would have jurisdiction to try such suits or proceed ings under this Act, and thereupon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings.
Provided further that (a) every order passed or act done by the Control lers under of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, and every order or act deemed to have been passed or done under that Part shall be deemed to have been passed or done under this Act; and (b) all proceedings pending before the Controllers under Part IV of that Act shall be transferred to and continued before the Controllers appointed under this 226 Act as if they were proceedings instituted before the Con trollers under this Act" The High Court held that section 50 merely provided for transfer of pending suits and proceedings to courts given jurisdiction under the Act to hear them and that from its ambit execution proceedings and appeals were excluded be cause no question could arise of their being transferred from one court to another and that an appeal being a contin uation of the suit and in the nature of a re hearing, the provisions of section 12 should be applied to pending ap peals.
The opinion expressed by the Division Bench on the construction of sections 12 and 50 of the Act was questioned in Nilkanth vs Rasiklal (J), and the matter was referred to a Full Bench.
The Full Bench overruled the decision reached by the Division Bench on the construction of section 50 and observed that it was clear that in terms the provi sions of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are trans ferred under the provisions of this section and that its retrospective effect is confined to what is expressly stated in section 50 of the Act.
We are in respectful agreement with the view expressed by the Full Bench.
On a plain reading of the language of sections 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed.
The concluding words of section 50 "and there upon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings" fully bear out this construction.
Mr. Daphthary contended that the whole object of section 50 was to make provision for transfer of pending cases to courts which were given jurisdiction under the Act to hear them and the section did not concern itself with the extent of the retrospective operation of the Act, and that section 12 of the Act which gives protection to tenants should (1) A. I. R. 227 be construed as having retrospective effect.
In our opinion this contention is not sound.
Section 50 cannot be de scribed as a section providing merely for transfer of pend ing cases to courts having jurisdiction to deal with them.
It is on the other hand a" repeal" section in the new stat ute.
It repeals the two earlier statutes, and while repeal ing them it provides that the repeal shall not affect "executions and appeals" and that the provisions of the Act shall apply to all pending suits which shall be transferred to the courts having jurisdiction to hear them under section 28 of the Act.
We are also inclined to agree with the view of the Full Bench that section 12 is in terms prospective and not retrospective.
Sub section (2) clearly relates to suits which may be instituted after the Act comes into force.
It cannot apply to suits which were already pending when the Act was put on the statute book.
Sub section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states "in such suit" and not "in any suit".
"Such suit" can only be a suit referred to in subsec tions (2) and (3) of section 12.
The result therefore is that, in our opinion, the High Court erroneously applied the provisions of Act LVII of 1947 to the appeal in this case and was wrong in allowing it on that basis.
In this view of the case it is unnecessary to deal with the alternative argument of the learned counsel that this appeal should be decided in accordance with the provisions of Act III of 1949.
We accordingly set aside the decree of the High Court dismissing the plaintiff 's suit and restore the decree of the trial Judge decreeing the plain tiff 's suit with costs.
Appeal allowed.
| The Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, which came into force on the 13th Febru ary, 1948, has no application to appeals which were pending at the time when the Act came into force.
Its retrospective effect is limited to cases mentioned in section 50 of the Act, that is to say, to suits and proceedings which were trans ferred under the provisions of the said section to the courts having jurisdiction under the Act.
Section 12 of the said Act is in terms prospective and not retrospective in effect.
Sub section (2) relates to suits which may be instituted after the Act comes into force and sub section
(3) also only applies to such suits.
Nilkanth vs Rasiklal (A.I.R. approved.
|
21, 22 and 44 of 1951.
(1) ; (3) ; (2) ; , (4) 453 Applications under article 32 of the Constitution praying for the issue of writs in the nature of habeas corpus.
Hardayal Hardy for the petitioners in Petitions Nos. 21 and 22 Gopal Singh for the petitioner in Petition No. 44.
S.M. Sikri for the respondents.
April 6.
The following judgments were deliv ered.
PATANJALI SASTRI J. These three petitions have been pre sented to this Court under article 32 of the Constitution of India praying for the issue of writs in the nature of habeas corpus for release of the petitioners who are respectively the President, VicePresident and Secretary of the Hindu Mahasabha of the Delhi State.
The petitioners were arrested on 22nd August, 1950, by order of the District Magistrate, Delhi, made under sub section (2) read with clause (a) sub clause (i) of sub section (1) of section 3 of the (hereinafter referred to as the Act).
The order ran as follows: "Whereas I, Rameshwar Dayal, District Magistrate, Delhi, am satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so, I, Rameshwar Dayal, District Magistrate, Delhi, hereby order the detention of . . under sub section (2) of section 3 (1) (a) (ii) of the .
Given under my seal and signature".
The grounds of detention communicated to the petitioners were in identical terms, save as to the dates on which the speeches were said to have been made, and read thus: "In pursuance of section 7 of the you are hereby informed that the grounds on which the detention order dated 22nd August, 1950, has been made against you are that your speeches generally in the past and particularly on .
August, 454 1950, at public meetings in Delhi has been such as to excite disaffection between Hindus and Muslims and thereby preju dice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is neces sary to make the said order".
The petitioners applied to the High Court at Simla for similar relief under article 226 of the Constitution, but the petitions were dismissed.
It appears to have been con tended before the learned Judges (Khosla and Falshaw JJ.) who heard those petitions that although this Court held in A.K. Gopalan vs The State of Madras (1) that the provisions of section 3 of the Act were constitutional and valid, detention under that section was ultra vires and illegal where, as here, it was based on the ground of making speech es prejudicial to the security of the State or the mainte nance of public order.
This was said to be the result of the later pronouncements of this Court in Brij Bhushan and Another vs The State of Delhi (2) and Romesh Thappar vs The State of Madras (3).
This contention was rejected on the ground that no such proviso could be read into section 3 on the strength of the later decisions referred to above which related to a different point, viz., the scope of authorised restrictions on the right to freedom of speech conferred by article 19 (1).
Falshaw J. (with whom Khosla J. concurred), proceeded, however, to draw attention to what he conceived to be an ' 'anomaly ' ' while a State Government should not be allowed to interfere with the freedom of the press by way of stopping the circulation of newspapers or by pre censor ship of news, the Government should, for the same object, be entitled to place a person under preventive detention which is "even greater restriction on personal liberty than any restriction on a newspaper ever could be".
This distinction appeared to the learned Judge to be illogical, and he thought that there was "an apparent conflict" between the decisions of this Court in Gopalan 's case (1) and the other cases, which could only be resolved by this Court.
"It (1) ; (3) ; , (2) ; 455 would be well" the learned Judge concluded "if the point were raised in this form at an early date in the Supreme Court".
No wonder that, after this encouragement, the peti tioners have preferred these petitions raising the same contention before us.
On behalf of the petitioners Mr. Hardy submitted that the provisions of the Act should not be used to prevent a citizen from making speeches though they might be considered to be prejudicial to the maintenance of public order, for maintenance of public order is not a purpose for which imposition of a restriction on freedom of speech is authorised by the Constitution, as held by this Court in the Cross roads(1) and the Organizer(2) cases.
It is true that in those cases this Court decided by a majority of 5 to 1 that "unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it such law cannot fall within the reservation of clause (2) of article 19 although the restrictions which it seeks to impose may have been conceived generally in the interests of public order".
But it will be noticed that the Statutory provi sions which were there declared void and unconstitutional authorised the imposition, in the one case, of a ban on the circulation of a newspaper and, in the other, of pre censor ship on the publication of a journal.
No question arose of depriving any person of his personal liberty by detaining him in custody, whereas here, as in Gopalan 's case(s), the Court is called upon to adjudge the legality of the deten tion of the petitioners with a view to prevent them from making speeches prejudicial to the maintenance of public order Although personal liberty has a content sufficiently comprehensive to include the freedoms enumerated in article 19 (1), and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in article 19 and articles 21 and 22 as to the limitations and conditions subject to which (1) ; (3) ; (2) ; 59 456 alone they could be taken away or abridged.
The interpreta tion of these articles and their correlation were elaborate ly dealt with by the full Court in Gopalan 's case(1).
The question arose whether section 3 of the Act was a law impos ing restrictions on "the right to move freely throughout the territory of India" guaranteed under article 19 (1) (d) and, as such, was liable to be tested with reference to its reasonableness under clause (5) of that article.
It was decided by a majority of 5 to 1 that a law which authorises deprivation of personal liberty did not fall within the purview of article 19 and its validity was not to be judged by the criteria indicated in that article but depended on its compliance with the requirements of articles 21 and 22, and as section 3 satisfied those requirements, it was con stitutional.
If the learned Judges in the High Court had paid close attention to the judgments delivered in this Court, they would have found that there was nothing illogi cal in that view and no conflict between the decisions in that case and in the other cases to which reference has been made.
The observations of the Chief Justice in Gopalan 's case(1) make the position quite clear: " As the preventive detention order results in the deten tion of the applicant in a cell it was contended on his behalf that the rights specified in article 19 (1) (a), (b), (c), (d), (e), and (g)have been infringed.
It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub clauses (b), (c), (d), (e) and (g).
Although this argument is advanced in a case which deals with preventive detention, if correct, it should be applicable in the case of punitive detention also, to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code.
So considered, the argument must clearly be rejected.
In spite of the saving clauses (2) to (6), permit ting abridgement of the rights connected with each of them, punitive detention under several sections of the Penal Code, e.g., for theft, cheating, forgery and even (1) ; 457 ordinary assault, will be illegal.
Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided.
In my opinion, such result is clearly not the outcome of the Constitution.
The article has to be read without any preconceived notions.
So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub clauses.
If there is a legislation directly attempting to control a citizen 's freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise.
If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive deten tion, his right under any of these sub clauses is abridged, the question of the application of article 19 does not arise.
The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu 's life.
On that short ground, in my opinion, this argument about the infringement of the rights mentioned in article 19 (1) generally must fail.
Any other construction put on the article, it seems to me, will be unreasonable.
"(1) Similar conclusions expressed by the other learned Judges will be found at pages 194, 229, 256 and 305.
It follows that the petitions now before us are governed by the decision in Gopalan 's case(1), notwithstanding that the petitioners ' right under article 19 (1)(a) is abridged as a result of their detention under the Act.
The anomaly, if anomaly there be in the resulting position, is inherent in the structure and language of the relevant articles, whose meaning and effect as expounded by this Court by an over whelming majority in the cases referred to above must now be taken to be settled law, and courts in this country will be serving no useful purpose by discovering supposed conflicts and illogicalities and recommending parties to re agitate the points thus settled.
(1) ; , 100 101.
458 Mr. Hardy next contended that, in view of the recent decision of this Court in The State of Bombay vs Atma Ram Sridhar Vaidya(1), the grounds of detention communicated to each of the petitioners must be held to be too vague and indefinite to enable them to make their "representations" to the Chief Commissioner, Delhi, and the requirements of clause (5)of article 22 not having thus been complied with, the petitioners were entitled to be set at liberty.
Accord ing to Mr. Hardy it was not sufficient that the time and place of the alleged speeches and their general effect were indicated, but it was also necessary that the offending passages or at least the gist of them should be communicated in order to enable the petitioners to make effective repre sentations.
In the case relied on, this Court, no doubt, held by a majority that, though the first part of article 22 (s), which casts an obligation on the detaining authority to communicate the grounds of the order of detention would be sufficiently complied with if the" deductions or conclusions of facts from facts" on which the order was based were disclosed, the latter part of the clause, which confers on the person detained the right of making a "representation" against the order, imposed, by necessary implication, a duty on the authority to furnish the person with further particu lars to enable him to make his representation.
It was further held that the sufficiency of this "second communica tion" of particulars was a justiciable issue, the test being whether "it is sufficient to enable the detained person to make a representation which, on being considered, may give relief to the detained person.
" While the communication of particulars should, subject to a claim of privilege under clause (6), be" as full and adequate as the circumstances permit", it did not, however, follow from clause (6) that "what is not stated or considered to be withheld on that ground must be disclosed and if not disclosed there is a breach of a fundamental right.
A wide latitude is left to the authorities in the matter of disclosure." Referring to the use of the term (1) ; 459 "vague" in this connection,.
it was remarked: "If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention, it cannot be called vague" This decision does not, in our opinion, support the broad proposition contended for by Mr. Hardy that wherever an order of detention is based upon speeches made by the person sought to be detained, the detaining authority should communicate to the person the offending passages or at least the gist of such passages on pain of having the order quashed if it did not.
In the cases now before us the time and place at which the speeches were alleged to have been made were specified and their general nature and effect (being such as to excite disaffection between Hindus and Muslims) was also stated.
It is difficult to see how the communication of particular passages or their substance one of the petitioners denied having made any speech on the day specified was necessary in addition to the particulars already given, to enable the petitioners to make their representations.
It should be remembered in this connection that the Court is not called upon in this class of cases to judge whether or not the speech or speeches in question constituted a prejudicial act falling within the purview of section 3 of the Act as it is called upon in prosecutions for offences under section 124A or section 153A of the Indian Penal Code to find whether the speech attributed to the accused person constituted an offence under those sec tions.
That is a matter for the detaining authority to be satisfied about.
Nor do these cases belong to the category where a reference had to be made to the Advisory Board under the Act, so that any attempt by the petitioners to rebut the inference drawn by the detaining authority from their speeches had to be made only before the executive authori ties.
In such circumstances the suggestion that without the communication of the offending passages or their substance the petitioners were not in a position to make their repre sentations 460 to the executive authorities sounds unreal and is devoid of substance.
It may be possible to conceive of peculiar situations where perhaps the person detained on ground of prejudicial speeches might be in a better position to make a representation if he was given the objectionable passages or the gist of them, but the present cases are not of such peculiar character.
On the other hand, cases have come before this Court where speeches were alleged to have been made after midnight at secret gatherings of kisans and workers inciting them to violence, crime and disorder.
Such allegations could only be based in most cases on information received by the executive authorities from confidential sources and it would not be practicable in all such cases to have a record made of the speeches delivered.
To hold that article 22 (5) requires that, wherever detention is grounded on alleged prejudicial speeches, the detaining authority should indicate to the person detained the passages which it regards as objectionable would rob the provisions of the Act of much of their usefulness in the very class of cases where those provisions were doubtless primarily intended to be used and where their use would be most legitimate.
In the case of these petitioners, no doubt, the speeches are said to have been made at public meetings, and it is not suggest ed on behalf of the respondents that no record was made of the speeches, so that the details asked for could have been furnished.
The omission to do so, for which no reason is disclosed in these proceedings, is regrettable, as it has given rise to avoidable grievance and complaint.
The au thorities who feel impelled in discharge of their duty to issue orders of detention will do well to bear in mind the following remarks of the Chief Justice in the case referred to above: "In numerous cases that have been brought to our notice, we have found that there has been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order.
Instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number 461 of words in the communication conveying the grounds of detention.
In our opinion, this attitude is quite deplora ble".
This, however, does not affect our conclusion in these cases that the grounds communicated to the petitioners contain sufficient particulars to enable them to make their representations to the authority concerned, and that the requirements of article 22 (5) have thus been complied with.
It is also urged that the orders of detention were bad because they did not specify the period during which the petitioners were to be under detention.
This point is now concluded against the petitioners by the decision of this Court in Ujager Singh vs The State of Punjab (1) and Jagjit Singh vs The State of Punjab (2) where it was pointed out that as section 12 of the Act itself prescribed a maximum period of one year for detention thereunder, such orders could not be said to be of indefinite duration and unlawful on that ground.
Lastly, it was said that the petitioners were prominent members of a political organisation which was opposed to the ideals and policies of the party in power, and that the orders of detention were made "for the collateral purpose of stifling effective political opposition and legitimate criticism of the policies pursued by the Congress Party and had nothing to do with the maintenance of public order".
Allegations of mala fide conduct are easy to make but not always as easy to prove.
The District Magistrate has, in his affidavit filed in these proceedings, stated that, from the materials placed before him by persons experienced in investigating matters of this kind, he was satisfied that it was necessary to detain the petitioners with a view to preventing them from acting in a manner prejudicial to the maintenance of public order, and he has emphatically repudi ated the purpose and motive imputed to him.
We have thus allegations on the one side and denial on the other, and the petitioners made no attempt to discharge the burden, which undoubtedly lay upon them, to prove that the District (1) Petition No. 149 of 1950.
(2) Petition No. 167 of 1950.
462 Magistrate acted mala fide in issuing the orders of deten tion.
The petitions are dismissed.
MAHAJAN J.
These three petitions under article 82 of the Constitution of India were presented by Prof. Ram Singh, Bal Raj Khanna and Ram Nath Kalia, all three of whom were arrested and placed in detention on the 22nd August, 1950, under the orders of the District Magistrate of Delhi, under the .
The petitioners are respectively, the President, Vice President and the Secre tary of the Delhi State Hindu Mahasabha.
The grounds of detention supplied to them are almost identical.
Those furnished to Prof. Ram Singh read as follows : "In pursuance of section 7 of the , you are hereby informed that the grounds on which the detention order dated August 22, 1950, has been made against you are that your speeches generally in the past and partic ularly on the 13th and 15th August, 1950, at public meetings in Delhi have been such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order.
You are further informed that you are entitled to make a representation against your detention to the State Govern ment, that is, the Chief Commissioner, Delhi.
" The grounds supplied to the other two petitioners were the same except that in the case of Bal Raj Khanna only the 15th August, 1950, is mentioned as the date on which the public speech was made, and in the case of the third petitioner, it is only the 13 th August, 1950.
Mr. Hardy on behalf of the petitioners.
inter alia urged that the grounds served on the petitioners as justifying the orders of detention are quite indefinite and are not suffi cient to enable them to make an effective representation to the State Government against 463 their detention and that being so, their detention is ille gal.
An affidavit of the District Magistrate was placed before us at the hearing of the cases stating that he was satisfied that the petitioners ' speeches generally, and particularly those made on the 13th and 15th August, 1950, at public meetings in Delhi had been such as to excite disaffection between Hindus and Muslims.
No particulars of the offending words or passages or any indication of the nature of the language employed by the petitioners was mentioned either in the grounds or in this affidavit.
Reference was made to two speeches of the 13th and 15th in the case of the first petitioner and to only one speech delivered on the 13th and 15th respectively by the other two.
So far as the earlier speeches are concerned, it is not even stated on what occasions, on what dates and during what years were those speeches made or delivered.
After a refer ence to the dates of the two speeches, the conclusion drawn by the District Magistrate has been mentioned.
The question for decision is whether what is stated in the grounds is sufficient material on the basis of which the fundamental right conferred on the petitioners by article 22 (5) of the Constitution can be adequately exercised and whether without knowing the substance of the offending passages in the speeches from which the inference has been drawn by the District Magistrate it is possible to prove that this infer ence is not justified.
After considerable thought I have reached the decision that these cases fall within the ambit of the decision of this Court in The State of Bombay vs Atma Ram Shridhar Vaidya (1).
In that case certain general principles ap plicable to cases of this nature were stated by the learned Chief Justice, who delivered the majority judgment, in the following terms: (1) That if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must (1) ; 60 464 be sufficient to attain that object.
Without getting infor mation sufficient to make a representation against the order of detention it is not possible for the man to make the representation.
Indeed, the right will be only illusory but not a real right at all.
(2) That while there is a connection between the obliga tion on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different.
For the first, the test is whether it is sufficient to satisfy the authority.
For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earli est opportunity.
On an infringement of either of these two rights the detained person has a right to approach the court and to complain that there has been an infringement of a fundamental right and even if the infringement of the second part of the right under article 22(5) is established he is bound to be released by the court.
(3) That it cannot be disputed that the representation mentioned in the second part of article 22(5) must be one which on being considered may give relief to the detaining person.
It was pointed out that in the numerous cases that had been brought to the notice of the court it was found that there had been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order, and that instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number of words in the communication conveying the grounds of detention and that such an attitude was quite deplorable.
In my opinion, these observations have an apposite application to the grounds furnished to the petitioners in the present cases.
The speeches alleged to have been made by the petitioners were made in public meetings and could not be described as of a confidential nature and no privi lege in respect of them was 465 claimed under article 22 (6) of the Constitution.
That being so, the material on the basis of which the District Magistrate drew the inference that these speeches would cause or were likely to cause disaffection amongst Hindus and Muslims should have been communicated to the petitioners so that they may be able to make a representation, which on being considered may give relief to them.
For that purpose either the words used by them or the substance of the speeches should have been communicated to the detenus so that they may be able to prove that such words or passages never formed part of the speeches and have been introduced in them as a result of some error or that no reasonable person could draw an inference from them that those were likely to cause hatred and enmity between the two communi ties.
The sufficiency of the material supplied is a justi ciable issue, though the sufficiency of the grounds on which the detaining authority made up his mind is not a justicia ble issue.
In my opinion, in the absence of any indication in the grounds as to the nature of the words used by the detenus in their speeches from which an inference has been drawn against them they would not be able fully to exercise their fundamental right of making a representation and would not be able to furnish a proper defence to the charge made against them.
Envisaging oneself in the position of a person asked to draw out a written representation on behalf of the detenus on the materials supplied to them, the effort could not proceed beyond a bare denial of the speeches having been made, or a bald statement that no words were used which could possibly excite disaffection between Hindus and Mus lims.
Such a representation would be an idle formality inasmuch as mere denials without any cogent arguments to support them would convince nobody.
Without a knowledge of the offending words or passages, or their substance, it is not possible to argue that the inference drawn is not a legitimate one or to allege that the words used fall within the ambit of legitimate criticism permissible in law and cannot be considered to excite disaffection 466 amongst Hindus and Muslims.
The phraseology employed by the detaining authority in the charge sheet supplied to the detenus seems to have been borrowed from the language used in sections 124A and 153A of the Indian Penal Code.
Judicial literature abounds in cases where words and passages likely to cause disaffection between Hindus and Muslims or which have that effect have been considered and discussed.
In the words objected to were known, the representation on behalf of the detenus could easily have been drawn up with the help of judicial precedents and reasoning considered good in those cases.
Again, without knowing the substance of the offending words from which the inference has been drawn by the detaining authority it is not even possible to urge that these words were merely a quotation from some known author or that the words used fall within legitimate religious propaganda permitted by article 25 of the Constitution or concern the propagation of some political creed to which no objection could be taken.
As regards the two speeches alleged to have been given by the detenus, if the allegation that they were such as to excite disaffection between Hindus and Muslims is correct, the detenus were guilty of the offence under section 153A of the Indian Penal Code and could not only have been punished for the offence under that section but could also have been kept out of harm 's way for the future by that procedure.
A charge sheet under that section or in a trial under section 124A which uses analo gous language would have been defective if it did not men tion the substance of the speeches alleged to have been made by the person charged.
[Vide Chint Ram vs Emperor (1); Chidambaram Pillai vs Emperor(2); Mylapore Krishnaswami vs Emperor(3).] In some of these cases the charge was in substance similar to the charge here.
If a charge in an open trial for an offence under these sections is defective without the substance of the words used or the passages being cited therein, a fortiori, the material supplied in a preventive (1) A.I.R. 1931 Lah. 186.
(3) I.L.R. (2) I.L.R. 467 detention case on a similar charge should be regarded as insufficient when a man has not even a right of being heard in person and has merely to defend himself by means of a written representation.
It has to be remembered in this connection that the phrase "excite disaffection amongst Hindus and Muslims" is of a very general nature and an inference of this kind may easily have been drawn on materi al which would not warrant such an inference.
No reason whatsoever has been stated in the affidavit of the District Magistrate for not disclosing the words used by the detenus even after 'this length of time and from which he drew the conclusions on the basis of which he has kept the petition ers under detention for a period well over six months or more.
For the reasons given above I venture to dissent from the opinion of the majority of the Court with great respect and hold that the detention orders above mentioned are illegal.
I accordingly order the release of the petition ers.
On the other points argued in the case I agree with judgment of Sastri J. BOSE J.
I agree with my brother Mahajan whose judgment I have had the advantage of reading, and with the utmost respect find myself unable to accept the majority view.
I am of opinion that these petitioners should all be released on the ground that their detentions are illegal.
I do not doubt the right of Parliament and of the execu tive to place restrictions upon a man 's freedom.
I fully agree that the fundamental rights conferred by the Constitu tion are not absolute.
They are limited.
In some cases the limitations are imposed by the Constitution itself.
In others, Parliament has been given the power to impose fur ther restrictions and in doing so to confer authority on the executive to carry its purpose into effect.
But in every case it is the rights which are fundamental, not the limita tions; and 'it is the duty of this Court and of all courts in the land to guard and defend these rights jealously.
It is our duty and privilege to see that rights which were 468 intended to be fundamental are kept fundamental and to see that neither Parliament nor the executive exceed the bounds within which they are confined by the Constitution when given the power to impose a restricted set of fetters on these freedoms; and in the case of the executive, to see further that it does not travel beyond the powers conferred by Parliament.
We are here to preserve intact for the peo ples of India the freedoms which have now been guaranteed to them and which they have learned through the years to cher ish, to the very fullest extent of the guarantee, and to ensure that they are not whittled away or brought to nought either by Parliamentary legislation or by executive action.
It is the right to personal freedom which is affected here: what the Constitution calls the "right to move freely throughout the territory of India.
" Now I do not for a moment deny the right of Parliament to place limitations upon that right and to do it by preventive detention.
Much as all freedom loving persons abhor the thought of locking men and women up without trial and keeping them behind bars indefinitely, the regrettable necessity to do so is to my mind undoubted.
The safety of the State, which is para mount, requires it and, in any event, the Constitution allows it but and this is important subject to limita tions.
So far as the Constitution is concerned, it has given Parliament the power to legislate on this subject by article 246 read with item 9 of List I of the 7th Schedule and item a in List III, and I have no doubt that the legislation sought to be impugned here is intra vires.
But I am unable to hold that the executive action taken in these cases on the strength of that legislation is within the law.
The executive has no power to detain except within the four corners of the Constitution and the Act now challenged.
In my, opinion, it has not kept itself within those limits.
The provisions of the Constitution relevant to the present purpose have been examined by this Court in previous cases and I have neither the right nor the desire to go behind them.
My brother Mahajan has 469 set out his view of the law which these cases have settled.
I respectfully agree with him and will not cover the same ground.
But I do wish to say this.
I am not prepared to place any narrow or stilted construction either upon the Constitution or upon the decisions of this Court which have so far interpreted it.
If it were permissible to go behind file Constitution and enquire into the reason for the provi sions dealing with the fundamental rights, one would find them bound up with the history of the fight for personal freedom in this land.
But that is not permissible and is irrelevant.
What does matter is that the right to personal freedom has been made fundamental and that the power even of Parliament itself to hedge it round with fetters is "cribbed, cabined and confined".
I conceive it to be our duty to give the fullest effect to every syllable in the Articles dealing with these rights.
I do not mean to say that any impossible or extravagant construction should be employed such as would make the position of Government impossible or intolerable.
But I do insist that they should be interpreted in a broad and liberal sense so as to bring out in the fullest measure the purpose which the framers of the Constitution had in mind as gathered from the language they used and the spirit their words convey, namely to confer the fullest possible degree of personal liberty upon the subject consistent with the safety and welfare of the State.
My Lord the Chief Justice has pointed out in The State of Bombay vs Atma Ram Shridhar Vaidya (1) that the information supplied to the detenu must be sufficient to enable him to meet the charges contained in the grounds given to him.
and that without that the right would be illusory.
Are the present cases covered by that rule ? I do not think they are.
Put at their highest, the grounds set out the date and place of the meetings at which the speeches complained of are said to have been made and they do no more than say that they were.
(1) ; 470 "such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi.
" I have no quarrel with the details regarding the date and place but I do not consider that the portion relating to the nature of the speeches fulfils the requirements which have been laid down by this Court regarding particulars.
Now I fully agree that each case will have to be decided on its own facts so far as this is concerned.
But when weighing the circumstances this must be borne in mind.
The detenu has no right of personal appearance before the Advisory Board or other revising authority, nor can he be represented by counsel.
The Board or other authority can deal with his representation without hearing him or anyone on his behalf.
Therefore, his only hope of being able to convince the Board lies in the explanation he offers.
But how can anyone give a fair explanation of his conduct unless he is told with reasonable plainness what he has done, and in the case of a speech, the words used are everything.
They have been called "verbal acts" in another connection.
Now I take it to be established that Government is bound to give a detenu rea sonable particulars of the acts complained of when conduct is in question.
Why should a different rule obtain when the acts complained of are verbal ? It was contended in the argument that the man who makes the speech is in a position to know what he said and so is not at a disadvantage.
But that, in my opinion, is not the point.
He may know what he said but he cannot know what the authorities think he said unless they give him some reasona ble inkling of what is in their minds.
It has to be remem bered that what the Advisory Board has before it is not necessarily the words employed or even ' their substance but what the authorities say the man said.
This has to be viewed from two angles.
The first is whether the reports handed in to the authorities are Correct.
Even with the utmost good faith mistakes do 471 occur and it is quite easy for a reporter to get his notes mixed and to attribute to A what was said by B. But unless A knows that is what happened, it would be very difficult for him to envisage such a contingency and give the necessary explanation of fact in his representation.
The next point is this.
When a man ,is told that his speech excited disaffection and so forth, he is being given the final conclusion reached by some other mind or minds from a set of facts which are not disclosed to him.
If the premises on which the conclusion is based are faulty, the conclusion will be wrong.
But even if the premises are correct, the process of reasoning may be at fault.
In either event, no representation of value can be made without a reasonably adequate knowledge of the premises.
Envisage for a moment the position of the Board.
In the ordinary course, it would have before it a speech with the offending passages in full, or at any rate the gist of them.
From the other side it would have a bare denial, for that is about all a detenu can say in answer to the grounds given to him when he is not told the premises on which the conclusion is based.
In most cases, that sort of representation would have very little value.
Consider this illustration.
Let us assume the detenu had spoken about Hindus and Muslims but had urged unity and amity and had said nothing objectionable but that unknown to him the police, through a perfectly bona fide mistake, had imputed to him certain offensive words used by another speaker.
What would be the value of a detenu saying "I said nothing objectionable" and that is almost all he can say in such a case.
He cannot envisage the mistake and say, "Oh yes, that was said, but not by me.
It was said by A or B." Consider a second illustration where the detenu had quoted a well known living authority.
I can conceive of cases where words in the mouth of A might be considered objectionable by some but would never be condem ned in the mouth of B. It might make a world of difference to 472 the detenu if he could explain the source of the passages complained of in his speech.
But it might be very difficult for him to envisage the possibility of objection being taken to anything coming from the source from which he quoted.
I am anxious not to be technical and I would be averse to an interpretation which would unnecessarily embarrass Government, but I do conceive it to be our duty to give a construction which, while falling strictly within the ambit of the language used, is yet liberal and reasonable, just to the detenu, fair to the Government.
And after all, what does a construction such as I seek to make import ? It places no great or impossible strain on the machinery of Government.
All that is required is that the authorities should bestow on the cases of these detenus a very small fraction of the thought, time and energy which the law compels in the case of even the meanest criminal who is arraigned before the Courts of this country.
The fact that there is absent in the case of these persons all the usual safeguards, the glare of publicity, the right to know with precision the charge against him, the right to speak in his own defence, is all the more reason why Government should be thoughtful, considerate and kind and should give them the maximum help.
In any case, that, in my opinion, is what the Constitution requires and I am not prepared to abate one jot or tittle of its rigours.
My attention has been drawn to two decisions of this Court which are said to be on all fours with the present case.
One is Vaidya 's case (1) and the other Lahiri 's (2).
In the latter, the point whether the gist of the speech should be given was not considered.
It seemed to have been assumed that it need not.
But I am unable to accept that as authority for anything beyond the fact that was not consid ered necessary on the facts and in the circumstances of that particular case.
As my Lord the Chief Justice pointed out in the earlier decision cited above, the question of (1) ; (2) Not reported, 473 what is vague "must vary according to the circumstances of each case.
" It was also said there that "the conferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds, i.e., mate rials on which the detention order was made.
" It was further said "Ordinarily, the 'grounds ' in the sense of conclusions drawn by the authorities will indicate the kind of prejudi cial act the detenu is suspected of being engaged in and that will be sufficient to enable him to make a representa tion setting out his innocent activities to dispel the suspicion against him." This envisages cases in which that would not be enough.
It is therefore sufficient for me to say that in a case of this kind, where the matter has to turn on the facts and circumstances of each case, no useful purpose can be served by examining the facts of some other case for use as an analogy.
In my opinion, on the facts and circumstances of the present cases, the grounds supplied were insufficient and the gist of the offending passages should have been supplied.
The omission to do so invalidates the detention and each of the detenus is entitled to immediate release.
Petitions dismissed.
Agent for the petitioners in Petitions Nos. 21 & 22: Ganpat Rai.
Agent for the petitioner in Petition No. 44: V.P.K. Nambiyar.
| The District Magistrate of Delhi, "being satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so" ordered the detention of the peti tioners under section 3 of the .
The grounds of detention communicated to the petitioners were "that your speeches generally in the past and particu larly on the 13th and 15th August, 1950, at public meetings in Delhi has been such as to excite disaffection between Hindus and Mussalmans and thereby prejudice the maintenance 01 public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order.
" The petitioners contended that under the Constitu tion the maintenance of public order was not a purpose for which restriction can be imposed on the freedom of 452 speech guaranteed by article 19 (1) and that the grounds commu nicated were too vague and indefinite to enable them to make a representation and the provisions of article 22 (s) of the Constitution were not complied with, and their detention was therefore ultra vires and illegal: Held by the Full Court (KANIA C.J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, S.R. DAs and VIVIAN BOSE JJ.) that though personal liberty is sufficiently comprehensive to include the freedoms enumerated in article 19 (1) and its deprivation would result in the extinction of those free doms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in articles 19, 21 and 22 as to the limitations and conditions subject to which alone they could be taken away or abridged.
Consequently, even though a law which restricts freedom of speech and expression which is not directed solely against the undermining of the security of the State or its over throw but is concerned generally in the interests of public order may not fall within the reservation of cl.
(2) of article 19 and may therefore be void, an order of preventive deten tion cannot be held to be invalid merely because the deten tion is made with a view to prevent the making of speeches.
prejudicial to the maintenance of public order.
The deci sions in Brij Bhushan and Another vs The State of Delhi (1) and Romesh Thappar vs The State of Madras(2) are not incon sistent with the decision in A.K. Gopalan vs The State(3).
Held per KANIA.
C.J., PATANJALI SASTRI and S.R. DAS JJ.
(MEHR CHAND MAHAJAN and BOSE JJ.
dissenting) As the time and place at which the speeches were alleged to have been made and their general nature and effect,.
namely, that they were such as to excite disaffection between Hindus and Muslims were also stated in the grounds communicated, they were not too vague or indefinite to enable the petitioners to make an effective representation and the detention cannot be held to be illegal on the ground that article 22 (8) was not complied with.
Per CHAND MAHAJAN and BOSE JJ.
(contra) In the absence of any indication in the grounds as to the nature of the words used by the petitioners in their speech es, from which an inference has been drawn against them, the petitioners would not be able fully to exercise their funda mental right of making a representation, and as there were no such indications in the grounds supplied, there was a non compliance with the provisions of el.
(5) article 22 and the detention was illegal.
The State of Bombay vs Alma Ram Sridhar Vaidya(4) applied.
|
Appeal (Criminal Appeal No. 15 of 1950) from a judgment and order of the High Court of Madras dated 19th August, 1947, in Criminal Revision Petitions Nos. 1017 and 1018 of 1946 rejecting an applica tion to set aside the conviction and sentence of the appel lant by the Sessions Judge of Guntur under clauses 22 and 27 of the Motor Spirit Rationing Order, 1941.
Special leave was 323 granted by the Privy Council and the, appeal was originally registered as Privy Council Appeal No. 14 of 1949.
The case was subsequently transferred to the Supreme Court.
K. Bhimasankaran (Durga Bai, with him) for the appel lant.
R. Ganapathi Iyer, for the respondent.
March 19.
The judgment of the Court was deliv ered by FAZL ALI J.
This appeal, which has been preferred after obtaining special leave to appeal from the Privy Council, is confined to the single question whether mens rea is neces sary to constitute an offence under section 81 of the De fence of India Rules.
The facts of the case are briefly these.
The appellant is the licensee of two petrol filling stations Nos. 552 and 276 at Guntur but is a resident of Chirala, 40 miles away.
He is a Presidency First Class Bench Magistrate at Chirala and manages what has been described as a vast business at several places.
Venkatarayudu and Dadda Pichayya, his employees, were respectively in charge of the aforesaid filling stations.
In 1946, the appellant and his two employ ees were tried before the Sub Divisional Magistrate of Guntur in respect of offences under the Motor Spirit Ration ing Order, 1941, and were convicted in each of the cases on the 18th July, 1946.
In the first case, the charges against the appellant and the employee in charge of the pump in question therein were that they on the 27th June, 1945, at Guntur, supplied petrol to a cars without taking coupons, in contravention of clause 22 read with clause 5 of the said Order promulgated under rule 81 (2) of the Defence of India Rules and that they, on the same day and at the same place, accepted coupons relating to two other cars in advance without supplying petrol, in contravention of clause 27 of the Order.
The charges in the second case were that the appellant and the employee in the second pump similarly supplied during the period of 24 hours from 6 a.m. of the 28th June, 1945, petrol to 4 motor vehicles 324 without taking coupons, in contravention of clause 22 read with clause 5, accepted coupons of three other vehicles in advance without issuing petrol, in contravention of clause 27, and supplied petrol to two other vehicles against cou pons but without making necessary endorsements and particu lars on the reverse of the coupons infringing thereby clause 27A of the said Order.
The Sub Divisional Magistrate, Guntur, found the appellant and the employee concerned in each case guilty of the charges brought against them and sentenced the appellant (with whose case alone we are now concerned) to a fine of Rs. 30 on the first count an d Rs. 20 on the second in the first case with simple imprisonment for one week in default, and to a fine of Rs. 20 on each of the three counts in the second case with one week 's impris onment in default.
The plea of the appellant before the Magistrate was that he was the presiding 1st Class Bench Magistrate at Chirala, that he was carrying on business in petrol at various centres through servants and he had issued instructions to them not to deviate from the rules under any circumstances and that he could not be made liable for transgression of the rules committed by his employees.
The Magistrate however overruled the plea and convicted the appellant as stated above.
The appellant thereafter pre ferred an appeal to the Sessions Judge at Guntur, who, while setting aside the conviction of the appellant on the second count in each case, confirmed the conviction and sentence in respect of the other charges, on the 9th September, 1946.
This was confirmed in revision by the High Court at Madras on the 19th August, 1947.
Thereupon, the appellant applied to the Privy Council for special leave which was granted on the 9th July, 1948, limited to the single question whether mens rea is necessary to constitute an offence under rule 81 of the Defence of India Rules.
The question to be decided in this appeal arises upon the plea taken by the appellant.
, which has been already referred to, and the assumption on which the courts below have proceeded in dealing with the case.
The plea of the appellant that he was not present at 325 Guntur when the alleged offences were committed has not been negatived by the lower courts, but they have held that he was nevertheless liable, as the question of mens rea was not relevant to the offences with which the appellant was charged.
This view is set out very clearly in the following passage which may be quoted from the judgment of the trial Magistrate: "It is argued on behalf of accused 1 that he is not a resident of Guntur and that he has no knowledge of any infringement committed by accused 2.
If any breach of the rules is committed by either proprietor or his servant, both are guilty whether they had the knowledge of the breach or not.
The question of mens rea will, of course, affect the measure of punishment but it cannot affect the conviction (vide .
" Before deciding the question as to how far mens rea is material to conviction for the offences with which the appellant is charged, it is necessary to refer to the rele vant provisions of the Defence of India Rules and the Motor Spirit Rationing Order, 1941.
Rule 81(2) of the Defence of India Rules empowers the Central or the Provincial Govern ment to provide by order, in certain circumstances, for regulating amongst other matters, distribution, disposal, use or consumption of articles or things and for requiring articles or things kept for sale to be sold either generally or to specified persons or classes of persons or in speci fied circumstances.
The Central Government in pursuance of the authority thus conferred made the Motor Spirit Ration ing Order, 1941, for "securing the defence of British India, the efficient prosecution of the war and for maintaining supplies and services essential to the life of the communi ty.
" Clause 2(d) of the Order defines "dealer" as meaning a supplier carrying on the business of supplying motor spirit as a retail business and includes a person having charge of a supply of motor spirit controlled by Government from which any person is furnished with motor spirit for private use.
Sub clause (m) defines "supplier" as meaning a person carry ing on the business of supplying motor 326 spirit.
Clause 5, which is the next relevant provision, runs thus : "Motor spirit required for any vehicle not covered by clause 3 or clause 4 shall be furnished or acquired only against the surrender to a supplier at the time of supply of valid ordinary coupons or of a valid supplementary coupon and only in accordance with any conditions or instructions appearing on or attached to the coupons.
" Clause 22 lays down: "No person shall furnish or acquire a supply of motor spirit otherwise than in accordance with the provisions contained in this order.
"Clause 27 is to the following effect:" No person shall surrender to a supplier and no supplier shall accept special receipts or coupons at a time other than the time at which the supply of motor spirit authorised by the special receipts or coupons or acknowl edged by the receipts is furnished." Clause 27A runs as follows : "When motor spirit is furnished against the surrender of one or more coupons, the supplier shall immediately endorse, or cause to be endorsed, on each coupon so surren dered the registration or other identifying mark of the vehicle to which the motor spirit is furnished.
" Rule 81(4)of the Defence of India Rules, which provides for the imposition of a penalty, says that "if any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both.
" It is contended on behalf of the respondent that though ordinarily a person should not be held liable for the crimi nal acts of another and no person can be charged with the commission of an offence unless a particular.
intent or knowledge is found to be.
present, mens tea is not of the essence of the offences with which we are concerned in this case and the appellant must be held liable for the acts of his employees.
The question raised in this appeal was con sidered by the Privy 327 Council in Srinivas Mall Bairolia vs King Emperor(1).
In that case, the appellants before the Privy Council were convicted under the Defence of India Rules relating to the control of prices and were sentenced to terms of imprison ment.
The 1st appellant was acting as Salt Agent for part of the district of Darbhanga.
He had been appointed to this office by the District Magistrate, and it was his duty to sell to licensed retail dealers the supplies of salt which were allocated by the Central Government to his part of Dharbanga district.
The second appellant was employed by the first appellant and had been entrusted with the duty of allotting the appropriate quantity of salt to each retail dealer, and noting on the buyer 's licence the quantity which he had bought and received.
By rule 81 (2) of the Defence of India Rules, the Provincial Governments were empowered to make orders to provide for controlling the prices at which articles or things of any description whatsoever might be sold.
The Defence of India Act, 1939, under which the rules were framed, empowered the Provincial Governments to dele gate the exercise of their powers to certain officers, and the power to provide by order for controlling the prices at which various articles (among them salt) might be sold, had been delegated to the District Magistrates.
Rule 81 (4) of the Rules provided for the punishment of persons guilty of contravening any such orders.
Both the appellants were jointly charged with having sold salt on 3 days in July, 1943, to three named traders, in each case at a price ex ceeding the maximum price which had been fixed by order of the District Magistrate.
The 1st appellant was also sepa rately charged, in respect of the same sales, with having abetted the 2nd appellant 's contravention of the order.
The trial Magistrate acquitted the 1st appellant of the substan tive offences but convicted him on the 3 charges of abet ting.
The Sessions Judge and the High Court in revision confirmed the convictions.
The Privy Council ultimately upheld the conviction of the appellants on the merits but with regard to the view taken by the High Court that even if the first appellant was (1) I.L.R. 26 Pat.
46. 328 not proved to have known of the unlawful acts of the second appellant, he was still liable on the ground that ' 'where there is an absolute prohibition and no question of mens rea arises, the master is criminally liable for the acts of the servant", their Lordships observed as follows: "With due respect to the High Court, their Lordships think it necessary to express their dissent from this view.
They see no ground for saying that offences against those of the Defence of India Rules here in question are within the limited and exceptional class of offences which can be held to be committed without a guilty mind.
See the judgment of Wright J. in Sherras vs De Rutzen(1).
Offences which are within that class are usually of a comparatively minor character, and it would be a surprising result of this delegated legislation if a person who was morally inno cent of blame could be held vicariously liable for a serv ant 's crime and so punishable ' with imprisonment for a term which may extend to three years. ' Their Lordships agree with the view which was recently expressed by the Lord Chief Justice of England, when he said: ' It is in my opinion of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless the statute, either clearly or by necessary implica tion rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind: Brend vs Wood(2) '" In our opinion, the view of the law as propounded by the Privy Council is the correct view, and, applying it to the present case, it is difficult to hold the appellant guilty of the offence under clause 22 read with clause 5 of the Motor Spirit Rationing Order, 1941.
The language of clause 22 does not lend support to the contention that even an innocent master will be criminally liable for an act of his servant.
This clause has already been quoted, but, to make the point clear, it may be stated that it provides that no person shall furnish . motor spirit otherwise than in accordance (1) , 921.
(2) (1946) 110 J.P. 317, 318 329 with the provisions contained in the Order.
The clause is not aimed specifically against a supplier, but is general in its language, and will hit the individual person, whether he be the supplier or not, who contravenes the provision.
The language of the clause also suggests that only the person who furnishes motor spirit contrary to the provisions of the Order will be affected by the contravention.
In the course of the arguments, reference was made on behalf of the appellant to the decision of the Bombay High Court in Isak Solomon Macmull vs Emperor(1) which is a case relating to the contravention of clause 22 of the Motor Spirit Rationing Order.
In that case, the learned Chief Justice, who delivered the judgment, referred to the well established rule that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the defendant should not be held guilty of an offence under the criminal law unless he has a guilty mind.
Relying upon this rule, he held that where a servant sells petrol to a bogus customer in the absence of coupons m contravention of the Motor Spirit Rationing Order, and the master is not present at the time nor has he any knowledge of the supply of petrol by the servants to the bogus custom er, the master cannot be held to be vicariously liable for the act of the servant.
In our opinion, this decision is correct and is directly applicable to the present case.
We have yet to deal with the third charge in the second case, which relates to the infringement of clause 27A of the Motor Spirit Rationing Order.
That clause, as already stat ed, makes it incumbent upon the supplier to endorse, or cause to be endorsed, the registration or other identifying mark of the vehicle to which the motor spirit is furnished.
The substance of the charge on which the appellant has been convicted is that these particulars were not endorsed on several coupons against which petrol had been supplied.
Here again, the main contention put forward on behalf of the (1) A.I.R. 1948 Bom.
43 330 appellant was that the appellant cannot be held guilty inasmuch as the default in question was committed not by him personally, but by his servants.
Having regard to the language of the clause, however, this contention cannot be accepted.
Clause 27A, as we have already seen, throws the responsibility for making the necessary endorsement on the supplier.
The definition of the word 'supplier ' in the Act has already been quoted, and there can be no doubt that if clause 27A is contravened, a person who comes within the definition of the word 'supplier ' must be held guilty of the contravention.
The object of this clause clearly is that the supplier of petrol should set up a complete machinery to ensure that the necessary endorsements are made on the coupons against which petrol is supplied.
It is conceivable that in many cases the default will be committed by the servants of the supplier, who are in charge of the petrol pump, but that fact by itself will not exonerate the suppli er from liability.
In Mousell Brothers vs London and North Western Railway( '), Viscount Reading C.J., dealing with a case under the Railways Clauses Consolidation Act, 1845, observed as follows : "Prima facie, then, a master is not to be made criminal ly responsible for the acts of his servant to which the master is not a party.
But it may be the intention of the Legislature, in order to guard against the happening of the forbidden thing, to impose a liability upon a principal even though he does not know of, and is not party to, the forbid den act done by his servant.
Many statutes are passed with this object.
Acts done by the servant of the licensed holder of licensed premises render the licensed holder in some instances liable, even though the act was done by his serv ant without the knowledge of the master.
Under the Food and Drugs Acts there are again instances well known in these Courts where the master is made responsible, even though he knows nothing of the act done by his servant, and he may be fined or rendered amenable to the penalty enjoined by the law.
In those [1) [1917] 2 K.B.D. 836 at 844.
331 cases the Legislature absolutely forbids the act and makes the principal liable without a mens rea.
" In the same case, Atkin J. expressed the same view in these words : "I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants.
To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be per formed, and the person upon whom the penalty is imposed.
If authority for this is necessary it will be found in the judgment of Bowen L.J. in Reg.
vs Tylor(1). ' ' In Mullins vs Collins(2), the servant of a licensed victualler having knowingly supplied liquor to a constable on duty without the authority of his superior officer, it was held that the licensed victualler was liable to be convicted although he had no knowledge of the act of his servant.
In dealing with the case, Blackburn J. observed thus: "If we hold that there must be a personal knowledge in the licensed person, we should make the enactment of no effect.
" There are many other cases in England in which the same view has been enunciated, and some of them have been col lected and classified in the judgment of Wright J. in Sher ras vs De Rutzen(3), The principle laid down in these cases has been followed in several cases in this country also.
In this view, the appeal is allowed in part, and while the conviction and sentence imposed on the (1) (3)[1895] IQB.
918,922.
(2) [1874] L.,R. 9 Q. B. 292 332 appellant on the first charge in both the cases are quashed, the conviction and sentence on the third charge in the second case are affirmed.
Appeal allowed in part.
| Unless a statute either clearly or by necessary implica tion rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind.
Clauses 22 and 25 of the Motor Spirit Rationing Order, 1941, read with the Defence of India Rules, 1939, do not rule out the necessity of mens rea.
Therefore, where the employees of the licensee of a petrol filling station supply petrol to a car owner without taking coupons and thus act in contravention of the provisions of the said clauses, the licensee, who was not present when the wrongful act was done and had no knowledge of it, could not be convicted for contravention of the said clauses under r. 81 (4) of the Defence of India Rules, 1939.
Clause 27 of the said Order is however differently worded and imposes a duty on the supplier to endorse or cause to be endorsed the registration or other identifying mark of the vehicle to which petrol is furnished and if these particulars are not endorsed by his employees on the petrol coupons against which petrol is supplied the supplier would be liable even if he had no knowledge of the wrongful act of his employees.
Srinivas Mall Bairolia vs King Emperor (I.L.R. 26 Pat.
46, P.C.) and Isak Solomon Macmull vs Emperor (A.I.R. referred to.
|
Appeal (Criminal Appeal No. 1 of 1950) by special leave from an order of the High Court of Allahabad.
N.P. Asthana, and N.C. Chatterjee (K.B. Asthana, with them) for the appellant.
P.L. Banerjee (Sri Ram, with him) for the respondent.
March 19.
The judgment of the Court was deliv ered by KANIA C.J.
This is an appeal by special leave against an order of the Allahabad High Court dismissing the revision petition of the appellant against the order of the Special Magistrate refusing to quash the proceedings on the ground that the prosecution of the appellant inter alia under sections 161 and 165 of 314 the Indian Penal Code was illegal and without jurisdiction in the absence of the sanction of the Government under section 107 of the Criminal Procedure Code and section 6 of the Prevention of Corruption.
Act (II of 1947), hereafter referred to as the Act.
The material facts are these.
In 1947 the appellant held the office of Regional Deputy Iron and Steel Controller, Kanpur Circle, U.P., and was a public servant.
The police having suspected the appellant to be guilty of the offences mentioned above applied to the Deputy Magistrate, Kanpur, for a warrant of his arrest on the 22nd of October, 1947, and the warrant was issued on the next day.
The appellant was arrested on the 27th of October, 1947, but was granted bail.
On the 26th of November, 1947, the District Magistrate cancelled his bail as the Magistrate considered that the sureties were not proper.
On the 1st of December, 1947, the Government appointed a Special Magis trate to try offences under the Act and on the 1st December, 1947, the appellant was produced before the Special Magis trate and was granted bail.
The police continued their investigation.
On the 6th of December, 1948, sanction was granted by the Provincial Government to prosecute the appel lant inter alia under sections 161 and 165 of of the Indian Penal Code.
On the 31st January, 1949, sanction in the same terms was granted by the Central Government.
In the meantime as a result of an appeal made by the appellant to the High Court of Allahabad the amount of his bail was reduced and on the 25th of March, 1949, the appellant was ordered to be put up before the Magistrate to answer the charge sheet submit ted by the prosecution.
On behalf of the appellant it is argued that when the warrant for his arrest was issued by the Magistrate on the 22nd of October, 1947, the Magistrate took cognizance of the offence and, as no sanction of the Government had been obtained before that day, the initiation of the proceedings against him, which began on that day without the sanction of the Government, was illegal.
It is argued that the same proceedings are continuing against him and therefore the notice to 315 appear before the Magistrate issued on 25th March, 1949, is also illegal.
In support of his contention that the Magis trate took cognizance of the offences on 22nd March, 1947, he relies principally on certain observations in Emperor vs Sourindra Mohan Chuckerbutty(1).
It is therefore necessary to determine when the Magis trate took cognizance of the offence.
The relevant part of section 190 of the Criminal Procedure Code runs as follows: 190.
(1)"Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. " It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section.
The first contingency evidently is in respect of non cognizable of fences as defined in the Criminal Procedure Code on the complaint of an aggrieved person.
The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and come to the Magistrate for the issue of a process.
The third is when the Magistrate himself takes notice of an offence and issues the process.
It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the matter, can arrest a person without obtaining an (1) I.L.R. 41 316 order from the Magistrate.
Under section 167(b) of the Criminal Procedure Code the police have of course to put up the person so arrested before a Magistrate within 24 hours and obtain an order of remand to police custody for the purpose of further investigation, if they so desire.
But they have the power to arrest a person for the purpose of investigation without approaching the Magistrate first.
Therefore in cases of cognizable offence before proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested by the police without an order by the Magistrate.
It may also be noticed that the Magistrate who makes the order of remand may be one who has no jurisdiction to try the case.
The offences for which the appellant is charged are under the Criminal Procedure Code non cognizable and there fore if the matter fell to be determined only on the provi sions of the Criminal Procedure Code the appellant could not be arrested without an order of the Magistrate.
The posi tion however is materially altered because of section 3 of the Act which runs as follows: 3.
"An offence punishable under section 161 or section 165 of the Indian Penal Code shall be deemed to be a cogniz able offence for the purposes of the Code of Criminal Proce dure, 1898, notwithstanding anything to the contrary con tained therein.
Provided that a police officer below the rank of Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the first class or make any arrest therefor without a warrant.
" It therefore follows that for the Prevention of Corrup tion Act, offences under sections 161 and 165 of the Indian Penal Code become cognizable, notwithstanding what is pro vided in the Criminal Procedure Code.
The proviso to sec tion 3 of the Act puts only two limitations on the powers of the police in connection with the investigation relating to those offences under the Act.
They are: (1) that the inves tigation 317 should be conducted by an officer not below the rank of a Deputy Superintendent of Police unless a Magistrate of the first class otherwise orders; and (2) if an arrest has to be made an order of the Magistrate has to be obtained.
The important point to be borne in mind is that the order of the Magistrate, which has to be obtained, is during the time the police is investigating the case and not when they have completed their investigation and are initiating the pro ceedings against the suspected person under section 190 of the Criminal Procedure Code.
The order which may be applied for and made during the police investigation by virtue of section 3 of the Act is therefore before the Magistrate has taken cognizance of the offence under section 6 of the Act or section 190 of the Criminal Procedure Code.
That appears to us to be the result of reading sections 3 and 6 of Act II of 1947 and section 190 of the Criminal Procedure Code read with the definition of cognizable offence in the Code.
The argument of the appellant is that when the Magis trate issued the warrant in October, 1947, he did so on taking cognizance of the offence under section 161 or 165 of the Indian Penal Code under section 190 of the Criminal Procedure Code.
It was contended that without such cogni zance the Magistrate had no jurisdiction to issue any proc ess as that was the only section which permitted the Magis trate to issue a process against a person suspected of having committed an offence.
In our opinion having regard to the wording of section 3 of the Act the assumption that the Magistrate can issue a warrant only after taking cogni zance of an offence under section 190 of the Criminal Procedure Code is unsound.
The proviso to section 3 of the Act expressly covers the case of a Magistrate issuing a warrant for the arrest of a person in the course of investi gation only and on the footing that it is a cognizable offence.
Section 3 of the Act which makes an offence under section 161 or 165 of the Indian Penal Code cognizable has provided the two safeguards as the proceedings are contem plated against a public servant.
But because of these safe guards it 318 does not follow that the warrant issued by the Magistrate under section 3 of the Act is after cognizance of the of fence, and not during the course of investigation by the police in respect of a cognizable offence.
The only effect of that proviso is that instead of the police officer ar resting on his own motion he has got to obtain an order of the Magistrate for the arrest.
In our opinion, it is wrong from this feature of section 3 of the Act alone to contend that because the warrant is issued it must be after the Magistrate has taken cognizance of it and the Magistrate 's action can be only under section 190 of the Criminal Proce dure Code.
The material part of section 197 of the Criminal Procedure Code provides that where any public servant who is not removable from his office save with the sanction of Government is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cogni zance of such offence except with the previous sanction of the appropriate Government.
This section read as following section 190 shows that the word 'cognizance ' in this section indicates the stage of initiation of proceedings against a public servant.
Sections 190 to 199 B of the Criminal Proce dure Code are grouped together under the caption "Initiation of proceedings".
The sections dealing with the stage of in vestigation by the police in the case of cognizable offences are quite different.
Under section 6 of the Act it is pro vided that no court shall take cognizance of an offence punishable under section 161 or 165 of the Indian Penal Code . alleged to have been committed by a public servant except with the previous sanction of the appropriate Government.
Reading sections 197 and 190 of the Criminal Procedure Code and section 6 of the Act in the light of the wording of the proviso to section a, it is therefore clear that the stage at which a warrant is asked for under the proviso to section 3 of the Act is not on cognizance of the offence by the Magistrate as contemplated by the other three sections.
319 Learned counsel for the appellant relied on some observa tions in Emperor vs Sourindra Mohan Chuckerbutty (1), in respect of the interpretation of the word 'cognizance '.
In that case, on the 24th April, 1909, a dacoity took place at N and on the same day the police sent up a report of the occurrence to the Sub divisional officer of Diamond Harbour.
On the 2nd September one of the accused was arrested and he made a confession on the 18th October.
The case was subse quently transferred by the District Magistrate of Alipore to his own file and on the 20th January, 1910, an order under section 2 of the Criminal Law Amendment Act (XIV of 1908) was issued in the following terms: "Whereas the District Magistrate of the 24 Parganas has taken cognizance of offences under sections 395 and 397, I.P.C., alleged to have been committed by the persons accused in the case of Emperor vs Lalit Mohan Chuckerbutty and others . and whereas it appears to the Lieutenant Governor of Bengal. the provi sions of Part 1 of the Indian Criminal Law Amendment Act should be made to apply to the proceedings in respect of the said offences, now, therefore, the Lieutenant Governor. directs. that the provisions of the said Part shall apply to the said case.
" S surrendered on the 24th of January and was arrested by the police and put before the Joint Magis trate of Alipore who remanded him to Jail.
Applications for bail on his behalf were made but they were dismissed.
The Sessions Judge was next moved unsuccessfully for bail under section 498 of the Criminal Procedure Code.
S then moved the High Court for a Rule calling upon the District Magistrate to show cause why bail should not be granted on the grounds (1) that no order had been made applying Act XIV of 1908 and (2) that there did not appear any sufficient cause for further inquiry into the guilt of section The first contention rested on the assertion that the Magistrate had not taken cognizance of the offence of dacoity on the 20th of January.
The learned Judges pointed out that the argument was ad vanced because the legal adviser of S had (1) 1. 320 SUPREME COURT REPORTS no opportunity to see the record of the case.
On the facts it was clear that the Magistrate had taken cognizance of the offence on the 20th of January.
The observations "taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a. magistrate as such applies his mind to the suspected commission of an offence" have to be read in the light of these facts.
As noticed above, the magistrate had expressly recorded that he had taken cognizance of the case and thereupon the provi sions of the Criminal Law Amendment Act were made applicable to the case.
The question argued before the High Court was in respect of the power of the High Court to grant bail after the provisions of the Criminal Law Amendment Act were applied to the case.
In our opinion therefore that decision and the observations therein do not help the appellant.
In Gopal Marwari vs Emperor (1), it was observed that the word 'cognizance 'is used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence.
it is a different thing from the initiation of proceedings.
It is the condition precedent to the initiation of proceedings by the Magistrate.
The court noticed that the word 'cognizance 'is a word of somewhat indefinite import and it is perhaps not always used in exactly the same sense.
After referring to the observations in Emperor vs Sou rindra Mohan Chuckerbutty (2), it was stated by Das Gupta J. in Superintendent and Remembrancer of Legal Affairs, West Bengal vs Abani Kumar Banerjee (3) as follows : " What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it.
It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under section 190 (1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose (1) A.I.R. 1943 Pat.
(3) A.I.R. 1950 Cal.
(2) I. L. R. 321 of proceeding in a particular way as indicated in the subse quent provisions of this Chapter proceeding under section 200 and thereafter sending it for inquiry and report under section 202.
When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under section 156 (3), or issuing a search warrant for the purpose of the investiga tion, he cannot be said to have taken cognizance of the offence.
" In our opinion that is the correct approach to the question before the court.
Moreover, in the present case on the 25th March, 1949, the Magistrate issued a notice under section 190 of the Criminal Procedure Code against the appellant and made it returnable on the 2nd of May, 1949.
That clearly shows that the Magistrate took cognizance of the offence only on that day and acted under section 190 of the Criminal Procedure Code.
On the returnable date the appellant contended that the sanction of the Central Government was void because it was not given by the Government of the State.
On the deci sion going against him he appealed to the High Court and to the Privy Council.
The appellant 's contention having thus failed, the Magistrate proceeded with the trial on the 26th of November, 1949.
The only question which is now presented for our decision therefore is whether there was any sanction granted by the Government before the Magistrate took cogni zance of the offence and issued the notice under section 190 of the Criminal Procedure Code On the 25th March, 1949.
To that the clear answer is that the Government had given its sanction for the prosecution of the appellant before that date.
It seems to us therefore that the appellant 's conten tion that the Magistrate had to take cognizance of the offences without the previous sanction of the Government is untenable and the appeal fails.
Appeal dismissed.
| Under section 3 of the Prevention of Corruption Act.
1947, an offence punishable under section 161 or section 165 of the Indian Penal Code 313 is a cognisable offence for the purposes of the Criminal Procedure Code subject to the condition that the police shall not investigate without an order of a magistrate of the first class or make an arrest without a warrant; and when the police apply for a warrant of arrest during inves tigation under section 3 of the said Act and the magistrate issues a warrant, he is not deemed to have taken cognisance of the case under section 190 of the Criminal Procedure Code and the fact that sanction of the Government under section 197 of the Criminal Procedure Code had not been obtained before the warrant was issued would not vitiate the trial.
Having regard to the wording of section 3 of the said Act the view that the magistrate can issue a warrant only after taking congni sance of the offence under section 190 of the Criminal Procedure Code, is unsound.
Before it can be said that a magistrate has taken cogni sance of an offence under section 190 (1) (a) of the Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but have done so for the pur pose of proceeding under section 200 and the subsequent provi sions of the Code.
Where he applied his mind only for ordering investigation or issuing a warrant for purposes of investigation he cannot be said to have taken cognisance of the offence.
Emperor vs Sourindra Mohan Chuckerbutty (I.L.R. 37 Cal.
412) distinguished.
Observations of Das Gupta J. in Super intendent and Remembrancer of Legal Affairs, West Bengal vs Abani Kumar Banerjee approved.
Gopal Mandari vs Emperor (A.I.R 1943 Pat.
245) referred to.
|
Criminal Appeal No. 17 of 1951.
Appeal against a Judgment and.
Order dated 22nd January, 1951, of the High Court of Judicature at Patna (Imam J.) in Criminal Revision No. 1533 of 1950 677 S.P. Sinha (P.S. Safeer and K.N. Aggarwal, with him) for the appellants.
The respondent did not appear.
May 24.
The Judgment of the Court was delivered by PATANJALI SASTRI J.
This is an appeal by special leave from an order of the High Court of Judicature at Patna setting aside an order of acquittal of the appellants by the Sessions Judge, Purnea, and directing their retrial.
The appellants were prosecuted for alleged offences under sections 147, 148, 323, 324, 326, 302 and 302/149 of the Indian Penal Code at the instance of one Polai Lal Biswas who lodged a complaint against them before the po lice.
The prosecution case was that, while the complainant was harvesting the paddy crop on his field at about 10 a.m. on 29th November, 1949, a mob of about fifty persons came on to the field armed with ballams, lathis and other weapons and that the first appellant Logendranath Jha, who was leading the mob, demanded a settlement of all outstanding disputes with the complainant and ,said he would not allow the paddy to be removed unless the disputes were settled.
An altercation followed as a result of which Logendra or dered an assault by his men.
Then Logendra and one of his men, Harihar, gave ballam blows to one of the labourers, Kangali, who fell down and died on the spot.
Information was given to the police who investigated the case and submitted the charge sheet.
The committing Magistrate found that a prima facie case was made out and committed the appellants to the Court of Sessions for trial.
The appellants pleaded not guilty alleging inter alia, that Mohender and Debender, the brothers of Logendra (appel lants 2 and 3) were not present in the village of Dandkhora with which they had no concern, as all the lands in that village had been allotted to Logendra at a previous parti tion, that Logendra himself was not in the village at the time of the occurrence but arrived 678 soon after and was dragged to the place at the instance of his enemies in the village and was placed under arrest by the Assistant Sub Inspector of Police who had arrived there previously.
It was also alleged that there were two factions in the village, one of which was led by one Harimohan, a relation of the complainant, and the other by Logendra and there had been numerous revenue and criminal proceedings and long standing enmity between the families of these leaders as a result of which this false case was foisted upon the appellants.
The learned Sessions Judge examined the evidence in great detail and found that the existence of factions as alleged by the appellants was true.
He found, however, that the appellants ' plea of alibi was not satisfactorily made out, "but the truth of the prosecution", he proceeded to observe, "cannot be judged by the falsehood of the defence nor can the prosecution derive its strength from the weak ness of the defence.
Prosecution must stand on its own legs and must prove the story told by it at the very first stage.
The manner of occurrence alleged by the prosecution must be established beyond doubt before the accused persons can be convicted".
Approaching the case in this manner and seeing that the basis of the prosecution case was that Polai had batai settlement of the disputed land and had raised the paddy crop which he was harvesting when the occurrence took place, the learned Sessions Judge examined the evidence of the prosecution witnesses who belonged to the opposite faction critically and found that the story of the prosecu tion was not acceptable.
Polai, who was alleged to have taken the land on batai settlement from his own maternal grandmother Parasmani who brought him up from his childhood, was only 19 years old and unmarried and was still living with his grandmother.
He did not claim to be a bataidar of any other person.
"In these circumstances", said the learned Judge, "it does not appear to me to be probable that Polai would have been allowed to maintain himself by running adhi cultivation of his mamu 's land in the lifetime of 679 his nani who has brought him up from his infancy like her own child.
Nor does it appeal to me that the unmarried boy Polai would have undertaken upon himself the task of run ning batai cultivation of the lands of his mamu where he has been living since his childhood without any trouble, more particularly in view of the heavy expenses of cultivation brought out by the evidence of Tirthanand (P.W. 14)".
He, therefore, disbelieved the whole story that Polai had taken the lands of his grandmother or his uncles as bataidar for cultivation and that he was engaged in harvesting the paddy crop on the lands at the time of the occurrence.
This false story, in his opinion, "vitally affected the prosecution case regarding the alleged manner of the occurrence".
He also found a number of discrepancies and contradictions in the evidence of the prosecution witnesses, which, in his view, tended to show that the prosecution was guilty of concealment of the real facts. ' 'In view of such conceal ment of real facts," the learned Judge concluded, "it does not appear to me to be possible to apportion liability and to decide which of the two parties commenced the fight and which acted in self defence.
Such being the position, it is not possible at all to hold either party responsible for what took place.
In such a view of the matter coupled with the fact that the manner of occurrence alleged by the prose cution has not been established to be true beyond doubt, I think that the accused persons cannot be safely convicted of any of the offences for which they have been charged.
" The learned Judge accordingly acquitted the appellants of all the charges framed against them.
Against that order the complainant Polai preferred a revision petition to the High Court under section 439 of the Criminal Procedure Code., The learned Judge who heard the petition reviewed the evidence at some length and came to the conclusion that the judgment of the learned Sessions Judge could not be allowed to stand as the acquittal of the appellants was "perverse ' '.
In his opinion, "the entire judgment displays a lack 680 of true perspective in a case of this kind.
The Sessions Judge had completely misdirected himself in looking to the minor discrepancies in the case and ignoring the essential matters so far as the case is concerned," and there was no justifiable ground for rejecting the prosecution evidence regarding the cultivation and harvesting by Polai.
And he concluded with the warning "I would, however, make it per fectly clear that when the case is re tried, which I am now going to order, the Judge proceeding with the trial will not be in the least influenced by any expression of opinion which I may have given in this judgment.
" On behalf of the appellants Mr. Sinha raised two conten tions.
In the first place, he submitted that having regard to section 417 of the Criminal Procedure Code which provides for an appeal to the High Court from an order of acquittal only at the instance of the Government, a revision petition under section 439 at the instance of a private party was incompetent, and, secondly, that sub section (4) of section 439 clearly showed that the High Court exceeded its powers of revision in the present case in upsetting the findings of fact of the trial Judge. ' We think it is unnecessary to express any opinion on the first contention of Mr. Sinha especially as the respondent is unrepresented, as we are of opinion that his second and alternative contention must prevail.
It will be seen from the judgment summarised above that the learned Judge in the High Court re appraised the evi dence in the case and disagreed with the Sessions Judge 's findings of fact on the ground that they were perverse and displayed a lack of true perspective.
He went further and, by way of "expressing in very clear terms as to how perverse the judgment of the court below is", he indicated that the discrepancies in the prosecution evidence and the circum stances of the case which led the Sessions Judge to discred it the prosecution story afforded no justifiable ground for the conclusion that the prosecution failed to establish their case.
We are of opinion that the learned Judge in the High Court did not properly appreciate the 681 scope of inquiry in revision against an order of acquittal.
Though sub section(1) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a court of appeal by section 423, sub section (4) specifically excludes the power to "convert a finding of acquittal into one.
of conviction".
This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court could in the absence of any error on a point of law re appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him.
By merely characterising the judgment of the trial Court as "perverse" and ' lacking in perspective", the High Court cannot reverse pure findings of fact based on the trial Court 's appreciation of the evidence in the case.
That is what the learned Judge in the court below has done, but could not, in our opinion, properly do on an application in revision filed by a private party against acquittal.
No doubt, the learned Judge formally complied with sub section (4) by directing only a retrial of the appellants without convicting them, and warned that the court retrying the case should not be influenced by any expression of opinion con tained in his judgment.
But there can be little doubt that he loaded the dice against the appellants, and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general.
We are of opinion that the learned Judge in the High Court exceeded his powers of revision in dealing with the case in the manner he did, and we set aside his order for retrial of the appellants and restore the order of acquittal passed by the Sessions Judge.
Appeal allowed.
| Though sub section
(1) of section 439 of the.
Criminal Procedure Code authorises the High Court to exercise in Its discretion any of the powers conferred on a court of appeal by section 423, yet sub section
(4) specifically excludes the power to "convert a finding of acquittal into one of conviction.
" This. does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court can in the absence of any error on a point of law re ap praise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stops short of finding the accused guilty and passing sentence on him, by ordering a re trial.
|
ON: Criminal Appeal No. 11 of 1950.
Appeal under article 134 (1) (c) of the Constitution of India against the Judgment and Order dated the 10th April, 1950, of the High Court of Judicature at Simla in Criminal Revision No. 449 of 1949.
The facts of the case appear in the judgment.
Kundan Lal Arora for the appellant.
S.N. Chopra for the respondent.
May 23.
The Judgment of the Court was delivered by Bose J.
This is a criminal appeal against a convic tion under section 16 of the Punjab Trade Employees Act, 1940, as amended in 1943, read with section 7(1).
The appellant is a shopkeeper who owns and runs a shop in the Cantonment Area of Ferozepore.
He has no "employees" within the meaning of the Act but is assisted by his son in running the shop.
The shop is 673 divided into two sections.
In one, articles of haberdashery are sold; in the other, articles of stationery.
Section 7(1) of the Act as amended requires that "Save as otherwise provided by this Act, every shop . shall remain closed on a close day.
" Sub section (2)(i) states that The choice of a close day shall rest with the owner or occupier of a shop . and shall be intimated to the prescribed authority within etc.
" The appellant made the following choice.
He elected to close the haberdashery section on Mondays and the stationery section on Saturdays and gave the necessary intimation to the prescribed authority to that effect.
On Monday, the 17th of May, 1948, the appellant 's son sold a tin of boot polish to a customer from the haberdash ery, section of the shop.
The appellant was present in person at the time of the sale.
Monday was a close day for the haberdashery section and so the appellant was prosecuted under section 16 read with section 7.
The trying Magistrate held that in selling the article of haberdashery on a close day and in not observing Monday as a close day the appellant had infringed the provisions of section 7(1) of the Act.
He accordingly convicted him and imposed a fine of Rs. 20.
A revision application to the High Court failed.
The High Court held that as the appellant had failed to keep his shop closed one day in the week, his conviction was proper.
A certificate for leave to appeal to this Court, on the ground that a substantial question of law relating to the Govern ment of India Act, 1935, was involved, was granted and that is how we come to be seized of the matter.
The learned counsel for the appellant contended that section 7 of the Act is ultra vires in that it does not fall under any of the items in either the Provincial or the Concurrent Legislative Lists in the Government of India Act, 1935.
In our opinion, the matter can come either under item No. 27 in List II or item No. 27 in List III.
674 Item No. 27 in List II covers "trade and commerce within the Province.
" In our opinion, a Provincial Government could, under that entry, regulate the hours, place, date and manner of sale of any particular commodity or commodities.
It could, for example, state that the sale of explosives or other dangerous substances should only be in selected areas, at specified times or on specified days when extra precau tions for the general safety of the public and those direct ly concerned could be arranged for.
That would appear to be obvious.
In the same way, it could, if it so pleased, say that there shall be no sales on a particular day, say a Sunday or a Friday, or on days of religious festivals and so forth.
Instead of doing that, it has chosen to regulate the internal trade of the Province in this manner which is only one of the various ways in which it could have acted.
The matter can also be brought under item 27 in List III: "welfare of labour; conditions of labour.
" The im pugned section is a general one and applies to all kinds of shops; that is to say, to those in which labour is employed as well as to those which are run by the owners and their families.
The Act in which the section occurs is directed at regulating the hours of employment of persons who are employed in the business of shops or commercial establish ments.
Therefore, in so far as section 7 covers establish ments where labour is employed, it is undoubtedly intra vires.
But it was argued that the section can have no appli cation to shops which an owner runs with or without the assistance of his family.
Reliance for this was placed on section 2 A (i) and (j) which is as follows: "2 A. Nothing in this Act shall apply to (i) persons employed in a managerial capacity . and (j) the members of the family of the employer.
" It was argued that the sale was by the son.
He is not affected by the Act.
Therefore.
he was entitled to sell and he could not sell unless the shop was kept 675 open to enable him to do so.
So also as regards the appel lant, the owner, who was there in a managerial capacity.
In our opinion, this is fallacious because the conviction here is not for the sale but for keeping the shop open on a close day.
Section 2 A (j) does not give the son a right to keep the shop open or, for that matter, a right to sell.
All it says is that he, being a member of the family, shall not be affected by the provisions of the Act.
Section 7(1), on the other hand, is directed against the owner of the shop, not against his family.
It compels the owner to keep his shop closed one day in a week.
It was then contended that if a person employed in a managerial capacity cannot be affected by the Act, then the appellant who was there in that capacity cannot be compelled to close the shop under section 7.
This is also fallacious.
It happens in the present case that the owner and the manag er are the same but the Act obviously makes provision for a class of case in which they are different.
The owner is obliged to close the shop one day in a week, though the manager of the shop can work without, for example, having the twenty four consecutive hours of rest every week which section 7 A enjoins.
The appellant 's capacity as manager will have to be separated from his character as owner for this purpose.
Section 2 A(i) does not control section 7 (1).
Lastly, it was argued that the scheme of the Act makes it plain that it is for ameliorating the conditions of labour employed in shops.
It cannot therefore apply to shops in which no labour is employed, particularly when the family of the "employer" is expressly excluded from the purview of the Act.
For this reason also, it cannot fall under item 27 in List III.
We are of opinion that such a narrow interpre tation cannot be placed upon the entry.
The legislature may have felt it necessary, in order to reduce the possibilities of evasion to a minimum, to encroach upon the liberties of those who would not otherwise have been affected.
That we think it had power to do.
Further, to require a shopkeeper, who employs one or two men, to close and 676 permit his rival, who employs perhaps a dozen members of his family, to remain open, clearly places the former at a grave commercial disadvantage.
To permit such a distinction might well engender discontent and in the end react upon the relations between employer and employed.
All these are matters of policy into which we cannot enter but which serve to justify a wide and liberal interpretation of words and phrases in these entries.
The appeal fails and is dismissed.
Appeal dismissed.
| Section 7 sub section
(1) of the Punjab Trade Employees Act, 1940, as amended in 1943, provided that "save as otherwise provided by this Act, every shop shall remain closed on a close day.
" Sub section (2) (i) stated that "The choice of a close day shall rest with the owner or occupier of a shop . and shall be intimated 87 672 to the prescribed authority.
" Clauses (i) and (j) of section 2 A provided that nothing in the Act shall apply to persons employed in a managerial capacity and the members of the family of the employer.
The appellant owned a shop and on a close day the appellant 's son sold an article from the shop, and the appellant was convicted under section 16 of the Act.
It was contended on his behalf that section 7 of the Act was ultra vires as it did not fall under any of the items in either the Provincial or the Concurrent Legislative List of the Government of India Act, 1935, and that, in any event as he did not employ any labour and was also the manager of the shop he cannot be convicted in view of the provisions of clauses (i) and (j) of section 2 A of the Act.
Held, by the Full Court (i) that the provincial Government could under item No. 27 in List 1I regulate the hours, place, date and manner of sale of any commodity and section 7 of the Act was not ultra vires; the matter could also be brought under item 27 in List III "welfare of labour; conditions of labour ;" (ii) clause (j) of section 2 A did not protect the appellant because the conviction was not for the sale by the son but for the appellant having kept the shop open on a close day; (iii) the appellant was not entitled to be exempted under el.
(i) of section 2 A even though he was himself the manager of the shop, because his capacity and liability as an owner must be kept distinct from that of a manager for the purposes of the Act.
|
Appeal No. 46 of 1950.
Appeal by special leave from a judgment of the High Court of Judicature at Bombay dated 23rd March, 1948, (Chagla C.J. and Tendolkar J.) in Income Tax Reference No. 16 of 1947.
M.C. Setalvad, Attorney General for India (Gopal Singh, with him) for the appellant.
N.C. Chatterjee (B. Sen, with him)for the respondent. 1951.
September 18.
The Judgment of the Court was deliv ered by MAHAJAN J.
The sole controversy in this appeal centres round the point as to whether or not excess profits tax is payable on the sum of Rs. 20,005 received by the respondent from Messrs Parakh & Co. by way of rent for the dyeing plant let out to them during the chargeable accounting period.
The respondent (Sri Lakshmi Silk Mills Ltd.) is a manu facturer of silk cloth, and as a part of its business it installed a plant for dyeing silk yarn.
During the charge able accounting period (1st January, 1943, to 31st December, 1943) owing to difficulty in obtaining silk yarn on account of the war it could make no use of this plant and it re mained idle for some time.
On the 20th August, 1943, it was let out to Messrs E. Parakh & Co. on a rent of Rs. 4,001 per month.
The Excess Profits Tax Officer by his assessment order dated 11th June, 1945, included the sum of Rs. 20,005 realized as rent for five months, in the profits of the business of the respondent and held that excess profits tax was payable on this amount.
This order was confirmed on appeal by the Appellate Assistant Commissioner and on fur ther appeal by the Income tax Tribunal.
The Tribunal, however, on being asked referred the following question of law to the High Court for its opinion: "Whether in the circumstances of the case, the asses see 's income of Rs. 20,005 is profits from business 3 within the meaning of section 2 (5) of the Excess Profits Tax Act and therefore or otherwise liable to pay excess profits tax ?" The High Court answered the question in the negative.
This is an appeal by special leave from this decision.
It was contended on behalf of the Commissioner before the High Court that the dyeing plant was a commercial asset of the assessee 's business for the purpose of earning profit and if this commercial asset yielded income to him in any particular manner, it was income from the assessee 's busi ness for the purpose of the Excess Profits Tax Act.
It was said that it was immaterial whether a commercial asset yields income by use of the assessee himself or its being used by someone else.
This contention was disposed of by the learned Chief Justice in these words : "Mr. Joshi seems to be right but with this qualification that the commercial asset must be at the time it was let out in a condition to be used as a commercial asset by the assessee.
If it has ceased to be a commercial asset, if its use as a commercial asset has been discontinued, then if the assessee lets it out, he is not putting to use something which is a commercial asset at the time.
"Now, on the facts found by the Tribunal, it is clear that when the assessee let out this dyeing plant, it had remained idle for some time.
He could not obtain silk yarn on account of the war and therefore it was not possible to make use of it as a commercial asset as far as the assessee himself was concerned and it was only for that reason that he let it out to Messrs E. Parakh & Co. I can understand the principle for which Mr. Joshi is contending that it makes no difference what an assessee does with a commercial asset belonging to him.
He may use it as he likes.
So long as it yields income it is the income of his business.
Var ious cases have been cited at the Bar and I think that those cases though apparently conflicting are reconcilable if we accept this principle to be the correct principle 4 and apply this ratio as the ratio emerging from these cases and I will state the principle and the ratio again that if an assessee derives income from a commercial asset which is capable at the time of being used as a commercial asset, then it is income from his business, whether he uses that commercial asset himself or lets it out to somebody else to be used.
But if the commercial asset is not capable of being used as such, then its being let out does not result in an income which is the income of the business." Mr. Justice Tendolkar concurred in this view and ob served as follows : "The ratio of all these cases to my mind is that if there is a commercial asset which is capable of being worked by the assessee himself for the purpose of earning profits and the assessee instead of doing so, either voluntarily allows someone else to use it on payment of a certain sum or is compelled by law to allow it to be used in such manner, then what he receives is income from business.
But if the commercial asset has ceased to be a commercial asset in the hands of the assessee and thereafter he gets what he can out of it by letting it out to be used by others, then the rent he receives is not income from any business that he carries on.
" The learned Attorney General pointed out that the nature of a commercial asset is not changed because a par ticular person is unable to use it.
The inability of the assessee to make use of it in certain circumstances does not in any way ' affect the nature of the asset and cause an infirmity in the asset itself.
It was contended that when the dyeing plant became idle for a short time during the chargeable accounting period it did not cease to be a com mercial asset of the respondent for it had no other busi ness; that all the assets of the respondent including the dyeing plant were the assets of the business, that whatever income was derived by the use of these assets including the income that an asset fetched by its being let out was the business income of the assessee, and that there was no warrant 5 in law for the proposition that a commercial asset which yields income must be used as an asset by the respondent himself before its income becomes chargeable to tax.
The learned counsel for the respondent urged that as soon as the assessee found difficulty in obtaining yarn the dyeing plant became redundant for its business and ceased to be an asset of its business and any income derived from the rent by letting out this asset was income received by the assessee from other sources and therefore was not charge able to excess profits tax.
In our opinion, the contention raised by the learned Attorney General is sound.
The High Court was in error in engrafting a proviso on the rule deduced by it from the authorities considered by it, to the effect that a commer cial asset of a business concern which yields income must at the time it was let out be in a condition to be used as a commercial asset by the assessee himself.
We respectfully concur in the opinion of the learned Chief Justice that if the commercial asset is not capable of being used as such, then its being let out to others does not result in an income which is the income of the business, but we cannot accept the view that an asset which was acquired and used for the purpose of the business ceased to be a commercial asset of that business as soon as it was temporarily put out of use or let out to another person for use in his business or trade.
The yield of income by a commercial asset is the profit of the business irrespective of the manner in which.
that asset is exploited by the owner of the business.
He is entitled to exploit it to his best advantage and he may do so either by using it himself personally or by letting it out to somebody else.
Suppose, for instance, in a manufac turing concern the use of its plant and machinery can advan tageously be made owing to paucity of raw materials only for six hours in a working day, and in order to get the best yield out of it, another person who has got the requisite raw materials is allowed to use it as a licensee on payment of certain 6 consideration for three hours; can it be said in such a situation with any justification that ' the amount realized from the licensee is not a part of the business income of the licensor.
In this case the company was incorporated purely as a manufacturing concern with the object of making profit.
It installed plant and machinery for the purpose of its business, and it was open to it if at any time it found that any part of its plant "for the time being" could not be advantageously employed for earning profit by the company itself, to earn profit by leasing it to somebody else.
It is difficult to hold that the income thus earned by the commer cial asset is not income from the business of the company that has been solely incorporated for the purpose of doing business and earning profits.
There is no material whatever for taking the view that the assessee company was incorpo rated with any other object than of carrying on business or trade.
Owning properties and letting them was not a purpose for which it was formed and that being so, the disputed income cannot be said to fall under any section of the Indian Income tax Act other than section 10.
Cases of undertakings of this nature stand on an entirely different footing and are distinguishable from cases of individuals or companies acquiring lands or buildings and making income by letting them on hire.
These latter cases may legitimately fall under the specific provisions of section 9 or section 12, though the High Courts in this country are by no means unanimous on this subject; but for the purpose of this case it is unnecessary to resolve that conflict.
It may be observed that no general principle can be laid down which is applicable to all cases, and each case has to be decided on its own circumstances.
Decisions of the Eng lish courts given under the Finance Acts, the scheme of which is different from the Indian Income tax statutes, are not always very helpful in dealing with matters arising under the Indian law and analogies and inferences drawn from those decisions are at times misleading.
We, however, are in respectful agreement with the observations of Lord 7 President Strathclyde in Sutherland vs The Commissioners of Inland Revenue(1) that if a commercial asset is susceptible of being put to a variety of different uses in which gain might be acquired, whichever of these uses it was put to by the appellant, the profit earned was a user of the asset of the same business.
A mere substituted use of the commercial asset does not change or alter the nature of that asset.
Whatever the commercial asset produces is income of the business of which it is an asset, the process by which the asset makes the income being immaterial.
Mr. Chatterjee for the respondent stressed the point that as the dyeing plant in the present case could not be made use of by the assessee in its manufacturing business owing to the non availability of yarn, it ceased to be a commercial asset of the business of the assessee and became redundant to that business and that being so, any income earned by this asset which had ceased to be a commercial asset was not an income of the business but must be held to have been derived from a source other than business and fell within the ambit of section 12 of the Indian Income tax Act, and on this income excess profits tax was not payable.
He contended that the facts of this case were analogous to the case of Inland Revenue Commissioners vs lies(2) and it should be similarly decided.
In that case the taxpayer carried on the business of sand and gravel merchant on certain land and at the same time he granted licences to three firms to enter his land and win gravel for themselves in return for which he received from them a royalty for each cubic yard of gravel taken away.
It was held that the royalties were not part of the profits of the business because, in granting the licences, the taxpayer was exploit ing his rights of ownership in the land and was not carrying on his business of a sand and gravel merchant.
The income was held taxable as an income from an investment and did not fall under Schedule D which concerns profits earned from a trade.
Mr. Chatterjee also laid emphasis on the observations of Lord (1) (2) [1947] 1 A.E.R. 798.
8 Greene M.R. in Croft vs Sywell Aerodrome Ltd. (1), wherein the learned Master of the Rolls observed as fol lows: "I cannot myself see that a person who leases the land to others, or grants licences to others to come upon it, is doing anything more than exploiting his own rights of property, even if the tenant or licensee is, by the terms of the lease or licence, entitled himself to carry on a trade on the land.
" It was urged that what the assessee was doing in this case was exploiting his rights of property by letting the dyeing plant to other persons precisely in the same manner as the owner of land in the case cited above was exploiting his own rights to property by granting a licence to another to come on his land.
The argument, in our opinion, though attractive, is fallacious.
The analogy between the case of land and of a dyeing plant for the purpose of taxing stat utes is inappropriate.
The distinction becomes apparent from the following passage which occurs in Atkinson J. 's judgment in I les 's case(2) : "Then it was suggested by counsel for the Crown that the case was like the Desoutter case(3), where it was held that, if you make use of a patent in your business and also receive royalties from the use of the patent by others licensed to use it, those royalties cannot be regarded as receipts from an investment.
In other words, the door has to be either open or shut.
A patent is either an investment or it is not.
The suggestion was that freehold land is in the same position, and if you carry on business on part of it, whatever you do with the rest by way of licensing or letting cannot be regarded as producing income from investment.
That, however, is dead in the teeth of the judgment in the Broadway Car Co. case(4).
The same argument was tried there, but Tucker L.J. said he thought the Desoutter case(3) had very little to do with it, as there was a great difference between land (1) (3) (2) (4) 9 and a patent, and he did not think the Desoutter case(1) threw any light on the matter .
A patent is quite different from freehold land." These observations appositely apply to the case of a company incorporated for the purpose of doing business and earning profit by the process of manufacture.
Letting out a part of its machinery in a certain situation in order to make the business advantageous as a whole does not alter the nature of the income.
The case of an owner of land letting out his land and carrying on exploitation of part of that land by selling gravel out of it, as at present advised, in our opinion, would fall under section 9 of the Indian In come tax Act, as income earned, no matter by whatever meth od, from land, and specifically dealt with by that section.
The observations therefore made in I les 's case(2) can have no apposite application to the case of a manufacturing concern letting out a part of its machinery temporarily which it cannot advantageously use itself.
Mr. Chatterjee also laid stress on the decision of the Court of Appeal in Inland Revenue Commissioners vs Broadway Car Co. Ltd.(3).
In this case the company carried on the business of motor car agents and repairers on land held on lease from 1935 to 1956 at an annual rent of pound 750.
By 1940 the company 's business had dwindled under war condi tions to such an extent that no more than one third of the land was required.
In those circumstances the remainder was sublet for fourteen years at an annual rent of pound 1,150.
The general commissioners of income tax decided that the difference of pound 400 between the outgoing of pound 750 for the land retained and the incoming of pound 1,150 for the land disposed of was "income received from an invest ment," and, the business not being one within the special categories mentioned in the Finance Act, 1939, that pound 400 was not taxable.
It was held that the word "investment" must be construed in the ordinary, popular sense of the word as used by businessmen and not as a (1) [1946] 1 A.E.R.58.
(3) [1946] 2 A.E.R. 609.
(2) 2 10 term of art having a defined or technical meaning and that it was impossible to say that the commissioners had erred in law in coming to the conclusion that the transaction result ed in an investment.
Scott L.J. in delivering his judgment laid emphasis on the point that after the business of the company had dwindled, it partitioned part of the land from the rest and sublet it by installing a heating apparatus for the sub lessee.
It was found that war conditions had reduced the company 's business to very small proportions and they cut their loss by going out of business in respect of the major part of their land and put it out of their power for 14 years to resume business there.
In this situation it was observed that in that case they were dealing with part of the property of the company which had come redundant and was sublet purely to produce income a transaction.
quite apart from the ordinary business activities of the company.
It was pointed out that the question whether a particular source of income was income or not must be decided, as it could be, according to ordinary commonsense principles.
The short question to decide in this case is whether on the facts found, it could be said reasonably that the dyeing plant had become redundant for its business as a silk manu facturing concern, simply by the circumstance that for the time being it could not be used by it personally for the purpose of dyeing silk yarn owing to the non availability of yarn.
It is difficult to conceive that the company would not have immediately started dyeing yarn as soon as it became available.
Instead of dyeing yarn, another person was allowed to dye jute (we are told), the assessee company making income out of its use as a commercial asset.
In this situation it is not possible to hold that the income thus earned was not a part of the income of the business and was not earned for the business by its commercial asset or that this commercial asset had become redundant to the company 's business of manufacture of silk.
The analogy of Broadway Car Co. Ltd. (1) therefore does not hold good for the decision of the present matter, (1) 11 We are therefore of the opinion that it was a part of the normal activities of the assessee 's business to earn money by making use of its machinery by either employing it in its own manufacturing concern or temporarily letting it to others for making profit for that business when for the time being it could not itself run it.
The High Court therefore was in error in holding that the dyeing plant had ceased to be a commercial asset of the assessee and the income earned by it and received from the lessee, Messrs Parakh & Co., was not chargeable to excess profits tax.
The result therefore is that we hold that the answer returned by the High Court to the question referred to it by the Tribu nal was wrong and that the correct answer to the question would be in the affirmative and not in the negative.
The appeal is allowed, but in the circumstances of the case we make no order as to costs.
We have not thought it necessary to refer to all the cases cited at the Bar as none of them really is in point on the short question that we were called upon to decide and analogies drawn from them would not be helpful in arriving at our decision.
Appeal allowed.
Agent for the appellant.
P.A. Mehta.
| The respondent, a company formed for the purpose of manufacturing silk cloth, installed a plant for dyeing silk yarn as a part of its Business.
During the chargeable accounting period (last January, 1943, to 31st December, 1943) owing to difficulty in obtaining silk yarn on account of the war, it could make no use of this plant and it re mained idle for some time.
In August, 1943, the plant was let out to another company on a monthly rent.
The question being whether the income received by the respondent company in the year 1948 by way of rent of this plant was income from business and assessable to excess profits tax, the High Court of Bombay held that, as the assessee was not able to use the plant as a commercial asset, it had ceased to be a commercial asset in the assessee 's hands and the rent re ceived was not income from business.
On appeal: Held, that an asset which was acquired and used for the purpose of the business by a company formed for carrying on business and earning profits, does not cease to be a commer cial asset of that business as soon as it is temporarily put out of use or let out to another person for use in his business or trade; the income from the asset would be profit of the business irrespective of the manner in which that asset is exploited by the owner, and the rent in question was therefore income from business and assessable to excess profits tax.
No general principle, however, can be laid down which is applicable to all cases.
Each ease has to be decid ed on its own circumstances.
Sutherland vs Commissioners of Inland Revenue relied on.
Inland Revenue Commissioners vs lies [1947] 1 A.E.R. 798, Croft vs Sywell Aerodrome Co., Ltd. [1942] 1 A.E.R. 110, Inland Revenue Commissioners vs Broadway Car Co., Ltd. [1946] 2A.E.R. 609 distinguished.
Judgment of the Bombay High Court reversed.
|
Appeals by special leave against an Award dated 31st July, 1950, 383 of the All India Industrial Tribunal (Bank Disputes): Civil Appeals Nos.
35 to 50 of 1951.
The facts of the case and the arguments of Counsel appear in the judgment.
C.K. Daphtary (R. J. Kolah, with him)for the appellants in Civil Appeals Nos. 35, 36 and 37.
Jamshedji Kanga (R. J. Kolah with him) for the appel lant in Civil Appeal No. 38.
section Chaudhuri (G. C. Mathur, with him) for the appellants in Civil Appeals Nos. 41, 43, 44, 45, 46 and 49.
section Chaudhuri (S.N. Mukherjee, with him) for the appel lants in Civil Appeals Nos. 48 and 50.
R.J. Kolah, for the appellants in Civil Appeals Nos. 39, 40 and 42.
Ram Lal Anand (Charan Das Puri, with him) for the appel lant in Civil Appeal No. 47.
A.C. Gupta (M.M. Sen and R.K. Banerji, with him) for the respondents in Civil Appeals Nos. 35, 36, 40, 41, 42, 43 and 44, M.M. Sen for the respondents in Civil Appeals Nos. 37, 39, 45 and 46.
Niren De (B.K. Chaudhary with him) for the respondents in Civil Appeals Nos. 38 and 50.
T.R. Bhasin for the respondents in Civil Appeals Nos. 48 and 49.
M.C. Setalvad, Attorney General for India.
Sikri, with him) for the Intervener (Union of India) in Civil Appeal No. as.
April 9.
The judgment of Kania C.J, Mehr Chand Mahajan, S.R. Das and Vivian Bose JJ.
was delivered by Kania C.J., Fazl Ali, Patanjali Sastri and Mukherjea JJ.
delivered separate judgment s, KANIA C.J.
In these appeals the question whether the Industrial Tribunal (Bank Disputes) had jurisdiction to make the awards has been directed by the Court to be tried as a preliminary issue. 'the decision depends on the true con struction of sections 7, 8, 15 and 16 of the .
On 384 this question, the agreed statement of facts shows that by a notification of the Government of India dated the 13th June, 1949, the Central Government constituted an Industrial Tribunal 'for the adjudication of industrial disputes in banking companies consisting of Mr. K.C. Sen, chairman, Mr. S.P. Varma and Mr. J.N. Mazumdar.
A second notification dated the 24th August, 1949, was thereafter issued as follows :"In exercise of the powers conferred by sub section (1) of section 8 of the , the Central Government was pleased to appoint Mr. N. Chandrasekhara Aiyar as a member of the Industrial Tribunal constituted by the notifications of the Government of India in the Ministry of Labour dated the lath June, 1949, in the place of Mr. S.P. Varma whose services have ceased to be available.
" The Tribunal commenced its regular sittings at Bombay from the 12th to the 16th of September, 1949.
It thereafter sat at Delhi and Patna between the 19th September, 1949, and 3rd April, 1950.
Further sittings were held, at some of which Mr. Mazumdar was absent on various dates and Mr. Chandrasek hara Aiyar was absent from the 23rd November, 1949, to the 20th of February, 1950, as his services were placed at the disposal of the Ministry of External Affairs as a member of the Indo Pakistan Boundary Disputes Tribunal.
Between the 23rd November, 1949, and 20th February 1950, Mr. Sen and Mr. Mazumdar together sat at several places and made certain awards.
Those awards have been accepted by the Government under section 15 of the Act and published in the Gazette as the awards of the Tribunal.
The Tribunal held its sittings in Bombay to hear general issues from the 16th January, 1950, and concluded them on the 3rd April, 1950.
In the agreed statement of facts, it is stated that the services of Mr. Chandrasekhara Aiyar were not available to the Tribunal from the afternoon of 23rd November, 1949, to the forenoon of 20th February, 1950.
From the 16th January, 1950, up to 20th February, 1950, several matters, particularly including 15 items covering, inter alia, Issues 1, 2, 3, 4, 15, 23, 27, 28, 33, 34, 37 385 and dealing with the question of the jurisdiction of the Tribunal in respect of officers regarding banks having branches in more than one Province and banks in liquidation, question of retrospective effect to be given to the award, question relating to provident and guarantee fund and allow ances to special categories of workmen, were dealt with by the Tribunal.
From the notes of the proceedings of the Tribunal it appears that as numerous banks and workmen were parties to the proceedings, some workmen who had not found it convenient to attend throughout appeared and put forth their views in respect of the aforesaid issues and questions after Mr. Chandrasekhara Aiyar started his work from the afternoon of the 20th February, 1950, again by sitting with Mr. Sen and Mr. Mazumdar.
The jurisdiction of the Tribunal of the aforesaid three persons to make the award is disputed on two grounds: (1) That when Mr. Chandrasekhara Aiyar 's services ceased to be available, as mentioned in the agreed statement of facts, the remaining two members had to be re appointed to consti tute a Tribunal.
(2) That when Mr. Chandrasekhara Aiyar began to sit again with Mr. Sen and Mr. Mazumdar from the forenoon of 20th February, 1950, it was imperative to issue a notification constituting a Tribunal under section 7 of the .
The argument is that in the absence of Mr. Chandrasekhara Aiyar the two members had no jurisdiction to hear anything at all without the appropriate notification and that Mr. Chandrasekhara Aiyar 's services having ceased to be available on the 23rd of November, 1949.
he cannot sit again with the other two members to form the Tribunal in the absence of a notification under section 7.
In order to appreciate the correct position, it is necessary to consider the scheme of the .
It envisages the establishment of a Conciliation Board, a Court of Inquiry and a Tribunal for adjudication.
Rele vant portions of sections 5, 6, 7, 8, 15 and 16 of the Act which only are material for the present discussion run as follows: 50 386 5.
(1) "The appropriate Government may as occasion arises by notification in the official Gazette constitute a Board of Conciliation for promoting the settlement of an industrial dispute.
(2) A Board shall consist of a chairman and two or four other members, as the appropriate Government thinks fit.
(3) The chairman shall be an independent person and the other members shall be persons appointed in equal numbers to represent the parties to the dispute and any person appoint ed to represent a party shall be appointed on the recommen dation of that party: * * * (4) A Board, having the prescribed quorum, may act notwithstanding the absence of the chairman or any of its members or any vacancy in ifs number.
Provided that if the appropriate Government notifies the Board that the services of the chairman or any other member have ceased to be available, the Board shall not act until a new chairman or member, as the case may be, has been ap pointed.
(1) "The appropriate Government may as occasion arises by notification in the official Gazette constitute a Court of Inquiry for inquiring into any matter appearing to be connected with or relevant to an industrial dispute.
(2) A Court may consist of one independent person or of such number of independent persons as the appropriate Government may think fit and where a Court consists of two or more members, one of them shall be appointed as the chairman.
(3) A Court, having the prescribed quorum, may act notwithstanding the absence of the chairman or any of its members or any vacancy in its number.
Provided that, if the appropriate Government noti fies the Court that the services of the chairman have ceased to be available, the Court shall not act until a new chair man has been appointed.
(1) "The appropriate Government may constitute one or more Industrial Tribunals for the 387 adjudication of industrial disputes in accordance with the provisions of this Act.
(2) A Tribunal shall consist of such number of members as the appropriate Government thinks fit.
Where the Tribunal consists of two or more members, one of them shall be ap pointed as the chairman.
(3) Every member of the Tribunal shall be an independent person, (a) who is or has been a Judge of a High Court or a District Judge, or (b) is qualified for appointment as a Judge of a High Court: Provided that the appointment to a Tribunal of any person not qualified under part (a) shall be made in consul tation with the High Court of the Province in which the Tribunal has, or is intended to have, its usual place of sitting.
(1) "If the services of the chairman of a Board or the chairman or other member of a Court or Tribunal cease to be available at any time, the appropriate Government shall in the case of a chairman, and may in the case of any other member, appoint another independent person to fill the vacancy, and the proceedings shall be continued before the Board, Court or Tribunal so reconstituted.
(2) Where a Court or Tribunal consists of one person only and his services cease to be available the appropriate Government shall appoint another independent person in his place, and the proceedings shall be continued before the person so appointed.
(3) Where the services of any member of a Board other than the chairman have ceased to be available, the appropri ate Government shall appoint in the manner specified in sub section (3) of section 5 another person to take his place, and the proceedings shall be continued before the Board so reconstituted.
(1) "Where an industrial dispute has been referred to a Tribunal for adjudication, it shall hold its proceed ings expeditiously and shall, as soon as 388 practicable on the conclusion thereof, submit its award to the appropriate Government.
(2) On receipt of such award, the appropriate Government shall by order in writing declare the award to be binding: * * * (4) Save as provided in the proviso to sub section (3) of section 19, an award declared to be binding under this section shah not be called in question in any manner.
"The report of a Board or Court and the award of a Tribunal shall be in writing and shall be signed by all the members of the Board, Court or Tribunal, as the case may be: Provided that nothing in this section shall be deemed to prevent any member of the Board, Court or Tribunal from recording a minute of dissent from a report or award from any recommendation made therein.
" Confining our attention to the aspect of absence of members at the sittings of the different bodies and what results follow therefrom, it is clear that under section 5 (4) when a member of a Board of Conciliation is absent or there is a vacancy, the Board is permitted to act, notwith standing such absence, provided there is the prescribed quorum.
Such quorum is fixed by the rules framed under the Act.
According to the proviso to this sub section however, if the appropriate Government notifies the Board that the services of the chairman or any other member have ceased to be available, the Board shall not act until a new chairman or a member, as the case may be, has been appointed.
Read ing these two parts together, it is therefore clear that a distinction is drawn between the situation arising from the absence of the chairman or any of its members and a vacancy in the Board, and the position when the Government has intimated that the services of a chairman or member have ceased to be available.
The words "having the prescribed quorum" put a further limitation on the right of the 389 remaining members of the Board to act, when all of them are not acting together.
The proviso thus makes it clear that when the services of a chairman or member have ceased to be available and that fact has been notified to the Board by the appropriate Government, the remaining members have no jurisdiction to act in the name of the Board.
Thus all the contingencies of temporary or casual absence, as well as permanent vacancy, and the contingency of the chairman or a member 's services having ceased to be available are con templated and provided for.
In the same way and in the same terms, provision is made in respect of the Court of In quiry in section 6 (3).
The provisions as regards the Tribunal are found in section 7.
No other section deals with the establishment of the Tribunal.
The first clause empowers the appropriate Government to constitute one or more industrial tribunals having the functions allotted to it under the Act.
Sub clause (2) provides that a Tribunal shall consist of such number of members as the appropriate Government thinks fit.
This clause therefore authorizes the appropriate Government to fix the number of members which will constitute the Tribunal.
Sub clause (3) and the proviso deal with the qualifications of individuals to be members with which we are not concerned.
Although in this section there is no provision like sections 5 (1) and 6 (1) requiring a notification of the constitution of the Tribunal in the official Gazette, the deficiency is made up by rule 5 of the Industrial Disputes Rules; 1949, framed by the Gov ernment under section 38 of the Act.
The rule provides that the appointment of a Board, Court or Tribunal "together with the names of the persons constituting the Board, Court or Tribunal ' shall be notified in the official Gazette.
It is therefore obligatory on the appropriate Government to notify the composition of the Tribunal and also the names of the persons constituting the same.
In respect of a Tribunal which is entrusted with the work of adjudicating upon dis putes between employers and employees which have not been settled otherwise, this provision 390 s absolutely essential.
It cannot be left in doubt to the employers or the employees as to who are the persons authorized to adjudicate upon their disputes.
This is also in accordance with notifications of appointments of public servants discharging judicial or quasijudicial functions.
The important thing therefore to note is that the number forming the Tribunal and the hames of the members have both to be notified in the official Gazette for the proper and valid constitution of the Tribunal.
It is significant that there is no provision correspond ing to section 5 (4) or 6 (3) in section 7.
Section 15 of the Act provides that when an industrial dispute has been referred to a Tribunal for adjudication, it shall hold its proceedings expeditiously and as soon as practicable and at the conclusion thereof submit its award to the appropriate Government.
It is thus clear and indeed it is not disputed that the tribunal as body should sit together and the award has to be he result of the joint deliberations of all mem bers of he Tribunal acting in a joint capacity.
Section 16 requires that all members of the Tribunal shall sign he award.
This again emphasizes that the function of the Tribunal is joint and it is not open to any member to re frain from signing the award.
If the award is not signed by all members it will be invalid is it will not be the award of the Tribunal.
In the light of the provisions of section 7 the question arising for consideration is, what was the duty of the Government when the services of Mr. Chandrashekhara Aiyar ceased to be available.
The two telegrams exchanged between Mr. Sen and the Government show that the Government took the view that a vacancy had occurred and they did not think of filling it up at the time.
In the first place, on the true construction of the Act, was it not obligatory on the Gov ernment to notify to the contesting parties that it had decided not to fill up the vacancy ? Is it open to them to leave the parties in doubt in respect of a Tribunal entrust ed with the work of adjudicating upon very important dis putes between parties ? In our opinion, the whole 391 scheme of the Act leads to the conclusion that the Govern ment must notify its decision as to what it desired to do, i.e., whether it intended to fill up the vacancy or not and thereupon notify what members were going to constitute the Tribunal.
We are led to that conclusion because a Tribunal of three consisting of Mr. Sen, Mr. Mazumdar and Mr. Chan drasekhara Aiyar is a different tribunal from one consisting of two, viz., of Mr. Sen and Mr. Mazumdar only.
In this setting, it is next necessary to consider the words of section 8 on which strong reliance is placed on behalf of the respondents.
The marginal note of that sec tion is "filling of vacancies ".
The section deals with the Board, the Court and the Tribunal in its clauses.
Under sub section (1), the Legislature clearly contemplates that when the services of a member cease to be available at any time there will arise a vacancy.
This sub section deals with the situation in three stages.
The first question is, have the services of a member (and this includes, for the present discussion,.
a chairman)ceased to be available ? If so, the vacancy having thus arisen, the next question is, what can be done by the appropriate Government ? If the vacancy is filled up by making the appointment, the final question is, how the proceedings shall go on before the Board, Court or Tribunal so reconstituted ? It was argued on behalf of the respondents that it was for the appropriate Government alone to pronounce whether the services of a member had ceased to be available at any time and that was not a matter for the decision of the Court.
In our opinion, what is left to the option of the Government is, in case of the services of a member ceasing to be available, to appoint or not to appoint.
Those stages having passed, the appro priate Government, under the section, is obliged to appoint another person to fill the vacancy, if the vacancy is creat ed in respect of a chairman.
In respect of the vacancy of a member 's post, the Government is given the option to appoint or not to appoint another person.
The concluding words of the sub section "so reconstituted" clearly relate only to the contingency of 392 the Government making the appointment of another independent person in the vacancy.
The concluding part of that sub section provides for the continuance of the proceedings before the body so reconstituted.
Subsection (2) also pro vides that where a court or tribunal consists only of one person and his services have ceased to be available, on the appointment of another independent person the proceedings shall be continued before the person so appointed and it will not be necessary to start the proceedings from the beginning before that person.
Section 8 (3) provides for the contingency of the services of a member of a Board not being available.
It requires the appropriate Government to make the appointment as provided in section 5 (3) and fur ther provides that notwithstanding the inclusion of a total ly new man in that vacancy, the proceedings shall be contin ued before the Board so reconstituted.
Reading the three clauses together, therefore, it is quite clear that the object of section 8 is to make specific provisions in re spect of situations when the Government must or does fill up vacancies in the event of the services of a member or chair man not being available and the consequences of a totally new man filling up the vacancy.
As we read the Act, that is the total object and intention of this section.
It does not contemplate the consequences of the Government not making an appointment where it has the option not to do so.
The emphasis on the words "so reconstituted ' ' in sub sections (1) and (3) and the concluding words of each of those clauses clearly bear out this intention of the legislature.
It was argued that although no provision is made in section 8 (1) about what is to happen if the Government did not fill up the vacancy, it is implied that in that event the remaining members can continue the work.
We are unable to accept that argument.
In the first place, as pointed out above, the object of section 8 is to provide in what cases vacancies must be filled up and how the proceedings should continue on the vacancy being filled up.
It does not deal at all with the situation arising from the not filling up of the 393 vacancy by the Government.
In this connection the provi sions of sections 5 (4) and 6 (a) have been already noted.
When the legislature wanted to provide that in spite of the temporary absence or permanent vacancy the remaining members should be authorised to proceed with the work they have made express provision to that effect.
If in the case of a Board or Court of Inquiry, neither of which is adjudicating any disputes, such a provision was considered necessary to enable the remaining members to act as a body, we think that the absence of such provision in respect of the Tribunal, which adjudicates on the disputes and whose quasi judicial work is admittedly of a joint character and responsibility leads to the irresistible conclusion that in the absence of one or more members the rest are not competent to act as a Tribunal at all.
Again the provisos to sections 5 (4) and 6 (3) are important.
Under those provisos when the Government intimates to the remaining members that the services of one "have ceased to be available" the rest have no right to act as the Board or Court.
It appears under the circumstances proper to hold that in respect of a Tribunal when the serv ices of a member have ceased to be available, the rest by themselves have no right to act as the Tribunal.
The question which we have got to consider can be divid ed in two stages.
On the appointment of Mr. Chandrasekhara Aiyar as a member of the Boundary Tribunal, did his services cease to be available within the meaning of section 8, and thereby was a vacancy created? The parties have put before us only two telegrams exchanged between the chairman and Mr. Mazumdar on the one hand and the Central Government on the other, to reach our conclusion about the situation arising from Mr. Chandrasekhara Aiyar joining the Boundary Tribunal.
Certain Government notifications published 'in May and June, 1950, i.e., over three or four months after Mr. Chandrasek hara Aiyar finished his work on the Boundary Tribunal, have been put before us, but in our opinion these 394 ex post facto notifications cannot help us in deciding the important question under section 8.
It is obvious that, on the date the appointment of Mr. Chandrasekhara Aiyar as a member of the Boundary Tribunal was made, it could not have been known how long that Tribunal would take to complete its work.
In any event, the evidence put before us as of that date does not show that the appointment was for a short time.
The Boundary Tribunal 's work may have lasted for a month or a year.
Having regard to the urgency and the necessity of quick disposal of industrial disputes recog nised in section 15, the deputation of a member of such a Tribunal to another Tribunal, whose work may be of an indef inite duration, obviously makes the services of the member cease to be available to the Industrial Tribunal within the meaning of section 8 so as to bring about a vacancy.
The later statement in the Government notification of May, 1950, that Mr. Chandrasekhara Aiyar 's services were lent to the External Affairs Ministry "from the 23rd of November, 1949, to the 20th of February, 1950, " appears to be more a noti fication for the purpose of the Accountant General and the Audit departments of the Government than a disclosure of the mind of the Government when the appointment was made on the 23rd of November.
When Mr. Sen, as chairman, and Mr. Mazum dar held their first sitting in the absence of Mr. Chandra sekhara Aiyar, an objection was raised about the constitu tion of the Tribunal.
Thereupon Mr. Sen and Mr. Mazumdar conveyed to the Government what had happened at the meeting.
The Government was therefore clearly faced with the problem as to what it wanted to do.
The reply telegram from the Government asked Mr. Sen and Mr. Mazumdar to go on with the proceedings.
It further stated that the Government might fill up the vacancy later on.
The question for considera tion is, what is the effect of this telegram of the Govern ment ? In the light of the provisions of section 8 that telegram can only mean that the Government had decided not to fill up the vacancy.
If a vacancy had occurred they had to make the appointment or state that they will 395 not do so.
They cannot defer their decision on the question of filling up the vacancy and in the interval direct the remaining members to go on with the reference.
That seems to us to be the correct position because the fundamental basis on which the Tribunal has to do its work is that all members must sit and take part in its proceedings jointly.
If a member was casually or temporarily absent owing to illness, the remaining members cannot have the power to proceed with the reference in the name of the Tribunal, having regard to the absence of any provision like section 5 (4) or 6 (3) in respect of the tribunal.
The Government had notified the constitution of this Tribunal by the two notifications summarized in the earlier part of the judg ment and thereby had constituted the Tribunal to consist of three members and those three were Mr. Sen, Chairman, Mr. Mazumdar and Mr. Chandrasekhara Aiyar.
Proceeding with the adjudication in the absence of one, undermines the basic principle of the joint work and responsibility of the Tribu nal and of all its members to make the award.
Moreover, in their telegram the Government had not suggested that no vacancy had occurred.
Indeed, they recognised the fact of a vacancy having occurred but stated that they might make the appointment later on.
If those words are properly construed, without any outside considerations, it is clear that the Government intended that the remaining two members of the Tribunal should proceed with the adjudication as a Tribunal.
This direction in fact was accepted and the two members proceeded with the reference and made certain awards.
Those awards were sent to the Government under section 15 (2) and the Government by its order declared the awards to be bind ing, and published them in the official Gazette.
Those awards are signed only by Mr. Sen and Mr. Mazumdar.
Reading those awards with the notifications and the provisions of sections 15 and 16 it is therefore clear that between 23rd November, 1949, and 20th February, 1950, the Government ' 'intended" the tribunal to consist only of Mr. Sen and Mr. Mazumdar.
It was not and 396 cannot be seriously disputed that in the event of the Gov ernment deciding to fill up the vacancy, a notification had to be issued.
The question is, why and under what rule ? The answer clearly is that they had to do it because of rule 5.
The reason why intimation of a new man forming a member of the Tribunal has to be publicly given, in our opinion, applies with equal force when a tribunal initially consti tuted of three persons, viz., Mr. Sen, Mr. Mazumdar and Mr. Chandrasekhara Aiyar, is, by the Government decision, as from a certain date, to be a tribunal of Mr. Sen and Mr. Mazumdar only.
The word "reconstituted" is properly used in section 8 because when a new member is introduced in the panel so far performing its duties, it is a reconstitution, but the words of section 8 do not exclude the obligation on the Government to issue a notification under rule 5 when there is not a reconstitution, but a new constitution of the Tribunal.
The Government, however, did not give effect to its intention by issuing a fresh notification under section 7.
Therefore, when the services of Mr. Chandrasekhara Aiyar ceased to be available and they decided that another inde pendent person was not to be appointed to fill the vacancy, there arose the situation when only two members constituted the Tribunal and for the constitution of such Tribunal no notification under section 7 of the Act was issued.
To enable such a Tribunal of two persons to function, under the provisions of the Act, a notification under section 7 of the Act, in our opinion, was absolutely essential.
The work of the two members in the absence of such a notification cannot be treated as the work of a Tribunal established under the Act and all their actions are without jurisdiction.
It was argued on behalf of the respondents that when Mr. Chandrasekhara Aiyar left for the Boundary Tribunal, there arose a temporary absence which it w, as not necessary to fill up and the remaining two members had jurisdiction under the Act to proceed with the adjudication.
In our opinion, this contention cannot be accepted.
In the first place, in the agreed statement of facts, it is not stated that there was any temporary 397 absence.
Again, as we have pointed out the Government by its telegram of the 29th of November accepted the position that a vacancy had occurred and no question of temporary absence therefore arises for our consideration.
An analogy sought to be drawn between the temporary absence on leave or on depu tation of a Judge is misleading having regard to the fact that under section 7 the Government has to decide at the initial stage how many members and who will constitute the Tribunal and have to notify the same.
That step having been taken, it is not within the power or competence of the Government to direct a few members only of such Tribunal to proceed with the adjudication for however short or long time it be.
In our opinion, section 8 has no application to that situation.
In this connection, it may be useful to notice that under rule 12 it was provided that "when a Tribunal consists of two or more members, the tribunal may, with the consent of the parties, act notwithstanding any casual vacancy in its number . "This rule clearly shows that even when there was a casual vacancy and the remaining members desired to proceed with the work they could do so only with the consent of the parties.
This rule framed under section 38 of the Act strongly supports the contention that if the Act impliedly gave power under section 8 to the remaining two members of the Tribunal to act, as contended on behalf of the respondents, there was no necessity at all for making this rule.
Although this rule was repealed on the 3rd of December, it was in operation when the services of Mr. Chandrasekhara Aiyar ceased to be available to the Tribunal as from the 23rd of November.
If in the case of temporary absence, the consent of the parties was essential to enable the remaining members to act, it certainly follows that the objection to their working as a 'tribunal when there is no consent and the absence is not casual, but is due to the services of one of the members having ceased to be available, is fatal.
It follows therefore that all awards made by Mr. Sen and Mr. Mazumdar, after the services of Mr. Chandrasekhara Aiyar ceased to be available, were 398 not made by a tribunal duly constituted under section 7 and those awards are therefore void.
It was contended that by directing Mr. Chandrasekhara Aiyar to work again as a member of the Banks Tribunal in February, 1950, the Government had filled up the vacancy under section 8.
In our opinion this position cannot be supported on the admitted facts.
As regards filling up of a vacancy under section 8, we have already noticed that by directing the remaining two members to proceed with the work and by notifying their awards as the awards of the Tribunal the Government must be considered to have intended not to fill up the vacancy.
Again, the later notification pub lished in June, 1950, does not even state that Mr. Chandra sekhara Aiyar was appointed a member of the Tribunal "in any vacancy.
" The word used there is "resumed" suggesting there by that he had gone out for the time being but had started the work again.
Under the circumstances and in the absence of any other evidence, we are unable to consider the fact of Mr. Chandrasekhara Aiyar sitting along with the two members from and after the 20th February, 1950, as an appointment by the Government in the vacancy created by his appointment to the Boundary Tribunal in November, 1949.
At one stage it was suggested that the members of the Tribunal could delegate their work to a few members only and the award can be supported in that way.
Apart from the question what work could be so delegated, it was ascertained that the Rule permitting delegation was first published on 3rd December, 1949, and as Mr. Chandrasekhara Aiyar had gone to his work on the Boundary Tribunal on 23rd November, no delegation in that manner was possible.
Moreover, the state ment of facts nor the award of the three persons suggests that there was any delegation of work by the Tribunal in the matter of the general issues to some members only.
Nor was any report made to or considered by the full Tribunal as required by the rule.
The next question to be considered is the effect of Mr. Chandrasekhara Aiyar sitting with the two 399 members of the Tribunal after 20th February, 1950.
The record shows that the two members considered most of the general issues raised in respect of the banks at many meet ings.
The nature and volume of the work done by them during this interval has been summarized in the earlier part of the judgment.
It is not contended that on Mr. Chandrasekhara Aiyar commencing to sit again with the other two members on and from the 20th February what had happened in his absence was re done or re heard.
Mr. Chandrasekhara Aiyar along with the other two members continued to work from the point work had proceeded up to 19th February, 1950, and the award which is put before us is signed by all the three of them, i.e., on the footing that all the three of them were members of the Tribunal.
It was suggested that Mr. Chandrasekhara Aiyar should be treated as having remained throughout a member of the Tribunal of three and that he resumed work after a temporary absence between November, 1949, and Febru ary, 1950.
In our opinion, this position is quite unsupport able.
When the services of Mr. Chandrasekhara Aiyar ceased to be available to the Tribunal in November, 1949, and the Government accepted the position that a vacancy had oc curred, Mr. Chandrasekhara Aiyar ceased to be a member of the Tribunal of three as constituted under the Government notification of June, 1949.
Thereafter Mr. Chandrasekhara Aiyar never became a member of the Tribunal as he was never appointed a member before he signed the award.
No notifica tion making such an appointment under section 7 read ' with section 8 of the Act has been even suggested to exist.
In the circumstances, the position in law was that Mr. Chandra sekhara Aiyar ceased to be a member of the Tribunal of three as originally constituted, that no new Tribunal of two was legally constituted and that, having ceased to be a member of the tribunal of three, Mr. Chandrasekhara Aiyar could not resume duties as a member of the Tribunal of three without a fresh constitution of a Tribunal of three.
The result is that all the interim awards purported to be made by Mr. Sen and Mr. Mazurndar as 400 well as the final awards made by the three must all be held to have been made without jurisdiction.
It seems to us that the only way in which the Government could have put matters right was by a notification issued in February, 1950, con stituting the tribunal as a fresh Tribunal of three members (and not by proceeding as if a vacancy had been filled up on 20th February, 1980, under section 8) and the three members proceeding with the adjudication de novo.
Even if the con tention of the respondents that Mr. Chandrasekhara Aiyar continued throughout a member of the tribunal were accepted, in our opinion, the appellants ' objection to the jurisdic tion of the three persons to sign the award must be upheld.
Section 16 which authorizes them to sign is preceded by section 15.
Unless they have complied with the provisions of section 15, i.e., unless all the three have heard the matter together, they have no jurisdiction to make the award in terms of section 18 and have therefore also no jurisdic tion to sign the award under section 16.
In any view of the matter the awards are therefore without jurisdiction.
It was suggested that his signature on the award could be treated as surplus.
In our opinion, this argument re quires only to be stated to be rejected.
It is not and cannot be disputed that Mr. Chandrasekhara Aiyar took active part in the deliberations and in the proceedings after 20th February, 1950, and naturally discussed and influenced the decision of the other two members of the Tribunal by such discussions.
This is not a case where an outsider was con sulted by the members of a Tribunal and thereafter the members came to their own independent decision.
It is obvious that for making the award all the three persons worked together and were jointly responsible for the result ant award.
The argument of surplusage therefore must fail.
In this view of the matter, the final award put before the Court is clearly without jurisdiction and the appellants ' contention must be upheld.
The final contention that the sittings in the interval constituted only an irregularity in the proceedings 401 cannot again be accepted because, in the first place, an objection was raised about the sitting of the two members as the Tribunal.
That objection, whether it was raised by the appellants or the other party, is immaterial.
The objection having been overruled, no question of acquiescence or estop pel arises, Nor can consent give a court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled.
No acquiescence or consent can give a jurisdiction to a court of limited jurisdiction which it does not possess.
In our opinion, the position here clearly is that the responsibility to work and decide being the joint responsibility of all the three members, if pro ceedings are conducted and discussions on several general issues took place in the presence of only two, followed by an award made by three, the question goes to the root of the jurisdiction of the Tribunal and is not a matter of irregu larity in the conduct of those proceedings.
The absence of a condition necessary to found the jurisdiction to make the award or give a decision deprives the award or decision of any conclusive effect.
The distinction clearly is between the jurisdiction to decide matters and the ambit of the matters to be heard by a Tribunal having jurisdiction to deal with the same.
In the second case, the question of acquiescence or irregularity may be considered and over looked.
When however the question is of the jurisdiction of the Tribunal to make the award under the circumstances summarized above, no question of acquiescence or consent can affect the decision.
It was contended that under section 8 the contingency of the Government not filling up a vacancy is clearly visual ized.
It is also provided in the section that in the event of a vacancy the Government may fill it up by appointing a new man and in such a case the proceedings need not start afresh.
It was argued that nothing more had happened in the present case and therefore no question of invalidity of the awards arises.
We are unable to accept these contentions.
In the first place, when Government decides not to fill up 402 a vacancy its decision has to be notified.
It is not a matter of the Government 's internal administration where the officers can work under departmental orders.
Moreover it should be noticed that when the services of a member cease to be available and that fact is conveyed to the rest of the members under sections 5 (4) and 6 (3), the rest have no right to act as a Body at all.
The wording of section 7 or 8, in our opinion, does not permit the remaining members of a Tribunal to have a higher right in the absence of a proper new notification issued under section ? of the Act.
As regards the second Contention, it should be noticed that the Government is given the option to make an appointment when a vacancy occurs, and section 8 provides that if a new man is appointed in the vacancy the proceedings need not start de novo.
That however does not mean that the Government must appoint a man in every case of vacancy and the proceedings must go on without commencing the same afresh.
It appears that the option is left to Government having regard to the stage to which the proceedings may have reached.
Suppose only after some preliminary work of a data finding nature is done a vacancy occurs, the Government may well think of appointing a new man as it may not be considered necessary to start the proceedings afresh.
On the other hand, if the work has progressed considerably the Government may not think it just and proper to fill up a vacancy by bringing in a new man, as by doing so they will in effect permit the work of the Body being done in two parts, viz., the first with two men and the second with three men.
These considerations emphasize the importance of the Government making up its mind to fill up or not to fill up a vacancy when it occurs.
It cannot keep its decision in abeyance and at one stage intend to proceed on the, footing that the vacancy is not filled up and later on after considerable work is done by the remaining members change its mind and proceed to act on the footing that a vacancy has continued and fill up the same after some months.
403 On the admitted principle that the work of the Tribunal, which is of a quasi judicial nature, is one of joint respon sibility of all its members, section 8 provides exceptions.
The Legislature having thus fixed in that section the limits of the exceptions, the limits have to be strictly observed and it is not within the competence either of the Tribunal or the Government to extend the limits of those exceptions.
In our opinion, the incidents in respect of the sittings and work of this Banking Tribunal, as mentioned above, do not fall within the limits of the exceptions and therefore the awards must be considered as made without jurisdiction.
In our opinion, therefore, the awards made and signed by Messrs. Sen and Mazumdar and by all the three persons are without jurisdiction and the contention of the appellants on this issue must be accepted.
FAZL ALI J.
The questions which this Bench is called upon to decide arise upon the following facts.
By a Notification dated the 13th June, 1949, the Govern ment of India constituted a Tribunal for the adjudication of industrial disputes in Banking Companies, consisting of Mr. K.C. Sen (Chairman), Mr. S.P. Varma and Mr. Majumdar (Mem bers).
Subsequently, Mr. Chandrasekhara Aiyar was appointed a member of the Tribunal in the place of Mr. Varma, whose services had ceased to be available.
On the 13th June, 1949, the Government referred to the Tribunal the disputes between a number of Banking Companies and their employees, and the Tribunal consisting of the chairman and 2 members commenced hearing them on the 12th September, 1949.
In November, 1949, the services of Mr. Aiyar were placed at the disposal of the Department of External Affairs of the Government of India, and he was appointed a member of the Indo Pakistan Boundary Disputes Tribunal, with the result that during his absence which covered ' a period of nearly 3 months beginning from the 23rd 404 November, 1949, and ending on the 20th February, 1950, the proceedings were continued before the chairman and the remaining member, and certain interim awards were also made during this period.
Mr. Aiyar rejoined the Tribunal on the 20th February, 1950, and ultimately all the 3 members made and signed an award on the 31st July, 1950, which was pub lished in the Gazette of India on the 12th August, 1950.
The main point raised in these appeals is that this award is without jurisdiction.
In some of the appeals, it is also contended that some of the interim awards, namely those given by the chairman of the Tribunal and Mr. Majumdar on the 5th January, 25th January, 20th February and 22nd Febru ary, 1950, in the case of the Imperial Bank of India, the Lloyds Bank and the Punjab National Bank, were also without jurisdiction.
Briefly, the argument advanced on behalf of the appellants is that the , did not permit either of the following courses, firstly, that 2 members of the Tribunal, which originally consisted of 3 members, should deal with any of the controversies between the parties in connection with the disputes referred to the Tribunal, and secondly, that a member who had left the Tribunal in the midst of the hearing should rejoin and influence the decision of the other members in regard to the matters which he had not heard.
These contentions, however plausible they may appear at the first sight, especially when we consider them in the light of our notions of judicial procedure to be followed in courts of law, will, in my opinion, be found to be without much substance, on close examination, once we realize that the Industrial Tribunal, though it has all the trappings of a court of law, is not such a court and has to follow its own procedure which has to be determined by the provisions of the industrial Disputes Act and the rules framed by the Government thereunder.
The determination of the questions raised before us will depend mainly upon the proper con struction of section 8 (1)of the Act, which runs as follows : 405 "8 (1) If the services of the chairman of a Board or of the chairman or other member of a Court or Tribunal cease to be available at any time, the appropriate Government shall, in the case of a chairman, and may in the case of any other member, appoint another independent person to fill the vacancy, and the proceedings shall be continued before the Board, Court or Tribunal so reconstituted .
" One of the questions to be decided in construing this section is, as to the exact meaning of the words "services cease to be available.
" Ordinarily, the word "cease" con veys a sense of permanency, and therefore the expression would certainly cover cases where the services of a person have ceased to be available permanently or for all time.
But that word is also sometimes applied to "intermission of a state or condition of being, doing or suffering" (see Oxford Dictionary), and, among several instances of its being used in this narrower sense, we were referred to The Queen vs Evans(1) which is a case dealing with an English statute in which the expression "cease to reside" was used so as to include a case where the person concerned was away from England for a period and then returned there.
It seems to me that the words "services cease to be available" include cases where the services are not available for a defined or undefined period, provided that during that period they are completely unavailable.
These words should, I think, be read with the marginal note of section 8, which indicates that they were intended to cover every situation necessitat ing the filling of a vacancy.
As we are aware, a vacancy may be permanent or temporary, and therefore if the services of a member of a Tribunal are temporarily placed at the disposal of another department of the Government for performing special work, such a case will be covered by the section.
This must necessarily be so, if the nature of the duties which the member is called upon to discharge is such as to necessitate that particular member severing himself completely from the Tribunal during the (1) 406 period in which he holds his new office.
I find it diffi cult to hold that the section was meant to apply only to a permanent vacancy, and that no provision whatsoever was made for a temporary vacancy, which is by no means a matter of uncommon occurrence.
It should be noted that in sections 5 and 6 of the Act, the Legislature has been careful to use the words "vacancy in number" which are wide enough to include cases where, though there is a vacancy, the member ship does not cease.
It is common ground that in the present case, the services of Mr. Aiyar were not available to the Tribunal, while he was employed as a member of the Indo Pakistan Boundary Disputes Tribunal.
It is also not disputed that at the time his services were transferred, it was not known for what period his new duties would keep him away from the work of the Industrial Tribunal.
There can be no doubt therefore that there was a vacancy, which provided an occasion for the Government to exercise the discretion vested in it under section 8 of the Act.
At this stage it will be relevant to quote certain correspondence which passed between the chairman of the Tribunal and the Government soon after Mr. Aiyar ' left the Tribunal.
We find that on the 28th November, 1949, the chairman sent an express telegram to the Labour Ministry stating that in the absence of Mr. Aiyar objections had been raised to the remaining two members of the Tribunal continu ing the proceedings and urging the Ministry either to ap point a substitute or to intimate that the Tribunal could proceed with two members during Mr. Aiyar 's absence.
To this, the Government sent the following reply: "Reference your telegram twenty eighth stop Govern ment advised that rule twelve is inconsistent with section eight stop rule twelve being deleted through notification stop Government advised Tribunal can continue proceedings with remaining two members stop no formal order or notifica tion necessary stop Government may fill vacancy later date.
" 407 These two telegrams indicate that both the chairman of the Tribunal and the Government took the view that in the circumstances of the case, there was a vacancy within the terms of section 8, that under that section it was open to the Government either to make an appointment to fill the vacancy or not to make an appointment, and that the proceed ings before the Tribunal could continue even if the vacancy was not filled.
This is quite clear from the concluding words (which I have underlined) of the telegram sent by the Government to the chairman of the Tribunal.
In my judgment, the view taken by the chairman of the Tribunal and the Government was perfectly correct.
The question involved here is twofold, namely, (1) whether section 8 applies to a temporary vacancy; and (2) whether, in case the Government decides not to fill such a vacancy, the proceedings can continue before the chairman and the remaining member.
I have already dealt with the first point, and the second point may also be now dealt with briefly.
In substance, what section 8 provides is that if the chairman goes out, the vacancy must be filled, but, if a member goes out, the Government may or may not fill the vacancy.
It seems to me to follow from this by necessary implication, that if there is a member 's vacancy and the Government decide not to fill it, the Tribunal will not become an imperfectly constituted Tribunal.
In other words, the proceedings can be continued before the Tribunal in spite of the vacancy.
The argument put forward before us on behalf on the appellants was that in the event of a member 's vacancy, either the Government should make an appointment at once or the work of the Tribu nal should be suspended until an appointment is made.
These inferences however do not appear to me to be war ranted by the words of the section, firstly because 'if the section says that the Government may or may not appoint a new member, how can we say that the Government must appoint him, and secondly because there is nothing in the section to show that the work of the Tribunal should remain suspended indefinitely in the situation with 408 which we have to deal.
A reference to the corresponding Acts in England and America will show that suspension of work is generally ruled out in cases of industrial disputes since they need expeditious settlement.
(See section 3 (b) of the National Labour Relations Act of America and section 3 of the Industrial Courts Act, 1919, of England).
The scheme of our appears to me to be the same, and I think that it will be entirely foreign to that scheme to suggest that the proceedings of the Tribunal should remain suspended indefinitely.
The principle that the pro ceedings may continue in spite of there being a vacancy in number, is expressly laid down in sections 5 and 6 of the Act which govern Boards of Conciliation and Courts of En quiry, and is in my opinion recognized by necessary implica tion in section 8 with reference to proceedings before an Industrial Tribunal.
It was strenuously argued before us that if the intention of the Legislature had been that the proceedings before the Tribunal should continue in spite of a vacancy, an express provision would have been made in section 8 in the same terms as it has been made in sections 5 and 6.
This argument however will not bear close examina tion.
Sections 5 and 6 have been reproduced from the Trade Disputes Act, 1929, without any verbal change whatsoever, and it is quite understandable that a provision dealing with the subject of a prescribed quorum should expressly state what would be the effect of the absence of the chairman or a member when the quorum is complete.
Section 8, on the other hand, has not been borrowed from the old Act, but is a completely new section in which its draftsman has used his own language and proceeded on the footing that if it was possible to convey the meaning intended to be conveyed in fewer words, there was no necessity for reproducing the entire phraseology used in sections 5 and 6.
Besides, in the context in which the provision occurs, there is no room for surmising that the intention of the framer of the section might have been to suspend the work of the Tribunal.
The words "the proceedings shall be continued 409 before the Board, Court or Tribunal so reconstituted", obviously refer to a situation which arises when anew chair man or a new member is appointed, but they also show that the framer of the section must have assumed that the pro ceedings before the Tribunal shall continue when there is a vacancy in number and the Government decides not to fill it.
The position we have now arrived at is this.
There was a vacancy of an indefinite duration and the Government decid ed, as it was competent for it to decide, not to fill it for the time being but to let the Tribunal continue the work.
In my judgment, in such circumstances, the proceedings before the chairman and the remaining member cannot be said to have been without jurisdiction.
The further question which now arises is, "what would be the legal effect of Mr. Aiyar rejoining the Tribunal on the 20th February, 1950?" It is contended on behalf of the appellants that the whole award is vitiated by Mr. Aiyar being brought into the Tribunal at a late stage, and the argument is put in the following way.
" The Government had originally appointed a Tribunal consisting of a members.
Granting that a Tribunal of a members can, under section 8 of the Act, become a Tribunal of 2, how can it again become a Tribunal of 3, without the Government acting in strict compliance with the procedure laid down in the section and without making a fresh appointment.
" The same argument was put a little more rhetorically by likening the proceedings before the Tribunal to a running train and enquiring whether it was permissible for one to "jump into and jump off" the train as one chose.
I must confess that though I have very carefully considered this argument I have not been able to appreciate its force.
In answering the argument, we have to bear in mind that the Legislature has conferred very large powers on the Government, and the entire constitution of the Tribunal as well as the appointment of its members have been left to its discretion.
Section 7 (2) provides that the Tribunal shall consist of such 410 number of members as the appropriate Government thinks fit.
Again, section 8 (1) provides that the Government may or may not appoint a member to fill a vacancy.
Under section 9, no order of the appropriate Government appointing any person as a member of a Tribunal shall be called in question in any manner.
Under section 38, for the purpose of giving effect to the provisions of the Act, the Government may make rules, and, as far as I can see, there is nothing to prevent the Government from making a rule fixing the minimum strength of the Tribunal for hearing any of the matters before it.
Thus, in a way, the Government is empowered to constitute as well as reconstitute the Tribunal, and though it is not expected to use the power arbitrarily, or unfairly the power is there.
Therefore looking at the substance of the matter, as opposed to mere technicalities and legal refinements, it appears to me to be a sufficient answer to the question posed on behalf of the appellants to say that, if the going out and coming in of Mr. Aiyar was under the orders of the Government, the proceedings cannot be held to be invalid.
Apart from this general answer, I shall now try to deal with the question a little more closely.
As I have already pointed out, under section 8, the Government is empowered not to fill a member 's vacancy at all.
Now, there appear to me at least two obvious reasons, which may induce the Gov ernment not to fill the vacancy, namely, (1) because it considers that the chairman and the remaining member or members are sufficient to carry on the work of the Tribunal, and (2) because the vacancy being a temporary one, it con siders it unnecessary to introduce a new member and prefers to await the return of the old member.
It seems to me that it was the latter alternative that commended itself to the Government in the present case.
Here, the vacancy being a temporary one, Mr. Aiyar had not ceased to be a member of the Tribunal, and could therefore rejoin it as soon as he was free from the duties of his new office.
In such an event, it was not necessary for the Government to 411 make any order reappointing him to the Tribunal.
He was still a member of the Tribunal and resumed his duties as such under the orders of the Government.
It will, therefore, be entirely wrong to describe him as an intermeddler and to argue that the proceeding was vitiated by his return to the Tribunal.
There is indeed no difficulty in the present case in holding that Mr. Aiyar joined the Tribunal under the orders of the Government, and we find that the Government ultimately declared the award, to which he was a party, to be binding under section 15 of the Act.
He was allowed to resume his duties as member of the Tribunal, and drew his salary as such from the 20th February, 1950, till the termination of the proceedings.
Such being the facts, it would be far too abrupt a conclusion to hold that the entire proceedings are void and the award is bad.
One of the arguments which has been advanced before us against the validity of the award is that Mr. Aiyar, though he did not participate in the proceedings which took place in his absence, was at least theoretically able to influence the decision of the remaining members who had participated in them.
But I do not see any basis for this argument in law, unless we allow our minds to be influenced by any precon ceived notions of strict judicial procedure followed in a regular court of law.
A perusal of section 8 (2) will show that the Act does not contemplate a ale novo hearing in those cases where a new member is appointed by the Govern ment in the place of a member whose services had ceased to be available.
The new member may join at any stage of the proceedings, and no party will be heard to say that a member who has not taken part in the earlier proceedings is able to influence the views of those who had participated in them.
How then can such an objection be raised in the case of Mr. Aiyar, who was familiar with the proceedings and had taken part in them in the earlier stages.
When we therefore examine the facts closely, we find that in substance nothing has happened in this case which could not have legitimately happened 412 under section 8 of the Act.
Even if we assume that it was necessary for the Government to make an appointment under sub section (1) of section 8, the requirements of the provi sion appear to me to have been substantially fulfilled in this case, because Mr. Aiyar could not have joined the Tribunal without giving notice to the Government and without obtaining its orders.
There can be no doubt that the Gov ernment permitted Mr. Aiyar to join the Tribunal, and I do not find any substantial difference between its directing a person to participate in the work of ?the Tribunal and appointing him as a member of that Tribunal.
Once therefore it is clearly understood that under the Act, the Government has been empowered not only to consti tute the Tribunal but also to reconstitute it under certain circumstances, the problem which is supposed to arise from the numerical changes in the composition of the Tribunal in question should not present any difficulty.
I think that the answer to that problem is to be found within the four corners of section 8.
If there is a vacancy within the terms of that section and the Government does not fill it the Tribunal of 3 members will evidently become a Tribunal of 2 members.
But the power of filling the vacancy being vested in the Government, the Tribunal may again become a Tribunal of a members, as soon as the vacancy is filled.
I think that the Government can take its own time in filling the vacancy and may allow the work of the Tribunal to go on in the meantime.
Sometimes, the filling of the vacancy may be delayed, because a suitable person is not at once available, and it may also be delayed for other conceivable reasons.
I do not see anything in the Act or in section 8 to restrict the powers of the Government in such a manner as to compel it either to fill the vacancy, at once or to let the vacancy remain unfilled for ever.
To import such a condition would be placing an undue restriction on the power of the Govern ment, which neither the provisions nor the scheme of the Act justify.
The section, as it stands, will also in my opinion cover 413 a case where the vacancy being a temporary one, the Govern ment chooses not to fill it but awaits the return of the old incumbent.
It was contended that there was no formal notification made at the proper time to furnish evidence of the decision arrived at by the Government.
In fact, however, a Notifica tion was issued by the Government on the 20th May, 1950, to the following effect: "After relinquishing charge of membership of the Indo Pakistan Boundary Dispute Tribunal, Sri N. Chandrasekhara Aiyar resumed charge of his duties as Member of the All India Industrial Tribunal (Bank Disputes) on the 20th Febru ary 1950 (forenoon).
" It is argued that this ex post facto notification cannot legalize an illegality which had already been committed.
I do not however appreciate this argument.
In the first place, there was no illegality committed; secondly, the section does not require any notification; and thirdly, it is not correct to say that the Notification was issued ex post facto, as the proceedings had not terminated but were still going on.
The Government can take its own time for issuing a Notification, and I am unable to hold that the Government did not act bona fide in making the Notification to which I have referred.
As I have already stated, the fact that Mr. Aiyar joined the Tribunal with the concurrence of the Government and the Government wanted him to continue to participate in the work of the Tribunal and paid him his salary on that basis, is sufficient compliance with the requirements of the Act.
How the absence of a formal order or delay in the Notification can have such a far reaching effect on the proceedings before the Tribunal as to make the whole award void as having been made without jurisdiction, is a matter which I find considerable difficulty in appreci ating.
It seems to me that the objections raised on behalf of the appellants are of the most unsubstantial character, and in the absence of any cogent if not compelling reason to do so, I cannot pursuade myself to hold that the work which has been 414 accomplished by the Tribunal after nearly a year 's delibera tions and peregrinations all over the country at considera ble cost to the public exchequer is so much money and labour thrown away.
In the course of the arguments, we were asked to read section 8 with sections 7 and 16.
I do not find anything in either of these sections which militates against the view which I have ventured to express, and I do not think that the provision contained in section 16 that the report of the Tribunal shall be signed by all the members of the Tribunal, means that it should be signed even by those members who had not taken part in the proceedings.
It really means that the award shall be signed by such members as have taken part in the proceedings and could have taken part in them under the Act.
It should be remembered that the provision is general and applies to the awards made by the Tribunals as well as the Boards and Courts, and it should be read with the provi sions contained in sections 5 and 6 which state that a Board or Court having the prescribed quorum may act notwithstand ing the absence of the chairman or any of its members or any vacancy in its number.
It may be that the Tribunal and the Government could have acted in this case with more care so as to avoid the criticisms directed against the proceedings of the Tribunal, but I find no sufficient ground for holding that the proceedings were without jurisdiction.
Reference was made in the course of the arguments to rules Nos. 5 and 12 framed by the Government under section 38 of the Act, which run as follows : "5.
The appointment of a Board, Court or Tribunal together with the names of persons constituting the Board, Court or Tribunal shall be notified in the official Gazette.
Where a Tribunal consists of two or more members, the Tribunal may, with the consent of the parties, act notwithstanding any casual vacancy in its number and no act, proceeding or determination of the Tribunal shall be called in question or invalidated by reason of any such vacancy.
" 415 These rules however have in my opinion no bearing on the point in dispute.
Rule 5, dealing as it does with the appointment of a Board, Court or Tribunal together with the names of persons constituting them, refers to a Notification which the Government has to make when a Board, Court or Tribunal is initially constituted under the Act.
This was done in this case, as will appear from the award itself.
The rule has no reference to the appointments made under section 8 of the Act to fill vacancies.
I take it that the Government will, as a matter of practice, issue a notifica tion in regard to the appointments made under section 8, but the notification will not be under rule 5, and section 8 itself does not expressly provide for issuing any notifica tion.
Nor is a notification necessary under section8 in cases where the Government decides not to fill a vacancy.
The mere fact that the word 'reconstituted ' occurs in sec tion 8, is not in my opinion enough to attract rule 5.
Rule 12 which was in force till the 5th December, 1950, dealt with a casual vacancy, and provided that on the occurrence of such a vacancy, the Tribunal may act with the consent of the parties.
This rule had nothing to do with the vacancy caused by the services of a chairman or a member ceasing to be available, which is dealt with in section 8.
At the first sight, it may appear that if the consent of parties was necessary in the case of a casual vacancy for continu ing the proceedings, it may also be necessary for continuing the proceedings under section 8 of the Act when no appoint ment is made.
In my opinion, however, no such inference can be drawn from rule 12.
Under that rule, the proceedings could go on without the Government being informed, but as to vacancies which occur under section 8, the matter passes into the hands of the Government and its action alone, one way or the other, legalizes the proceedings, and no question of consent of parties arises.
On the other hand, rule 12 lends support to the respondents ' contentions in two ways.
Firstly, it shows that a "vacancy" for the purposes of the proceedings before the Tribunal can be casual and 416 need not always be a permanent one, as suggested on behalf of the appellants; and secondly, what is more important, that a "vacancy" does not affect the jurisdiction of the remaining members to continue the proceedings, for it is settled law that consent cannot give jurisdiction in respect of a subject matter though it might cure a mere irregulari ty.
It was said that rule 12 was ultra vires, but it appears to me to be unnecessary to inquire into this side issue.
For the reasons I have set out, I respectfully differ from the conclusion arrived at by my Lord the Chief Justice and the majority of my colleagues, and hold that the objec tions raised on behalf of the appellants should be over ruled.
PATANJALI SASTRI J.
I agree with the reasoning and conclusion of my learned brother Fazl Ali whose judgment I have had the advantage of reading.
He has said all I wished to say and has said it so well that I have nothing to add.
MUKHERJEA, J. I concur in the decision of my learned brother Fazl Ali, J. that the award of the All India Indus trial Tribunal (Bank Disputes) dated the 31st July, 1950, could not be held to be illegal and inoperative by reason of any lack of jurisdiction in the Tribunal which made it.
However, as the line of reasoning by which I have reached my conclusion is not the same as that adopted by my learned brother and as I have not been able to agree with him as regards the validity of certain earlier awards which the Tribunal purported to make in the months of January and February 1950, I deem it necessary and proper to express my own views on the subject matter of controversy in these appeals as succinctly as possible in a separate judgment.
The only point that has been canvassed before us at this stage of the hearing of the appeals relates to the question of jurisdiction, and the substantial ground upon which the legality of the awards has been assailed by the learned Counsel appearing for the several 417 Banks is that the awards were not made by a Tribunal proper ly constituted and competent to adjudicate upon industrial disputes under the terms of the .
To appreciate the arguments that have been raised by the re spective parties on this point, it would be necessary to state a few facts.
By a notification dated the 13th of June, 1949, the Central Government in exercise of the powers conferred upon it by section 7 of the , con stituted an Industrial Tribunal consisting of three members to wit: (1) Mr. K.C. Sen, (who was appointed chairman of the Tribunal), (2) Mr. S.P. Verma and (3)
J.N. Mazumdar.
By a further Notification dated August 24, 1949, Mr. N. Chan drasekhara Aiyar was appointed a member of the Tribunal in place of Mr. S.P. Verma whose services ceased to be avail able and the Tribunal so reconstituted was designated "The All India Industrial Tribunal (Bank Disputes) .
" The Tribu nal consisting of the chairman and the two members mentioned aforesaid commenced their sittings at Bombay on September 12, 1949, and continued to sit as so constituted at Bombay and various other places since then.
From the afternoon of 23rd September, 1949, the services of Mr. N. Chandrasekhara Aiyar were placed temporarily at the disposal of the Minis try of External Affairs, he being appointed a member of the Indo Pakistan Boundary Tribunal.
Mr. Aiyar 's work in connec tion with the Indo Pakistan Boundary Tribunal ended on 27th or January, 1950, and a Government Notification shows that he was absent on leave from 28th January, 1950, until the 19th of February following and it is on the 20th February, 1950, that he actually resumed his duties as a member of the Industrial Tribunal.
During the entire period of his ab sence there were various sittings of the Industrial Tribunal in which the two remaining members took part and a number of awards were also made and signed by these two members adjudicating upon several items of dispute concerning cer tain Banks.
It may be mentioned here that in exercise of the powers 418 conferred by section 38 of the , certain rules were framed by the Central Government which came into force on 3rd December, 1949, and under which the Tribunal, as constituted by the Notification of 13th June, 1949, was authorised to entrust such cases or matters re ferred to it, as it deemed fit, to one or more members for enquiry and report.
In case of such entrustment, the report of the enquiring member was to be placed before the chairman of the Tribunal and the Tribunal after considering the report and making such further enquiry as it deemed proper could deliver the award.
Purporting to act in pursuance of these rules a large number of matters pending before the Tribunal were divided amongst the members for enquiry and report and the members of the Tribunal did sit separately at different places from the 3rd of December, 1949.
After Mr. Aiyar joined the Tribunal, the proceedings continued as before.
The hearing of the general issues, which began at Bombay, was concluded on 3rd April, 1950.
The Tribunal made and signed the main, award on gist July, 1950, which was published in the Gazette of India (Extraordinary) on August 12, 1950.
The point that has been pressed for our consideration on behalf of the appellants Banks is that on the services of Mr. Aiyar having ceased to be available by reason of his being appointed a member of the Indo Pakistan Boundary Tribunal, the remaining two members could not, in law, constitute an Industrial Tribunal without its being reconstituted as such in, the manner contemplated by the provisions of the .
The proceedings after the 23rd of November, 1949, became, therefore, void and inoperative and the subsequent rejoining of the Tribunal by Mr. Aiyar was of no avail, as a vacancy having once occurred, a fresh appointment of a member and a fresh con stitution of the Tribunal were imperative in law.
We have been asked to declare the award made on 31st of July, 1950, as well as the earlier awards void and inoperative on these grounds.
419 These contentions have been sought to be repelled on behalf of the respondents employees as well as by the learned Attorney General who appeared for the Central Gov ernment as intervener, on a variety of grounds and though the grounds are not quite uniform or consistent, they have all been invoked in support of the position that even in the absence of Mr. Aiyar it was quite competent to the two other members to continue to function legally as a Tribunal under the provisions and the general scheme of the Industri al Disputes Act, 1947.
There was nothing irregular, it is said, in Mr. Aiyar 's subsequently taking part in the Tribu nal and signing the award on 31st July, 1949.
I will notice these arguments in detail as I proceed with my judgment.
It will be convenient first of all to advert to such of the provisions of the , as have a bearing on the questions raised in this case.
The object of the , as set out in the preamble is "to make provisions for investigation and settlement of industrial disputes and for certain other purposes hereinafter appearing.
" There are three classes of authorities provided for by the Act ' which are entrusted with the powers and duties of investigation and settlement of industrial disputes.
First of all, there are Conciliation Officers or Boards of Conciliation, whose duties mainly are to induce the parties to come to a fair and amicable settle ment of the disputes amongst themselves.
Secondly, there are Courts of Enquiry and though they are described as courts, their duties end with investigation into the matters referred to them and submitting reports thereon to the appropriate Government.
Lastly, there are Industrial Tribu nals composed of independent persons who either are or had been Judges of the High Court or District Judges, or are qualified for appointment as High Court Judges.
Sub section (2) of section 5 provides for the constitu tion of a Board of Conciliation.
A Board of Conciliation shall consist of a chairman and two or four other members as the appropriate Government thinks 420 fit, and sub section (8) provides that the chairman shall be an independent person, while the members shall be persons appointed in equal numbers by the parties to the dispute.
Sub section (4) makes an important provision, namely, that a Board can function despite the absence of the chairman or any of the members if it has the prescribed quorum as laid down in the rules, provided however that if the Government notifies the Board that the services of the chairman or of any other member have ceased to be available, the Board shall not act unless a new chairman or member, as the case may be, has been appointed.
Section 6 of the Act relates to Courts of Enquiry and such court may consist of one independent person or such number of independent persons as the appropriate Government may think fit.
Where a Court of Enquiry consists of two or more members, one of them has got to be appointed as a chairman.
The Court like the Board of Conciliation can function in the absence of the chairman or any of its mem bers or in the case of any vacancy in its number, provided it has the prescribed quorum; but it cannot function if the appropriate Government notifies it that the services of the chairman have ceased to be available, so long as a new chairman is not appointed.
There is no provision in section 6 relating to notification by Government in case the serv ices of a member of a Court cease to be available as there is in the case of a member of the Conciliation Board under section 5.
Section 7 deals with Industrial Tribunals.
Sub section (1) lays down that the appropriate Government may constitute one or more Industrial Tribunals for the adjudication of industrial disputes in accordance with the provisions of this Act.
Sub section (2) provides that a Tribunal shall consist of such number of members as the appropriate Govern ment thinks fit.
Where the Tribunal consists of two or more members, one of them shall be appointed a chairman.
There is no provision in section 7 similar to that appearing in sections 5 and 6 empowering a Tribunal to continue its proceedings in the absence of the chairman 421 or any of its members, provided there is a requisite quorum; in fact, no quorum has been prescribed in the rules in regard to an Industrial Tribunal at all.
It is clear, there fore, from the provisions of section 7 of the referred to above and this position has not been disputed by Mr. De who appeared for the employees of some of the Barks that if a Tribunal has been constituted as consisting of three members as in the present case, then subject to any exception that may be created by any other provision of the Act all the three members of the Tribunal must act together.
On behalf of the respondents very great stress has been laid upon section 8 of the , and it is contended that in the circumstances which have happened in the present case, the provision of section 8 would fur nish a clear authority to the two remaining members to continue as a legally constituted Tribunal during the period that the services of Mr. Aiyar ceased to be available, even though there was neither a fresh appointment in his place nor a fresh constitution of the Tribunal.
Section 8 is in the following terms: "(1) If the services of the chairman of a Board or of the chairman or other member of a Court or Tribunal cease to be available at any time, the appropriate Government shall, in the case of a chairman, and may in the case of any other member, appoint another independent person to fill the vacancy, and the proceedings shall be continued before the Board, Court or Tribunal so reconstituted.
(2) Where a Court or Tribunal consists of one person only and his services cease to be available, the appropriate Government shall appoint another independent person in his place, and the proceedings shall be continued before the person so appointed.
(3) Where the services of any member of a Board other than the chairman have ceased to be available, the appropri ate Government shall appoint in the manner specified in sub section (3) of section 5 another 422 person to take his place, and the proceedings shall be continued before the Board so reconstituted.
" The section purports to provide for filling up vacan cies.
Sub section (2) is not material for our present purpose.
Taking sub sections (1) and (3) together we find that if the services of the chairman of a Board, a Court or a Tribunal cease to be available at any time, it is incum bent upon the appropriate Government in each case to fill the vacancy by the appointment of another independent person as chairman and the proceedings shall be continued before the authorities so reconstituted and they would not have to be commenced de novo.
In case the services of a member of either a Court or a Tribunal cease to be available, it is discretionary with the appropriate Government to fill the vacancy or not as it chooses.
If it chooses to appoint a new member in place of the old, the same provision will apply as in the case of appointment of a new chairman.
The section does not say, at least in express terms, as to what would happen if the Government does not think it proper to appoint a new member.
So far as a Board of Conciliation is con cerned, a different provision is made even when the services of a member cease to be available.
In such a case, re ap pointment has got to be made as provided for in subsection (a) of section 5 and the reasons are obvious; because the essential thing in a Board of Conciliation is the equal representation of both parties to the dispute and the par ties would be unequally represented if the vacancy of a member is not filled up.
In the present case one of the members of the Tribunal namely, Mr. Aiyar, was admittedly absent for a period of above three months and as he was appointed to do duties in another capacity, his services could not possibly be avail able during the period that he was engaged elsewhere.
This fact, it appears, was brought to the notice of the appropri ate Government by the other two members, but the Government decided not to make any new appointment in his place.
The question is, what exactly became the legal position of the other two members ? Could they function 423 as a Tribunal in the absence of the third member and without the Government reconstituting the Tribunal as a Tribunal of two ? The contention of the respondents is that as section 8 of the gives an option to the appropriate Government to fill the vacancy or not, as it chooses, when the services of a member cease to be available and as it provides for reconstitution only when a new member is appointed by the Government, it is implicit in the provi sion of the section itself that in case the Government does not decide to appoint a new member, the remaining members would automatically constitute the Tribunal and would proceed as such.
It is said that the Industrial Tribunals are really administrative bodies and as the very object of establishing such Tribunals is to settle industrial disputes as quickly and as expeditiously as possible with a view to secure industrial peace, certain amount of laxity in the procedure cannot but be allowed to these Tribunals as ap pears from the various provisions of the Act and it would defeat the very object of the enactment if the normal rules of law and procedure are made applicable to them.
It is suggested further that what section 7 (1) contemplates is the constitution of a Tribunal irrespective of its members for adjudication of industrial disputes.
What number of persons the Tribunal shall consist of can be determined by the Government at different times and in different manner and no question of fresh constitution of a Tribunal would arise in case the number is subsequently altered.
So far as an Industrial Tribunal is concerned, section 8 (1) of the comes into operation when the services of the chairman of the Tribunal or of any member thereof cease to be available at any time.
This non availability of services may be permanent or temporary and may be occasioned by any cause or circumstance.
When the services of a member cease to be available, the appropriate Government has got to make up its mind whether it would fill the vacancy or not; and in case it chooses to appoint a new member, the Tribunal must be deemed 424 to be reconstituted within the meaning of section 8, the primary object of which is to provide that the proceedings shall be continued before such reconstituted Tribunal from the stage at which they were left and they would not have to be started afresh.
Thus it follows from the language of section 8 that the reconstitution spoken of or contemplated by the section is reconstitution by reason of the appoint ment of a new member in place of the old.
There is no question so far as section 8 is concerned of reconstitution of the Tribunal when the Government chooses not to fill the vacancy.
The point that is stressed on behalf of the respondents is that as section 8 does not provide for reconstitution of the Tribunal when no new appointment of a member is made, the implication must necessarily be that the remaining members would continue to act as a Tribunal and no further order or notification by the Government is necessary.
The argument seems plausible at first sight but an examination of the material provisions of the Act reveals the difficul ties, and those of a formidable character, in the way of accepting this contention as sound.
As has been pointed out already, there is a marked distinction between the provisions of sections 5 and 6 of the on the one hand and those of section 7 on the other.
Sections 5 and 6 expressly empower a Board of Conciliation and a Court of Enquiry to exercise their functions in the absence of any of the members, pro vided the prescribed quorum is present; but such provision has been deliberately omitted from section 7 and nothing has been prescribed either in the Act or in the rules in regard to any quorum for the members of the Tribunal.
It cannot be argued that no quorum has been laid down in the case of a Tribunal, as it can consist of one member only.
The position of a Court of Enquiry, it seems, is precisely the same so far as this point is concerned and yet there is a rule prescribing a quorum for members of a Court.
Having regard to the language of section 7 which admittedly contemplates that the members of 425 a Tribunal must act all together, it would, in my opinion, be a perfectly legitimate view to take that if the legisla ture did intend to make an exception to this rule, it would have done so in clear terms instead of leaving it to be gathered inferentially from the provision of another section which itself is not couched ' in unambiguous lan guage.
An Industrial Tribunal can be constituted only in ac cordance with the provisions of section 7 of the and unless a Tribunal is properly constituted, it cannot be invested with jurisdiction to adjudicate on industrial disputes.
Under sub section (2) of section 7, the number of members constituting the Tribunal has got to be determined by appropriate Government and that is an integral part of the Tribunal itself.
A change in the number of members of a Tribunal could be made therefore only in pursu ance of the provision contained in sub section (2) of sec tion 7.
As section 8 does not lay down that in case the services of a member of the Tribunal cease to be available and the Government does not choose to make a new appointment in his place, the remaining members should continue to form the Tribunal, the constitution or 'reconstitution of the remaining members as a Tribunal should, in my opinion, be made only under section 7 of the Act.
I am not impressed by the argument of Mr. De that a Tribunal is to be conceived of as an entity different from the members of which it is composed and whatever changes might occur in the composition of the Tribunal, the identity of the Tribunal remains intact.
A distinction undoubtedly exists between the court and the judge who presides over it but if the constitution of the court requires that it is to be composed of a certain number of judges, obviously a lesser number could not perform the functions of the court.
Mr. De also argued that the very object of the Industri al Disputes Act is to ensure a speedy and quick determina tion of industrial disputes and section 426 15 of the Act expressly lays down that the Tribunal shall hold its proceedings expeditiously and shall, as soon as practicable, on the conclusion thereof, submit its award to the appropriate Government.
This object, it is said, would be frustrated if the strict rules of ordinary law are ex tended to the proceedings of an Industrial Tribunal.
It is quite true that a quasi judicial tribunal enjoys greater flexibility and freedom from the strict rules of law and procedure than an ordinary court of law, but however much informality and celerity might be considered to be desirable in regard to the proceedings of an Industrial Tribunal, it is absolutely necessary that the Tribunal must be properly constituted in accordance with requirements of law before it is allowed to function at all.
I fail to see further how the issuing of a formal notification under section 7 of the Act could delay the proceedings of the Tribunal or hamper expeditious settlement of the disputes.
Section 16 of the makes the impera tive provision that the award of a Tribunal shall be in writing and shall be signed by all the members.
So long as there is no change or alteration in the original notifica tion which constituted the Tribunal, the expression "all the members" must mean and refer to all the members whose names appear in this notification and, unless all of them sign the award, it would not be a valid or operative award in law.
Our attention was drawn in course of the arguments to rule 12 of the rules framed by the Central Government in exercise of its powers under section 38 of the .
This rule, it is to be noted, was deleted with effect from 6th of December 1949.
As it stood originally, it was worded as follows : "Where a Tribunal consists of two or more members the Tribunal may with the consent of the parties act notwith standing any casual vacancy in its number and no act, proceeding or determination of the Tribunal shall be called in question or invalidated by reason of any such vacancy.
" 427 It has been contended on behalf of the appellants that this rule was ultra vires of the authority which passed it.
It is not necessary for us for purposes of the present case to discuss this matter.
Assuming the rule to be valid, it certainly does not assist the respondents in any way, as there is no suggestion in this case that during the absence of Mr. Chandrasekhara Aiyar the proceedings continued before the remaining two members with the consent of both parties.
On the other hand, the provision in the rule certainly goes against the broad contention that the respondents wanted to raise upon the language of section 8.
In my opinion, as there was no notification by the appropriate Government under section 7 of the constituting the two members a Tribunal under the Act during the absence of Mr. Chandrasekhara Aiyar, the proceedings before these two members were void and inoperative and the award made and signed by them only during this period must be held to be void.
I do not think however that it should be held that the Tribunal was not a properly constituted authority or lacked jurisdiction to exercise its function when Mr. Aiyar re sumed his duties on 20th of February, 1950.
As I have said already, what is necessary for due constitution of an Indus trial Tribunal is a notification or order by the appropriate Government under section 7 of the and the number and names of the members as given in the notification form an essential or integral part of the Tribunal thus constituted.
If the services of one of the members cease to be available at any time as is contemplated by section 8 and the appropriate Government does not choose to appoint another member in his place, one or other of two consequences may follow.
The Government may, by afresh notification under section 7, constitute a Tribunal with the remaining members or in any other way it likes or it may not take any steps at all and allow the original notification to remain.
It can certainly be assumed that the Government will choose the latter alternative only 428 when it thinks that the vacancy is only for a short period and is not likely to continue long.
In such circumstances, as I have already indicated, the true position is that the remaining members cannot function as a Tribunal and all the proceedings must be held to remain in abeyance till the absent member rejoins his duties.
But I do not see any reason why there should be a fresh notification and a fresh constitution of the Tribunal when the absent member returns.
The original notification is still there unaltered and unamended and not affected in any way by any subsequent notification; and by virtue of this notification alone, the three members would be competent to sit as a Tribunal and discharge its duties.
The fact that the services of one of them were not available at a time would not make the origi nal notification null and void.
The only effect of the absence of a member would be that the remaining members would not be competent to continue the proceedings;but this disability would cease as soon as the services of the absent member become available and a Tribunal as constituted by the notification is ready and able to function.
The appellant 's contention seems to be that once a vacancy has occurred, the Tribunal becomes imperfectly constituted and a fresh constitution is necessary.
I do not think that this position is sound.
As I have said already, the non availability of the services of a member may be permanent or purely temporary and may be due to various causes.
The word "vacancy" has no technical meaning.
As will appear from a reference to the Oxford Dictionary, the word "vacancy" is ordinarily used in the sense of a "temporary freedom or cessation from a business or occupation" If the absence of a member was merely tempo rary, the vacancy would mean nothing else but an interval or period during which a particular office remained unoccu pied.
The question of a fresh appointment might arise if the vacancy was actually filled up; but, as has happened in the present case, if the vacancy is not filled up but is allowed to remain, it would automatically come to an end 429 as soon as the member whose absence caused the vacancy comes back and rejoins the office.
It may be desirable in the interests of the public to issue a notice or make some announcement in regard to the resumption of duties by the absent member, but in my opinion no reconstitution of the Tribunal with the self same members is called for or neces sary under the provisions of the .
It is pointed out that cases may be conceived of where the non availability of the services of a member is due to death, lunacy or some such circumstance; but in such cases there could be no question of the man 's coming back and joining his office, and as I have said already under section 16 of the no award would be valid unless all the members whose names appeared in the notifica tion signed it.
This would be impossible in the case of death, lunacy or some other disablement of that character.
It will be seen that in the Government Notification No. LR 60 (47) dated 20th March, 1950, it was expressly stated that the services of Shri N. Chandrasekhara Aiyar, Member of the All India Industrial Tribunal (Bank Disputes), were temporarily placed at the disposal of the Ministry of Exter nal Affairs with effect from 23rd November, 1949, (after noon).
Mr. Aiyar 's new duties continued till 27th January, 1950.
As soon as this work was over, he was regarded as coming back to his office as a member of the All India Industrial Tribunal and he was allowed leave in that capaci ty by the Ministry of Labour from 28th January, 1950.
to 19th February, 1950, (vide Notification No. LR 60 (73) dated 16th September, 1950.) By another Government notification (being Notification No. LR 60 (47) dated 29th May, 1950), it was declared that Shri Chandrasekhara Aiyar resumed charge of his duties as member of the All India Industrial Tribunal on the 20th, February, 1950, (forenoon).
It is true that these notifications were issued much after the time when Mr. Aiyar actually resumed his duties, but as they are not notifications under section 7 of the , and cannot constitute 480 a condition precedent to investing the Tribunal with juris diction under the law, the delay in the actual publication of the notices is really immaterial.
They are relevant only for the purpose of showing what the state of affairs really was.
In my opinion, therefore, the Tribunal was a properly constituted authority on and from the 20th February, 1950, and as the award dated 31st July, 1950, was signed by all the three members appointed under the notification dated 24th August, 1949, no objection is legally sustainable that the award was made without any jurisdiction.
A question may be raised that as the hearing of the general issues before the Tribunal commenced at a time when Mr. Aiyar was absent and he had not the opportunity of being present all through the proceedings when arguments of both sides were advanced, there has been an irregularity or illegality in the procedure which vitiates the whole award.
A decision on this point would require investigation of various matters which have not been placed before us at the present stage by the learned Counsel appearing for the appellants Banks; and I would refrain from expressing any opinion upon it.
My conclusion is that the award dated the 31st of July is not void by reason of any lack of jurisdic tion in the Tribunal which made it.
I am, however, of the opinion that the other awards which were made during the absence of Mr. Chandrasekhara Aiyar or which were not signed by him must be held to be without jurisdiction.
Awards declared void.
Agent for the appellants in Civil Appeals Nos, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 & 49: Rajender Na rain.
Agent for the appellants in Civil Appeals Nos. 48 and 50; Ranbir Sawhney.
Agent for the appellant in Civil Appeal No. 47: Ganpat Rai.
Agent for the Inter vener P.A. Mehta.
| The Central Government constituted an Industrial Tribu nal under the , consisting of A, B, and C 381 for deciding certain disputes and the Tribunal commenced its sittings in September, 1949.
On the 23rd November, 1949, the services of C were placed at the disposal of the Minis try of External Affairs as a member of the Indo Pakistan Boundary Disputes Tribunal, and the two remaining members, after an objection raised by one side, continued to sit and hear the disputes.
On the 20th February, 1950, C returned from the Boundary Disputes Tribunal and began to sit again with the other two members and hear the further proceedings in the case of disputes which were part heard and not finally decided on that date.
On the 20th May, 1950, the Government issued a notification that C had" resumed charge of his duties as a member of the All India Industrial Tribu nal".
Some awards were made by A and B before the 20th February, 1950, and some awards were made after that date by A, B and C together.
Held, per KANIA, C.J., MEHR CHAND MAHAJAN, DAS and Bose JJ.
(FAZL ALI and PATANJALI SASTRI JJ.
dissenting) : (i) when C was appointed as a member of the Boundary Disputes Tribunal, his services "ceased to be available" and there arose "a vacancy" within the meaning of Sec. 8 of the ; (ii) under the said section read with Rule 5 of the Industrial Disputes Rules, when a vacancy occurred it was obligatory on the Government to notify its decision as to whether it intended to fill up the vacancy or not, and if the Government decided not to fill up the vacancy, a notifi cation under Sec. 7 of the Act was essential to constitute the remaining members a Tribunal inasmuch as a Tribunal of three members is a different Tribunal altogether from a Tribunal consisting of two of them only; (iii) neither the fact that C began to sit again along with the two other members from the 20th.
February, 1950, nor the notification of the 20th May, 1950, stating that C had "resumed charge of his duties as a member" of that Tribunal could be treated as an appointment to the vacancy created on C 's appointment as a member of the Boundary Disputes Tribunal; (iv) awards made by A and B after the services of C ceased to be available, and awards made after the 20th February, 1950, by A, B and C were not made by a Tribunal duly constituted under the Act and were void; (v) since the two remaining members were not a duly constituted Tribunal and the duty to work and decide was the joint responsibility of all the three members who originally constituted the Tribunal, the matter was one 01 absence of jurisdiction and not a mere irregularity in the conduct of proceedings, and the defect could not be cured by acquies cence or estoppel.
382 Per FAZL ALI and PATANJALI SASTRI JJ.
(contra) There was a 'vacancy ' within the meaning of Sec. 8 of the Act when the services of C were placed at the disposal of the Bound ary Disputes Tribunal, which provided an occasion for the Government to exercise the discretion vested in it under Sec. 8 of the Act to fill up the vacancy or not.
The fact that the Government decided not to fill up the vacancy, could not render the Tribunal an imperfectly constituted Tribunal, and the proceedings could validly be continued before the Tribunal in spite of the vacancy.
Further, since the vacancy was a temporary one and was not filled up, C did not cease to be a member of the Tribunal and could therefore rejoin it as soon as he was free from the duties of his new office.
Even if it be assumed that it was necessary for the Government to make an appointment under Sec. 8 (1), the requirements of that section were complied with, when C joined under the orders of the Government and that fact was also notified by the Government on the 20th May, 1950.
Rule 5 of the Industrial Disputes Rules applies only when a Tribunal is initially constituted.
It does not apply to appointments to fill vacancies.
Per MUKHERJEA J. An Industrial Tribunal can be consti tuted only in accordance with the provisions of Sec. 7 of the and unless a Tribunal is proper ly constituted, it cannot be invested with jurisdiction to adjudicate on industrial disputes.
Under sub sec.
(2) of Sec. 7, the number of members constituting the Tribunal has to be determined by the appropriate Government and a change in the number of members could be made therefore only in pursuance of the provision contained in that sub section.
As Sec. 8 does not lay down that, in case the services of a. member of the Tribunal cease to be available and the Govern ment does not choose to make a new appointment in his place, the remaining members should continue to form the 'tribunal, the constitution or reconstitution of the remaining members as a Tribunal could be made only under Sec. 7 of the Act and as there was n9 notification by the appropriate Government under Sec. 7 constituting the two remaining members a Tribu nal under the Act during the absence of C, the proceedings before these two members and the awards made and signed by them only during C 's absence were void.
But, there was no necessity for a fresh notification and a fresh constitution of the Tribunal when the absent member returned as the original notification was still there unaltered and unamend ed, and by virtue of this notification alone, the three members would be competent to sit as a Tribunal and dis charge its duties.
The Tribunal was thefore, properly constituted from the 20th February, 1950, and the awards made by all the three members after that date were not void for want of jurisdiction in the Tribunal.
|
riminal Appeals No. 7 of 1950 and No. 25 of 1951.
Criminal Appeal No. 7 of 1950 was an appeal under article 134 (1) (c) from the Judgment and Order of the High Court of Calcutta dated 23rd May, 1950, in Government Appeal No. 2 of 1950 and Criminal Appeal No. 25 of 1951 was an appeal by special leave from the Judgment and Order of the same Court dated 4th May, 1950, in Criminal Revision No. 132 of 1950.
Ajit Kumar Datta and S.N. Mukherjee for the appellant in both the appeals.
B. Sen for the respondent in both appeals.
G.N. Joshi for the Intervener.
129 1951.
October 4.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
These two criminal appeals are from convictions of the appellants by the High Court at Calcutta.
In the first case, leave to appeal to this Court was granted by the High Court under article 134(1)(c) of the Constitu tion of India.
In the second case, special leave to appeal was granted by this Court under article 136(1) of the Con stitution.
The appeals were heard together, but as they are by different parties and the facts are different, it is desirable to have two separate judgments.
Criminal Appeal No. 7 of 1950.
The appellant, Joylal Agarwala, who was a salesman in a retail shop in Pulbazar in the district of Darjeeling in the State of West Bengal, was charged with having sold a piece of textile cloth at a price in excess of the controlled price.
For this contravention of the provisions of clause 24 (1) of the Cotton Textiles Control Order, 1948, he was convicted by the Sub Divisional Magistrate of Darjeeling under section 7 of the Essential Supplies (Temporary Powers) Act (Act XXIV) of 1946 (herein after referred to as the Essential Supplies Act), and sentenced to six months ' rigor ous imprisonment.
On appeal to the Sessions Judge, the appellant was acquitted on two grounds, viz., (1) that no sanction was previously obtained for the prosecution as required by clause 36 of the Cotton Textiles Control Order, and (2) that the Essential Supplies Act was not in force in the district of Darjeeling on the date of the occurrence.
On appeal to the High Court by the State of West Bengal, the point about the absence of sanction under clause 36 of the Control Order was given up by the present appellant as its necessity had been abolished by a later Notification of the Central Government.
On the second point, the learned Judges of the High Court held that the Act was validly extended to the district of Darjeeling and was in force in that area on the date of the occurrence, viz., 14 10 1949.
The acquittal of the appellant 130 was set aside, the order of conviction passed by the Magistrate was restored, and the appellant was sentenced to four months ' rigorous imprisonment.
To understand the main legal argument as to whether the Essential Supplies Act of 1946 was in force at the time of the alleged commission of the offence, it is necessary to set out the relevant provisions of a few Acts and Orders and their dates.
The Essential Supplies Act came into force on 19 11 1946.
Section 92(1) of the Government of India Act, 1935, provided as follows : " . no Act of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, . . have effect subject to such exceptions or modifications as he thinks fit.
" In exercise of the powers conferred on him by this section, the Governor of Bengal by a notification published on the 14th December, 1946, directed that the Essential Supplies Act shall apply to the district of Darjeeling, which was an excluded area.
Section 1(3) of the Essential Supplies Act provides that it shall cease to have effect on the expiration of the period mentioned in section 4 of the India (Central Govern ment and Legislature) Act, 1946 (9 & 10 Geo.
6, Ch. 39).
Section 4 of the latter Act provides as follows : "The period mentioned. is the period of one year beginning with the date on which the Proclamation of Emer gency in force at the passing of this Act ceases to operate or, if the Governor General by public notification so di rects, the period of two years beginning with that date: Provided that if and so often as a resolution approving the extension of the said period is passed by both Houses of Parliament, the said period shall be extended for a further period of twelve months from 131 the date on which it would otherwise expire so, however, that it does not in any case continue for more than five years from the date on which the Proclamation of Emergency ceases to operate.
" The Proclamation of Emergency referred to in this sec tion ceased to operate on 31 3 1946.
In the absence of a notification by the Governor General under the second part of the section, the Essential Supplies Act remained opera tive only till 31 3 1947, under the first part.
The Gover nor General, however, issued a notification on 3 3 1947 continuing its force for a period of 2 years from the date of cessation of emergency.
By virtue of this notification, therefore, the Essential Supplies Act would remain in force till 31 3 1948.
On 18 7 1947, the Indian Independence Act was passed, and India became a Dominion on 15 8 1947.
Under section 9 read with section 19(4) of the Indian Independence Act, 1947, the GOvernor General passed an Order on 14 8 1947, which substituted the words "Dominion Legislature" for" both Houses of Parliament" in the proviso to section 4 of the India (Central Government and Legislature) Act, 1946, and also introduced a new section 4A by way of adapta tion, providing that the powers of the Dominion Legislature shall be exercised by the Constituent Assembly.
On 25 2 1948, the Constituent Assembly passed its first resolution extending the operation of the Essential Supplies Act by one year up to 31 3 1949.
On 23 3 1949, a second resolution was passed by the Assembly extending the life of the Act by one more year up to 31 3 1950.
In respect of these Acts and notifications three ques tions were urged on behalf of the appellant: firstly, wheth er the Governor 's notification of the 14th December, 1946, continued the operation of the Essential Supplies Act in the district of Darjeeling beyond the then period of life of the Act, namely, the period of one year from the date of cessa tion of emergency; secondly, whether a fresh notification by the Governor under section 92(1) of the Government of India Act was not necessary.
after the life of the Essential 132 Supplies.
Act was extended by the Governor General 's noti fication of 3 3 1947; and thirdly, whether the resolutions passed by the Constituent Assembly could operate to extend the life of the Essential Supplies Act.
Now, it is clear that under section 1 (3) of the Essen tial Supplies Act, it shall cease to have effect on the expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act, 1946.
The period mentioned in that section is not necessarily one year from the date of cessation of emergency.
It can be 2 years if the Governor General by notification so directs, and it may go up to a maximum period of 5 years in instalments of 1 year each, under the proviso.
The fixation of the period of operation of the Essential Supplies Act is thus not left to any other enactment.
It is provided by the Act itself.
As stated already, the notification of the 14th December, 1946, issued by the Governor applied the Essential Supplies Act to the Darjeeling district, and its life was extended up to 31 3 1948 by the notification of the Governor General.
It is difficult to see why a fresh notification under section 92 (1) of the Government of India Act is required to continue the life of the Act in the district of Darjeeling.
The Governor 's notification extended the Act to Darjeeling without specifying any particular period for its applicabil ity to that district, and it follows therefore that the Act would remain in force in the district so long as it remained in force in the rest of India.
It is only if its effect had ceased earlier than the coming into force of the Indian Independence Act and there was a reenactment by the legisla ture which was sought to be applied to an excluded area, that a notification by the Governor under section 92 (1) of the Government of India Act might be necessary.
Otherwise, the question of a fresh notification does not arise.
Section 19(4) of the Indian Independence Act, 1947, provides as follows: "In this Act, except so far as the context otherwise requires 133 References to the Government of India Act, 1935, include references to any enactments amending or supplementing that Act, and, in particular, references to the India '(Central Government and Legislature) Act, 1946; . " The adaptations made by the Governor General under sections 9 and 19 of the Indian Independence Act substituted the words "ConstitUent Assembly" for "both Houses of Parlia ment" in section 4 of the India (Central Government and Legislature) Act, and the Constituent Assembly by two reso lutions of different dates has extended the life of the Essential Supplies Act till 31 3 1950.
As soon as the adap tations came into force by order of the Governor General, the Constituent Assembly acquired the powers conferred on both Houses of Parliament under section 4 of the India (Central Government and Legislature) Act.
The validity of the adaptations is beyond question.
The case of Jatindra Nath Gupta vs The Province of Bihar and Others(1) has no application here.
In the case now before us, the Legislature has itself applied its mind and has fixed the duration of the Act, but has left the machin ery to reach the maximum period by instalments to be worked out in a particular manner.
There is here no question of delegation at all, much less delegation of any legislative power.
The appeal therefore fails and is dismissed.
Criminal Appeal No. 25 of 1951.
In this case, the appellant Bichan Chand Molla was charged with loading 28 bags of millmade cloth from a truck into a specially chartered aircraft at the Dum Dum airport, on behalf of his employers, Messrs. Amarchand Pannalal, without a permit, as required under clause 4 (2) of the West Bengal Cotton Cloth and Yarn Movement Control Order, 1947.
He was convicted under section 7 (1) read with section 8 of the Essential Supplies Act and sentenced to 9months ' rigor ous imprisonment and a fine Of Rs. 1,000 by the (1) 18 134 1st Class Magistrate of Barrackpore.
The Sessions Judge of 24 Parganas dismissed the appeal preferred by the accused.
A revision application filed by him in the High Court shared the same fate.
The legal argument urged in this appeal was the same as in the earlier appeal, and has to be repelled as untenable for the reasons already stated.
A special point was sought to be argued that the element of mens rea was want ing.
But the question was considered by the High Court, and it was held that there are two facts from which mens tea could be inferred.
When questioned, the accused stated that he was.loading handloom bales and not millmade cloth.
He had no permit with him and was not able to produce any even from his employers.
These facts under the circumstances warrant the inference of a criminal intent.
This appeal also will therefore stand dismissed.
Agent for the intervener: P.A. Mehta.
| The Essential Supplies (Temporary Powers) Act (XXIV Of 1946) came into force on 19th November, 1946.
By a notifica tion 128 of 14th December, 1946, under section 92 (1) of the Government of India Act, 1935, the Governor of Bengal directed that the Act shall apply to the District of Darjeeling which was an "excluded area".
Section 1 (3) of the Essential Supplies Act provided that it shall cease to have effect on the expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act, 1946.
By a noti fication issued by the Governor General under section 4 the operation of the Essential Supplies Act was extended up to 31st March, 1948.
The Constituent Assembly in which the powers of the Houses of Parliament under section 4 of the above said India Act of 1946 became vested after the passing of the Indian Independence Act, 1947, passed resolutions ex tending the operation of the Essential Supplies Act up to 31st March, 1950.
The appellant, who was convicted under section 7 of the Act in respect of an act committed on the 14th October, 1949, within Darjeeling, contended that the Act was not validly extended to the District of Darjeeling and was not therefore in force there on the date of the alleged offence.
Held, that, as the Governor 's notification extend ed the Act to the District of Darjeeling without specifying any particular period for its applicability, the Act would remain in force in this district as long as it remained in force in the rest of India and a fresh notification of the Governor under section 92 (1) of the Government of India Act, 1935, was not necessary.
Under the adaptations made under sections 9 and 19 of the Indian Independence Act the powers conferred on the Houses of Parliament became vested in the Constituent Assembly and the Act was in force in the dis trict of Darjeeling on the date of the alleged contravention of the Act.
Held further, that there was no question of delegation of legislative power in this case as the Legislature had itself applied its mind and fixed the duration of the Act, leaving only the machinery to reach the maximum period to be worked out in a particular manner.
|
Criminal Appeal No. 5 of 1951.
Appeal from the Judgment and Order dated 18th August, '1950, of the High Court of Judicature for Rajasthan at Jaipur (Nawal Kishore C.J. and Dave J.) in Criminal Reference No. 229 of Sambat 2005.
H. J. Umrigar for the appellant.
G. C. Mathur for the respondent.
111 1951.
September 24.
The Judgment of the Court was delivered by Bose J.
The appellant was convicted under section 7 of the Jaipur Opium Act and fined Rs. 50.
The case as such is trivial but the High Court of Rajasthan in Jaipur granted special leave to appeal as an important point touching the vires of the Act arises.
We will state the facts chronolog ically.
It is conceded that the Rulers of Jaipur had full powers of government including those of legislation.
On the 7th of September, 1922, the late Maharaja died and at the time of his death his successor, the present Maharaja, was a minor.
Accordingly, the Crown Representative appointed a Council of Ministers to look after the government and administration of the State during the Maharaja 's minority On the 11th of December, 1923, this Council passed a Resolution which purported to enact the Jaipur Opium Act, and the only question is whether the mere passing of the Resolution without promulgation or publication in the Ga zette, or other means to make the Act known to the public, was sufficient to make it law.
We are of opinion that it was not.
But before giving our reasons for so holding, we will refer to some further facts.
About the same time (that is to say, in the year 1923 we have not been given the exact date) the same Council enacted the Jaipur Laws Act, 1923.
Section 3(b) of this Act provided as follows : "3.
Subject to the prerogative of the Ruler the law to be administered by the Court of Jaipur State shall be as follows: (b) All the regulations now in force within the said territories, and the enactments and regulations that may hereafter be passed from time to time by the State and published in the Official Gazette.
" This law came into force on the 1st of November, 1924.
It is admitted that the Jaipur Opium Act was never published in the Gazette either before or after the 1st of November, 1924.
But it is contended that was 112 not necessary because it was a "regulation" already in force on that date.
The only other fact of consequence is that on the 19th of May, 1938, section 1 of the Jaipur Opium Act was amended by the addition of sub section (c) which ran as follows: "(c) It shall come into force from the 1st of September, 1924.
" The offence for which the appellant was convicted took place on the 8th of October, 1948.
Dealing first with the last of these Acts, namely the one of the 19th of May, 1938, we can put that on one side at once because, unless the Opium Act was valid when made, the mere addition of a clause fourteen years later stating that it shall come into force at a date fourteen years earlier would be useless.
In the year 1938 there was a law which required all enactments after the 1st of November, 1924, to be published in the Gazette.
Therefore, if the Opium Act was not a valid Act at that date, it could not be validated by the publication of only one section of it in the Gazette fourteen years later.
The Jaipur Laws Act of 1923 required the whole of the enactment to be published; therefore publi cation of only one section would not validate it if it was not already valid.
We need not consider whether a law could be made retroactive so as to take effect from 1924 by publi cation in 1938, though that point was argued.
That throws us back to the position in 1923 and raises the question whether a law could be brought into operation by a mere resolution of the Jaipur Council.
We do not know what laws were operative in Jaipur re garding the coming into force of an enactment in that State.
We were not shown any, nor was our attention drawn to any custom which could be said to govern the matter.
In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge.
Natural justice requires that 113 before a law can become operative it must be promulgated or published.
It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.
The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man.
It shocks his conscience.
In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way.
Promulgation or publica tion of some reasonable sort is essential.
In England the rule is that Acts of Parliament become law from the first moment of the day on which they receive the Royal assent, but Royal Proclamations only when actually published in the official Gazette.
See footnote (a) to paragraph 776.
page 601, of Halsbury 's Laws of England (Hailsham edition), Volume VI and 32 Halsbury 's Laws of England (Hailsham edition), page 150 note (r).
But even there it was necessary to enact a special Act of Parliament to enable such proclamations to become law by publication in the Gazette though a Royal Proclamation is the highest kind of law, other than an Act of Parliament, known to the Brit ish Constitution; and even the publication in the London Gazette will not make the proclamation valid in Scotland nor will publication in the Edinburgh Gazette make it valid for England.
It is clear therefore that the mere enacting or signing of a Royal Proclamation is not enough.
There must be publication before it can become law, and in England the nature of the publication has to be prescribed by an Act of Parliament.
The Act of Parliament regulating this matter is the Crown Office Act of 1877 ' (40 and 41 Victoria Ch. 41).
That Act, in addition to making provision for publication in certain official Gazettes, also provides for the 114 making of rules by Order in Council for the best means of making Proclamations known to the public.
The British Par liament has therefore insisted in the Crown Office Act that not only must there be publication in the Gazette but in addition there must be other modes of publication,if an Order in Council so directs, so that the people at large may know what these special laws are.
The Crown Office Act directs His Majesty in Council carefully to consider the best mode of making these laws known to the public and empowers that body to draw up rules for the same and embody them in an Order in Council.
We take it that if these Proc lamations are not published strictly in accordance with the rules so drawn up, they will not be valid law.
The principle underlying this question has been judi cially considered in England.
For example, on a somewhat lower plane, it was held in Johnson vs Sargant (1) that an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917 does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is Stressed.
The difference is obvious.
Acts of the British Parliament are publicly enacted.
The debates are open to the public and the Acts are passed by the accredited representa tives of the people who in theory can be trusted to see that their constituents know what has been done.
They also re ceive wide publicity in papers and, now, over the wireless.
Not so Royal Proclamations and Orders of a Food Controller and so forth.
There must therefore be promulgation and publication in their cases.
The mode of publication can vary; what is a good method in one country may not neces sarily be the best in another.
But reasonable publication of some sort there must be.
Nor is the principle peculiar to England.
It was ap plied to France by the Code Napoleon, the first Article of which states that the laws are executory "by virtue of the promulgation thereof" and that they shall come into effect "from the moment at which their (1) ; 115 promulgation can have been known." So also it has been applied in India in, for instance, matters arising under Rule 119 of the Defence of India Rules.
See, for example, Crown vs Manghumal Tekuml(1), Shakoor vs King Emperor (2) and Babulal vs King Emperor (3).
It is true none of these cases is analogous to the one before us but they are only particular applications of a deeper rule which is rounded on natural justice.
The Council of Ministers which passed the Jaipur Opium Act was not a sovereign body nor did it function of its own right.
It was brought into being by the Crown Representa tive, and the Jaipur Gazette Notification dated the 11th August, 1923, defined and limited its powers.
We are enti tled therefore to import into this matter consideration of the principles and notions of natural justice which underlie the British Constitution, for it is inconceivable that a representative of His Britannic Majesty could have contem plated the creation of a body which could wield powers so abhorrent to the fundamental principles of natural justice which all freedom loving peoples share.
We hold that, in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative.
It is necessary to consider another point.
It was urged that section 3(b) of the Jaipur Laws Act of 1923 saved all regulations then in force from the necessity of publication in the Gazette.
That may be so, but the Act only saved laws which were valid at the time and not resolutions which had never acquired the force of law.
The appeal succeeds.
The conviction and sentence are set aside.
The fine, if paid, will be refunded.
Appeal allowed.
Agent for the re spondent: P.A. Mehta.
(1) I.L.R. 1944 Karachi Nag. 762.
| Natural justice requires that before a law can become operative it must be promulgated or published.
It must be broadcast in some recognisable way so that all men may know what it is; or at least there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.
The Council of Ministers appointed by the Crown Repre sentative for the government and administration of the Jaipur State passed a Resolution in 1923 purporting to enact a law called the Jaipur Opium Act, but this law was neither promulgated or published in the Gazette nor made known to the public.
The Jaipur Laws Act, 1923, which was also passed by the Council and which came into force on the 1st November, 1924, provided by section 3 (b) that the law to be administered by the court of the Jaipur State shall be. " (b) all the regulations now in force within the said terri tories and the enactments and regulations that may hereafter be passed from time to.
time by the State and published in the Official Gazette.
" In 1938 the Jaipur Opium Act was amended by adding a clause to the effect that "it shall come into force from the 1st of September, 1924.
" Held, that the mere passing of the Resolution of the Council without further publication or promulgation of the law was not sufficient to make the law operative and the Jaipur Opium Act was not therefore a valid law.
Held fur ther, that the said Act was not saved by section 3 (b) of the Jaipur Laws Act, 1923, as it was not a valid law in force on the 1st November, 1924, and the mere addition of a clause in 1938 that it shall come into force in 1924 was of no use.
|
N: Criminal Appeals Nos.
45 to 49 of 1951.
Appeals from the judgments and orders dated 20th August, 1951, of the High Court of Judicature at Simla (Bhandari and Soni 33.) in Criminal Writ 'Cases Nos. 46 to 50 of 1951.
Jai Gopal Sethi (R. L. Kohli and Sri Ramkumar, with him) for the appellants in Cr.
Appeals Nos. 45 and 49. 20 N.C. Chatterjoe (Hardyal Hardy and R.L. Kohli with him) for the appellant in Cr. Appeal No. 46.
Hardyal Hardy for the appellant in Cr.
Appeal No. 48.
S.M. S.M. Sikri, Advocate General of the Punjab (N. section Doabia.
with him) for the respondent in all the appeals.
M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the Intervener in Cr.
Appeal No. 45.
October 4.
The Judgment of the Court was delivered by KANIA C.J.
These are five companion appeals from the judgments of the High Court of East Punjab and the principal point argued before us is as to the legality of the deten tion of the appellants under the Preventive Detention Act on the ground that they are engaged in black marketing in cotton piecegoods.
The Jullundur Wholesale Cloth Syndicate was formed to work out the distribution of cloth under the Government of Punjab Control (Cloth) Order passed under the Essential Supplies Act.
Certain persons who held licences as whole sale dealers in cloth formed themselves into a corporation and all cloth controlled by the Government was distributed in the district to the retail quota holders through them.
The Government allotted quotas to the retailers and orders were issued by the Government for giving each retailer certain bales under the distribution control.
If some of the retail licence holders did not take delivery of the quotas allotted to them under the Notification of the 4th of October, 1950, issued by the Government of India, Department of Industries and Supplies, it was, inter alia, provided that the wholesale syndicate may give the bales not so lifted to another retail dealer.
It may be noted that all along the price for the cloth to be sold wholesale and retail had been fixed under Government orders.
The Syndi cate was suspected to be dealing in black market and had been warned against its activities by the District Magis trate of Jullundur several times.
On the 7th of June, 1951, 21 an order was issued by the District Organiser, Civil Sup plies and Rationing, Jullundur, to the managing agents of the wholesale cloth corporation, Jullundur City, intimating that they were strictly forbidden to dispose of any uplifted stock against unexpired terms without his prior permission in writing.
They were further directed that thenceforth no such stock would be allowed to be sold to an individual retailer, but permission would be granted to sell the same to associations of retailers only.
It was stated that this letter was not in accordance with clause 5 of the Notifica tion of the Government of India dated the 4th October, 1950, which authorized the wholesale syndicate to be at liberty to sell uplifted cloth to any other retailer or an association of retail dealers of the same district.
It may be further noted that the Cotton Cloth Control Order was in operation even prior to 1950.
For some time control on the distribu tion of cloth was lifted but the price remained under the control of the Government.
During that time it has been alleged that the appellants and several others sold cloth at rates higher than those fixed by the Government.
Even when the distribution and price were both controlled, the manu facturing mills were allowed to sell at prices fixed by the Government a certain percentage of cloth which was not taken by the Government under its control.
This was described as free sale cloth and it was alleged that the appellants and several others were doing black marketing in this free sale cloth.
By an order passed by the District Magistrate on 19th June, 1951, he directed that the appellants be detained under section 3 (2) of the Preventive Detention Act to prevent them from acting in a manner prejudicial to the maintenance of supplies of cloth, essential to the communi ty.
On the 2nd July, 1951, the District Magistrate, Jullun dur, directed that the appellants be committed to District Jail, Jullundur, from the 2nd July until the 1st October, 1951.
The appellants were detained accordingly.
The grounds for their detention were given to them on the morn ing of the 6th July.
The grounds set out the activities of 22 the appellants as managing agents or partners in different firms or employees of the said firms or corporations.
It was stated ,that they had been disposing of most of the stocks of cloth received for the Jullundur District in the black market at exhorbitant rates from June, 1949, to Octo ber, 1950, during the period when control on distribution was removed and that even after the reimposition of that control in October, 1950, they disposed of cloth which has been frozen under the directions of Director of Civil Sup plies in the short interval between the passing of the order and its service on them.
The second ground was in respect of their individual activities as members of the firm in which they were partners in disposing of stocks of cloth in black market at rates higher than the controlled ones, to various dealers, through agents.
The particulars were speci fied in Appendix 'A '.
They refer to the free sale cloth.
In the third ground it was alleged that ' by illegal means they deprived the rightful claimants of the various stocks of cloth with a view to pass the same into black market at exorbitant rates.
We do not think it necessary to go into greater details of these grounds or refer to the other grounds.
On the 9th of July, 1951, petitions under article 226 of the Constitution of India were filed in the East Punjab High Court asking for writs of habeas corpus against the State on the ground that the detention of the appellants under the Preventive Detention Act was illegal.
The District Magis trate filed his affidavit in reply challenging the allega tion of mala fides and setting out in some detail instances of the activities of the appellants and contended that on the reports received by him he was satisfied that the deten tion of the appellants was necessary.
Early in August, 1951, the executive authorities cancelled the licence of the appellants as cloth dealers.
The High Court dismissed the petitions and the petitioners have come on appeal to us.
Section 3 of the , pro vides that the Central Government or the State Government may, if satisfied with respect to any person that 23 with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.
The power to act in accordance with the terms of this provision was given by section 3 (2) to a District Magistrate.
Such Magistrate however was required to make a report to the State Govern ment to which he was subordinate about the order and also to send the grounds on which the order had been made and such other particulars as, in his opinion, had a bearing on the necessity of the order.
It is not disputed that an order under section 3 (2) of the to prevent black marketing can be passed by the District Magistrate.
On behalf of the appellants it is contended that in the grounds for their detention reference is made to their activities prior to June, 1951, only.
This cannot be considered objectionable because having regard to those activities it is alleged that the satisfaction required under the section had arisen.
It was next argued that such loophole as existed in the total control of distribution and ' sale and price of piecegoods in the district was sealed by the order of the District Orga niser dated the 7th June, 1951.
By virtue of that order the syndicate or corporation could not sell any cloth without an express order in writing from the District Organiser, and therefore there could be no black marketing after that date by any of the appellants and the order was therefore unjus tified.
It was next contended that in any event now as their licences are cancelled they cannot deal in cloth and the order of detention now maintained against them is more in the nature of punishment than prevention.
It was argued that orders under the were for the purpose of preventing a person from acting in future in the objectionable way contemplated by the Act and it was beyond the scope of the Act to pass orders in respect of their alleged activities anterior to June, 1951.
In our opinion the High Court approached the matter quite correctly.
Instances of past activities are relevant 24 to be considered in giving rise to the subjective mental conviction of the District Magistrate that the appellants were likely to indulge in objectionable activities.
The grounds which were given for the detention are relevant and the question whether they are sufficient or not is not for the decision of the Court.
The Legislature has made only the subjective satisfaction of the authority making the order essential for passing the order.
The contention that because in the Amending Act of 1951 an Advisory Board is constitut ed, which can supervise and override the decision taken by the executive authority, and therefore the question whether the grounds are sufficient to give rise to the satisfaction has become a justifiable issue in Court, is clearly unsound.
The satisfaction for making the initial order is and has always been under the , that of the authority making the order.
Because the Amending Act of 1951 establishes a supervisory authority, that discretion and subjective test is not taken away and by the establish ment of the Advisory Board, in our opinion, the Court is not given the jurisdiction to decide whether the subjective decision of the authority making the order was right or not.
Proceeding on the footing, therefore, that the jurisdiction to decide whether the appellants should be detained under the on the grounds conveyed to the appellants is of the District Magistrate.
In the present cases, two arguments were advanced on behalf of the appel lants.
It was strenuously urged that by reason of the order of the District Organiser of the 7th June, 1951, the only loophole which remained in the scheme of distribution and sale of cloth under control of the Government was sealed and it was impossible after that order to do any blackmarketing by any of the appellants.
We are unable to accept this contention.
In the first place, this order appears to be an administrative order and is in the nature of a warning.
It is at variance with the provisions of clause 5 of the Order of the Central Government of the 4th October, 1950.
Moreover this order does not bring about the result claimed for it.
A lot 25 of cloth which the manufacturers are permitted to distribute through persons outside the Government agencies can still be secured and sold at exhorbitant rates, i.e., at rates higher than those fixed by the Government.
The second argument was that as the licences of the appellants are now cancelled they cannot deal in textile cloth at all and therefore there can be no apprehension of their indulging in black market activities.
We are unable to accept this argument also because it is common knowledge that licences can be obtained in the name of nominees.
Again while these people may not have their licences in Jullundur District they may have or may obtain licences in other districts.
From the fact that their licences have been cancelled a month after the order of detention was passed we are unable to hold that it is impossible on that ground for the appellants to indulge in black market activities.
In this connection an extract from the further affidavit of the District Magistrate of Jullun dur dated 1st August, 1951, may be usefully noticed.
He stated: "There have been orders for the release of certain stocks of cloth in respect of other mills, as free sale cloth after the 9th June, 1951.
Any quantity of cloth not paid for and lifted by the owners ' nominees will revert to the Mills for free sale: vide letter No. CYC 2/ SLM, dated the 31st May, 1951, from the Textile Commissioner, Bombay, to all selected Mills in Bombay and Ahmedabad.
This cloth can be purchased by any wholesale dealer of cloth of India, without any restriction.
Not only this, free sale cloth can be transported from one district to another without a per mit: vide Memo No. 28894 CS (C) 50/48791, dated 2nd January, 1951, from the Joint Director, Civil Supplies, and Under Secretary to Government Punjab to the District Organiser, Civil Supplies and Rationing, Ludhiana.
Again free sale cloth is also procurable from individual firms who conspired to make profit by black marketing.
The only information which is supplied by a purchaser of wholesale cloth to the District Magistrate is as to what quantity of such cloth has been imported 4 26 into the district.
According to the report of the District Organiser no such cloth was imported into Jullundur by the corporation but there are reasons to believe that the Corpo ration had been making their purchases in free sale cloth from the Mills and using those bales to make up the defi ciency in the bales of quota cloth of superior quality which they used to dispose of in the black market in collusion with the Mills.
Besides, the firm Rattan Chand Mathra Dass, as would be evident from the attached lists signed by the District Organiser, had been dealing in free sale cloth and had also been importing cloth as Reserve of Kangra and also Provincial Reserve.
Most of this quota also found its way into the black market.
Similarly the firm Madan Gopal Nand Lall and Company had been dealing in free sale cloth on a large scale.
It would be evident from the attached list.
Santi Sarup, the Secretary of the Corporation, is believed to be a partner in the firm Hari Chand Bindra Ban and this firm also had been dealing in free sale cloth.
The free sale cloth acquired by them used to be invariably sold in the black market as reported by the District Organiser in his Memo No. 6306/6734 M/CT/Do.
7 dated 1st August, 1950, in reply to my Memo.
No. nil dated 30th July, 1951.
There is absolutely no bar for the wholesale cloth corporation, Jullundur, to its getting free sale cloth from the Mills or other wholesale dealers nor is there any bar for the firms Rattan Chand Mathra Dass and Madan Gopal Nand Lal and Co. to the acquiring of free sale cloth.
" It was next argued on behalf of the appellants that the only order of detention made against them was the order of the 2nd July and that did not refer to any section of the and did not suggest that there was any satisfaction of the detaining authority.
It was argued that no order of the 19th of June was ever shown to any of the appellants or served on them and therefore their deten tion was illegal.
It should be pointed out that these con tentionsare raised in the affidavits not of the detained persons, but of their relations.
Their affidavits do not show that they have any personal knowledge.
The affidavits 27 on this point are based only on their belief and information and the source of the information is not even disclosed.
As against this, there is the affidavit of the District Magis trate which expressly states that the terms of the Order of the 19th of June were fully explained to each of the dete nus.
The petitions for the writs of habeas corpus were filed within a week after the service of the detention order and we do not think there is any reason to doubt the cor rectness of the statements of the District Magistrate.
In our opinion this ground of attack on the order of detention has no substance and the detention cannot be held illegal on that ground.
The judgment of the High Court was attacked on these grounds and as we are unable to accept any of these contentions the appeals must fail.
One of the appellants is the secretary of one corpora tion and another is a salesman and clerk in one of the firms.
On their behalf it was urged that they could not indulge in black market activities.
We are unable to accept this contention in view of what is stated in the affidavits of the District Magistrate.
It is there pointed out that in addition to being a secretary or a clerk and in those capac ities actively participating in the black market activities of their principals, they were themselves indulging in black market activities in cloth.
If these and other facts in respect of the appellants are disputed the matter will be considered by the Advisory Board.
The question of the truth of those statements however is not within the jurisdiction of this Court to decide.
As all the grounds urged against the judgment of the High Court fail, all the five appeals are dismissed.
Appeals dismissed.
Agent for the appellants in all the appeals: R.S. Naru la.
Agent for the respondent and Intervener: P.A. Mehta.
| An order of detention to prevent black marketing cannot be held to be illegal merely because in the grounds for such detention the detaining authority has referred only to the past activities of the person detained, inasmuch as in stances of past activities may give rise to a subjective mental conviction that it is necessary to detain such person to prevent him from indulging in black marketing in the future.
Under the Preventive Detention.
Act, 1950, the test as to whether an order of detention should be made is the subjective satisfaction of the detaining authority; the Court has no power to consider whether the grounds supplied by the authority are sufficient to give rise to such satis faction.
The establishment of the Advisory Board by the Amending Act of 1951 has not made the matter a justiciable one, and even after the Amending Act the Court has no power to consider whether the grounds supplied ' are sufficient for making an order of detention.
|
Civil Appeal No. 44 of 1950.
Appeal from a judgment and decree of the High Court of Bombay (Sen and Dixit JJ.) dated 21st February, 1947, in First Appeal No. 64 of 1943.
C.K. Daphtary, Solicitor General (section B. Jutbar, with him) for the appellant.
N.C. Chatterjee (N. K. Gamadia, with him) for the respondents.
October 5.
The Judgment of Kania CJ.
, Das and Bose JJ. was read by Das J. Patanjali Sastri and Chandrasekhara Aiyar JJ.
delivered separate Judgments.
45 DAS J.
This is an appeal from the judgment of a Bench of the Bombay High Court (Sen and Dixit JJ.) delivered on February 2, 1947, in an appeal filed under section 18 of the Bombay City Land Revenue Act 11 of 1876 against the judgment of the Revenue Judge at Bombay delivered on October 27, 1942, in a suit filed by the respondents, the Municipal Corporation of the City of Bombay, and Madusudan Damodar Bhat, the then Municipal Commissioner for the City of Bom bay, against the Collector of Bombay.
There is no substantial dispute as to the facts leading up to this litigation and they may be shortly stated.
In 1865, the Government of Bombay, having decided to construct an Eastern Boulevard, called upon the Corporation of Jus tices of the Peace for the City of Bombay, the predecessor in title of the respondent Corporation, to remove its then existing fish and vegetable markets from the site required for the construction of the Boulevard.
The then Municipal Commissioner Mr. Arthur Crawford, after whom the present municipal market was named, applied for the site set aside for the exhibition buildings on the Esplanades for the pur pose of constructing new markets as the existing markets could not be removed until new markets had been provided.
On December 5, 1865, the Architectural Improvement Committee informed the Government that it had no objection to the proposed she measuring about 7 acres being "rented to the Municipal Commissioner" and suggested that "the annual charge of one pie per square yard be levied in consideration of the expense of filling in the ground.
" Computed at this rate, the annual rental would have amounted to about Rs. 176.
On December 19, 1865, the Government passed the fol lowing resolution : "(1) Government approve of the site and authorise its grant.
(2) The plans should be submitted for approval; but Government do not consider any rent should be charged to the Municipality as the markets will be, like other public buildings, for the benefit of the whole community.
" 46 Pursuant to the aforesaid Resolution, possession of the site was made over to the then Municipal Commis sioner, but no formal grant was executed as required by Statute 22 & 23 Vic. C. 41.
It has nowhere been contended that even if the statutory formalities had been complied with the grant upon the terms mentioned in the Resolution would nevertheless have been invalid being in excess of the powers of the Government.
The Municipal Com missioner had the site filled up and leveled at the expense of the Corporation.
The plans were approved by the Govern ment and the market buildings were erected by the Corpora tion at considerable expense.
The respondent Corporation was incorporated in 1888 as the successor of the Corporation of the Justices of the Peace for the City of Bombay and it continued in possession of the land and the buildings with out paying any rent to the Government according to the Government Resolution of 1865.
Indeed, it is pleaded in paragraph 7 of the plaint and it is not denied in the writ ten statement that acting upon the said grant contained in the Resolution and the terms contained therein the respond ent Corporation and its predecessor spent considerable sums of money in building and improving the market and have been in possession of the land and the buildings thereon for over 70 years in accordance with the terms of the Resolution and that no land revenue or rent had been paid to the Government ever since the grant was made.
It is in evidence that besides giving up the sites on which the old markets had been situate, a total sum of Rs. 17,65,980 12 1 has been spent by the Corporation up to March 31,1940, in filling up and leveling the site and erecting and maintaining the new market buildings on this site.
In 1911, a portion of the market site was acquired by the Government for the widening of the Palton Road.
Upon the Collector of Bombay being called upon to put in ,his claim, if any, to any part of the compensation money awarded by the Land Acquisition Officer, the Superintendent,, City Survey, on behalf of the Collec tor, replied that Government had no claim in respect of the said land.
The respondent 47 Corporation, therefore, received the whole of the compen sation money and it continued in possession of the rest of the land and the buildings thereon without payment of any rent.
On March 18, 1938, the appellant Collector of Bombay informed the respondent Municipal Commissioner that it was proposed to assess the land occupied by the Crawford Market under section 8 of the Bombay City Land Revenue Act II of 1876 and asked for certain information to enable him to do so.
In his reply, the Municipal Commissioner wrote to say that the site of the market had been given to the Municipal ity as a gift for the construction of the market and that, therefore the question of assessment did not arise.
The appellant Collector of Bombay having insisted that in spite of the Government Resolution of 1865 the Government had the right to assess the site, the Mayor of Bombay on March 23, 1939, wrote a letter to the Government stating, inter alia, as follows : "The Corporation have been advised that there can be no doubt that it was the intention of Government to make a permanent grant of the land to the Municipality, and, fur ther, that it was also the intention that permanent grant should be free from rent and from assessment to land revenue.
I am to point out that the word 'rent ' was used in official documents with the greatest frequency with refer ence to the land revenue leviable by the East India Company and later by Government in the City of Bombay and in the Presidency.
It is, therefore, clear that it was the inten tion of Government in 1865 that this grant should be free from any form of rent or assessment.
The Corporation were put into possession for a period of over 70 years, during which period the land has without interruption been devoted to the purpose for which the grant was made.
Throughout this long period there has been no suggestion from Govern ment that the grant was other than a permanent one, free of revenue, or that the terms of the grant were in any way subject to revision," 48 The above contentions were repudiated by the Govern ment in its letter of January 1, 1940, in the following terms: " As regards the contention that the land has been held by the Municipality uninterruptedly for over 70 years with out any suggestion from Government that it was liable to assessment, I am to state the right to levy the assessment is the prerogative of the Crown and a mere non user of this prerogative cannot destroy it.
Besides, conditions have considerably altered since the land was originally allotted to the Municipality without charging any ground rent or assessment; the Municipality has been recovering substantial rents by letting out stalls in the market and should now be in a position to pay the assessment.
Under the circum stances, the levy of assessment in this case can no longer be foregone or postponed.
" On January 31, 1940, the appellant Collector assessed the land under section 8 of the Bombay Act II of 1876 with a guarantee of 50 years as under : "Assessment Rs. 7,500 per annum for the first 10 years from 1st April, 1940.
Assessment Rs. 15,000 per annum for the next 10 years.
Assessment Rs. 30,000 per annum for the remaining 30 years.
" The assessment was to begin to run from I st April, 1940, and the first payment of the assessment was to become due on 1st April, 1941.
The present suit was thereupon filed in the Court of the Revenue Judge in accordance with the provisions of the Bombay City Land Revenue Act, 1876, for the following reliefs, inter alia : "(a) that it may be declared that there is a right on the part of the plaintiff Corporation in limitation of the right of Government to assess the said land and that the plaintiff Corporation is entitled to hold the said land for ever without payment of any assessment and that the Govern ment has no right to assess the said premises, 49 (b) That the said assessment may be declared ultra vires, invalid and may be ordered to be set aside.
" By his judgment dated October 27, 1942, the learned Revenue Judge dismissed the suit with costs.
The Corporation appealed to the High Court.
Before the High Court, as before us, two of the learned Revenue Judge 's conclusions were not challenged namely, (1) that the Government Resolu tion of 1865 was bad in law either as a grant or even as a contract and could not by itself operate to give any inter est in the land to the respondent Corporation because of the non compliance with the formalities required to be observed by Statute 22 & 23 Vic. C. 41 in the matter of disposition of all real and personal estate vested in the Crown under Statute 21 & 22 Vic. C. 106, and (2) that the Crown 's right to levy assessment on property was a prerogative right to which the ordinary presumption that rights to property which had not been asserted or exercised for a long period of years had been granted away did not apply What was urged before and accepted by the High Court was that the right of the Government to levy any assessment on the land in ques tion had been lost and could not be asserted or exercised by the Government by reason of the equity arising on the facts and circumstances of the case in favour of the respondent Corporation on the principle established by the decision in Ramsden vs Dyson(1) which was adopted by Jenkins C.J. in The Municipal Corporation of the City of Bombay vs The Secretary of State(2) and which equity was, on the authorities, bind ing on the Crown.
After dealing with the cases of Dadoba Janardhan vs The Collector of Bombay(3) and Jethabhoy Rut tonsey vs The Collector of Bombay(4) the High Court observed : "We think, on a reading of the language of the Govern ment Resolution dated the 19th December, 1865, that we should be justified in holding (within the meaning of the rule in Ramsden vs Dyson) that an expectation was created or encouraged by the landlord that the Municipality was to get possession of the land rent free and that the latter took possession of the land with the consent of the landlord, and upon such expectation, with the knowledge of the landlord and without objection by him, laid out money upon the land."
According to the High Court the rule of equity enunciated in Ramsden vs Dyson (supra) was not, as pointed out by Jenkins C.J. in Municipal Corporation of the City of Bombay vs The Secretary of State (supra), dependent on the validity of the disposition and could be asserted even where the statutory formalities relating to the disposition of the property had not been observed and performed, and that this equity constituted a right on the part of the respondent Corporation in limitation of the right of the Government in consequence of a specific limit to assessment having been established and preserved within the meaning of section 8 of the Act II of 1876 so as to disentitle the Government from assessing the land in question.
The High Court relied on the decision in Kamalavahooji Maharaj vs The Collector of Bombay(1) in support of their view that section 8 of the Bombay Act II of 1876 would apply even where the specific limit was nil.
In the result, the High Court reversed the decision of the learned Revenue Judge, allowed the appeal and passed a decree declaring the rights of the respondent Corporation and awarding to it the costs in both Courts.
The Collector of Bombay appealed to the Federal Court and the appeal has now come up for hearing before us.
There has been considerable discussion before us as to the precise scope and effect of the principle of equity enunciated in Ramsden vs Dyson (supra), as to whether such principle should be extended to the facts of the present case, whether the facts 'of this case attract the applica tion of the equity established in Ramsden vs Dyson (supra)or attract the equity established in Maddison vs Alderson (2) and Walsh vs Lonsdale(3) and finally as to whether, in view of the decision (1) (3) (2) 51 of the Privy Council in Ariff vs Jadunath(1), the equity in Ramsden vs Dyson (supra) can prevail against the requirement of formalities laid down in the Victorian Statute referred to above any more than the equity in Maddison vs Alderson (supra)can do against the requirements of the Transfer of Property Act and whether the decision in The Municipal Corporation of the City of Bombay vs The Secretary of State(2) requires reconsideration in the light of the deci sion in Ariff 's case (supra).
In the view we have taken, it is not necessary to go into, and to express any opinion on, any of these questions, for this appeal can, in our opinion, be disposed of on a narrower and shorter ground.
The Government claims to assess the lands in terms of section 8 of the Bombay Act II of 1876 which runs thus : "8.It shall be the duty of the Collector, subject to the orders of the Provincial Government, to fix and to levy the assessment for land revenue.
Where there is no right on the part of the superior holder in limitation of the right of the Provincial Govern ment to assess, the assessment shall be fixed at the discre tion of the Collector subject to the control of the Provin cial Government.
When there is a right on the part of the superior holder in limitation of the right of the Provincial Government, in consequence of a specific limit to assessment having been established and preserved, the assessment shall not exceed such specific limit.
" The sole question for our consideration is whether, on the facts of this case, the respondent Corporation has succeeded in establishing in itself a right in limitation of the right of the Government to assess the land in conse quence of a specific limit to assessment having been estab lished and preserved.
There is no dispute that by reason of the non compliance with the statutory formalities the Gov ernment Resolution of 1865 is not an effectual grant passing title in the land to the respondent Corporation and is not also an enforceable contract.
On the other hand, there is no doubt as to the existence of an intention on the part of the Government to make and on the part of the Corporation to take a grant of the land in terms of the Resolution of 1865 including an undertaking by the Government not to charge any rent.
Both parties acted on the basis of that Resolution and the prede cessor in title of the respondent Corporation went into possession of the land in question pursuant to the Govern ment Resolution of 1865 and, acting upon the said Resolution and the terms contained therein, the respondent Corporation and its predecessor in title spent considerable sums of money in leveling the site and erecting and maintaining the market buildings and have been in possession of the land for over 70 years.
What, in the circumstances was the legal position of the respondent Corporation and its predecessor in title in relation to the land in question?
They were in possession of the land to which they had no legal title at all.
Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under color of an invalid grant of the land in perpetuity and free from rent for the purpose of a market.
Such pos session not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant.
This possession has continued openly, as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purposes of a market in terms of the Government Resolution of 1865.
The immunity from the liability to pay rent is just as much an integral part or an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose.
There is no question 53 of acquisition by adverse possession of the Government 's prerogative right to levy assessment.
What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as if a legal grant had been made to it.
The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily consti tute a right in limitation of the Government 's right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of section 8 of the Bombay Act II of 1876.
It is true, as pointed out by the Privy Council in Karnalavahooji Maharaj vs Collector of Bombay (supra) that the words of the section would appear to apply rather to the case of a limitation on the right to assess than to the case of a complete exemption from assessment but such a construction would not protect the cases of total exemption which, as conceded in that very case, did in fact exist and were recognised and protected by virtue of the words of section 8 of the Bombay Act II of 1876.
It has not been suggested before us that there are no cases of total exemption or that those cases are protected by any provision of law other than that of this very section.
There is, therefore, no escape from the conclusion arrived at by the High Court, with which we concur, that the words of section 8 would apply to a case where total exemp tion from assessment was granted.
In other words, specific limit may be nil for the purposes of section 8 of the Act.
It was sought to be argued that even if the Government be precluded from enhancing the "rent" in view of the terms of the Government Resolution, it cannot be held to have disentitled itself from its prerogative right to assess "land revenue".
This contention is sought to be rounded on a distinction between "rent" and" land revenue".
This contention, however, was not raised in the written statement and was not made the subjectmatter of any issue on which the parties went to trial and was never put forward before either of the Courts 54 below.
Indeed, in the letter of the Mayor of Bombay dated March 22, 1939, to which reference has been made, it was clearly alleged that the word "rent" was used in official documents with the greatest frequency with reference to the land revenue leviable by the East India Company and later by the Government in the City of Bombay and in the Presidency.
" In the Government 's reply dated January 24, 1940, also quoted above this assertion was never repudiated or denied.
In the premises, the appellant cannot be permit ted at this stage to raise this contention rounded on the supposed distinction, if any, between "rent" and "land revenue" and for the purpose of this case we must proceed on the basis that the word "rent" in the Government Resolution of 1865 was synonymous with or included" land revenue.
" In our opinion, for reasons stated above, the actual decision of the High Court was correct and this appeal should be dismissed with costs, and we order accordingly.
PATANJALI SASTRI j. I am of opinion that this appeal should be allowed and I will briefly indicate my reasons without recapitulating the facts which have been fully stated in the judgment of my learned brother Das which I have had the advantage of reading.
The appeal concerns a claim by the Provincial Govern ment of Bombay to charge land revenue on a plot of land on which the predecessors of the respondent Municipality erect ed the buildings known as the Crawford Market in the City of Bombay.
It is common ground that the land in question would be assessable to land revenue under section 8 of the Bombay City Land Revenue Act (No. II of 1876) unless the respondent established "a right in limitation of the right of the Provincial Government in consequence of a specific limit to assessment having been established and preserved", in which case, the assessment must not exceed such specific limit.
It has been held, and it is not now disputed, that the words quoted above cover 55 a right of total exemption from assessment, the "specific limit" in such a case being nil (see Goswamini Shri Kamala vahooji vs Collector of Bombay (1).
The only question, therefore, is whether the respondent has established a right to such exemption.
The resolution of the Government dated 19th December, 1865, authorising the grant of the land without "any rent being charged to the Municipality as the market will be like other buildings for the benefit of the whole community" did not by itself purport to pass title to the land in question or to confer on the Municipality a right to exemp tion from land revenue.
Admittedly no formal instrument was executed either granting the land or exempting it from assessment.
Nor could the resolution be regarded as a valid disposition of property or an enforceable contract not to charge revenue on the land, as it did not comply with the requirements of the statute 22& 23 Vic. C. 41 which pre scribed certain formalities to be observed for such transactions.
As pointed out by Jenkins C.J. in Municipal Corpora tion of the City of Bombay vs The Secretary of State (2) all land in British India having been vested in the Crown by 21 & 22 Vic. C. 106, the Governor in Council in Bombay could not dispose of property or enter into a contract on behalf of the Crown except in exercise of the power bestowed on them for the purpose under 22 & 23 Vic. C. 41, and that power could be exercised only by observing the formalities prescribed by that statute.
The learned Judges of the High Court, while recognising this difficulty in the way of the respondent establishing a legal right to exemption from assessment, held that the conduct of the Provincial Govern ment in allowing and, indeed, encouraging the respondent to erect the buildings at great cost on the faith of the prom ise not to charge land revenue contained in the Resolution of 19th December, 1865, precluded the respondent on the equitable principle recognised in Ramsden vs Dyson from assessing the land in question, and that this equity was a "right" in limitation of the right of the Provincial Government to assess.
I am unable to share that view.
There is, in my opin ion, no room here for the application of the principle of Ramsden vs Dyson(1).
That decision has been explained by the Privy Council in Ariff vs Jadunath(2) as based on the equitable doctrine of part performance which, their Lord ships held, could not be applied so as to nullify the ex press provisions of the Transfer of Property Act relating to the creation of leases.
They observed : Whether an English equitable doctrine should, in any case, be applied so as to modify the effect of an Indian statute may well be doubted; but that an English equitable doctrine, affecting the provisions of an English statute relating to the right to sue upon a contract, should be applied, by analogy, to such a statute as the Transfer of Property Act and with such a result as to create without any writing an interest which the statute says can only be created by means of a registered instrument, appears to their Lordships, in the absence of some binding authority to that effect, to be impossible."
After quoting the well known passage in the judgment of Lord Kingsdown, their Lordships commented thus : "It will be noticed that Lord Kingsdown is dealing with the case of express verbal contract or something 'which amounts to the same thing. '
He nowhere puts the case of estoppel; the word is not mentioned.
He would appear to be dealing simply with the equitable doctrine of part performance.
His reference to Gregory vs Mighall [(1811) 18 Ves.3281 confirms this view, for that case was simply an earlier instance of the application of the doctrine.
Even if Lord Kingsdown 's language was intended to cover something beyond the equitable doctrine of part performance in relation to the Statute of Frauds, and was intended to refer to circum stances in which a court of equity will enforce a title to land against the person who at law is the owner thereof, the title must, nevertheless, in their Lordships ' view, be based either upon contract express or implied, or upon some statement of fact grounding an estoppel.
In the later decision in Mian Pir Bux vs Sardar Ma horned(1) their Lordships reiterated the same view and held that English equitable doctrines did not afford in India a valid defence to an action in ejectment based on title.
After these decisions of the Privy Council elucidating the principles underlying Ramsden vs Dyson(2) and Maddison vs Alderson(3), it seems to me clear that they have no application to the facts of the present case.
They can no more prevail against the statutory provisions regarding the disposition of property or the making of contracts by Gov ernment than against the provisions of the Transfer of Property Act requiring registered instruments for effecting certain classes of transactions.
No question of estoppel by representation arises, for the Government made no represen tation of fact which it now seeks to deny.
Nor can any case of estoppel by acquiescence be rounded on the facts of the case.
Both parties knew the facts and neither was misled.
There was no lying by and letting another run into a trap [per Cotton L.J. in Russell vs Watts(4)].
The conduct of the parties was referable to the express agreement evidenced by the Government Resolution of 19th December, 1865, to make a grant of the land free of rent (which, in such context, means and includes revenue).
No question, therefore, of any implied contract could arise.
Unfortunately for the respond ent, the express agreement was unenforceable owing to non observance of the prescribed statutory formalities, though it was acted upon by both sides.
No question arises here as to the respondent 's title to the land which apparently has been perfected by lapse of time.
But it is clear that no right of exemption has been established either on the basis of express or implied contract or on the basis of the equitable principles of part performance or estoppel by acquiescence.
It was next contended that, on the analogy of the line of cases holding that a limited interest in land could be acquired by adverse possession for over the statutory peri od, the respondent 's possession of the land in dispute without payment of any quit rent or revenue for over 70 years to the knowledge of the Government perfected its title to hold the land free from liability to pay land revenue.
It is difficult to appreciate the argument so far as the claim to exemption is concerned.
There is no question here of acquisition of a limited interest in land by adverse possession.
The respondent was asserting full ownership and a right of exemption from assessment and the Government agreed with that view as shown by their letter dated 26th June, 1921, to the Land Acquisition Officer for the City of Bombay wherein they stated that "no Government claim in respect of the land under acquisition (a portion of the land here in question) in the above mentioned case is made as the land vests in the Municipality.
" Be it noted that the Government made no claim even to a portion of the compensa tion on the basis of any right of resumption reserved to them, the Resolution of 1865 having made no such reserva tion.
The position then was that throughout the period of adverse possession, the respondent Municipality regarded itself and was regarded by the Government as absolute owner of the land with the additional right of exemption from assessment to land revenue with the result that the Govern ment 's "right to such property" (the subject of adverse possession) was "extinguished" under section 28 of the Limitation Act.
But the right to levy land revenue was no part of the Government 's right to the property.
It is a prerogative right of the Crown which was placed ' on a statu tory basis under the Bombay City Land Revenue Act of 1876, and could be exercised in respect of a land only on the footing that it belonged to another, the "superior holder", for, the claim to levy assessment itself implies a recogni tion of ownership in 59 another.
It is, therefore, difficult to see how adverse possession of the land could entitle the respondent to exemption from assessment of land revenue.
It was said that the Government having intended to grant the land on the terms that it was to be held free of quit rent or revenue and the respondent having held the land on such terms claiming it to be exempt from assessment, a title to hold it on those terms was perfected by the adverse possession, the covenant for exemption from assessment forming part and parcel of the title.
In other words, the respondent should be placed in the same position as if the Government had made a valid revenue free grant.
The argument is, to my mind, fallacious.
If the Government had given effect to their expressed intention by executing an instru ment in writing observing the due formalities, the respond ent would, no doubt, have secured a valid title to the property with a contract binding the Government not to charge revenue, supported as it was by consideration.
But, as already stated, the Government 's promise not to charge land revenue was unenforceable from the inception, and the respondent 's adverse possession of the land, though accompa nied by a claim to exemption from revenue, could not destroy the Crown 's prerogative right to impose assessment on the land.
A somewhat analogous question arose in Goswamini Shri Kamala Vahooji vs Collector of Bombay(1).
The Government admitted that no land revenue had ever been charged in respect of the land which was enjoyed by the holders for more than a century without payment of revenue and it was urged that in virtue of such a long enjoyment a lost grant of the land on the terms that it should be held free from liability to pay revenue must be presumed.
Rejecting that contention, their Lordships observed : "The appellant submits that in the circumstances a lost grant should be presumed, and that this lost grant should be presumed to have contained an exemption from land revenue or a 'right in limitation of the right of Government to assess the property.
The law may presume the existence of a grant which has been lost where it is sought to disturb a person in the enjoyment of right which he and his predecessors have immemorially enjoyed, but it is a different thing to seek to presume that the Crown has by some lost grant deprived 'itself of the prerogative power to tax the property of its subjects, and their Lordships are of opinion that this plea is untenable." (italics mine).
The decision shows that exemption from land revenue does not form part and parcel of the title to land but is collateral to it.
If a presumed lost grant could not cover it neither could title by adverse possession.
I would allow the appeal but make no order as to costs.
I had the advantage of reading the judgment prepared by my learned brother; Mr. Justice Das, and 1 agree in the conclusion he has reached; but i wish to add a few words of my own on some of the points that have been discussed during the course of the hearing.
In the first place, there can be little doubt that the word "rent" in paragraph 2 of the Government Resolution of the 19th December 1865, means "assessment ".
It is true that this word is used generally in cases of landlord and tenant, but when it is remembered that here the Govern ment was parting with the land vested in the Crown in favour of the Municipal Corporation of Bombay, it can safely be assumed or presumed that they were thinking not merely of their rights as landlord but also of their prerogative right as well.
That the land was going to be used for the build ing of markets for the benefit of the whole community and, therefore, should not be charged with rent is a considera tion more relevant and appropriate to the prerogative right to assess than to a right to collect rent in respect of a transaction of lease.
Moreover, it is well known that when ever we speak of 61 a rent free grant of an inam by the Government, what is meant is land revenue or assessment.
The Resolution in question authorized the grant of the site.
There is apparently no grant in writing, conforming to the formalities prescribed by the law then in force.
Part of the site was wanted for the erection of stables and the question of title to that portion was considered and decided in The Municipal Corporation of the City of Bombay vs The Secretary of State for India in Council (1), where the Government gave the Municipality notice to quit and brought a suit for rent on the alleged determination of the tenancy.
It is part of the same transaction with which we are concerned now, and it seems to me that there was no valid grant.
The grant having been authorized, the Corpora tion went into possession and it is not denied that they have built the Crawford Market at enormous cost.
Though the grant was invalid, the Corporation has now acquired a title by adverse possession to the site; this, however, is not the case with reference to the stable site covered by the afore said Bombay decision.
There the question was brought before the Court, well within the 60 years ' period.
The Crawford Market site has been in the possession of the Municipal Corporation for over 60 years under an invalid grant, a term of which was that no rent should be charged.
We are not concerned now with any question of ejectment or determination of tenancy.
Could it be said that the right to levy assessment on the land, enjoyed without any payment of any kind so far, was lost by adverse possession ?
I find it difficult to give an affirmative answer.
Before a right could be said to be acquired or lost by adverse possession, it must have been the subject of possession by a man without title as against the person with the rightful title.
Right to levy assessment is a prerogative right of the Government and it is hard to conceive of a case where it could be said to be lost by adverse possession.
True, there can be adverse possession of a limited right like that of a mortgagee or a lessee or even a perma nent tenant, but still a right must have been enjoyed by the possessor adversely to the claim of the true owner.
It is unnecessary to go into the wider question whether the denial of the right to levy assessment and possession of property coupled with this denial for over a period of 60 years will negative that right; it is sufficient to say that no right to levy assessment was exercised in the case before us before March, 1938, and the denial was only afterwards.
This, however, does not determine the case in favour of the appellant, as there is a question of equity to con sider and on which the appellant failed in the court below.
In fact, it is the crucial point for determination.
When the Architectural Improvement Committee proposed to levy a nominal rent, the Government stated that no rent need be charged, as the markets to be built were for the benefit of the whole community.
This was a representation made by the Government when the site was given and possession was taken.
How far this representation was taken into consideration when the Corporation of Bombay took possession of the site under the grant is not necessary to be considered at any great length.
It is just possible that they would have taken the site even with the nominal rent, but it is equally possible that had they known that the rent was in the nature of assessment and liable to enhancement from time to time or periodically, they would have insisted on getting a site free from assessment in consideration of the sites they gave up for forming the eastern Boulevard.
The allegation in.paragraph 7 of the plaint that the Corporation acted on the faith of the terms contained in the grant has not been denied by the Government.
The accident that the grant was invalid does not wipe out the existence of the representation of the fact that it was acted upon by the Corporation.
Even if the suit had been brought within 60 years for ejectment and the Corporation had no answer to such a claim, the right to levy assessment might have conceivably stood on a different footing.
In any event, 63 there can be no doubt that it would have been competent for a Court of equity to give compensation for the expenditure and protect the possession in the meantime.
Lord Kingsdown refers to this aspect of the matter in Ramsden vs Dyson (1).
In the present case, the Corporation stands on much firmer ground.
They have acquired a title to the land which the Government cannot upset or challenge.
This acquisition of title is as a result of the law of limitation.
It has nothing to do with any conduct on the part of the Corpora tion which can be said to have rendered the representation about non liability to assessment of no legal effect or consequence.
The invalidity of the grant does not lead to the obliteration of the representation.
Can the Government be now allowed to go back on the representation, and ,if we do so, would it not amount to our countenancing the perpetration of what can be compendiously described as legal fraud which a court of equity must pre vent being committed?
If the resolution can be read as meaning that the grant was of rent free land, the case would come strictly within the doctrine of estoppel enunciated in section 115 of the Indian Evidence Act.
But even otherwise, that is, if there was merely the holding out of a promise that no rent will be charged in the future, the Government must be deemed in the circumstances of this case to have bound themselves to fulfil it.
Whether it is the equity recognised in Ramsden 's case(1), or it is some other form of equity, is not of much importance.
Courts must do justice by the promotion of honesty and good faith, as far as it lies in their power.
As pointed out by Jenkins C.J. in Dadoba Janardhan 's case (2), a different conclusion would be "opposed to what is reasonable, to what is probable, and to what is fair.
" I am of the opinion that the decision of the Privy Council in Ariff vs Jadunath (3) is not applicable to the facts before us, as the doctrine of part performance (1) (2) Dadoba Janardan vs The Collector of Bombay (1901) I.L.R,.25 Born.(3) (1931) 58 I.A. 91.64 is not being invoked here as in that case, to clothe a person with title which he cannot acquire except by the pursuit of or in conformity with certain legal forms.
Here, as pointed out already, the Corporation became the full and absolute owner of the site on the lapse of SO years from the date of the grant.
Appeal dismissed.
| In 1865, the Government of Bombay called upon the prede cessor in title of the Corporation of Bombay to remove some markets from a certain site and vacate it, and on the appli cation of the then Municipal Commissioner the Government passed a resolution approving and authorising the grant of another site to the Municipality.
The resolution stated further that "the Government do not consider that any rent should be charged to the Municipality as the markets will be, like other public buildings, for the benefit of the whole community.
" The Corporation gave up the sites on which the old markets were situated and spent a sum of over 17 lacs in erecting and maintaining markets on the new site.
In 1940 the Collector of Bombay, overruling the objection of the Corporation, assessed the new site under section 8 of the Bombay City Land Revenue Act to land revenue rising from Rs. 7,500 to Rs. 30,000 in 50 years.
The Corporation sued for a declaration that the order of assessment was ultra vires and that it was entitled to hold the land for ever without payment of any assessment.
The High Court of Bombay held applying the principle of Ramsden vs Dyson(1) that the Government had lost its right to assess the land in question by reason of the equity arising on the facts of the case in favour of the Corporation and there was thus a limitation on the right of the Government to assess under section 8 of the said Act: Held per KANIA C.J., DAS, CHANDRASEKHARA AIYAR and BOsE JJ.
(PATANJALI SASTRI J. dissenting) that the Govern ment was not, under the circumstances of the case, entitled to assess land revenue on the land in question.
Per KANIA C.J., DAS and Bose JJ.
Though there was no effectual grant by the Government passing title in the land to the Corporation by reason of non compliance with the statutory formalities, yet, inasmuch as the Corporation had never the less taken possession of the land in terms of the Government resolution and continued in such possession openly, uninterruptedly and as of right for over 70 years, the Corporation had acquired the (1) (1866)L.R. 44 limited title it had been prescribing for during the period, that is to say, the right to hold the land in perpetuity free of rent, but only for the purposes of a market and for no other purposes.
The right acquired included as part of it an immunity from payment of rent which constituted a right in limitation of the Government 's right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of section 8 of the Bombay City Land Revenue Act (II of 1876) there being for the purposes of this case no distinction between rent and revenue.
Per CHANDRASEKHARA AIYAR J.
If the Resolution of 1865 can be read as meaning that the grant was of rent free land the case would come strictly within the doctrine of estoppel enunciated in section 115 of the Indian Evidence Act.
Even otherwise, if there was merely the holding out of a promise that no rent will be charged in the future the Government must be deemed to have bound themselves to fulfil it.
The right to levy assessment is a prerogative right of the Government and it is hard to conceive of a ease where it could be said to be lost by adverse possession.
A court of equity must prevent the perpetration of a legal fraud.
PATANJALI SASTRI J. (contra) The principle of Ramsden vs Dyson cannot prevail against statutory requirements regarding disposition of property or making of contracts by Government.
No question of estoppel by representation arises, as the Government made no representation of fact which it now seeks to deny.
Nor can any case of estoppel by acquiescence be rounded on the facts of the case as there was no lying by and letting another run into a trap.
No right of exemption has been established either on the basis of express or implied contract or on the basis of equitable principles of part performance or estoppel by acquiescence.
The right to levy land revenue is no part of the Govern ment 's right to property but a prerogative of the Crown and adverse possession of the land could not destroy the Crown 's prerogative to impose assessment on the land.
|
Appeal No. 103 of 1950.
Appeal from a Judgment of the Bombay High Court (Chagla C.J. and Tendolkar J.) dated 25th March, 1949, in Income Tax Reference No. 31 of 1948.
M. C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the appellant.
R.J. Kolah, for the respondent.
Oct. 1.
The Judgment of the Court was delivered by KANIA C.J.
This is an appeal from a judgment of the High Court at Bombay and it arises out of the opinion ex pressed by the High Court in respect of a question submitted to it by the Income tax Tribunal.
The material facts are these.
The respondent is a textile mills company carrying on the business of manufacturing and selling textile goods.
For the assessment years 1943 44 and '1944 45, covering the accounting periods ending with the calendar years 1941, 1942 and 1943, the respondent claimed the expenditure incurred by it in registering for the first time its trade marks which were not in use prior to the 25th February, 1937, as revenue expenditure and an allowable deduction out of its income for the said periods, under section 10(2) (xv) of the Indian Income tax Act.
Following the decision of the Bombay High Court in Commissioner of Income tax, Bombay vs The Century Spinning 13 and Weaving and Manufacturing Co. Ltd.(1), the Tribunal allowed the claim of the assessee.
At the desire of the appellant, the Tribunal submitted the following question for the opinion of the High Court : "Whether, on the facts of the case, the expenditure incurred by the assessee company in registering for the first time its trade marks which were not in use prior to the 25th February, 1937, is revenue expenditure and an allowable deduction under section 10(2) (xv) of the Indian Income tax Act ?" The High Court, following its previous decision and finding that the fact of the trade marks having come into use after the 25th of February, 1937, made no difference in the result, answered the question in the affirmative.
The Commissioner of Income tax, Bombay, has come on appeal to us.
It was argued on behalf of the appellant that the ques tion whether a certain disbursement was of a capital or revenue nature, has to be decided according to the principle laid down in British Insulated and Helsby Cables Ltd. vs Atherton(2).
In that case the company which carried on the business of manufacturers of insulated cables established a pension fund for its clerical and technical salaried staff.
The fund was constituted by a trust deed which provided that members should contribute a percentage of their salaries to the fund and that the company should contribute an amount equal to half the contributions of the members; and further that the company should contribute a sum of pound 31,784 to form the nucleus of the fund and to provide the amount necessary in order that past years of service of the then existing staff should rank for pension.
That sum was arrived at by an actuarial calculation on the basis that the sum would ultimately be exhausted when the object for which it was paid was attained.
The House of Lords held that this payment was in the nature of capital expenditure and was therefore not an admissible deduction.
Although in the opinions expressed by the different members of the House of Lords (1) (2) 14 the line of approach is not completely the same, the principle stated by Lord Cave in his speech has been test distinguish capital expenditure from revenue expenditure.
It was recognised that a sum of money expended, not of necessi ty and with a view to a direct and immediate benefit to the trade, but voluntarily and on the grounds of commercial expediency, and in order indirectly to facilitate the carry ing on of business, may yet be expended wholly and exclu sively for the purposes of the trade.
The Lord Chancellor observed that the question appeared to be a question of fact which was proper to be decided by the Commissioners upon the evidence brought before them in each case.
The test that capital expenditure is a thing that is going to be spent once and for all and income expenditure is a thing that is going to recur every year was considered an useful element in arriving at the decision but was not certainly the deci sive fact.
The Lord Chancellor observed as follows: "But when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advan tage for the enduring benefit of the trade, I think that there is very good reason for treating such an expenditure as properly attributable not to revenue but to capital.
" In order to appreciate the true position here Correctly it is next necessary to notice the relevant provisions of the Indian .
It may be noted that before this Act there was no in India but it was recognised that an action lay for infringement of a trade mark independently of an action for passing off goods.
The Act opens with the preamble "whereas it is expedient to provide for the registration and more effective protection of trade marks . "Section 2(1) of the Act defines a trade mark as meaning "a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right to use the mark, whether with or without any indication of the identity of that person.
" Section 14 permits the 15 proprietor of a trade mark to have the trade mark regis tered.
The Attorney General, on behalf of the appellant, relied on sections 20, 21, 28 and 29 in support of his contention.
He argued that before the , although the proprietor of a trade mark could maintain an action for infringement of his trade mark and the cause of action in such a case was quite different from the cause of action in an action for passing off goods, by the the right of the owner of the trade mark is in creased by section 21, and it is made assignable independ ently of the goodwill under sections 28 and 29 of the .
The question thus resolves itself into whether by reason of these two incidents the case falls within the principle laid down by Lord Chancellor Cave, as mentioned above.
In our opinion, the contention urged on behalf of the appellant must fail.
It is not contended that by the a new asset has come into existence.
It was con tended that an advantage of an enduring nature had come into existence.
It was argued that just as machinery may attain a higher value by an implementation causing greater produc tive capacity, in the present case the trade mark which existed before the acquired an advantage of an enduring nature by reason of the and the fees paid for registration thereunder were in the nature of capital expenditure.
In our opinion, this analogy is falla cious.
The machinery which acquires a greater productive capacity by reason of its improvement by the inclusion of some new invention naturally becomes a new and altered asset by that process.
So long as the machinery lasts, the im provement continues to the advantage of the owner of the machinery.
The replacement of a dilapidated roof.
by a more substantial roof stands on the same footing.
The result however of the is only two fold.
By regis tration, the owner is absolved from the obligation to prove his ownership of the trade mark.
It is treated as prima facie proved on production of the registration certificate.
It thus merely saves him the trouble of leading evidence, in the event of a suit, in a court 16 of law, to prove his title to the trade mark.
It has been said that registration is in the nature of collateral security furnishing the trader with a cheaper and more direct remedy against infringers, Cancel the registration and he has still his right enforceable at common law to restrain the piracy of his trade mark.
In our opinion, 'this is neither such an asset nor an advantage as to make payment for its registration a capital expenditure.
In this connec tion it may be useful to notice that expenditure incurred by a company in defending title to property is not considered expense of a capital nature.
In Southern (H. M. Inspector of Taxes) vs Borax Consolidated Limited(1).
it is there stated that where a sum of money is laid out for the acqui sition or the improvement of a fixed capital asset it is attributable to capital, but if no alteration is made in the fixed capital asset by the payment, then it is properly attributable to revenue, being in substance a matter of maintenance, the maintenance of the capital structure or the capital asset of the company.
In our opinion, the advantage derived by the owner of the trade mark by registration falls within this class of expenditure.
The fact that a trade mark after registration could be separately assigned, and not as a part of the goodwill of the business only, does not also make the expenditure for registration a capital expend iture.
That is only an additional and incidental facility given to the owner of the trade mark.
It adds nothing to the trade mark itself.
In the judgment of the High Court some emphasis is laid on the fact that by reason of registration the duration of the trade mark is only for seven years, and it does not thus possess that permanency which is ordinarily required of an expenditure to make it a capital expenditure and in order to prove the existence of a benefit of an enduring character.
The learned Attorney General contended that the view that as the benefit of registration lasted for seven years, i.e., for a limited period, it prevented the expenses of registra tion being treated as capital expenditure, is unsound (1) [1942] 10 I.T.R. Suppl.
17 and for that contention he relied on Henriksen (Inspector of Taxes) vs Grafton Hotel Ltd.(1).
In that case, tenants of licensing premises by agreement with the landlord paid by instalment the monopoly value fixed by the licensing jus tices when granting the licence under section 14 of the Licensing (Consolidation) Act, 1910.
These were sought to be deducted as revenue expenditure but were disallowed by the Court.
Lord Greene M.R. first considered that the pay ment fell into the same class as the payment of a premium on the grant of a lease or the expenditure on improvements to the property which justices may require to be made as a condition of granting a licence.
Having reached that conclu sion he rejected the argument that the payment not being made in one lump sum but by instalments made a difference in the character of the payment.
He observed as follows : "Whenever a licence is granted for a term, the payment is made as on a purchase of a monopoly for that term.
When a licence is granted for a subsequent term, the monopoly value must be paid in respect of that term and so on.
The payments are recurrent if the licence is renewed, they are not peri odical so as to give them the quality of payments which ought to be debited to revenue account.
The thing that is paid for is of a permanent quality although its permanence, being conditioned by the length of the term, is shortlived.
A payment of this character appears to me to fall into the same class as the payment of a premium on the grant of a lease, which is admittedly not deductible.
" The Attorney General relied on these observations to point out that the permanence of the advantage was thus not dependent on the number of years for which it was to enure for the benefit of the proprietor of the trade mark.
In our opinion, these observations have to be read in the context in which they have been made.
The learned Master of the Rolls was discuss ing only the question of payment being made by instalments as not making any difference in the nature of the (1) 3 18 expenditure.
It was first held by him that the payment in question was of a capital nature and of the same character as premium paid on the grant of a lease and was therefore necessarily of a capital nature.
Having come to that conclu sion, he only rejected the contention that because the premium was paid in more instalments than one it lost its character a capital expenditure.
In our opinion, this is an entirely different thing from stating that the fact of the advantage being for a limited time altered the character of the payment in any way.
As observed by Viscount Cave L.C. the question is always one of fact depending on the circumstances of each case individually.
In our opinion, the decision of the High Court reported in Commissioner of Income tax, Bombay vs The Century Spin ning and Weaving and Manufacturing Co. Ltd.(1) is correct and in the present case also the contention of the appellant must fail.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.
| The expenditure incurred by a company carrying on the manufacture and sale of textile goods in registering for the first time its trade marks which were not in use prior to the 25th January, 12 1937, is revenue expenditure and an allowable deduction under Sec.
10 (2) (xv) of the Indian Income tax Act.
The fact that a trade mark after registration could be sepa rately assigned and not as a part of the goodwill of the business only, does not make the expenditure for registra tion capital expenditure.
It is only an additional and incidental facility given to the owner of the trade mark; it adds nothing to the trade mark itself.
Judgment of the Bombay High Court affirmed.
Commissioner of Income tax, Bombay vs The Century Spin ning and Weaving and Manufacturing Co. Ltd. ([1947] approved.
British Insulated and Helsby Cables Ltd. vs Atherton ([1926] A.C. 205), Southern vs Borax Con solidated Ltd. ([1942] 10 I.T.R. Supp. 1), Henriksen vs Grafton Hotel Ltd. ([1942] 2 K.B. 184) referred to.
|
Civil Appeal No. 56 of 1951.
Appeal from a judgment and decree of the High Court of Allahabad (Malik and Wali Ullah JJ.) dated 14th February 1946, in Appeal No. 240 of 1943 which 37 arose out of a decree dated 19th January, 1943, of the Court of the Civil and Sessions.
Judge, Kanpur, in Original Suit No. 34 of 1942.
Achhru Ram (P. section Safeer, with him) for the appellant.
S.P. Sinha (K. N. Aggarwala, with him) for the respond ent. 1951.
November 1.
The Judgment of the Court was deliv ered by FAZL ALI J.
This is an appeal by special leave against a decision of the High Court at Allahabad, reversing the decision of the trial court, in a suit instituted by the appellant to recover damages from the respondent firm for breach of a contract.
It appears that between the 10th and 18th April, 1941, the parties entered into 5 contracts, by which the respond ent firm undertook to supply to the appellant 184 bales of cloth of certain specifications manufactured by the New Victoria Mills, Kanpur, and the Raza Textile Mills, Ramput.
Only 99 bales were taken up and there was a dispute about the remaining 85 bales.
On the 17th October, 1941, a settle ment was arrived at between the parties, and it was agreed that the respondent firm should deliver to the appellant 61 bales, and that the goods should be delivered by the 17th November, 1941.
The actual text of the agreement (exhibit 4) was as follows: " 61 bales as noted below are to be given to you by us.
We shall continue sending goods as soon as they are prepared to you upto Magsar Badi 15 Sambat 1998.
We shall go on supplying goods to you of the Victoria Mills as soon as they are supplied to us by the said Mill.
(Specifications of cloth given here).
We shall go on deliv ering the goods to you upto Magsar Badi 15 out of the goods noted above which will be prepared by the Mill.
" 38 As the 61 bales were not supplied, the appellant sent a telegraphic notice to the respondent firm on 20th November, 1941, to the following effect "Give delivery of our 61 bales through Bank.
Otherwise suing within a days.
" The appellant did not receive any reply to this notice, and so he instituted the suit which has given rise to this appeal, on the 23rd April, 1942, claiming a sum of Rs. 9,808 and odd, which, according to him, represented the loss sustained by him on account of the rise in the market rate of the contracted goods, and he also claimed costs and interest.
The respondent firm resisted the suit on a number of grounds, but their main plea, with which alone we are concerned in this appeal, was that the performance of the contract had been frustrated by circumstances beyond their control and hence the appellant 's claim must fail.
This plea was negatived by the trial court, but it was upheld by the High Court, and hence this appeal.
The only point which arises in this appeal is whether the circumstances of the case afford any basis for the application of the doctrine of frustration of.
contract, a doctrine which is embodied, so far as this country is con cerned, in sections 32 and 56 of the .
The main grounds of attack against the judgment of the High Court are : (1) that it has misread the agreement (exhibit 4) dated the 17th October, 1941, on which both parties rely; and (2) that it has paid more attention to an abstract legal doctrine than to the facts of the case.
In our opinion, both these contentions are correct.
The construction placed by the High Court upon the agree ment and its conclusion based thereon, are set out in the following passage in the leading judgment of Wali Ullah J. : "It seems to me that the parties clearly intended that the defendant was to supply the goods to the 39 plaintiff ' if and when and only in that event the particu lar goods were prepared by the Victoria Mills and were supplied to the defendant between the 17th of October, 1941, and 17th of November, 1941.
As the fundamental assumption on which the contract was made ceased to exist during the time of performance and consequently it became impossible for the defendant to fulfil the contract, it must be held that the contract was discharged by supervening impossibility.
" The construction suggested by the High Court is precise ly the construction which was attempted to be put on a similar contract by the defendant respondents in the case of Harnandrai vs Pragdas (1) but the Privy Council negatived it. ' In that case, the provision as to delivery of goods ran as follows : "The said goods are to be taken delivery of as and when the same may be received from the Mills." The Mills failed to perform their contract with the defendants as they were engaged in fulfilling certain con tracts with the Government, and consequently the defendants could not supply the goods to the plaintiffs.
The questions raised before the Privy Council were as to the meaning of the contract and whether its performance had been frustrat ed, and the Privy Council disposed of them in these words : "It was also suggested that the words 'as and when the same may be received from the Mills ' should be construed, as if they were ' if and when the same may be received from the Mills. ' This is to convert words, which fix the quantities and times for deliveries by instalments into a condition precedent, to the obligation to deliver at all, and virtual ly makes a new contract.
The words certainly regulate the manner of performance, but they do not reduce the fixed quantity sold to a mere maximum, or limit the sale to such goods, not exceeding 864 bales, as the Mills might deliver to the defendants during the remainder of the year.
" Their Lordships then proceeded to observe: (1) (1888) L.R. 15 I.A. 9. 40 "The Mills, from which the goods were to come, no doubt were contemplated as continuing to exist, though it does ' not follow that, in a bargain and sale such as this, the closing or even the destruction of the Mills would affect a contract between third parties, which is in terms absolute; but the Mills did continue to exist and did continue to manufacture the goods in question, only they were made for and delivered to somebody else.
" We agree with the reasoning of the Privy Council, and it seems to us that the considerations which prevailed with them must govern the construction of the agreement with which we are concerned in this case.
The agreement does not seem to us to convey the meaning that the delivery of the goods was made contingent on their being supplied to the respondent firm by the Victoria Mills.
We find it difficult to hold that the parties ever contemplated the possibility of the goods not being supplied at all.
The words "prepared by the Mill" are only a description of the goods to be supplied, and the expressions "as soon as they are prepared" and "as soon as they are supplied to us by the said Mill" simply indicate the process of delivery.
It should be remem bered that what we have to construe is a commercial agree ment entered into in a somewhat common form, and, to use the words of Lord Sumner in the case to which reference has been made, "there is nothing surprising in a merchant 's binding himself to procure certain goods at all events, it being a matter of price and of market expectations.
" Since the true construction of an agreement must depend upon the import of the words used and not upon what the parties choose to say afterwards, it is unnecessary to refer to what the parties have said about it.
Even apart from the construction of the agreement, it seems to us that the plea of the respondents must fail on their own admissions.
The defendant has stated in his evidence that he had not sold the 61 bales of cloth to any other person at the time he received the telegraphic notice of the 20th November, 1941, (exhibit 1).
On his own admis sion, therefore, he was 41 in a position to supply 61 bales of the contracted goods at the time when the breach of the agreement is alleged to have happened.
That being so, we are unable to hold that the performance of the contract had become impossible.
The matter however does not rest there.
Guruprasad, a clerk of the Mills Company, who is the second witness for the defend ants, has made an important statement to the following effect "The customers all place their requirements before the sales manager.
If the goods required are ready, they are sold to the customers and if they are not ready and if the customer wants them to be manufactured they are delivered to the customers after manufacture.
An order book is main tained at the Mills.
" Such being the practice which prevailed in the Victoria Mills, it was for the defendants to show that an order for the manufacture of the contracted goods was placed with the Mills and yet the Mills failed to supply the goods.
No such evidence has however been offered by the defendants The High Court has surmised that it might not have been possible to supply the goods within the period mentioned in the agreement, but there is no material to support that state ment.
In these circumstances, this is obviously not a case in which the doctrine of frustration of contract can be in voked.
That doctrine has been explained in a number of cases, some of which are referred to in the judgment of the High Court, but the latest pronouncement with regard to it is to be found in the speech of Viscount Simon in British Movietone News vs London Cinemas(1), in which the Lord Chancellor referred with approval to the following enuncia tion of the doctrine by Earl Loreburn in a previous case F.A. Tamplin S.S. Co. Ltd. vs Anglo Mexican Petroleum Products Co., Ltd(2): ". a court can and ought to examine the contract and the circumstances in which it was made, not of course (1) ; (2) , 404.
6 42 to vary, but only to explain it, in order to see whether or not from the nature of it the parties must have made their bargain on the footing that a particular thing or state of things would continue ,to exist.
And if they must have done so, then a term to that effect will be implied, though it be not expressed in the contract . no court has an absolving power, but it can infer from the nature of the contract and the surrounding circumstances that a condition which is not expressed was a foundation on which the par ties contracted," It seems necessary for us to emphasize that so far as the courts in this country are concerned, they must look primarily to the law as embodied in sections 32 and 56 of the .
These sections run as fol lows : "32.
Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened.
If the event becomes impossible such contracts become void." "56.
An agreement to do an act impossible in itself is void.
A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. .
The enforcement of the agreement in question was, as we have already pointed out, not contingent on the happening of an uncertain future event, nor does the present case fall within the second paragraph of section 56, which is the only provision which may be said to have any relevancy to the plea put forward by the respondents.
Clearly, the doctrine of frustration cannot avail a defendant, when the non per formance of a contract is attributable to his own default.
We accordingly allow the appeal, set aside the judgment of the High Court, and restore the decree of the trial court.
The appellant will be entitled to his costs through out.
Appeal allowed.
Agent for the respond ent: S.S. Sukla.
| The respondents agreed to deliver 61 bales of cloth to the appellant by the 17th November, 1941.
The agreement provided "we shall continue sending the goods as soon as they are prepared to you up to Magsar Badi 15, Sambat 1998 .
We shall go on supplying goods to you of the Victoria Mills as soon as they are supplied to us by the said Mills .
We shall go on delivering the goods to you . out of the goods noted above which will be prepared by the Mill.
" In a suit for damages for non deliv ery of the goods the respondents pleaded that as they had not received the goods from the Victoria Mills before the 17th of November, 1941, performance of the contract had become impossible by reason of an event which they could not prevent and the contract had therefore become void under Sec.
56, Indian Contract Act: Held, (i) that, on a proper construction of the con tract, delivery of the goods was not made contingent on their being supplied to the respondents by the Victoria Mills.
The words "prepared by the Mills" were only a de scription of the goods to be supplied, and the expressions "as soon as they are prepared" and "as soon as they are supplied to us by the said Mill "simply indicated the proc ess of delivery.
This was not therefore a case in which the doctrine of frustration of contract could be invoked.
(ii) Even apart from the construction of the agreement, as the respondents had not shown that they had placed an order for the goods with the Victoria Mills and yet the Mills had failed to supply, there was a clear breach of contract to deliver and the appellant was entitled to recover damages.
Harnandrai vs Pragdas (L. R. 15 I.A. 9) and British Movietone News vs London Cinemas relied on.
|
Appeal No. 75 of 1950.
Appeal from the Judgment of the High Court of Judicature at Patna dated 22nd November, 1944, in Appeal No. 238 of 1940 arising out of order dated 13th July, 1940, of the Subordinate Judge of Bhagalpur in Mis.
Case No. 174 of 1939.
The facts of the case appear from the judgment.
The appeal was originally preferred to the Privy Council and was subse quently transferred and heard by the Supreme Court.
N.C. Chatterjee (B. Sen, with him) for the appellant.
B.C De (Raghunath Jha, with him) for the respond ents.
65 1951.
October 26.
The Judgment of the Court was deliv ered by DAs J.
This appeal has come up for hearing before us on transfer from the Privy Council.
The appellant is the present holder of Taluk Kakwara which appertains to Mahalat Kharakpur.
The respondents represent the Banaili Raj which has also acquired the Mahalat of Kharakpur.
The respondents obtained a decree for Rs. 11,587 14 6 against the appellant for arrears of rent and cess and applied for execution of their decree by the attachment and sale of Taluk Kakwara.
On August 29, 1939, the appellant judgment debtor filed an objection under section 47 of the Code of Civil Procedure alleging that as Taluk Kakwara was held on Ghatwali tenure it could not be sold in execution of a money decree.
This objection was rather too wide, for all lands held on Ghatwa li tenure were not necessarily inalienable.
Indeed, in Kali Pershad Singh vs Anund Roy(1) which related to the Ghatwali Mahal of Kharna within the Mahalat of Kharakpur the evidence clearly established a number of instances in which there had been unquestioned transfers and sales applicable to Mahals in Kharakpur and it was held by the Privy Council that the true view to take was that such a tenure in Kharakpur was not inalienable, and might be transferred by the Ghatwal or sold in execution of a decree against him, if such transfer or sale was assented to by the Zamindar.
A sale at the instance of the Zamindar in execution of a decree for ar rears of rent necessarily implies the existence of such assent.
In the later case of Narayan Singh vs Niranjan Chakravarti(2) which related to the Ghatwali Mahal of Hand wa, Lord Sumner recognised that the decision of the Privy Council in the Kharna Ghatwali Mahal case was fully support ed by the evidence adduced in that case and that that authority had been repeatedly followed and applied in India, and, so far as the reports showed, without proof of the custom being required over again.
Lord Sumner, however, pointed out that (1) (1887) L.R. 15 I.A. Cal.
(2) (1923) L.R. 51 I.A. Pat. 184; A.I.R. (1924) P.C. 5.
9 66 it was plain that as the custom depended on proof, and as the tenure in question was one in the Zamindari of Kharakpur and under its Zamindar, it could have no reference to Ghat wali tenures not under him nor forming part of his Zamind ari.
The Privy Council in the later case referred to above saw no ground for thinking that the custom of Kharakpur had any application to Ghatwali tenures, which, like Handwa, were independent of the Kharakpur Zamindari, even though they might be not far off Kharakpur.
In short, it may be said to be well established and the contrary has not been urged before us that Ghatwali tenures held under the Zamindar of Kharakpur were, by custom judicially recognised, alienable with the assent of the Zamindar while Ghatwali tenures like Handwa held under the Government direct were inalienable.
In this state of the authorities, the appellant judgment debtor on May 31, 1940, filed a fresh petition of objection under section 47 of the Code claiming that Taluk Kakwara was held under a Government Ghatwali tenure.
The principal question for determination in those execution proceedings was whether Taluk Kakwara was a Government Ghatwali, as alleged by the appellant judgment debtor, or was a Zamindari Ghatwali held under themselves, as claimed by the Respondents decree holders.
The learned Subordinate Judge held that Taluk Kakwara was a Zamindari Ghatwali under the Raja of Kharakpur and overruled the objection of the judgment debtor.
The judg ment debtor appealed to the High Court.
The appeal came up for hearing in the first instance before a Bench consisting of Manohar Lal and Shearer JJ.
Manohar Lal J. came to the conclusion that Taluk Kakwara was a Government Ghatwali and was inclined to allow the appeal.
Shearer J. took the view that while Taluk Kakwara was at one time a Government Ghat wali, it ceased to be so and became and remained a Zamindari Ghatwali and as such was alienable and was inclined to dismiss the appeal.
In view of this difference of opinion the appeal was referred to Chatterjee J, as the third Judge 67 Chatterjee J. held that Taluk Kakwara was a Zamindari Ghat wali land as such alienable and accordingly dismissed the appeal.
The judgment debtor obtained leave to appeal to the Privy Council.
As already stated, the appeal has come up for hearing before us on transfer from the Privy Council.
Although the exact origin of the Ghatwali tenures was generally lost in the confusion and obscurity of the trou blous times which preceded the British rule, the nature of the Ghatwali tenures and their purposes and incidents have been fully established by a series of decided cases.
The position of the Zamindars in or about 1765, when the East India Company secured the Dewani of Bengal, Bihar and Oris sa, has been described by the Right Hon 'ble T. Pemberton Leigh (who subsequently became Lord Kingsdown) in his judg ment in the case of Raja Lelanund Singh vs Government Ben gal(1): Many of the greater Zamindars within their respective Zamindaries, were entrusted with rights, and charged with duties, which properly belonged to the Government.
They had authority to collect from the Ryots a certain portion of the gross produce of the lands.
They, in many cases, imposed taxes and levied toils, and they increased their income by fees, perquisites, and similar exactions, not wholly unknown to more recent times and more civilised nations.
On the other hand, they were bound to maintain peace and order, and administer justice within their Zamindaries, and, for that purpose, they had to keep up Courts of civil and criminal justice, to employ Kazees, Canoongoes, and Thanahdars, or a police force.
But while as against the Ryots and other inhabitants within their territories, many of these poten tates exercised almost regal authority, they were, as against the Government, little more than stewards or admin istrators.
Their Zamindaries were granted to them only from year to year; the amount of their jumma, or yearly payment to Government, was varied, or might be varied annually; it was an arbitrary sum fixed by the Government (1) (1855) 6 M.I.A. 101 at p. 108.
68 officers, calculated upon the gross produce of the Zamindary from all sources, after making an allowance to the Zamindar for his maintenance, and for the expenses of the collection and of discharging the public duties with which he was entrusted by the Government." Further down his Lordship observed "Besides the disorder which prevailed generally ' 'Besides the disorder which prevailed generally through the Prov inces, particular Districts were exposed to ravages of a different description.
The mountain or hill districts in India were at this time inhabited by lawless tribes, assert ing a wild independence, often of a different race and different religion from the inhabitants of the plains, who were frequently subjected to marauding expeditions by their more warlike neighbours.
To prevent these incursions it was necessary to guard and watch the Ghats, or mountain passes, through which these hostile descents were made; and the Mahomedan rulers established a tenure called Ghatwali ten ure, by which lands were granted to individuals, often of high rank, at a low rent, or without rent, on condition of their performing these duties, and protecting and preserving order in the neighbouring Districts." This description of the nature and incidents of a Ghat wali tenure was adopted by the High Court Garth C.J. and McDonell J.) in Leelanund Singh vs Thakoor Munranjan Singh(1) which was a case between the respective predeces sors of the parties before us and related to this very Taluk Kakwara.
Said the learned Chief Justice at p. 255: "And it is very necessary for our present purpose to bear in mind what was the true origin and nature of these tenures.
They were created by the Mahomedan Government in early times, as a means of providing a police and military force to watch and guard the mountain passes from the inva sions of the lawless tribes who inhabited the hill dis tricts.
Large grants of land were made in those days by the Government.
(1) Cal.
69 often to persons of high rank, at a low rent, or at no rent at all, upon condition that they should provide and maintain a sufficient military force, to protect the inhabitants of the plains from these lawless incursions; and the grantees on their part sub divided and re granted the lands to other tenants (much in the same way as military tenures were created in England in the feudal age), each of whom, besides paying generally a small rent, held their lands in consider ation of these military services, and provided (each accord ing to the extent of his holding) a specified number of armed men to fulfil the requirements of the Government".
As has been said by Lord Kingsdown in Raja Lelanund Singh vs The Government of Bengal (supra) at p. 125 "though the nature and extent of the right of the Ghatwals in the Ghatwali villages may be doubtful, and probably differed in different districts and in different families, there clearly was some ancient law or usage by which these lands were appropriated to reward the services of Ghatwals; services which, although they would include the performance of duties of police, were quite as much in their origin of a military as a civil character, and would require the appointment of a very different class of persons from ordinary police offi cers".
Accordingly his Lordship found that the office of Ghatwal in the Kharakpur Zamindari was frequently held ' by persons of high rank.
In Munrunjan Singh vs Raja Lelanund(1) which was also a case between the respective predecessors of the parties before us and related to this very Taluk Kakwa ra, the High Court at p. 86 observed : "It appears that there is considerable variety in the tenures known under the general name of Ghatwali in differ ent parts of the country.
They all agree in this that they are grants of land situated on the edge of the hilly coun try, and held on condition of guarding the ghats or passes.
Generally, there seems to be a small quit rent payable to the Zamindar in addition to the service rendered, and with the view of marking (1) 70 the subordination of the tenure.
But in some Zamindaries and putnees these tenures are of a major, in others of a minor, character.
Sometimes the tenure of the great Zamin dar himself seems to have been originally of this character.
More frequently large tenures, consisting of several whole villages, are held under the Zamindar.
" Further down their Lordships said : "These inferior Ghatwalis seem to be those in which the Zamindar or ruling power deals direct with the individuals who do the work, assigning them pieces of land in the estab lished villages.
The larger tenures were more of the nature of semi military colonies, where a chief with his followers were settled down in parts of the country so unsafe that it could not be otherwise occupied.
" The law relating to Ghatwali tenures has been dealt with at considerable length by Lord Sumner in Narayan Singh vs Niranjan Chakravarti (supra).
The variety of conditions of service to be rendered by a Ghatwal was thus summed up by his Lordship at pp.
80 51 : "In itself 'ghatwal ' is a term meaning an office held by a particular person from time to time, who is bound to the performance of its duties, with a consideration to be en joyed in return by the incumbent of the office.
Within this meaning the utmost variety of conditions may exist.
There may be a mere personal contract of employment for wages, which take the form of the use of land or an actual estate in land, heritable and perpetual, but conditional upon services certain or services to be demanded.
The office may be public or private, important or the reverse.
The Ghatwal, the guard of the pass may be the bulwark of a whole country side against invaders; he may be merely a sentry against petty marauders ;he may be no more than a kind of game keeper, protecting the crops from the ravages of wild ani mals.
Ghatwali duties may be divided into police duties and quasi military duties, though both classes have lost much of their importance, and the 71 latter in any strict form are but rarely rendered.
Again, the duties of the office may be such as demand personal discharge by the Ghatwal and personal competence for that discharge; they may, on the other hand, be such as can be discharged vicariously, by the creation of shikmi tenures and by the appointment and maintenance of a subordinate force, or they may be such as in their nature only require to be provided for in bulk.
It is plain that where a grant is forthcoming to a man and his heirs as Ghatwal, or is to be presumed to have been made though it may have since been lost, personal performance of the ghatwali services is not essential so long as the grantee is responsible for them and procures them to be rendered: Shib Lal Singh vs Moorad Khan, (1868) 9 Suth.
W.R. 126.
" Then his Lordship pointed out that the superior who appointed the Ghatwal might be the ruling power over the country at large, the landholder responsible by custom for the maintenance of security and order within his estates, or simply the private person, to whom the maintenance of watch men was, in the case of an extensive property, important enough to require the creation of a regular office.
Al though personal service by the employee and personal selec tion and appointment by the employer might have been ordi narily essential incidents of the relationship, yet it was not invariably so as appears from the last quotation as well as from the following passage in the judgment by Lord Sumner at p. 52 : "On the other hand, there are great estates, whose proprietors are found holding them or parts of them upon the terms of providing that ghatwali services shall be forthcom ing, either regularly or when required; services it is impossible for the proprietor himself to render in his own person, and which become possible to him and to those to whom he renders them simply by virtue of his possession of the lands thus granted.
In such eases the ghatwali tenure, even if not originally granted as heritable, easily becomes so, and is commonly found on the death of an incumbent of the 72 office to descend to some member of his family, if not necessarily to the senior member.
Thus in Kharakpur ghatwals have a perpetual hereditary tenure at a fixed jama: Munrun jun Singh vs Lelanund Singh.
" The requirement of rendering of services by a Ghatwal naturally gave rise to a further incident of such a tenure, namely, the inalienability of the Ghatwali lands, for an alienation of the Ghatwali lands might easily deprive the Ghatwal of the whole of the means provided to enable the services to be rendered.
This consideration peculiarly applied where the superior, by whom the Ghatwals were ap pointed and of whom the Ghatwali lands were held.
was the ruling power itself.
As has already been stated above, the rigour of this incident of inalienability had, however, in the case of Kharakpur Zamindari Ghatwalis, given way to custom recognised as well established in the case of Kali Petshad vs Anund Roy (supra), which has been repeatedly followed and applied in India without proof of the custom being required over again.
From what has been stated above, it clearly follows that Ghatwali tenures originated during the Moghul period, that although the services included police duties, they were in their origin just as much of a military as a civil character and that the tenure could be granted by the ruling power directly to the Ghatwal who was to render the services so as to establish a direct privity between the ruling power and the Ghatwal or it could be granted by the Zamindar for the protection of his Zamindari or for.
enabling him to render the police and military services 'to the ruling power which he was bound to do under the terms of the grant of Zamindari to him.
The question then arises which of these catego ries the Ghatwals of Kharakpur come under.
Mahalat Kharakpur was an extensive estate and apparently owed allegiance, real or nominal, to the Moghul Emperor.
There is no evidence on record showing on what terms the Raja of Kharakpur held the estate under the Moghuls and it is difficult to say, 73 with any amount of certainty, what kind or amount of serv ices, police or military, he had to render to the then ruling power.
It may, however, be safely stated that, like all other Zamindars, the Raja of Kharakpur had to preserve internal peace and order by maintaining sufficient Thanas or police establishments and to protect the tenants and other inhabitants from the incursions of lawless tribes from the neighbouring hills by providing or arranging for a suffi cient military force.
It could not be expected that a big Zamindar like the Raja of Kharakpur would render the police or military services personally and consequently it was natural for him to appoint his own Ghatwals to protect his Zamindari and to render services for him to the ruling power.
As said by Lord Kingsdown in Raja Lelanund Singh vs The Government of Bengal (supra) at p. 102 it was well established that long before 1765 the Zamindars of Kharakpur had created Ghatwali tenures for the purpose of protecting their Zamindaries from the attacks of mountaineers and other turbulent people in their neighborhood.
Lord Sumner in Narayan Singh vs Niranjan Chakravarti (supra) at p. 68 also recognised that long before 1765 Ghatwali tenures under the Zamindar of Kharakpur had been created by the various hold ers of those lands for their own purposes and as late as 1770 1785 Mr. Cleveland, who managed the estate during the minority of Kadir Ali, followed the same policy.
In Naray an Singh vs Niranjan Chakravarti (supra) at p. 50 Lord Sumner said : "In the Sonthai Parganas there are for practical pur poses three classes of Ghatwali tenures: (a) Government ghatwalis created by the ruling power; (b) Government ghat walis, which since their creation and generally at the time of the Permanent Settlement have been included in a zamind ari estate and formed into a unit in the assessment; and (c) zamindari ghatwalis, created by the zamindar or his prede cessors and alienable with his consent.
The second of these classes is really a branch of the first.
" The question, then, is to which class the Ghatwali tenure of Taluk Kakwara, with which we are concerned 10 74 in this case, belongs whether it was a Government Ghatwali or was one of the many Ghatwali tenures created by the Zamindars of Kharakpur.
Happily, we do not have to speculate.
The problem before us is not to infer the true nature and incidents of the original grant which could only be collected from the evi dence of what was done and left undone in connection with Taluk Kakwara by the ruling power and its officers.
We have in evidence before us the authentic texts of the two Sanads relating to the Kakwara Ghatwali and we also have the provi sions of the Permanent Settlement Regulation.
The nature and incidents of that tenure must rest upon the true construc tion and import of those grants as well as on the manner in which it was dealt with at the time of the Permanent Settle ment.
It will be convenient and useful, at this stage, to give a very short history of Mahalat Kharakpur and Taluk Kakwara.
In 1765 the East India Company secured the Dewani of Bengal, Bihar and Orissa from the Moghul Emperor.
The accession of Dewani was in effect a cession of the three provinces and the East India Company virtually became the sovereign ruling power over those territories.
At that time one Mozaffar Ali was the Raja of Mahalat Kharakpur.
Taluk Kakwara appertained to Mahalat Kharakpur.
In 1766 Raja Mozaffar Ali rose in rebellion against the East India Compa ny.
A strong military force under the command of Captain Browne was sent for quelling the revolt.
Eventually, in 1768 Raja Mozaffar Ali was subdued and imprisoned.
The Raja was deposed and deprived of his estate and the East India Compa ny took direct charge of Mahalat Kharakpur and managed it through its officers until the Mahalat was restored to Raja Kadir Ali, the grandson of Raja Mozaffar Ali.
In 1776 Cap tain Browne, who was then in charge of the Mahalat, granted an Amalnama or Sanad (Exhibit 1) in respect of 22 villages to two persons Rankoo Singh and Bhairo Singh at a fixed annual Jama of Rs, 245 12 15.
That Sanad was in the follow ing terms: 75 "Seal of Captain James Browne, head of jungletari (low forest land).
Know ye, the present and future Mutasaddis of affairs, Chaudhuris, Kanungos, Zamindars and Ghatwals of Pargana Danda Sukhwara, Zila Jangal tari.
appertaining to Kharagpur, Sarkar Monghyr, in the Province of Bihar.
From the beginning of 1184 Fasli, Taluka Kakwara, parga na aforesaid, is let out in perpetual mukarrari, without any objection or contention, to Rankoo Singh and Bhairo Singh, ghatwals of the said Taluka, at a fixed jama of Rs. 245 12 15 (rupees two hundred and forty five, annas twelve and gandas fifteen) in current coins noted in the endorsement, consolidated from all sources, including malwajhat, sair wajhat and all grains, and excluding the perquisites of the zamindari, nankar, chaudhuris and kanungos, parganati ex penses, lands given in charity, e.g., barhmotar, shibotar and bishunparit lands, aima lands of jagirdars, bargandazes (musketeers), dhupars (?), mahus (?) etc.
It is requisite that they should peacefully cultivate (torn) and pay the Government (torn), according to the kabuliat, year after year and crop after crop, into the Government treasury.
They should make such effort as to increase the cultivation of the said Taluka from day to day.
They should hold them selves responsible for deficient cultivation.
They should keep the tenants pleased and contented with their good treatment and should not oppress any one and make excessive demands.
They should not fix the allowance of the jagirdars and bargandazes etc.
, over and above the rent.
They should bear this in mind.
They should provide for the protection of the tenants within their jurisdiction and of the villages of the said Taluka.
Whenever the chakars (?)be sent for by the huzur, the sardar (?) should appear before him with his men.
If at any place, within their boundary limits, murder, disturbance, dacoity, theft, highway robbery etc., be com mitted, and the culprit be traced or be found conspiring advisedly with any one and the Government work suffer, and proper punishment be meted out after inquiry, they will be responsible (?) by virtue of their 76 position, and will be dismissed from their post and will not be reinstated (unintelligible).
The amlas of the zamindars of the said Taluka should on knowing the said istimrari mukarrari rent to have been fixed, continue to receive the mukarrari rent from year to year and should not demand even a farthing in excess.
They should treat this as peremptory and act as written herein.
Dated the 25th Shanwal, 17, corresponding to the 7th Pus Bangla, 1183 Fasli.
Endorsement.
Taluka Kakwara, pargana Danda Sukhwara, appertaining to Kharagpur, Zila Jangaltari, Sarkar Monghyr, in the province of Bihar, is let out in perpetual mukartari, without any objection or contention, to Rankoo Singh and Bhairo Singh, Ghatwals, at a fixed jama of Rs. 245 12 15 (rupees two hundred and fortyfive, annas twelve and gandas fifteen) in current coins as specified below, consolidated from all sources, including malwajhat, sair wajhat, and all grains, excluding the perquisites of the zamindari, nankar, Chaudhu ris and Kanungos, expenses of the said Taluka, lands given in charity, (e.g.)barhmotar, shibotar and Bishun parit lands, jagir lands of jagirdars, bargandazes, dhupars(?), maimas (?), etc.
Fixed jama.
Rs. 245 12 15 gandas." " Then followed the specification of 22 Mouzas or villages.
It will be noticed that the grant was made to Rankoo Singh and Bhairo Singh described as "ghatwals of the said Taluk" which suggests that those two persons were already Ghatwals.
The duties generally imposed on the grantees and in particu lar the duty of providing protection for the tenants and of appearing before Huzur with his men did not, in the words of Lord Sumner in Narayan Singh vs Niranjan Chakravarti (supra) at p. 46, "go beyond duties then ordinarily discharged by Zamindars.
" There was no stipulation either in the main body of 77 the grant or in the endorsement at the foot for maintaining a regular body of a definite number of archers and barkan dazes such as is to be usually found in ordinary Ghatwali grants and indeed such as is in fact to be found in the subsequent grant of Raja Kadir Ali with respect to this very Taluk Kakwara.
Finally, the admonition at the end of the principal paragraph to the amlas of the Zamindars of the said Taluk to receive the fixed mukarrai rent and not to demand even a farthing in excess may well be regarded as indicating that the Zamindar was really interested in the grant.
In the premises, the observation of the learned Judges of the High Court of Calcutta in Munrunjun Singh vs Raja Lelanund (supra) at page 85 that the Sanad of Captain Browne seemed to them "to be rather a confirmation of an existing tenure than the creation of a new one" appears to have considerable force.
This view of the matter will be quite consistent with the subsequent history of the Kakwara Ghatwali which will be presently related.
It is, however, pointed out that at the date of this Sanad there was in fact no Raja of Karakpur and that as the Mahalat was being administered and managed by Captain Browne on behalf of the East India Company the grant made by him must be taken as creating a Government Ghatwali tenure.
The Seal at the top of the Sanad is said to indicate that in granting the Sanad in his capacity as Sardar of the Jungle Terai Captain Browne was acting for and on behalf of the East India Company.
The Sanad was addressed to the present and future Mutasaddis of affairs, Chaudhuris, Kanungos, Zamindars and Ghatwals of Pargana Danda Sukhwara and it is urged that if Captain Browne had been acting on behalf of the Zamindar of Kharakpur, addressing the Sanad to the Zamindars would have been wholly inappropriate.
The fact that the grant was to commence from the beginning of 1184 Fasli also militates against its being only a confirmation of a pre existing Ghatwali tenure.
The direction to pay according to the Kabuliat, year after year, crop after crop, into the Government treasury clearly suggests 78 that the Sanad created a Government Ghatwali tenure.
In the Moghul period there was no fixity of the jama and the grants were made annually and the jamas were liable to be varied.
The provision of a fixed annual jama in this Sanad cannot, therefore, it is argued, be regarded as a confirmation of an existing grant on a fixed jama.
Taking all these matters into consideration Shearer and Chatterjee JJ.
came to the conclusion that under Captain Browne 's Sanad of 1777 Taluk Kakwara became a Government Ghatwall.
This line of reasoning is not without force or cogency although it may not neces sarily be conclusive, for Captain Browne, undoubtedly acting for the East India Company, might well have issued the Sanad during the period of interregnum.
on behalf or in the inter est of whoever might eventually become the Zamindar of Kakwara.
If the matter rested only with this Sanad and nothing further had happened then perhaps it might have been said with some plausibility that a new tenure was created by the ruling power by this Sanad, but the matter does not in fact rest with only Captain Browne 's Sanad, and we have to see how this Taluk Kakwara has been subsequently dealt with and what effect the subsequent events have on the status and rights of the Ghatwal of this Taluk.
It appears that in 1780 the East India Company restored Mahalat Kharakpur to Kadir Ali, the grandson of the deposed Raja Mozaffar Ali.
Although the formal order of the Gover nor General came in 1781, the Mahalat was actually restored to Raja Kadir Ali in 1780.
At that time Raja Kadir Ali was only a boy of five or six years of age and Mr. Cleveland, the Collector of Bhagalpur, managed Mahalat Kharakpur for and on behalf of the minor Raja Kadir Ali.
On January 17, 1780, a fresh Sanad (Exhibit 1 (a)) was granted in the name and under the Seal of Raja Kadir All to the same two per sons, Rankoo Singh and Bhairo Singh, in the following terms : "(Seat of Raja Qadir Ali, under Emperor Shah Alam, the Victorious 1193).
79 Know ye, the present and future mutasaddis of affairs and the gumashtas holding the posts of Chaudhuris and Kanun goes of Pargana Danda Sukhwara appertaining to mahals Kha ragpur, Sarkar Monghyr, in the Province of Bihar.
The Ghatwali service tenure of Taluka Kakwar appertaining to the said pargana is held, under a Sanad, by Bhairo Singh and Rankoo Singh, with 177 musketeers and archers including sardars, on the condition of allegiance and loyal ty to the Sarkar.
Of late also, (the said tenure) being upheld and kept intact as usual, according to the endorse ment, is assigned and granted with effect from the beginning of the Kharif season of 1189 Fasli Rajwara corresponding to 1188 Fasli Mughlana.
They should discharge the duties and obligations with honesty and fidelity and keep the tenants pleased and contented with their good treatment, and should watch the ghats and chaukis very carefully and cautiously, so that no thief and night robber may come around and about them.
If, God forbid, the properties of any one be stolen or plundered and cattle be concealed or murder be commited, they should trace the thieves and night robbers with the properties intact, restore the properties to the owner and produce the party of the mischief mongers before the Huzur and prove the murder.
In case they fail to find out the thieves and to prove the murder and the concealment (theft) of cattle, they should hold themselves responsible therefor.
They should continue to pay the quit rent to the Sarkar as usual.
When summoned, they should appear before the Huzur with the body of men.
It is desired that you should consider them as permanent Ghatwals of that place and maintain them in their possessions and you should not fail to give 'them sound advice so as to ensure by all means the advantage of the Sarkar and the well being of the tenants.
Treat this as peremptory and act accordingly.
Dated, the 17th seventh (sic) day of the holy month of Muharram of year 22, corresponding to 194 A.H. 80 Endorsement The Ghatwali service tenure of taluka Kakwara.
Pargana Danda Sukhwara, is granted as before to Rankoo Singh and Bhairo Singh with 172 Musketeers and archers including sardars with effect from the beginning of the karif season of 1189 Fasli, Rajwara, corresponding to 1189 Fasli Mughla na, on the condition of allegiance and loyalty to the Sar kar.
Above named persons (sic) 7 172 Musketeers and Archers 165 Rs.a.d.
245 12 1 5 Fixed perpetual quit rent . 215 0 15 Rent .
Zamindari 30 12 0 Rs. a. d. Rs. a.d.
By Bhairo Singh 178 3 5 By Rankoo Singh . 67 9 10) 155 14 15 Rent . 59 2 0 Rent . Zamindari . 22 4 10 Zamindari . 8 7 10.
" ' Then followed a list of 16 Mauzas given in Jagir.
If Taluk Kakwara was, in its origin, a Zamindari Ghatwali created by the Zamindar of Kharakpur and if Captain Browne 's Sanad only confirmed that existing tenure during the inter regnum when he was in charge of the entire Mahalat of Kha rakpur and managed it on behalf of the East India Company but in the interest of whoever eventually became the Raja of Kharakpur, then on the restoration of the Zamindari to Raja Kadir Ali he would naturally clarify the position and status of the Ghatwals under him by issuing fresh Sanads in their favour.
In this view of the matter Raja Kadir Ali 's Sanad only regularised the original status of Taluk Kakwara as a Zamindari Ghatwali tenure and specified the terms more clearly and explicitly.
It is, however, contended on behalf of the appellant that the Sanad of Captain Browne created a Government Ghat wali tenure and Raja Kadir Ali 's Sanad was nothing more than a confirmation of that Government Ghatwali tenure.
Reliance is placed on the inscription in the seal at the top which refers to Emperor Shah Alam the Victorious and it is con tended that this clearly indicates that this Sanad was also 81 intended to be a Government grant.
We are unable to accept this contention as sound.
The reference to Emperor Shah Alam the Victorious might be nothing more than a mere formal recognition of a titular figurehead.
The statement that the Ghatwali service tenure of Taluk Kakwara was "held under a Sanad by Bhairo Singh and Rankoo Singh with 172 Musketeers and Archers" etc.
may well be taken as referring to an earlier Sanad which specified the number of Musketeers and Archers and need not necessarily refer to Captain Browne 's Sanad of 1777 in which there was, as has been pointed out, no specification of any number of Musketeers and Archers.
Under this Sanad the grantees ' tenure commenced from the beginning of the Kharif season of 1189 Fasli, Rajwara, corresponding to 1188 Fasli Mughlana.
This date of commence ment of the tenure is different from the date of commence ment mentioned in Captain Browne 's Sanad.
In Captain Browne 's Sanad the fixed Jama of Rs. 245 12 15 was exclusive of Zamindari Rasoom whereas under Raja Kadir Ali 's Sanad the fixed perpetual quit rent of Rs. 245 12 15 was inclusive of Zamindari Rasoom, the rent being Rs. 215 0 15 and Zamindari Rasoom being Rs. 30 12 0.
What is still more significant is the apportionment of the quit rent between the two grantees which is to be found towards the end of the Sanad.
Such an apportionment was wholly inappropriate in the case of a merely confirmatory grant.
Again, this grant comprised 16 Mauzas whereas Captain Browne 's Sanad covered 22 Mauzas.
Even the names of many of the 16 Mauzas are not to be found in the specification of Mauzas at the end of Captain Browne 's Sanad.
The further significant fact is that in the 16 Mauzas set out at the foot of Raja Kadir Ali 's Sanad the two grantees were shown to have different and distinct shares in the different Mauzas.
In some cases, even an entire Mauza was allotted exclusively to one or the other.
Further, if Captain Browne 's Sanad created a Government Ghatwali tenure, it is not intelligible why Raja Kadir Ali should be called upon to confirm the grant with which he was not directly or indirectly 11 82 concerned.
Again, it is well known that at this time 98 of the Ghatwals of Kharakpur took their Sanads from Raja Kadir Ali while only three big Ghatwals, namely, those of Lachmi pur, Handwa and Chandan Katoria took their Sanads not from Raja Kadir Ali but from Mr. Dickenson who succeeded Captain Browne.
This distinction can only be explained on the footing that these 98 Ghatwalis including Taluk Kakwara were in reality Zamindari Ghatwalis while the three bigger Ghat walis were treated as Government Ghatwalis.
The fact that Mr. Cleveland, the Collector of Bhagalpur, was at this time in charge and management of Mahalat Kharakpur, that these 98 Sanads were granted in the name of Kadir Ali during the period of Mr. Cleveland 's management and the fact that ever since 1780 nobody on behalf of the Government has questioned the propriety of these Sanads as evidencing a grant of Zamindari Ghatwali clearly establish that Raja Kadir Ali 's Sanads really regularised the position and status of these Ghatwals as holding Zamindari Ghatwali tenures and specified the terms on which the tenures were to be thenceforth held.
On the other hand, even if it be accepted that Captain Browne 's Sanad created a Government Ghatwali tenure then, in the language of Lord Sumner in Narayan Singh vs Niranjan Chakravarti (supra) at p. 54 it might well be said that Raja Kadir Ali 's Sanad issued during the time Mr. Cleveland, the Collector of Bhagalpur, was managing the Mahalat of Kharakpur, and never objected to or questioned at any time thereafter by the Government "amounted to a release by the Government of the Ghatwali services or to a grant to a third party of the right to receive them and of the right to appoint the Ghatwali and, therefore, the original Govern ment Ghatwali tenure came to an end and a Zamindari Ghatwali tenure took its place.
The matter does not even rest ' with Raja Kadir Ali 's Sanad.
In 1789 or 1790 there was a decennial settlement of Mahalat Kharakpur with Raja Kadir Ali which in 1796 was made permanent under the permanent Settlement Regulation I of 1793.
As Lord 83 Kingsdown pointed out in Raja Lelanund Singh vs The Govern ment of Bengal (supra) at p. 114, it was beyond dispute and indeed fairly admitted that the Ghatwali lands formed part of the Zamindari and were included in and covered by the assessment of the Zamindari.
This was recognised by the High Court in Munrunjun Singh vs Raja Lelanund (supra) when they said that there was no doubt that the tenure was, at the Permanent Settlement, included in the Zamindari of Kharakpur and that the Jama was payable to the Zamindar.
On appeal, their Lordships of the Privy Council also pointed out that the claim of the Government to resume and reassess the Ghatwali lands was dismissed upon the ground that the Taluk had been assessed to revenue and was a portion of the Mal land of the Zamindar.
In Leelanund Singh vs Thakoor Munrunjun Singh (supra) Garth C. J. at p. 257 said that there could be no doubt that the time of the Permanent Settlement the Taluk Kakwara formed part of the Kharakpur Zamindari and that the holders of that Taluk were "dependent Talookdars" of that Zamindari.
The holders of Taluk Kakwara were certainly not independent Talookdars because the Zamin dar had the beneficial interest in the tenure and these tenures were never registered as independent Taluks.
Lord Sumner described the attempt of Raja LelanundSingh to recov er possession of Taluk Kakwara as an attempt on his part to resume "his Shikmi Ghatwali lands." Further, Captain Browne in his book "India Tracts" published in 1788 had shown only Luchmipur, Handwa and Chandan Katoria, all appertaining to Purgunnah Kharakpur, as three Ghatwalis under the Jungle Terry Collector.
Kakwara was not shown in that list.
On February 24, 1860, a list (Exhibit D) of Ghatwali Mahals appertaining to Kharakpur was prepared by the Government showing 98 Ghatwali tenures appertaining to Mahal Kharakpur.
Kakwara is item 73 in that list.
In 1863, at the time of the composition made between the Government and the Raja of Kharakpur. another list of Ghatwali Mahals appertaining to Kharakpur was prepared by the 84 Government and Kakwara is item No. 40 in that list.
In neither of these lists did Lachmipur, Handwa and Chandan Katoria, which were under the Collector, find a place.
Again, the letters from the Collector of Bhagalpur to the Raja of Kakwara written in 1783 and 1808 set out in Lord Kingsdown 's judgment in Raja Lelanund Singh vs The Govern ment of Bengal (supra) clearly show that the Government recognised that the right of appointment and dismissal of a Ghatwal rested with the Raja of Kharakpur.
As Lord Kings down pointed out in Raja Lelanund Singh vs The Government of Bengal (supra) at p. 114, the Zamindars derived some benefit in money and also had the benefit of the services of the Ghatwals and enjoyed the valuable right of appointing the individuals, who, with the lands, were to take upon them selves the duties of the office.
If the Ghatwali tenures, created by the Sanad of Raja Kadir Ali were Government Ghatwali tenures, it is not intelligible how the Zamindar would have the right to appoint or dismiss the Ghatwal.
On a consideration of the facts and the circumstances noted above, we are of opinion that Taluk Kakwara was, in its origin, a Zamindari Ghatwali tenure and continued to be so and was in fact treated as such down to the present time and further that even if by virtue of Captain Browne 's Sanad it became a Government Ghatwali tenure, then under the Sanad of Raja Kadir Ali, or, at any rate, after the Permanent Settle ment, Taluk Kakwara became a Zamindari Ghatwali and as such alienable with the consent of the Zamindar according to the custom of Kharakpur judicially recognised.
It is quite clear to us that the conclusions arrived at by us are in no way inconsistent with the judicial decisions which have been cited before us.
In Raja Lelanund Singh vs The Government of Bengal (supra) the Government sought to establish their right to resume and assess with revenue Ghatwali lands appertaining to the Zamindari of Kharakpur.
The Government claimed the right under Regulation I of 1793, section 8, clause (4), and contended that before the 85 Permanent Settlement the Zamindar used to appropriate the produce of the Ghatwali lands in maintaining police estab lishments and that, as by that Regulation the Government undertook the charge of maintaining the police, the lands become liable to resumption in addition to the jama assessed on the Zamindari and that the lama assessed on the Zamindari of Kharakpur did not include any sum assessed in respect of the produce appropriated for the maintenance of the police establishments.
There were eleven suits against 11 Ghat wals.
The Raja of Kharakpur was not originally made a party to the proceedings but he was eventually added as a party on his own application.
In 1885 a final judgment in favour of the Government was pronounced by the Special Commissioner.
The Raja of Kharakpur appealed.
The Government claim was dismissed on the ground, first, that the Ghatwali lands were part of the Zamindari of Kharakpur and were included in the Permanent Settlement of the Zamindari and covered by the jama assessed on that Zamindari and, second, that the lands of Ghatwali tenure were not liable to resumption under clause (4), section 8, Bengal Regulation I of 1793 as in cluded in allowance made to Zamindars for thana or police establishments.
There is not only nothing in the judgment of Lord Kingsdown which militates in any way against the view that the Ghatwali tenures appertaining to the Mahalat of Kharakpur were Zamindari Ghatwali.
On the other hand, the observations of his Lordship, some of which have been quoted above, clearly indicate that they were of the nature of Zamindari Ghatwali over which the Zamindar had the right of appointment and dismissal and that they formed part of the Zamindari and were included in and covered by the as sessment of the Zamindari.
Munrunjan Singh vs Raja Lelanund Singh (supra) was a suit by the Zamindar of Kharakpur claiming possession of Taluk Kakwara on the allegation that the lands were held for police services, that the appointment and dismissal of Ghatwals rested with him, that he 86 had compounded with the Government for a money payment in lieu of police services which he was bound to render through the Ghatwals and that those services being no longer re quired, he was entitled to resume the lands.
The defences were that the Ghatwals were not lessees liable to ejectment but held a permanent tenure, that it existed long before the Permanent Settlement being held at a fixed jama mentioned in the Sanads derived directly from the representatives of the British Government and in compensation for services in guarding the mountainous country and the passes which serv ice they were always ready and willing to perform.
If Taluk Kakwara was a Government Ghatwall, then the Zamindar would have had no locus standi to maintain the suit for possession and the suit should have been dismissed on that short ground, but no such point was seriously taken and the case was fought out and decided on the footing that Taluk Kakwara was a Zamindari Ghatwali.
The. principal Sudder Amin having decreed the suit, the defendant appealed.
The High Court held that the contract between the Raja of Kharakpur and the Government without authority of the legislature in no way affected the statute and the rights of the Ghatwal and the tenure in dispute was not a mere grant of land in payment of service to be rendered during pleasure but was a perpetual hereditary holding on a fixed jama, leaving a beneficial interest in the Ghatwal with a condition of service annexed.
That decision was upheld on appeal by the Privy Council.
The next case concerning this very Taluk Kakwara was Leelanund Singh vs Thakoor Munrunjun Singh (supra) which was a suit by the Zamindar of Kharakpur against the Ghatwal of Kakwara for a declaration of his right to enhance the rent at a rate equivalent to the Ghatwali services which had been rendered unnecessary.
Again, if Taluk Kakwara was a Govern ment Ghatwali, the Raja of Kharakpur would have no locus standi to claim an enhancement of rent in lieu of the Ghat wali services This claim of the Raja of Kharakpur was also dismissed.
There are positive observations 87 in this case which indicate that Taluk Kakwara was a "de pendent" Taluk or, as Lord Sumner called it was a "Shikmi" Taluk.
Learned counsel for the appellant has relied very strongly on two cases, namely, Narayan Singh vs Niranjan Chakravarti (supra) and Rani Songbari Kumari vs Raja Kirtya nand Singh(1).
Both the cases related to the Ghatwali of Taluk Handwa.
The endeavour of learned counsel was to show that the Sanad of Captain Browne and the Sanad of Raja Kadir Ali relating to Taluk Kakwara were in their effect the same as the Sanad of Captain Browne and the confirmatory Parwang of Mr. Dickenson, the Collector of Bhagalpur, relating to Taluk Handwa.
In Narayan Singh vs Niranjan Chakravarti the Subordinate Judge held that the tenure of Handwa was not Ghatwali tenure at all.
The High Court, on appeal, held that the parganah was.held.
as.a Moghul Ghatwali tenure before cession but that it became a Government Ghatwali and that nothing had been done to alter that position.
They were, however, of opinion that Raja Udit Narayan Singh did not hold it as Ghatwal and that the heirs of Udit Narayan Singh could not impugn the validity of the mortgage created by him.
This decision of the High Court was reversed by the Privy Council.
In Rani Sonabati Kumari vs Raja Kirtyanand Singh(1) Mr. Justice Fazl Ali elaborately discussed the law relating to Ghatwali tenures.
Learned counsel for the appel lant before us has relied on several passages from the judgment of Lord Sumner and from that of Mr. Justice Fazl Ali.
These two decisions must be taken as based on the construction of the relevant Sanads, namely, the Sanad of Captain Browne and the Parwang of Mr. Dickenson and the observations to be found in the judgments in those two cases must be read in the light of that construction.
The position of Taluk Kakwara appears to us to be entirely different from that of Taluk Handwa.
Mr. Justice Shearer in his judgment refers to five points of distinction between the position of the two Ghatwals, namely (1) Patna 70.
88 (1) The Ghatwals of Handwa never paid any Rasoom on the amount of the land revenue assessed on the lands of Raja of Kharakpur; (2) The Ghatwal of Handwa formerly used to pay the quit rent directly into the Government treasury; (3) In more than one list of the Ghatwali tenures under the Kharakpur Raj prepared by the Collectors of Bhagalpur, Handwa was not to be found; (4) After the restoration of Kharakpur Raj, the Ghatwals of Handwa instead of obtaining a Sanad from Raja Kadir Ali obtained a Sanad from the then Collector of Bhagalpur, Mr. Dickenson; and (5) the claim made by Raja Kadir Ali to appoint a new Ghatwal of Handwa on the occurrence of a vacancy in the office was negatived by the Courts.
Likewise, Chatterjee J. in his judgment also points out the essential differences in the status of the two Ghatwals.
The language used in the Sanad relating to Taluk Handwa is somewhat different.
There is no question of payment of quit rent to the Zamindar of Kharakpur.
Although Handwa was included in the Zamindari of Kharakpur, it was only done so in a geographical sense and for fiscal purposes.
The annual jama of Handwa was never treated as a part of the Mal assets of the Raja of Kharakpuron which revenue was assessed on him.
On the contrary, Handwa was assessed as a separate unit and the assessment was made pay.able by Handwa to the Government through the Rala of Kharakpur.
The Raja of Kharakpur has no beneficial interest either in money or by way of services or any power of appointment or dismissal over the Ghatwali of Handwa.
Learned counsel for the appel lant has relied on several passages in the judgment of Lord Sumner but those passages are susceptible of a meaning.
which is consistent with the conclusions we have arrived at on a construction of the two Sanads relating to Taluk Kakwa ra.
It is also to be noted that the appellant judgment debtor himself mortgaged this very Taluk Kakwara with the Raja of 89 Kharakpur on the allegation that Taluk Kakwara was alienable with the consent of the Zamindar.
In our judgment the final conclusions arrived at by Mr. Justice Shearer and Mr. Justice Chatterjee are clearly right and this appeal must be dismissed with costs.
Appeal dismissed.
N. Shroff.
| Taluk Kakwara was in its origin a Zemindari Ghatwali tenure and continued to be so, and was in fact treated as such ever since.
Even if by virtue of Captain Browne 's Sanad it became a Government Ghatwali tenure, then under the Sanad of Raja Kadir Ali or after the Permanent Settle ment at any rate, it became a Zemindari Ghatwali and as such alienable with the consent of the Zemindar according to the custom of Kharakpur judicially recognised [Nature and incidents of Ghatwali tenures discussed].
|
Civil Appeal No. 93 of 1951.
Appeal from the Judgment and Decree of the Bombay High Court (Chagla C.J. and Bhagwati J.) dated 6th Septem ber, 1949, in Appeal No. 16 of 1949, arising out of the Judgment dated ' 2nd February, 1949, of a Single Judge of the same High Court (Tendolkar J .) in Miscellaneous Application No. 223 of 1948.
The facts of the case and arguments of counsel are stated fully in the judgment.
C.K. Daphtary, Solicitor General for Indict (G. N. Joshi, with him)for the appellant.
N.C. Chatterjee (R. M. Hajarnavis, with him) for the respondent.
November 23.
The Judgment of the Court was delivered by BOSE J.
The question here is whether an order should issue under section 45 of the Specific Relief Act against the appellant, who is the Commissioner of Police, Bombay.
The respondent, Gordhandas Bhanji, wanted to build a cinema house on a plot of land at Andheri in the year 1945.
At that date Andheri did not form a part of Bombay and under the.
rules then in force it was necessary to obtain permis sion from the District Magistrate of that area in the form of a No Objection Certificate.
Accordingly, the respondent made the necessary application on the 12th of September, 1945.
Permission.was refused on the 30th of September, 1945, on the ground that the public of the locality objected and also because there was already one cinema theatre at Andheri and so it was not necessary to have another "for the present.
" On the 1st of October, 1945, Andheri became a part of Greater Bombay and the jurisdiction to grant or refuse a license was transferred to the Commissioner of Police, Bombay.
The respondent accordingly put in a second applica tion on the 21st of November, 1945, and 138 addressed it to the Commissioner of Police.
After some correspondence this was also turned down on the 19th of March, 1946, "owing to public opposition.
" Nothing daunted, the respondent applied again on the 1st of April, 1946, and asked for a "reopening" of his case.
One of the grounds given was that "The Government of Bombay are giving very careful atten tion and affording all reasonable facilities to develop the Greater Bombay into a model one.
A modern cinema, there fore, of the type I propose to build is indispensable.
" In view of that, not unnaturally, the Commissioner of Police appears to have consulted the Government of Bombay, for he wrote to the respondent on the 25th of April, 1946, saying that "the whole question of considering and approving sites for cinemas is under the consideration of the Government of Bombay," and he promised that "when a decision is arrived at, your application will be examined.
" It seems that somewhere about this time a Cinema Adviso ry Committee was constituted by Government.
We have not been enlightened about the scope and extent of its powers but it is evident from its nomenclature that its functions were purely advisory.
Five members of this Committee appear to have inspected the site on the 12th of May, 1947, and after prolonged discussion they reached the conclusion that "in view of the location of four schools near by the site, this site is unsuitable for the purpose required and therefore it should be rejected.
" A note was drawn up to that effect and the matter was ordered to be placed on the agenda of the next meeting of the Committee "for final decision." This final decision has not been placed on record but the Commissioner of Police tells us in his affidavit that within a month the Committee advised that the application should be granted.
Accordingly, the Commissioner accorded the necessary permission by his 139 letter dated the 14/16th of July, 1947.
There is no refer ence here to the recommendations of the Advisory co Commit tee and.
though they may have weighed, and rightly, with the Commissioner there is nothing on the face of the letter to indicate that the decision was not that of the Commis sioner himself given in bona fide exercise of the discretion vested in him.
We refer to this because the Commissioner has stated in his affidavit that I was fully satisfied that the petitioner 's application should be refused, but that it was only at the instance of the Cinema Advisory Committee that I granted the said per mission on the 14th of July, 1947.
" That, however, would not affect the validity of his order.
There is no suggestion that his will was overborne or that there was dishonesty or fraud in what he did.
In the absence of that, he was entitled to take into consideration the advice thus tendered to him by a public body set up for this express purpose, and he was entitled in the bona fide exercise of his discretion to accept that advice and act upon it even though he would have acted differently if this important factor had not been present to his mind when he reached a decision.
The sanction accorded on the 16th of July, 1947, was therefore a good and valid sanction.
This sanction occasioned representations to Government presumably by the "public" who were opposing the scheme.
Anyway, the Commissioner wrote to the respondent on the 19/20th September, 1947, and direct him "not to proceed with the construction of the cinema pending Government orders." Shortly after, on the 27/30th September, 1947, the Commissioner sent the respondent the following communica tion: "I am directed by Government to inform you that the permission to erect a cinema at the above site granted to you under this office letter. dated the 16th July, 1947, is hereby cancelled.
" 140 It will be necessary at this stage to determine whether this was a cancellation by the Commissioner of on his own authority acting in the exercise of some power which was either vested in him or of which he bona fide believed himself to be possessed, or whether he merely acted as a post office in forwarding orders issued by some other au thority.
We have no hesitation in reaching the conclusion that this is not an order of cancellation by the Commission er but merely intimation by him of an order passed and made by another authority, namely the Government of Bombay.
An attempt was made by referring to the Commissioner 's affidavit to show that this was really an order of cancella tion made by him and that the order was his.order and not that of Government.
We are clear that public orders, public ly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do.
Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to hum they are addressed and must be construed objectively with reference to the language used in the order itself.
Turning now to the language used, we are clear that by no stretch of imagination can this be construed to be an order which in effect says : "I, so and so, by virtue of the authority vested in me, do hereby order and direct this and that.
" If the Commissioner of Police had the power to cancel the license already grant ed and was the proper authority to make the order, it was incumbent on him to say so in express and direct terms.
Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.
141 But if there is ambiguity or doubt in the language used here a glance at the surrounding circumstances will dispel it.
What was the position at the time ? Permission was first refused and then granted, then suspended and the respondent was told to await, not the Commissioner 's orders, but those of Government.
Then comes the letter in question which conveys those orders.
So also there is the conduct of the Commissioner not long after.
The respondent 's solicitors placed the same construction on the order of the 30th Sep tember as we do and asked the Commissioner how Government could interfere with a permission granted by him.
They said on the 18th November 1947 : "Our client has been advised that the authority to grant permission is in you acting in consultation with the Adviso ry Board.
It is difficult to understand how the Government can interfere with the permission granted by you." The Commissioner 's reply dated 3/4th December, 1947, was: "I write to inform you that permission granted to your client was cancelled under the orders of the Government who may be approached. " We are clear that this roundabout language would not have been used if the order of cancellation had been that of the Commissioner.
We do not mean to suggest that it would have been improper for him to take into consideration the views and wishes of Government provided he did not surrender his own judgment and provided he made the order, but we hold on the material before us that the order of cancellation came from Government and that the Commissioner acted only as a transmitting agent.
It is next necessary to determine whether the Government of Bombay had the power to cancel a license once issued.
That depends on a consideration of the Rules.
They are framed under section 22 (1) (f) (i) (g) and (h) of the City of Bombay Police Act, 1902.
They regulate the "licensing, controlling, keeping and regulation" of places.
of public amusement in 19 142 the City of.
Bombay.
Rule 8 applies to any person desirous of "erecting"a cinema, building.
There is, in our opinion, a distinction of principles between the erection and use of buildings for purely private and residential purposes and those intended to be used as places of public amusement.
Considerations arise regarding the latter which would not be applicable to the former, among them the right to withdraw or modify a license once issued.
Ordinarily, a man can do what he likes with his property subject of course to specific laws regulating his use of it, there fore in the case of a private residence he would in a general way have a right to build if he complies with all the rules and regulations and restrictions which may be imposed by law, and if permission is withheld when all the conditions are fulfilled he would normally have a right to demand that the necessary permission be given.
But that sort of consideration does not apply to a place intend ed to be used for public performances.
There, questions affecting the safety, convenience, morality and welfare of the public must be given overriding precedence and it is.usual in these cases, on grounds of public concern, to vest some public authority with a discretion to grant or refuse such licences and to modify or cancel ones already granted.
It is necessary to bear this distinction in mind when construing the present rules. 'Therefore, when Rule 8 speaks of "erecting" such premises, it must be borne in mind that the rule is not a mere building rule affecting the erection of a building in the abstract but applies to a building intended to be used for a particular purpose and the license applied for is not merely for permission to build but also to use structure, when erected, for a partic ular purpose affecting the public at large and the residents of the locality in particular.
Rule 8 falls under Part II which is headed : "Preliminaries to obtaining license for premises.
" These preliminaries include (a) the making of an application in writing to the Commis sioner of Police, and 143 (b)the giving of a certain notice as a preliminary to the application.
This notice has to be in the form prescribed in Schedule A and has to be maintained on a certain board "until the application has been dealt with by the Com missioner" and the rule prescribes that " no application shall be considered before the expira tion of one fortnight after the receipt by the Commissioner of a copy of the notice etc.
" Schedule A shows 'that the object of the notice is to enable the Commissioner to receive objections to the pro posed erection.
The rest of the rules in Part II specify the matters which the application shall contain and the documents which must accompany it including plans and specifications of the proposed building.
Part III prescribes various structural details with which the building must conform.
They include fire resist ing material for the roof, stage staircases and dressing rooms of a certain type, seating arrangements, Corridors, exits and so forth.
This part of the rules would apply to a building already in existence but not yet licensed for public performance as well as to one which has yet to be erected.
Part IV relates to the "Use of cinematograph Apparatus and other optical Lan terns.
" The rules prescribed there are mainly for purposes of health and safety.
Parts V and VI do not concern us.
They prescribe spe cial rules for Circuses and for exhibitions of Boxing and Wrestling.
Then comes Part VII which is material for present pur poses.
It is headed "Licenses".
Rule 237 prescribes that "The person being the owner, tenant or occupier of such premises and the person who proposes to give any public performance, entertainment or exhibition on 144 such premises shall each take out a license under these rules" Then follows a sub heading "Licenses for Premises" and under that come Rules 238 to 257.
Rule 23S prescribes that : "No such premises shall be opened, or kept open for use as a place of public amusement unless the person being the owner, tenant or occupier thereof shall have obtained from the Commissioner the necessary license.
" Rule 248 invests the Commissioner with "absolute discretion in refusing any license etc. if such place appears to him likely to cause obstruction, inconvenience, annoyance, risk, danger or damage to resi dents or passers by in the vicinity of such premises.
" Then follows Rule 250 which is crucial here.
It says : "The commissioner shall have power in his absolute dis cretion at any time to cancel or suspend any license granted under these Rules. " After Rule 257 comes a second sub heading entitled "Per formance License" and Rules 258 to 28:3 set out the require ments relating to the holding of performances as distinct from the requirements relating to the building or premises in or on which they are to be held.
The rest of the rules do not concern us.
It is clear to us from a perusal of these rules that the only person vested with authority to grant or refuse a license for the erection of a building to be used for pur poses of public amusement is the Commissioner of Police.
It is also clear that under Rule 250 he has been vested with the absolute discretion at any time to cancel or suspend any license which has been granted under the rules.
But the power to do so is vested in him and not in the State Govern ment and can only be exercised by him at his discretion.
No other person or authority can do it.
It was argued that Rule 250 did not apply to licenses to erect buildings but only referred to other matters 145 such as their maintenance and the kind of performances to be given in them.
We are unable to agree.
The preamble to the rules states that the Rules are for the "licensing, controlling, keeping and regulation" of places of public amusement in the City Bombay.
Part II which deals with the erection cinema houses nowhere autho rises the issue of a license but it does indicate that a license is necessary.
For instance, the heading states that the rules which follow in Part II are only the "prelimi naries to obtaining license for premises" and Rule 21 sets out that "Before a license is granted. for such premises" certain certificates must be produced.
All of which indi cates that a license is necessary.
But the only provision the actual issue of the license is in Part VII, and Rules 237 and 238 in that part require the owner, tenant or occu pier of premises intended to be used for a cinema house for public amusement to take out a license as well as for the person who proposes to give a public performance on such premises.
In our opinion, Rule 250 does authorise the can cellation of a license already issued but the only person who can effect the cancellation is the Commissioner of Police.
It was contended that this would work great hardship in some cases and that if money had already been expended on the building an estoppel at least would arise.
No question of estoppel has been raised here, so that is not a question we need consider nor need we answer the converse question whether an estoppel would hold good in the face of a law enacted for the public good on grounds of public policy; also whether there can be an estoppel when a person builds knowing the risk he runs of cancellation at any time under Rule 2S0.
The next question is whether an order in the nature of a mandamus can issue under section 45 of the Specific Relief Act.
It is necessary to emphasise that the present case does not fall either under article 32 (2) or article 226(1) of the Constitution.
We are confined here to section 45 of the Specific Relief Act.
146 The jurisdiction,conferred by.
that section is very spe cial in kind and is strictly limited in extent though the am but of the powers exercisable within those limited is wide.
Among the limitations imposed are the following: First, the order can only direct some specific act to be done or some specific ,act to be forborne.
It is not possible therefore to give a mere declaratory relief as under section 42.
Next, because of the proviso, the order can only be made if the doing or the for bearing is clearly recumbent upon the authority concerned under any law for the time being in force.
And thirdly, there must be no other specific and adequate legal remedies available to the applicant.
Now applying these rules to the present case, the appli cant must show what specific act he wants to.
be done or to be forborne.
That can only be gathered from the petition.
The reliefs specifically sought there are (1) an order directing the Commissioner to withdraw the cancellation and/or (2) directing him to grant permission for the erec tion of a cinema.
Taking the second.
first, it is evident from the rules that there is no specific law which requires the Commission er to grant a license on the fulfillment by the petitioner of certain conditions.
He is vested with a discretion to grant or to refuse a license and all that the law requires is that he should exercise that discretion in good faith.
But that he has done.
In the exercise of that discretion he granted a license and that license still holds good because, on the view we have taken, there has been no valid order of cancellation.
Accordingly, this relief cannot be granted.
Turning next to the first relief, that cannot be grant ed in the form in which it is sought because the rules vest the Commissioner with an absolute discretion to cancel at any time a license once granted.
There is no specific law which compels him to forbear from canceling a license once granted in fact that would be an impossibility; still less is there any law which compels him to withdraw a cancella tion already effected: that would fetter the absolute dis cretion 147 vested in him by Rule 250.
Therefore, this relief cannot be granted in the way it is asked for.
But we are of opinion that we are free to grant the respondent a modification of that relief in a different form.
It is to be observed that the petitioner did ask that he be granted "such further and other relief as the nature and circumstances of the case may require.
" We have held that the Commissioner did not in fact exercise his discretion in this case and did not cancel the license he granted.
He merely forwarded to the respondent an order of cancellation which another authority had pur ported to pass.
It is evident from these facts that the Commissioner had before him objections which called for the exercise of the discretion regarding cancellation specifi cally vested in him by Rule 250.
He was therefore bound to exercise it and bring to bear on the matter his own inde pendent and unfettered judgment and decide for himself whether to cancel the license or reject the objections.
That duty he can now be ordered to perform under section 45.
It was objected as to this that there is no specific law which compels him to exercise the discretion.
Rule 250 merely vests a discretion in him but does not require him to exercise it.
That is easily met by the observations of Earl Cairns L.C. in the House of Lords in Julius vs Lord Bishop of Oxford(i), observations which have our full and respect ful concurrence : "There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.
" The discretion vested in the Commissioner of Police under Rule 250 has been conferred upon him for public rea sons involving the convenience, safety, (1) 5 App.
214 at 222, 223.
148 morality and welfare.
of the public at large.
An ena bling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand.
It is a duty which cannot be shirked or shelved nor can it be evaded; performance of it can be compelled under section 45.
It was then objected that performance cannot be com pelled for another reason.
Section 45, it was said, is limited to duties which must be performed or forborne "under any law for the time being in force," and it was argued that this means statute law.
There is authority for this point of view, but we see no reason for limiting the clear words of the section or for reading into it matter which is not there.
The provision is a beneficent one to compel the performance of public duties by public officers.
It is intended to open up a swift and summary remedy to the subject against, on the one hand, certain kinds of abuse or excesses on the part of public officers or, on the other, of laziness, incompetence, inertia or inaction on their part.
We can see no reason why statutory duties should be placed on any different plane from other duties enjoined by any other kind of law, especially as some.
statutory duties are slight or trivial when compared to certain other kinds of duties which are not referable to a statutory provision.
In our opinion, the words "any law" are wide enough to embrace all kinds of law and we so hold.
The only other point we need consider is whether "the applicant has no other specific and adequate legal remedy.
" It was contended on behalf of the appellant that the re spondent could have ignored the so called order of cancella tion if he considered it was of no effect; alternatively, he had the specific legal remedy of suing for an injunction which could have accorded him adequate relief.
In our opinion.
the first is neither a specific nor an adequate legal remedy.
Here is an order purporting to 149 emanate from the State Government itself served on the respondent by a responsible public officer.
Whether, the order is his order or an order of the State Government it is obviously one which primarily compels obedience as a matter of prudence and precaution.
It may in the end prove to be ineffective, as has happened in this case, but it would be wrong to expect a person on whom it is served to ignore it at his peril however much he may be legally entitled to do so.
Also, the very fact that this order was served on him, especially when it followed on the Commissioner 's letter of the 19/20th September, 1947, indicated that objections of a serious nature which it was the Commissioner 's duty to consider had been raised.
The respondent had a right to expect the Commissioner to make up his mind and reach a decision, otherwise it left him in a state of uncertainty.
If he commenced to build, the Commissioner would have a right to take action under Rule 250 and tell him to stop, and at best that would involve the respondent in a long and expensive litigation which he might or might not win.
We are clear that he had a right to be told definitely by the proper legal authority exactly what he might or might not do, so that he could adjust his affairs.
We are clear that the dangerous course of ignoring an official order at one 's peril is not the kind of adequate and specific legal remedy contemplated by section 45.
Next, as regards the relief of injunction.
We do not say that would not be a proper and adequate remedy in certain cases.
Each case must necessarily depend on its own facts and we have no intention of laying down any hard and fast rule.
But we do not think that would be adequate to meet the exigencies of the present case.
In the first place, a suit, if lodged, would require notice under section 80 of the Civil Procedure Code as it would be a suit against a public officer in his official capacity, and that would at once import delay; so would the long drawn out procedure of civil litigation with its concomitant appeals.
In a commer cial undertaking of the kind we have here, inordinate delay might well spell ruin to the project.
Large sums of money have necessarily to be tied up 20 150 so long as the matter remains in abeyance, the prices of land and materials are constantly rising and there is in the vicinity a rival theater which is all the while acquiring reputation and goodwill, two undefinable but important considerations in commercial undertakings.
It is therefore desirable that questions of the kind we have here should be decided as soon as may be It may be that any one of those considerations taken separately might not be enough to fulfil this requirement of section 45, but considered cumu latively we are of opinion that the applicant has no other adequate remedy in tiffs case.
In any event, there are many cases of a similar nature in which section 45 has been applied without objection despite the fact that an injunc tion could have been sought.
We need only cite a decision of the Judicial Committee of the Privy Council (A1cock, Ashdown & Co. vs Chief Revenue Authority, Bombay) (1) where Lord Phillimore says at page 233 : "To argue that if the Legislature says that a public officer, even a revenue officer, shall do a thing, and he without cause or justification refuses to do that thing, yet the Specific Relief Act would not be applicable, and there would be no power in the Court to compel him to give relief to the subject, is to state a proposition to which their Lordships must refuse assent." Their Lordships then issued an order under section 45.
Lastly, it was urged that the petition is incompetent because the provisions of section 46 of the Specific Relief Act have not been complied with, namely, the petitioner has not shown that he made a demand for justice and that it was denied.
The demand and denial which section 46 requires are matters of substance and not of form.
In our opinion, there was a substantial demand here and it is clear that there was a denial.
Soon after the order of cancellation was intimat ed to the petitioner he instructed his solicitors to write to the Commissioner and enquire (1) 50 I.A. 227 at 233.
151 why the permission granted had been so arbitrarily can celled.
This was on the 18th November, 1947.
The reply dated 3/4th December, 1947, was that the cancellation was under the orders of Government and that they should be approached in the matter.
Government was approached.
The petitioner 's solicitors wrote to the Home Minister on the 9th December, 1947, and said : "Our client has not been informed of any reasons which had moved the Government to direct the cancellation of the permission.
Our client was really entitled to be heard in the matter.
Our client desires to present his case before you and he shall feel obliged if you give him an interview. " The Secretary to the Home Department replied on the 12th of January, 1948, that the Commissioner was directed to cancel the permission in view of numerous protests which Government received.
This was replied to on the 16th of February, 1948, and the petitioner 's solicitors said : "Our client feels that he has not been treated fairly and that justice has been denied to him." The only reply to this was : "I am directed to inform you that Government does not wish to add anything to the reply already given to you." The correspondence read as a whole contains a clear demand for justice and a denial.
It is true the actual demand was not made to the Commissioner nor was the denial by him but he clearly washed his hands of the matter by his letter of the 3rd/4th December, 1947, and referred the petitioner to Government under whose orders he said he was acting.
The demand made to Government and the denial by them were therefore in substance a demand made to the Commission er and a denial by him.
In any event, an evasion or shelving,of a demand for justice is sufficient to operate as a denial within the meaning of section 46.
In England the refusal need not be in so many words All that is necessary is to 152 show that the party complained of has distinctly deter mined not to do what.
is demanded (See 9 Halsbuy 's Laws of Eng land, Hailsham edition, page 772).
And in the United States of America a demand is not required "where it is manifest it would be but an idle ceremony" (See Ferris on Extraordinary Legal Remedies, page 281).
The law in India is not differ ent except that there must be a demand and a denial in substance though neither need be made in so many words The requirements of section 46 were therefore fulfilled.
The result is that in substance" the appeal fails though it will be necessary to effect a modification of the High Court 's order.
The High Court directed the Commissioner of police to "Withdraw the order of cancellation passed by him.
" We have held that he did not make the order and that even if he did, a direction of that sort would not lie because of the discretion vested in him by Rule 250.
The following will accordingly be substituted for what the High Court has ordered: The Commissioner of Police be directed to consider the requests made to him for cancellation of the license sanc tioned by his letter dated the 14/16th of July, 1947, and, after weighing all the different aspects of the matter, and after bringing to bear his own unlettered judgment on the subject, himself to issue a definite and unambiguous order either canceling or refusing to cancel the said license in the exercise of the absolute discretion vested in him by Rule 250 of the Rules for Licensing and Controlling Theaters and Other Places of Public Amusement in Bombay City, 1914.
As the appeal fails except for the slight modification indicated above, the appellant will pay the respondent 's costs.
Decree modified.
| An application by the respondent for permission to build a cinema on a site within the City of Bombay was rejected by the Commissioner of Police, Bombay.
The respondent applied for reconsideration of his application and the Commissioner, acting on the advice of the Cinema Advisory Committee, granted the application on the 16th July, 1947, though he indicated in an affidavit flied later that but for this advice he would have refused the application again.
Subse quently, under instructions from Government the Commissioner sent the following communication to the respondent: "I am directed by Government to inform you that the permission to erect a cinema at the above site granted to you under the office letter dated 16th July, 1947, is hereby canceled.
" The respondent applied to the High Court of Bombay for an order under section 45 of the Specific Relief Act directing the Commissioner of Police, Bombay, to withdraw the cancellation and to grant permission for the erection of the cinema, and the High Court directed the Commissioner of Police "to withdraw the order of cancellation passed by him." The Commissioner of Police appealed to the Supreme Court.
Held, (i) that there was nothing in the letter dated 16th July, 1947, to indicate that the decision was not that of the Commissioner himself given in the bona fide exercise of the discretion vested in him.
The sanction was not conse quently invalid merely because the Commissioner decided to accept the advice of the Cinema Advisory Committee even though without that advice he would not have granted the permission.
(ii) There was no valid cancellation of the license because (a), the order of cancellation communicated to the respondent 'was one made by the Government of Bombay and not by the Commissioner on his own authority;he acted in the matter only as a transmitting agent; (b), under the rules framed under 136 section 22 (1) (f), (1) (g) and (n) of the City of Bombay Police Act 1902 the Government of Bombay had no power to cancel of license once issued.
The only person vested with authority to grant or refuse a license for the erection of a building to be used for purposes of public amusement is the Commissioner of Police.
(iii) The relief sought by the respondent of an injunction to direct the Commissioner of Police to grant permission for the erection of a cinema could not be granted because he had already granted permission and there was no valid order of cancellation.
(iv) The other relief asking for an injunction directing the commissioner to withdraw the cancellation also could not be granted because Rule 250 vests the Commissioner with an absolute discretion in the matter.
(v) Though there was no specific provision of law compel ling the Commissioner to exercise the discretion vested in him under Rule 250, inasmuch as the enabling power vested by Rule 250 was vested in the Commissioner for the welfare of the public at large it was coupled with a duty to exercise it when the circumstances so demanded.
The Commissioner could consequently be ordered under section 45 of the Specific Relief Act to exercise his discretion and decide whether the licence should or should not be cancelled.
(vi) The words "any law" in section 45 do not mean statutory law alone but embrace all kinds of law whether referable to a statutory provision or otherwise.
Therefore the perform ance of duties under the rules can be compelled under the provi sions of section 45.
(vii) There was no other specific and adequate legal remedy open to the respondent within the meaning of section 45 for though the respondent could have ignored the so called order of cancellation , he could only have done so.
at his peril as it purported to emanate from the State Government and was served by a public officer.
The remedy of injunction was not a proper and adequate remedy in the circumstances of the present case.
(viii) The petition was not incompetent under section 46 of the Specific Relief Act as there had been a demand of justice and a denial thereof within the meaning of the section in the circumstances of the case.
(ix) Public orders, publicly made, in exercise of a statu tory authority cannot be construed in the light of explana tions subsequently given by the officer making the order of what he meant or of what was in his mind, or what he intend ed to do.
As such orders are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed ' they must be construed objec tively with reference to the language used in the order itself.
137 Julius vs Lord Bishop of Oxford (5 App.
Cas, 214), Alcock, Ashdown & Co vs Chief Revenue Authority (50 I .A. 227) referred to.
|
Civil Appeal No. 114 of 1950.
Appeal from a judgment and decree of the High Court of Patna (Shearer and Reuben JJ.) dated 5th November, 1948, in Appeal No. 2064 of 1946, 271 which arose out of a decree of the District Judge of Purulia in Title Appeal No. 116 of 1945.
The facts are stated fully in the judgment.
M.C. Setalvad, Attorney General for India, (Nandial Untwalia, with him) for the appellant.
B. C. De (Jyotirmoy Ghose, with him) for the respondent.
November26.
The Judgment of the Court was deliv ered by MUKHERJEA J.
This appeal is on behalf of the defendant and it arises out of a suit commenced by the plaintiff respondent, in the Court of the Subordinate Judge at Chai bassa, for recovery of possession of the land described in schedule to the plaint, on the allegation that the defendant was a monthly tenant in respect of the same, and that the tenancy was determined by a notice to quit.
The suit was decreed by the trial court and the decision was affirmed, on appeal, by the District Judge, Purulia, and on Second Ap peal, by a Division Bench of the High Court of Patna.
The defendant has now come up to this court on the strength of a certificate granted under section 110, Civil Procedure Code.
Mr. Setalvad, appearing on behalf of the defendant appellant, stated to us at the outset that he would not dispute the validity or sufficiency of the notice to quit served upon his client, if on the facts of this case he is held to be a monthly tenant under the plaintiff in respect of the premises in suit.
His contention, in substance, is that the defendant was at no point of time a monthly tenant under the plaintiff or his predecessor.
There might have been, according to the learned Counsel, two tenancies for one year each for two successive periods, but on the expiry of the second yearly lease, which happened on 7th December, 1926, the defendant ceased to be a tenant and no fresh tenancy was created by holding over as is contemplated by section 116 of the Transfer of Property Act.
As there was no holding over, there could not be any question of a monthly tenancy being brought into existence 272 under the provision of section 116 of the Transfer of Property Act, and the present suit of the plaintiff having been admittedly brought more than 12 years after the deter mination of the second yearly lease, is barred by limitation under Article 139 of the Indian Limitation Act.
The whole controversy in this appeal thus centres round the point as to whether the defendant was in fact a monthly tenant under the plaintiff at the date when the notice to quit was served upon him.
To appreciate the respective contentions that have been put forward upon this point by the learned Counsel on both sides, it will be necessary to narrate briefly the material facts in their chronological order.
The property in suit is a plot of land, measuring 4 bighas 12 cuttas, and is comprised in old Survey plot No. 578 of village Jugselai in the district of Singhbhum.
The entire village forms part of the Dhalbhum estate, of which the plaintiff is admittedly the present proprietor.
One Charan Bhumiji was the " Prodhan" of village Jugselai from some time before 1913 and on 24th July, 1913, the father of the defendant, by a registered Patta, took a lease of about :31 bighas of land appertaining to Survey plot No. 573 from this Prodhan for purposes of cultivation.
It is not disput ed that the property in suit is covered by this Patta.
At that time the proprietor of the Dhalbhum estate was Raja Satrughna and he died in 1916, leaving behind him a will by which the entire estate was bequeathed to the present plain tiff.
The plaintiff 's claim under the will was challenged by one Partap Chandra Deo Dhabal who succeeded in getting his name recorded as proprietor of the zemindari in the Singhbhum Collectorate.
Thereupon the plaintiff instituted a suit (being Title Suit No. 67 of 1921) in the Court of the Subordinate Judge at Midnapore for establishment of his title to the zemindari and the suit was decreed by the trial Judge.
Against this decision, the defendant Pratap Chandra Deo Dhabal took an appeal to the High Court of Calcutta and during the pendency of this appeal, the High Court appointed a Receiver who was put in 273 possession of the entire estate.
On 8th December, 1924, the defendant executed a registered Kabuliyat in favour of the Receiver, by which he purported to take settlement of the land in suit for a period of 10 years at a rental of Rs. 46 per annum and a selami of Rs. 250.
There was a covenant in the lease, which looks like one for perpetual renewal, and it was to the effect that on the expiry of the term, if the lessor did not require the land for his own purposes and decided to re settle it, the lessee would be entitled to fresh settlement on enhanced,rent and on such terms as might be then agreed upon between the parties.
It appears from the record that the selami money, amounting to Rs. 250, was paid by the defendant to the Receiver several months before the Kabuliyat was executed, and the rental amounting to Rs. 46 was paid for the first time on 8th of March, 1925.
The next payment of rent was made in the succeeding year, on 16th of March, 1926.
Admittedly, no further payment of rent was made by the lessee either to the Receiver or to the proprietor since then, up to this period.
The High Court dismissed the appeal preferred by Pratap Chandra Deo Dhabal some time in 1924 and this order of dismissal was affirmed by the Judi cial Committee in May 1927.
The Receiver was then dis charged and the plaintiff got possession of the entire estate in July 1927.
On April 15, 1937, the plaintiff brought a suit for ejectment (being Title Suit No. 2 of 1937) against the defendant in respect of this property in the Court of the Subordinate Judge at Chaibassa.
The claim was based substantially upon the terms of the Kabuliyat executed by the defendant on 24th of December, 1924, and the suit was, in fact, one for ejectment of a lessee on the expiration of the period provided for in the lease.
It was only the renewal clause in the Kabuliyat that was challenged as invalid and inoperative, not only because it was vague and indefinite but also on the ground that the Receiver acted beyond his authority in entering into a stipulation of this character.
36 274 The defendant in his written statement resisted the plaintiff 's claim for possession primarily on the ground that he had acquired permanent rights in the land under the Prodhan 's Patta of 1913 and continuous occupation of it since then for more than 12 years.
The Kabuliyat of 1924, he attempted to ignore altogether.
It was said that it was executed only to avoid trouble and harassment at the hands of the Receiver and that, being inoperative as a lease, it could not, in any view, affect the prior rights which he acquired under the Patta of 1913.
The trial judge decreed the suit.
On appeal, the judg ment was reversed by the District Judge and the plaintiff 's suit was dismissed simply on the ground that the notice to quit that was served on the defendant was ineffectual in law to determine the tenancy.
The District Judge found, first of all, that the Prodhan 's Patta was void and inoperative in law and could not create any rights in the defendant, inas much as the Prodhan had no authority to settle lands of this character.
The Kabuliyat of 1924 was also held to be inef fectual as not amounting to a lease as defined by the Trans fer of Property Act.
It was held, however, by the District Judge that apart from the Kabuliyat, a tenancy was created by payment and acceptance of rent in the years 1925 and 1926 and after 1926 the defendant occupied the position of a monthly tenant by holding over under section 116 of the Transfer of Property Act.
Such tenancy could be determined by fifteen days ' notice, expiring with the month of tenancy, but as the notice, which was served by the plaintiff upon the defendant, did not fulfil this requirement, the plain tiff 's suit was bound to fail.
The District Judge, though he dismissed the suit, gave the plaintiff a declaration to the effect that the defendant was liable to eviction on service of fifteen days ' notice, expiring with the end of the Bengali month of the tenancy.
Against this decision, the plaintiff took an appeal to the High Court of Patna, and the appeal came up for hearing before Harries C.J. and Fazl Ali J.
The learned Judges affirmed the finding of the lower appellate court that 275 the Prodhan 's Patta did not create any rights in the defend ant and that the Kabuliyat of 1924 was also ineffectual as a lease to give the defendant any tenancy right.
The learned Judges further held that the defendant did not acquire any permanent right in the land by prescription or otherwise and that by reason of the payment of rent to the Receiver in the years 1925 and 1926 he became a tenant from month to month.
In these circumstances the High Court con curred with the District Judge in holding that the notice to quit was insufficient for the purpose of determining the tenancy.
It seems that the defendant made a strenuous endeavour before the High Court to establish that as the Patta of 1913 as well as the Kabuliyat of 1924 were both invalid and inoperative, he was never a tenant in respect of the land in suit and no tenancy could be created by the two payments of rent, inasmuch as the Receiver had no authority to receive them.
It was contended, therefore, that the plaintiff was in possession of the land as a trespasser all along and thus acquired a good title by adverse possession.
The High Court, though it held definitely that the defendant was a tenant from month to month, nevertheless kept open the question as to whether the payment of rent to the Receiver was tantamount to payment to the plaintiff.
It was held that as the notice to quit was defective, that was suffi cient for dismissal of the suit, and the declaration made in the decree of the lower appellate court that the defendant was liable to be evicted on service of fifteen days ' notice, expiring with the Bengali month of the tenancy, was directed to be deleted.
This judgment of the High Court was pro nounced on the 5th of May, 1942.
Soon after this on 18th July, 1942, the plaintiff served a notice to quit on the defendant, asking him to vacate the land on the 7th of August following, and as the defendant refused to give up possession, the present suit was brought on 22nd July, 1943.
The plaint in the present suit is a very simple one;it proceeds entirely on the findings record ed by the High Court in the previous litigation.
The right to 276 possession is not based on the terms of the Kabuliyat of 1024.
The plaintiff avers that by reason of the payment of rent on 8th March, 1925, and 16th March, 1926 the defendant became a tenant from month to month under him and the tenan cy was determined by a proper notice to quit.
The defendant in his written statement raised several pleas in answer to the plaintiff 's claim.
He reiterated his rights under the Patta of 1913 and urged that by reason of his holding possession of the land on assertion of a perma nent tenancy right for a long period of time, he acquired a valid title to the property.
As regards the Kabuliyat of 1924, it is said in one part of the written statement that the defendant executed this document under misapprehension of facts without knowing the contents thereof.
But at anoth er place it is stated that the Kabuliyat was binding on the plaintiff and he was not entitled to institute a suit in contravention of its terms, without in any event refunding the selami money.
The defendant admitted, what he denied in the earlier suit, that the payments made to the Receiver amounted to payments to the plaintiff himself, although this question was left open by the High Court on the previous occasion.
The other pleas raised in the written statement are not material, except that a specific point was taken, challenging the sufficiency of the notice to quit that was served upon the defendant.
On these pleadings a number of issues were framed.
The trial judge held on a consideration of the materials placed before him that the Prodhan 's Patta was a void and inopera tive document and conferred no rights on the defendant.
He negatived the case, which the defendant attempted to make in course of hearing, that the Kabuliyat executed by him was obtained by threat and coercion.
It was held by the Subordi nate Judge in accordance with the decisions of the Patna High Court on the point that the Kabuliyat could not operate as a lease under the Transfer of Property Act, and conse quently the defendant did not acquire the rights of a lessee under the same.
He held, however, 277 that by payment and acceptance of rent a new tenancy was created de hors the Kabuliyat, and as the new tenancy was for building purposes, it.
was a tenancy from month to month under section 106 Transfer of Property Act, terminable by fifteen days notice.
As the notice was proper and, suffi cient, the trial judge decreed the plaintiff 's suit.
Against this judgment, the defendant took an appeal to the court of the District Judge, Purulia, and the District Judge dismissed the appeal and affirmed the judgment of the trial court.
It appears that two points were raised by the defend ant before the District Judge in support of his appeal: one was that the Kabuliyat of 1924 was effective as a lease and consequently the defendant could not be ejected in contra vention of the terms thereof.
At the same time it was con tended that there was no tenancy at all held by the defend ant under the plaintiff, inasmuch as the payments made to the Receiver could not be regarded as payments to the plain tiff.
The first point, the District Judge pointed out, was contrary to the express decisions of the Patna High Court, while the second was contradictory to the defendant 's own admission in the written statement.
The defendant then came up in Second Appeal before the High Court of Patna and the appeal was heard by a Division Bench, consisting of Shearer and Reuben JJ.
The learned Judges agreed in dismissing the appeal and affirming the decree made by the courts below, but the grounds upon which they based their decision are not identical.
As regards the nature of the tenancy created by implication of law in consequence of the Receiver having accepted payment of rent from the defendant, it was held by Reuben J. that when the Receiver accepted rent in 1925, it should be presumed that the parties intended to create a tenancy for one year and when he accepted rent again in 1926, such acceptance amount ed to his assenting to the defendant 's holding over; and in view of the purpose for which the tenancy was created, the defendant from that time became a tenant from 278 month to month under the provision of section 116, Transfer of Property Act.
Shearer, J., felt difficulty in accepting this view though in his opinion if a periodic tenancy was created at all, it was from month to month and not from year to year.
There are observations, however, in the latter part of the judgment of Shearer, J., which would go to show that in his opinion the creation of two leases, each for one year, could be fairly gathered from the admitted facts of the case.
The learned Judge was not sure, however, as to whether the defendant ever became a tenant of the plaintiff.
He discussed the nature of the renewal clause contained in the Kabuliyat and held it to be void for uncertainty.
He also negatived the defendant 's plea on the strength of adverse possession.
His conclusion was that whatever view might be taken regarding these points, the defendant had no valid defence to the plaintiff 's claim for eviction and consequently the decision of the courts below was right.
It is the propriety of this decision that has been challenged before us in this appeal.
Mr. Setalvad, in support of his client 's case, has not called in aid the Prodhan 's Patta of 1913; nor has he placed any reliance upon the Kabuliyat of 1924 and the covenant for renewal contained therein.
He has not disputed before us that the payments made to the Receiver were in reality payments to the plaintiffs, and has conceded that a tenancy could be created by implication by reason of his client having paid and the Receiver having accepted rents in re spect of the suit premises.
His contention, as indicated already, is that by reason of the payment and acceptance of rent, there were two tenancies for one year each, creat ed for two successive years; but the relationship of landlord and tenant between the parties came to an end on the expiration of the second annual lease.
As there was no holding over by the defendant since then as contemplated by section 116, Transfer of Property Act, there was no subsist ing tenancy at any time after December, 1926, and the plain tiff 's suit instituted in the year 1943 was obviously time barred.
279 Mr. De, appearing for the plaintiff respondent, has, on the other hand, contended that the tenancy that was created by payment and acceptance of rent in the year 1925 was from the beginning a tenancy from month to month under the provi sion of section 106.
Transfer of Property Act.
Alterna tively, he has argued that if a tenancy for one year only was created in the year 1925, then after the expiration of that one year 's lease the defendant held over and the Receiver 's assent to his continuing in possession is evidenced by acceptance of rent from him in the year 1926.
The tenancy thus created would be a tenancy from month to month under section 116, Transfer of Property Act.
Lastly, it is argued that even if two successive tenancies were created for one year each, the facts admitted and proved would go to show that the tenant held over after the second annual lease and consequently a tenancy from month to month came into existence in accordance with the provision of section 116, Transfer of Property Act, even though no rent was demanded by the landlord after 1926.
The contro versy between the parties so far as this appeal is con cerned, therefore, narrows down to the following three points : (1) What was the nature of the tenancy created by ac ceptance of rent by the Receiver from the defendant on the 8th of March, 1925 ? If it was a tenancy from month to month, it is not disputed on behalf of the defendant that no question of holding over would at all arise and the plain tiff would be entitled to succeed.
(2) If in 1925 a tenancy was created for one year, can the landlord 's assent to the defendant 's continuing in possession be inferred from the fact that rent was accepted from the defendant in March, 1926 ? (3) If the payment and acceptance of rent in March, 1926, brought into existence a tenancy for another year, was there any subsequent tenancy created after the second year, although there was no ,demand or acceptance of rent by the landlord since then ? 280 So far as the first point is concerned, the courts below have proceeded on the view that a registered instru ment signed by the landlord was necessary to create.
a valid lease for ten years.
That view was not questioned before us and we express no opinion on this point.
Proceeding, there fore, on the assumption that even though the parties might have intended to create a lease for 10 years, no operative ]ease came into existence, the only facts admitted are that the defendant remained in possession of the land belonging to the plaintiff with the permission of the Receiver who represented the plaintiff 's estate, and paid rent to the latter.
From these facts a tenancy could be fairly presumed and the point for determination is, what was the duration of the tenancy that was created in the present case? Section 106 of the Transfer of Property Act lays down: "In the absence of a contract or local law or usage to the contrary a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months ' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or les see, by fifteen days ' notice expiring with the end of a month of tenancy.
" The section lays down a rule of construction which is to be applied when there is no period agreed upon between the parties.
In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created.
The rule of construction embodied in this sec tion applies not only to express leases of uncertain dura tion but also to leases implied by law which may be inferred from possession and acceptance of rent and other circum stances.
It is conceded that in the case before us the tenancy was not for manufacturing or agricultural purposes.
The object was to enable the lessee to build structures upon the land.
In these circumstances, it could be 281 regarded as a tenancy from month to month.
unless there was a contract to the contrary.
The question now is, whether there was a contract to the contrary in the present case ? Mr. Setalvad relies very strongly upon the fact that the rent paid here was an annual rent and he argues that from this fact it can fairly be inferred that the agreement between the parties was certainly not to create a monthly tenancy.
It is not disputed that the contract to the con trary, as contemplated by section 106 of the Transfer of.
Property Act, need not be an express contract; it may be implied, but it certainly should be a valid contract.
If it is no contract in law, the section will be operative and regulate the duration of the lease.
It has no doubt been recognised in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding there to.
Conse quently, when the rent reserved is an annual rent, the presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption.
But the difficulty in applying this rule to the present case arises from the fact that a tenancy from year to year or reserving a yearly rent can be made only by registered instrument, as laid down in section 107 of the Transfer of Property Act(1).
The Kabuliyat in the case before us is undoubtedly a registered instrument, but ex concessis it is not an operative document at all and cannot consequently fulfil the requirements of section 107 of the Transfer of Property Act.
This position in fact is not seriously controverted by Mr. Setalvad; but what he argues is that a lease for one year certain might fairly be inferred from the payment of annual rent, and a stipulation like that would not come within the mischief of section 107 of the Transfer of Property Act.
His contention is that the payment of an annual rent, as was made in the present case, is totally inconsistent with a monthly lease.
We are not unmindful of the fact that in (1) Vide Debendra Nath vs Syama Prasanna, , 1126 37 282 certain reported cases, such inference has been drawn.
One such case has been referred to by Mr.Justice Reuben in his judgment(1), where reliance was placed upon an earlier decision of the Calcutta High CoUrt(3).
A similar view seems to have been taken also in Matilal vs Darjeeling Municipality(3).
But one serious objection to this view seems to be that this would amount to making a new contract for the parties.
The parties here certainly did not intend to create a lease for one year.
The lease was intended to be for a period exceeding one year, but as the intention was not expressed in the proper legal form, it could not be given effect to.
It is one thing to say that in the absence of a valid agreement, the rights of the parties would be regulat ed by law in the same manner as if no agreement existed at all; it is quite another thing to substitute a new agreement for the parties which is palpably contradicted by the admit ted facts of the case.
It would be pertinent to point out in tiffs connection that in the Second Appeal preferred by the plaintiff against the dismissal of his earlier suit by the lower appellate court, the High Court definitely held that the defendant 's tenancy was one from month to month under section 106, Transfer of Property Act, and the only question left open was whether payment to the Receiver amounted to payment to the plaintiff himself.
In this suit the defendant admitted in his written statement that payment to the Receiver had the same effect as payment to the plaintiff, and the trial judge took the same view as was taken by the High Court on the previous occasion, that by payment to and acceptance of rent by the Receiver, the defendant became a monthly tenant under section 106, Transfer of Property Act.
In his appeal before the District Judge, which was the last court of facts, the only ground upon which the defendant sought to challenge this finding of the trial judge was that the Receiver was an unauthorised person because of the 'decision of (1) Aziz Ahmad vs Alauddin Ahmad, A.I.R. 1933 Pat. 485.
(2) Md. Moosa vs Jaganund (3) 17 C.L.J. 167.
283 the Judicial Committee which set aside his appointment and consequently acceptance of rent by such person could not create a monthly tenancy.
This shows that it was not the case of the defendant at any stage of this suit that because one year 's rent was paid, a tenancy for one year was brought into existence.
We think, therefore, that on the facts of this case it would be quite proper to hold that the tenancy of the defendant was one from month to month since its inception in 1924.
This view finds support from a number of reported cases(1), and in all these cases the rent payable was a yearly rental.
On this finding no other question would arise and as the validity of the notice has not been questioned before us, the plaintiff would be enti tled to a decree in his favour.
The appeal thus fails and is dismissed with costs.
Appeal dismissed.
| The rule of construction embodied in section 106 of the Transfer Property Act applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances.
270 The contract to the contrary contemplated by the said sec tion need not be an express contract; it may be implied, but it should be a valid contract.
If the contract is invalid the section will regulate the duration of the lease.
When the rent reserved is an annual rent, a presump tion would arise that the tenancy was an annual tenancy unless there is something to rebut this presumption.
But under section 107 of the Transfer of Property Act a tenancy from year to year or reserving an yearly rent can be made only by a registered instrument.
The defendant executed a registered kabuliyat to the Receiver who was managing an estate pending a suit, purport ing to take a plot of land on lease for a period of ten years at a rental of Rs. 46 per annum and paid the first year 's rent of Rs. 46 on the 8th March, 1925, and the next year 's rent on the 16th March, 1926.
No further rent was paid by the defendant to the Receiver or to the proprietor after that date.
The proprietor, treating the defendant as a monthly tenant served notice to quit on him on the 18th July, 1942, asking the latter to vacate on the 7th August, 1942, and instituted a suit for ejectment in July, 1943.
The kabuliyat was found to be inoperative in law and the defend ant contended that the payment and acceptance of annual rent in 1925 and 1926 did not create a monthly tenancy but two tenancies for one year each for two successive years, that the relation of landlord and tenant came to an end on the expiration of the second annual lease, and, as there was no holding over, the suit was time barred: Held (i) that from the facts a tenancy could be pre sumed to have come into existence from 1924; (ii} as the purpose of the tenancy was for building structures on the land, under sec.
106 of the Transfer of Property Act the tenancy must be presumed to be one from month to month in the absence of a contract to the contrary; (iii) a contract that the tenancy was for one year certain could not be inferred in the present case from the fact that an annual rent was paid in 1925 and 1926, inasmuch as the kabuliyat, though inoperative in law, showed that the parties never intended to create a lease for one year; (iv) on the facts of the case it was quite proper to hold that the tenancy was one from month to month since its inception in 1924 and the suit was not time barred.
Debendra Nath vs Shyama Prasanna and Sheikh Akloo vs Emaman (I.L.R. approved.
Aziz Abroad vs Alauddin Abroad (A.I.R. 1933 Pat. 485), Md. Moosa vs Jaganand and Matilal vs Darjeel ing Municipality (17 C.L.J. 167) referred to.
|
Civil Appeal No. 87 of 1950.
Appeal from the Judgment and Decree dated 8th Febru ary, 1949, of the High Court of Judicature at Patna (Manohar Lall and Mahabir Prasad JJ .) in Appeal No. 38 of 1946 arising out of decree dated the 18th December, 1945, of the Subordinate Judge of Deoghar in Title Suit No. 1 of 1939.
B.C. Dey (S.C. Ghose, with him) for the appellant.
M.C. Setalvad (Kanhaiyaji, with him) for the respondent.
154 1951.
November 29.
The Judgment of Mehr Chand Mahajan and Vivian Bose JJ.
was delivered by Mahajan J. Fazl Ali J. delivered a separate judgment.
MAHAJAN J.
The question involved in the appeal relates to the right of succession to six Birbhum ghatwalis governed by Regulation XXIX of 1814, annexed to Gaddi Pathrol and lying within Tappasarath in the Santhal Parganas.
the genealogy of the contestants appears from the following pedigree table: .
Digbijoy Singh I Gurohari SinghKanhai Singh Bhairo Singh Balram Singh (Ghatwal) I I Pratar Singh I I I I I Banwari Singh Pitambar Katku Singh Bharat Singh (Died (Ghatwal) issueless) I Kharagdhari Singh (Ghatwal) I Ram Chandra Singh (Ghatwal) I I Brijbehari Singh Sarju Prasad Singh (Ghatwal) (Original plaintiff) I I Krishna Prasad Singh Hargobind Prasad Singh (Ghatwal) (Substituted plaintiff) I I Kali Prasad Singh Durga Prasad (Ghatwal) ( Died issueless) I Phaldani Kumari (Defendant) Tikait Kali Prasad Singh, the last gaddidar of Pathrol, died in the year 1935.
He belonged to the Baisi Chaurasi clan.
On the 29th November, 1935, the 155 Commissioner of Bhagalpur Division recognized Smt.
Phaldani Kumari as the next ghatwal and entitled to be maintained in possession of the ghatwali estate on the 30th November, 1936, sarju Prasad Singh brought the suit out of which this appeal arises in forma pauperis in the court of the Subor dinate Judge of Deoghar for possession of the ghatwalis.
In paragraphs 7, 8 and 10 of the plaint it was alleged that the ghatwalis in suit were joint family property and were im partible by custom; that succession to them was governed by the law of lineal primogeniture; that the females and persons claiming through them were altogether excluded from inheritance.
It was claimed that the late Tikait Kali Prasad Singh and the plaintiff were members of a joint Mitakshara family and that he alone as the eldest member of the eldest surviving line of the descendants of the common ancestor was entitled to succeed to them.
The defendant in her written statement denied this claim and contended that Birbhum ghatwalis governed by Regulation XXIX of 1814 are not and cannot be in the nature of joint family property but that the person who succeeds and holds the tenure as ghatwal is the sole proprietor and owner thereof.
It was pleaded that the properties being the exclusive and separate properties of the ghatwal for the time being, the defendant, his widow, was entitled to suc ceed to them in preference to the plaintiff under the Mitak shara school of Hindu law which admittedly governed the family of the parties.
The pleadings of the parties gave rise to the following issues : 1.
Whether succession to the ghatwalis in question is governed by the customs alleged in para 7 of the plaint ? 2.
Did the ghatwalis in question form joint family property of Kali Prasad Singh, his ancestors in the direct line and of Sarju Prasad Singh and the plaintiff? 3.
Did Kali Prasad die in a state of jointness with Sarju Prasad Singh ? 156 4.
Are the ghatwals the sole proprietors of the ghatwalis for the time being as alleged by the defendant ? 5.
Whether the plaintiff or the defendant is entitled to succeed to the properties in suit ? Issues 2, 3 and 4 were found by the trial Judge in favour of the plaintiff and against the defendant.
It was held that Kali Prasad Singh died in a state of jointness with Sarju Prasad Singh and that the ghatwalis in question were their joint family property and that the plaintiff the eldest surviving copartner in the eldest line of Digbijoy Singh 's descendants was entitled to succeed to them in preference to the widow.
It was common ground between the parties that in case the properties were held to be the separate properties of Kali Prasad Singh, the widow was entitled to succeed to them.
As a result of these findings the plaintiff 's suit was decreed with costs.
On appeal by the widow to the High Court, this.
decree was reversed and the plaintiff 's suit was dismissed with costs.
It was held that the character of the ghatwali tenures in question was such that they could not be regarded as joint property of the plaintiff and the last ghatwal and that being so, the defendant was entitled to succeed to them.
The learned counsel for the appellant based his argu ments on the thesis that the ghatwali estates in question were of the same nature and character as joint family im partible estates governed by the Mitakshara law and that the rule of survive applicable to such estates was also applicable to them.
It was contended that the High Court was in error in holding that the suit properties exclusively belonged to Kali Prasad Singh or that there was anything peculiar in these tenures which differentiated them from other ghatwalis in the Santhai Pargangs or from other im partible estates known to Hindu law and which peculiarity incapacitated them from being included within the definition of coparcenary property.
The plea that females were by custom excluded from inheriting ghatwali tenures in Birbhum was 157 dropped in the two courts below and was ' not raised before us; so also the point of custom set out in para.
7 of the plaint and covered by issue 1 was not seriously urged.
The learned Attorney General, while conceding that succession to these tenures was governed by the Mitakshara law, contended that in no sense could they be regarded as joint family property and that their peculiar characteris tics precluded the acquisition of any right by birth by members of a joint Hindu family in them.
He also urged in the alternative that the widow was 'entitled to succeed to them, assuming them to be joint family property under cus tom.
The courts below have given elaborate judgments in the case and reference has been made to a large number of decid ed cases.
In our opinion, the main point that needs decision is whether the suit ghatwalis were to be regarded as joint family or separate properties of the deceased.
For a solu tion of this problem it is necessary to refer first to the nature and main incidents of a ghatwali tenure.
Its origin is now well known.
In Moghul times grants of land were made to selected persons who were appointed guardians of the mountain passes for protecting the countryside against hill invaders and the office held by these persons bore the designation "ghatwal".
These grants were made in some cases directly by the ruling power and in other cases by the zamindar responsible by custom for the maintenance of secu rity and order within the estate as consideration for the performance of the duties.
By efflux of time these grants assumed the form of an actual estate in land, heritable and perpetual, but conditional upon services certain or services to be demanded.
Reference to some of the decided cases relating to Birbhum ghatwali tenures will sufficiently indicate their nature and character.
In Harlal Singh vs Joravan Singh(1), it was held that a ghatwali estate in Birbhum was not divisible (1) 6 Select.
Rep.204.
21 158 on the death of a ghatwal, amongst his heirs but should devolve entirely on the eldest son or the next ghatwal.
It was said that ghatwali lands are grants for particular pur poses, especially of police, and to divide them into small portions amongst the heirs of the ghatwals would defeat the very ends for which the grants were made.
In Satrukchunder Dey vs Bhagat Bharutchunder Singh(1), a decision of the year 1853, it was stated that the ghatwali tenures in Birbhum were not private property of the ghatwals but lands assigned by the State in remuneration for specific police services and were not alienable or attachable for personal debts.
Kustooree Koomaree vs Monohur Deo(2), Loch J. took the view that succession to ghatwalis is regulated by no rule of kulachar or family custom, nor by the Mitakshara law, but solely by the nature of the ghatwali tenure, which descends undivided to the party who succeeds to and holds the tenure as ghatwal and that a female is not incapable of holding a ghatwali tenure.
It was said that "the party who succeeds to and holds the tenure as ghatwal must be, and has always been, looked upon as sole proprietor thereof, and, therefore, the other members of the family cannot claim to be coparceners and entitled to share in the profits of the property, though they may, by the permission and goodwill of the incumbent, derive their support, either from some portion of the property which he may have assigned to them, or directly from himself." In Binode Ram Sein vs Deputy Commissioner of Santhai Pargangs(3), (on review it was held that the rents of a ghatwali tenure are not liable for the debts of the former deceased holder of the tenure.
The reason for the decision was that the tenure was held for the purpose of public services and those who perform the services are entitled to the whole of the remuneration.
(1) 9 S.D.R. 900.
(3) (2) 1864 W.R. (Gap Nos.) 39.
159 In Tekait Durga Pershad Singh vs Teketnee Durga Kuari(1), it was urged that a female 's right to inherit was inconsistent with a ghatwali estate.
This contention was negatived and reference was made to the fact that many ghatwali estates were held by females and it was observed that it was difficult to hold that a ghatwali estate must necessarily be held by male heirs.
This case further sug gests that in a case where it is held proved that the family was joint, succession to Birbhum ghatwali may be regulated by the same rule of Hindu law as is applicable to the devo lution of impartible estates.
In Ram Narain Singh vs Ramoon Paurey(2), another Birbhum ghatwali case, it was held that the ghatwal for the time being was only entitled to interest on the compensation money obtained for compulsory acquisition of a part of the ghatwali interest but that he could not spend the corpus of it which had to devolve on the next heir intact.
So far as Birbhum ghatwalis are concerned, it is only the above mentioned cases to which our attention was drawn.
Reference in this connection is also necessary to the terms of Regulation XXIX of 1814.
Sections I and II of the Regulation which are material to this enquiry are in these terms : I.
Whereas the lands held by the class of persons denom inated Ghautwauls, in the district of Beerbhoom, form a peculiar tenure to which the provisions of the existing Regulations are not expressly applicable; and whereas every ground exists to believe that, according to the former usages and constitution of the country, this class of per sons are entitled to hold their lands, generation after generation, in perpetuity, subject nevertheless to the payment of a fixed and established rent to the zemindar of Beerbhoom, and to the performance of certain duties for the maintenance of the public peace and support of the police; and whereas the rents payable by those tenants have been (1) (2) 160 recently adjusted, after a full and minute inquiry made by the proper officers in the revenue department; and whereas it is essential to give stability to the arrangements now established among the Ghautwauls, the following rules have been adopted, to be in force from the period of their pro mulgation in the district of Beerbhoom.
A settlement having lately been made on the part of the Government with the Ghautwauls in the district of Beerb hoom, it is hereby declared that they and their descendants in perpetuity shall be maintained in possession of the lands, so long as they shall respectively pay the revenue at present assessed upon them,. " The result of the decided cases and of the provisions of the regulation is that the grantee of the tenure and his descendants have to be maintained in possession of the land from generation to generation conditional upon services to be rendered.
The tenure is however liable to forfeiture for misconduct or misbehavior of the ghatwal for the time being.
The succession to it is determined by the rule of lineal primogeniture.
It is neither partible nor alienable (except in exceptional cases with the consent of the government or the zamindar, as the case may be).
These two characteristics are inherent in its very nature and have not been annexed to it by any rule of custom.
The estate in the hands of the last holder is not liable either to attachment or sale in execution of a decree against him; nor is it liable in the hands of his successor for payment of his debts.
When the succession opens out, the heir determined according to law has to execute a muchilika in favour of the grantor guaranteeing the performance of the duties annexed to the office and stipulating that in case of misconduct or misbehaviour or non fulfilment of the obligations attaching to the office, as to which the tenure is in the nature of a remuneration, government will have the right to resume it.
In view of these peculiar characteristics of a ghatwali tenure in Birbhum which are so different from other inheri tances, we find it difficult to apply to it the 161 law of Mitakshara to the full extent.
The essence of a coparcenary under the Mitakshara law is unity of ownership.
As observed in Katama Natchir vs The Raja of Sivaganga(1), there has to be community of interest and unity of posses sion between all the, members of the family, and upon the death of any one of them the others may well take by survi vorship that in which they had during the deceased 's life time a common interest and a common possession.
The inci dents attaching to a Birbhum ghatwali tenure rule out the existence of any notion of community of interest and unity of possession of the members of the family with the holder for the time being.
He is entitled to be maintained in exclusive possession of the ghatwali lands and the devolu tion of the property is to him in the status of a sole heir.
This view finds support from the observations of Lord Fitz gerald in Kali Pershad vs Anand Roy(2), though made in respect of a zamindari ghatwali, yet also appositely ap plicable to a government ghatwali.
His Lordship observed as follows : "Where, however, the Mitakshara governs, each son imme diately on his birth takes a share equal to his father in the ancestral immoveable estate.
Having regard to the origin and nature of ghatwali tenures and their purposes and inci dents as established by decided cases, most of which have been referred to in the course of the argument, it is admit ted that such a tenure is in some particulars distinct from, and cannot be governed by, either the general objects of Hindu inheritance as above stated, or by the before quoted rule of the Mitakshara.
It is admitted that a ghatwali estate is impartable that is to say, not subject to partition; that the eldest son succeeds to the whole to the exclusion of his brothers.
These are propositions that seem to exclude the application of the Mitakshara rule that the sons on birth each take an equal estate with the father and are entitled to partition.
" Similar opinion was expressed in Chhalraclhari Singh vs Saraswati Kumari(3), by a Bench of the (1) (1861 3) 9 M.I.A. 543.
(3) Cal.
(2) Cal.
471. 162 Calcutta High Court.
The following passage from that a decision may be quoted with advantage : "The learned pleader for the appellant has however con tended before us ,that, although this ghatwali tenure is impartible, yet according to the decision of their Lordships of the Privy Council in Chintaman Singh vs Nowlukho Koon wari(1), it is not necessarily separate property, and that as their Lordships observe 'whether the general status of a Hindu family be joint or undivided, property which is joint will follow one and property which is separate will follow another course of succession. ' The decision referred to is no doubt an authority for the proposition that there may be impartible joint family property, such as a raj or other estate similar to a raj, but whether such property is to be regarded as joint or separate would appear to depend generally upon the character of the property at its incep tion, such as the nature of the grant, etc.
creating it.
Having regard however to the view we have already expressed as to the status of the family in the present case, and as to the ghatwali tenure having been the exclusive property of Ananta Narain, we think it is unnecessary to determine what was originally the character of this tenure, although, if we were called upon to decide the question, we should be disposed to say, with reference to the peculiar character of these tenures as described in Regulation XXIX of 1814, that they were intended to be the exclusive property of the ghatwalforthe time being, and not joint family property in the proper sense of the In Raja Durga Prashad Singh vs Tribeni Singh(2), again it was said as follows : "It was certainly an advantage to the whole family that one of their members should hold the office and the tenure.
He could put other members of the family into minor offices and grant them subordinate interests commonly called jotes, and he could and would generally provide for the family in the manner (1) (2) (1918) 45 I.A. 251. 163 expected of its head.
But this is a long way off making him a trustee for the family or treating the ghatwali estate as possessed by the family and reducing the ghatwali to the position of karta or managing head of the family.
Their Lordships do not find that the incidents of ghatwali tenure are such as to give the family any rights over the property while it is in the hands of the ghatwal, and they find themselves upon this point in full agreement with the courts in India.
" In Narayan Singh vs Niranjan Chakravarti(1), Lord Sumner made an exhaustive review of the decided cases and examined the whole position of ghatwali tenures generally and ob served that where the tenure is hereditary, a recognized right to be appointed ghatwal takes the place of a formal appointment and a recognized right in the superior to dis miss the ghatwal if he is no longer able and willing to render the service required by his tenure, and to appoint another to the office and the tenure of the lands, then readily suffices to maintain in perpetuity the incidents of the tenure.
In these circumstances it is not possible to hold that the Mitakshara rule that when a person inherits property from any one of his three immediate paternal ancestors, his sons, grandsons and great grandsons acquire an interest in it by birth can have any application to the case of these grants which are in the nature of a remuneration for the performance of certain services by the holder of that of fice.
A ghatwali has to be regarded as something connected with an office and as observed by Lord Sumner in the above mentioned case, the office cannot except by special custom, grant or other arrangement, either run with lands or be served from them.
In other words, just as primogeniture and impartibility are handmaids, similarly the ghatwal 's office and the ghatwali tenure are two inseparables and cannot be lodged in separate compartments.
If the office cannot be in the nature of coparcenary property, the tenure must follow the same way.
Thus it is not easy to conceive that an inter est (1) (1924) 51 I.A. 37.
164 can be acquired at the birth of a member of a joint family in a tenure which is annexed to an office, even if it has descended from three immediate paternal ancestors.
In certain eventualities the selection of the next heir depends on the choice of the ruling authority and in case of miscon duct or misbehaviour of the holder for the time being the ruling power can not only dismiss the ghatwal but even resume the tenure.
This is a feature which places this heritable property in a class by itself as distinguished from other inheritances governed by the Mitakshara law.
The view that in Birbhum, ghatwali tenures are in the nature of separate property or the exclusive property of the ghatwal finds support from the fact that in many instances, whenever succession has opened out in respect of them, it has been determined according to the Mitakshara rule ap plicable to the devolution of separate property irrespective of the circumstance whether the deceased died in joint or separate status with the other members of the family.
Thirteen instances of such practice in the past amongst members of the Bais Chaurasi clan were proved in the case, in all of which the widow succeeded in preference to a male heir.
The learned trial Judge held that in some of these instances the female succeeded because the agnate nearest in line was separate from her husband; as regards the others though he reached the conclusion that the evidence of sepa ration was weak, he thought that these did not establish a custom superseding in cases of joint family property the rule of survivorship.
The High Court was of a different opinion.
It rightly remarked that while numerous instances of female succession to the estates held by Baisi Chaurasi gaddidar 's had been proved, not a single instance of a female having been excluded from the appointment of a ghat wal on the ground of an agnate being entitled to come in as a coparcener of the last holder by survivorship had been proved, and that in these circumstances there was force in the contention that even if the tenures in question were ancestral joint family property, succession thereto was 165 governed by the Mitakshara rule applicable to separate property.
For the reasons given above we held that the Mitakshara rule that the property inherited by a person from his imme diate paternal ancestors becomes ancestral in his hands and in it his sons, grandsons and great grandsons acquire a right at the moment of the birth has no apposite application to Birbhum ghatwali tenures.
The learned counsel for the appellant in support of his contention placed reliance on a number of decisions of their Lordships of the Privy Council concerning impartible estates governed by the Mitakshara law, wherein it was held that the succession to an impartible estate which is the ancestral property of a joint Hindu family governed by the Mitakshara law is governed by the rule of survivorship subject to the custom of impartibility; the eldest member of the senior branch of the family succeeding in preference to the direct lineal senior descendants of the common ancestor, if the latter is more remote in degree.
Particular reference was made to the remarks of Turner L. I. in the Sivaganga case(1), and to the observations in Baijnath Prasad Singh vs Tej Bali Singh (2) and in the case of Shiba Prasad Singh vs Rani Prayag Kumari Debi(3).
Therein it was said that in the case of ordinary joint family property the members Of the family have (1) the right of partition, (2) the right to restrain alienations by the head, (3) the right of mainte nance, and (4) the right of survivorship.
The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate.
The second and third are incompatible with the custom of impart ibility.
To this extent the general law of the Mitakshara has been superseded by custom and the impartible estate, though ancestral, is clothed with the incidents of self acquired and separate property.
But the right of survivor ship is not inconsistent with the custom of impartibility.
This right (1) (1861 3) 9 M.I.A. 543.
(3) A.I.R. 1932 P.C. 216.
(2) All.
22 166 therefore still remains and to this extent the estate still retain.s its character of joint family property and its devolution is governed by the general Mitakshara law applicable to such property and that though the other rights which a coparcener acquires by birth in joint family proper ty no longer exist, the birthright of the senior member to take by survivorship still remains.
In our view, these observations have no application to the tenures in suit.
As already indicated, it is not possi ble to concede in their case that a member of a joint family governed by the Mitakshara law acquires any right by birth in them.
The general law of Mitakshara creating that right seems to have been superseded in their case not only by peculiarities inherent in the nature of these tenures but by encroachments of custom on it.
Moreover, it appears that the remarks relied upon were made in cases where the impartible estates were admittedly joint family property or the grants were of such a character that they are intended for the benefit of the family as such.
The ratio of these decisions was that even though certain incidents attaching to joint family property may cease to exist by custom, some others which are not affected by custom may survive.
This reasoning can have no application to property which at no stage what ever could be clothed or was clothed with any of the inci dents of coparcenary property.
The learned counsel for the appellant placed considera ble reliance on the observations of Sir Dawson Miller C.J. in Fulbati Kumari vs Maheshwari Prasad(1).
The learned Chief Justice therein dissented from the View urged before him that all ghatwali property is the exclusive separate property of the holder for the time being and that it de volves according to the rules affecting separate property subject again to the circumstance of impartibility.
He observed that the fact that a raj is impartible does not in a case governed by the Mitakshara law make it separate or self acquired property, that it may be self acquired (1) A. I. R. 1923 Pat.
167 property or it may be the property of a joint undivided family and that in the latter case succession will be regu lated according to the rule of survivorship.
In our opinion, these observations have no application to the case of Birb hum ghatwalis because in express terms these were excluded from consideration in that case.
In the judgment it was said : "In our opinion, the estate in the present case is in no way comparable to the Birbhum ghatwali tenures and Regula tion XXIX of 1814 does not apply to it." The decision in the case proceeded on the assumption that Birbhum ghatwalis stood apart from other ghatwalis which stood on the same footing as impartible estates gov erned by Mitakshara law.
The learned Attorney General challenged the correctness of these decisions and contended that the decisions of the Privy Council on this subject were not uniform.
He drew our attention to the observations made in Sartaj Kuari 's case(1), in the Second Pittapur case(2), and in Tipperah case(3).
There may be a seeming conflict between the view expressed in those decisions and the view expressed in Baijnath Prasad Singh vs Tej Bali Singh(4), and in Shiba Prasad Singh vs Rani Prayag Kurnari Debi(5).
It seems to us however that these latter cases have settled the law ap plicable to joint family impartible estates governed by Mitakshara law and it is rather late in the day to reopen a controversy settled by a series of decisions of the Privy Council.
The contention that on the death of the last holder a ghatwali tenure in Birbhum reverts to the grantor and that notionally there is a resumption of it in favour of govern ment and a re grant to the next heir does not impress us.
On the express terms of the regulation these tenures are heritable from generation to generation and the theory of resumption and re grant is inconsistent with their heritable character.
Inheritance can never remain in abeyance and on the (1) (4) All.
(2) (1918) 45 I.A. 148.
(5) A.I.R. 1932 P.C. 216.
(3) (1867 9) 12 M.I.A. 523.
168 death of the last holder the estate immediately vests in the next heir.
The circumstance that the government may in certain events have the power to dismiss a ghatwal or to forfeit the tenure cannot lead to the inference that it terminates and is re granted at every death.
The argument of the learned counsel for the appellant that a widow not being a descendant of the grantee under the terms of Regulation XXIX of 1814, is not entitled to inherit to Birbhum ghatwali tenures also does not impress us.
The regulation does not enact any rule of succession to these tenures, and the devolution with respect to them is admit tedly determined by personal law or custom.
The expression "descendants" used in the regulation cannot deprive females, like a widow or a mother, from taking the inheritance where they are legal heirs under Mitakshara law or under custom.
Females have invariably been allowed to succeed to these tenures in the past.
The appellant 's counsel conceded that if the property was the separate property of Kali Prasad Singh, the defendant was entitled to inherit to it.
We think that the expression "descendants" has been loosely employed in the regulation for the word "heirs".
On this point we are in agreement with the observations made by a Bench of the Calcutta High Court in Chhatradhari Singh vs Saraswyati Kumari(1).
It may further be pointed out that even if the conten tion of the learned counsel for the appellant is to be accepted, by no process could the trial court have passed a decree in favour of the plaintiff in respect of items 4, 5 and 6 of the schedule Admittedly these were acquired by Krishna Prasad Singh, father of Kali Prasad Singh by a decree of court passed in his favour against his collateral Katku Singh who also claimed these properties as an heir to the last male owner Banwari Singh (vide Exhibit 4).
These pro perties having devolved upon Krishna Prasad Singh by obstructed heritage, were in the nature of separate property in his hands and could not fall within the (1) Cal.
156. 169 definition of ancestral property given in Mitakshara.
Sarju Prasad Singh, uncle of Krishna Prasad Singh, could acquire no right or roterest in these properties by birth enabling him to claim them by survivorship.
Kali Prasad Singh who inherited them on the death of his father got them as his separate property as he had no son who could acquire any interest in them by birth.
With regard to this property the widow was certainly an heir after the death of her husband ' and plaintiff could have no claim whatsoever in respect of these items of the schedule.
This aspect of the case seems to have been lost sight of in the two courts below.
The result, therefore, is that this appeal fails and is dismissed with costs.
FAZL ALI J.
While agreeing generally with my learned brother Mahajan J., I wish to say a few words to indicate the main ground on which I would dismiss this appeal.
There are a number of authoritative decisions dealing with the special features of ghatwali property, one of which is said to be that if the ghatwal is a member of a joint family, the family has no right over the property while it is in his hands.
[See Durga Prashad Singh vs Tribeni Singh(1)].
The logical corollary from this characteristic of ghatwali property would seem to be that it is more in the nature of exclusive property of the ghatwal than of joint family property.
Nevertheless, in some cases, succession to such property has been determined with reference to the rules of Hindu law regarding joint property, where the ghatwal was found to be a member of the joint family.
As at present advised I am not prepared to say that those cases were wrongly decided, but I think it will not be incorrect to say that custom and usage are also important factors governing succession to ghatwali property, and it is con ceivable that while in some cases custom may develop on the lines of Hindu law relating to succession owing to repeated instances of (1) (1918) 45 I.A. 251. 170 tacit and unquestioned application of the law, in other i.a cases succession to ghatwali property may be governed not entirely by Hindu law but by such law as modified in certain respects by usage and custom.
The question with which we are concerned in this case is whether the widow of a deceased ghatwal, who was a member of a joint family and died leaving no issue or direct male descendants, can succeed to the ghatWali property in prefer ence to the nearest male agnate.
On a reference to the plaint, it would appear that what the plaintiff contended was that the clan to which the parties belong was governed by the Mitakshara school of Hindu law "subject to their clan custom", one of which was said to be that females, viz., widow, daughter or mother, and persons claiming through females could not and did not succeed on the death of the ghatwal.
This allegation was controverted in the written statement, and it was claimed that the family was governed by the Mitakshara system of law and "there was no clan custom governing the estate in suit.
" Upon these pleadings, one of the issues framed by the trial court was "whether succession to the ghatwali is governed by custom, as alleged in paragraph 7 of the plaint." In the course of the trial, the plaintiff tried to prove that females were always excluded as alleged by him.
In this, he did not succeed.
The courts below however found that the question which directly affected the present case was a much narrower one, namely, whether females could succeed even when the family was joint.
So far as this question is con cerned, both the courts below are agreed that females cannot be excluded if the property is the separate property of the ghatwal.
But the question which still remains to be decided is what the true legal position would be if the property is deemed to be joint property.
It appears that evidence was adduced at the trial to show that in 13 instances affecting the Baisi Chaurasi clan to whom the Birbhum ghatwals admit tedly belong, the widow of the last ghatwal succeeded in preference to a male agnate.
171 The trial judge however found that in four of these in stances the nearest agnate who claimed the property was separate from the ghatwal or his widow, but, in the other instances, there was no evidence of separation, or "the evidence was weak", which, I take it, is another way of saying that it could not be safely relied on.
It seems to me that these instances lend some support to the view that Hindu law has been modified ' by custom, so far as the Birb hum ghatwalis are concerned, and that among the ghatwals belonging to this class, where the last ghatwal dies leaving a widow but no issue, then she succeeds in preference to the nearest male agnate, even though the family may be joint.
The Birbhum ghatwals form a class by themselves, and they are also subject to a special Regulation Regulation XXIX of 1814.
That Regulation states among other things that this class of ghatwals shall be entitled to hold the ghatwali property generation after generation and that they and their descendants in perpetuity shall be maintained in possession of such property.
Strictly speaking, neither a widow nor a distant agnate will come within the terms of the Regulation, not being a descendant of the last ghatwal, and therefore custom and usage cannot be ruled out in determining succes sion in such cases.
The strongest case which was relied upon by the appellant is Fulbati Kumari vs Maheshwari Pra sad(1) where it was laid down that on the death of a ghat wal, who was a member of a joint family, the ghatwali property would devolve according to the rules of Hindu law affecting joint property, that iS to say, by the rule of survivorship.
But, in this case, Dawson Miller C.J. who delivered the judgment, took care to observe that the ghat wali estate which was the subject of litigation was not comparable to the Birbhum ghatwali 'tenures, which means that the rule laid down in that case may not apply to Birb hum ghatwals.
In the present case, the Commissioner, who represented the Government and who had special means of knowing the usages affecting the Birbhurn ghatwals.
(1) A.I.R. 1923 Pat.
453. 172 appointed the respondent as the ghatwal, stating that he was "following a well established precedent in the case of these ghatwals by recognizing the widow in the absence of a direct heir.
" In my opinion, whatever evidence there is in this case supports the Commissioner 's view, and there is hardly any cogent evidence to rebut it.
In the circumstances, I agree that this appeal ought to be dis missed with costs.
Appeal dismissed.
ADAMJI UMAR DALAL vs THE STATE OF BOMBAY @ November 26, 1951.
| Held by the Full Court Amongst the Birbhum ghatwals, when the holder of a ghatwali dies leaving a widow but no direct lineal descendants, the widow succeeds in prefer ence to the nearest male agnate, even though the family may be a joint family.
Per MAHAJAN and Bose JJ.
The Mitakshara rule that the property inherited by a person from his immediate paternal ancestors becomes ancestral in his hands, and his sons, grandsons and great grandsons acquire a right in it at the moment of their birth has no application to Birbhum ghatwali tenures.
The word "descendants" is used in Regulation XXIX of 1814 loosely in the sense of "heirs" and does not mean lineal descendants.
FAZL ALI J. Custom and usage are important factors governing succession to ghatwali property, and while in some cases custom may develop on the lines of Hind law relating to succession 0wing to repeated instances of tacit and unquestioned application of the law, in other cases succes sion to ghatwali property may be governed not entirely by Hindu law but by such law as modified in certain respects by usage and custom.
Fulbati Kumari vs Maheswari Prasad (A.I.R. 1923 Pat.
453) distinguished.
|
ases Nos.
300 to 304 of 1951.
Appeals under article 132(1) of the Constitution of India from a. judgment dated 2nd August, 1951, of the High Court of Judicature at Orissa (Ray C.J. and Narasimham J.) in Miscellaneous Judicial Cases Nos. 126, 127, 128, 129 and 130 of 1951.
M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the appellant in all the appeals.
N.C. Chatterjee (H.J. Umrigar and A.N. Roy, with him) for the respondent in Case No. 300 of 1951.
Roshan Lal for the respondents in Cases Nos. 301 and 304.
N.C. Chatterjee (A. N. Roy, with him) for the respondent in Case No. 302 of 1951.
N.C. Chatterjee (A. N. Roy and A.N. Sinha, with him) for the respondent in Case No. 303 of 1951.
October 25.
the Judgment of the Court was delivered by KANIA C.J.
These are five companion appeals from the judgment of the High Court at Orissa, delivered on five petitions filed by the respondent in each of the appeals, to obtain from the Court a writ of mandamus and/or directions under article 226 of 'the Constitution of India.
Each of the respondents alleged that between 1941 and 1947 he had agreed to take from the Ruler of Keonjhar a mining lease and had entered into possession of the area.
Some of the petitioners alleged that they had spent money on the development of the mines and installed machinery to work the same.
It is however common ground that there was no registered lease in favour of any of the respondents before 1947.
On the 14th December, 1947, the Ruler of Keonjhar entered into a merger agreement with the Dominion of India and as from the 1st January, 1948, the State was merged in the Dominion of India.
After signing the merger agreement the Ruler gave registered 30 leases on the 27th December, 1947, to the respondents in these appeals.
In pursuance of the exercise of the powers conferred on the Government of Orissa by section 4 of the Extra Provincial Jurisdiction Act, 1949, read with Notifica tion No. 172/1B dated 23rd March, 1948, of the Government of India, the Government of Orissa issued a notification dated the 8th of June, 1949, declaring, inter alia, the said leases to be void and not binding on it.
This annulment was made expressly on the ground that these commitments were not reasonable and bona fide.
Thereafter, the respondents, along with others approached the Orissa Government to give them leases and the State Government gave them temporary permits to work the mines in November, 1949.
On the 3rd July, 1951, however they passed an order cancelling the temporary per mits and directed the respondents to remove their assets appertaining to the respective mines within a fortnight.
The respondents thereupon filed the petitions before the Orissa High Court praying for writs or directions in the nature of mandamus against the State of Orissa directing them to withdraw the notices dated the 8th of June and 3rd of July, 1951, and to forbear from acting upon or giving effect to the same.
The Court, after noticing the rival contentions of the parties and rejecting the contention that the State of Orissa had cancelled the permits and were attempting to take possession as an act of State, posed the question "whether the law of annulment relied upon by the State was applicable to the mining leases granted to the petitioners, or in the alternative, whether the State had any right in law to cancel the leases before the period mentioned therein.
" Referring to the contention of the State rounded on the acceptance by the respondents of the temporary permits and the estoppel arising therefrom, Ray C.J. in his judgment stated as follows : "In determining the validity of this contention (relating to the temporary permit and estoppel arising therefrom) the circumstances under which these applications were made and the legal implications of such applications and the permissions granted under 31 them will have to be considered.
It is remote from our intention to express any opinion in this summary proceeding as to the respective merits of the rival contentions.
I am however satisfied that in the context of events and in the logic of circumstances attending thereto there is a case to be tried.
" He next considered the scope of the writ of mandamus and came to the conclusion that "at the moment" the respondents had no alternative legal remedy, equally conven ient, beneficial and effectual because the respondents could not file a suit till after the expiry of the period of sixty days required for the purpose under section 80 of the Civil Procedure Code and he thought that unless protected by the Court in the meanwhile the respondents would undergo irrepa rable and irremediable loss of possession of the mining leases involving a huge waste of labour, machinery and other resources of equipments of immense value hardly capable of being remedied by payments of money as compensation.
The Bench therefore passed an order dated 2nd August, 1951, as follows : "We direct that till three months from today or one week after the institution of their (respondents ') contemplated suit, whichever is earlier, the Government of the State of Orissa should refrain from disturbing the petitioners ' possession over the mining areas in question and that thereafter this order will cease to have effect.
" They gave further directions as to how the mines were to be worked during the aforesaid period.
Towards the end of the judgment it was stated, "In the result, the petitions are allowed in part to the limited extent indicated above." Narasimham J. agreed with the order set out in the judgment of the Chief Justice although his judgment shows the concur rence to be very halting.
He stated that although he was reluctant to exercise the powers under article 226 because the present respondents could file a suit, yet as in view of section 80 of the Civil Procedure Code there would be an unavoidable delay resulting in irreparable loss to the respondents he agreed that the order should be passed as mentioned in the judgment of the Chief Justice, 32 Towards the end of his judgment he stated as follows: "It should however be clearly emphasized that the observations contained in this judgment should not be taken as pre judg ing any question which may.arise for the consideration of the Civil Court in the event of the petitioners filing a regular suit and seeking interim relief from that Court by way of temporary injunction, appointment of receiver or otherwise.
If such an application is made, the questions as to whether the petitioners have a prima facie case for trial or whether such a suit is maintainable or whether the bal ance of convenience requires that they should be permitted to remain in possession of the leasehold property till the termination of the suit and other allied matters should all be dealt with by the Court concerned without being influ enced in any way by the observations contained in this judgment.
Those observations have been made for the limited purpose of granting temporary relief under article 226 and are not intended to embarrass either party or the Court in future litigation.
" It appears that thereafter an application was made to stay the operation of this order to enable the Government of Orissa to appeal against the order of the 2nd of August.
The same Judges on the 6th of August stayed the operation of the order for fifteen days and observed as follows : "The effect of the order (of 2nd August, 1951) is that except giving them (respondents in these appeals) some interim measure of relief for the period during which the petition ers were without remedy, we were not inclined to accept the petition and issue a writ in the nature of mandamus, as prayed for.
" The State of Orissa has come on appeal to us and after hearing the arguments on both sides we came to the conclusion that the order of the High Court could not be sustained.
We accordingly passed the following order on the 15th of October: "These five appeals are allowed and the order of the High Court is set aside in each case.
As the High Court has passed no other orders on the petitions.
and indeed has stated that the Court was not prepared to 33 pass any ,other orders on the petitions, the petitions stand dismissed.
The respondents will pay the costs of the ap peals.
We shall give our reasons later on.
" Our reasons are these: Article ,226 of the Constitution of India runs as fol lows: 226.
(1)"Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article The language of the Article shows that the issuing of writs or directions by the Court is not rounded only on its decision that a right of the aggrieved party under Part II1 of the Constitution (Fundamental Rights) has been in fringed.
It can also issue writs or give similar directions for any other purpose.
The concluding words of article 226 have to be read in the context of what precedes the same.
Therefore the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Arti cle.
The judgment of the Orissa High Court under appeal, however, shows that the Judges have decided nothing at all in respect of the rights of the parties.
Indeed they have expressly stated that their observations should not in any way be considered as deciding any of the rights or conten tions of the parties raised in the petitions.
The whole judgment shows that because of the requirement of section 80 of the Civil Procedure Code the present respondents could not file a suit against the Government for at least sixty days, the 5 34 respondent 's position should not in the interval be dis turbed and accordingly the Court gave the directions in its order of the 2nd of August, 1951.
If there was any doubt about the nature of the relief desired to be granted by the order of 2nd August the same Judges have made it per fectly clear by their order of the 6th of August, wherein they have stated that except for these directions they were not prepared to make any other order on the petitions.
The result therefore is that while the Judges declined to inves tigate and pronounce on the rights of the parties and ex pressly kept the determination thereof in abeyance in the suit proposed to be filed by the present respondents, they gave directions for interim relief till such suit was filed.
It must be noted that with the passing of the order of the 2nd August, 1951, containing directions in the nature of interim relief the petitions were completely disposed of and have not been kept pending for disposal.
Those directions embody therefore the final order passed by the Court on these petitions.
A preliminary objection was raised about the maintainability of the appeals on the ground that no final orders were passed on the petitions.
That objection must fail in view of the fact that with these orders the petitions were disposed of finally and nothing further remained to be done in respect of the petitions.
The fact that the operation of the order is limited to three months or a week after the filing of the intended suit does not prevent the order from being final.
On behalf of the appellant it was urged that the Court had no jurisdiction to pass such orders under article 226 under the circumstances of the case.
This is not a case where the Court before finally disposing of a petition under article 226 gave directions in the nature of interim relief for the purpose of maintaining the status quo.
, The question which we have to determine is whether directions in the nature of interim relief only could be granted under article 226, when the Court expressly stated that it refrained from determining the rights of the parties on which a writ 35 of mandamus or directions of a like nature could be issued.
In our opinion, article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do.
The directions have been given here only to circumvent the provisions of section 80 of the Civil Procedure Code, and in our opinion that is not within the scope of article 226.
An interim relief can be granted only in aid of and as ancil lary to the main relief which may be available to the party on final determination of his rights in a suit or proceed ing.
If the Court was of opinion that there ' was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners suc ceeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante.
But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, issue directions in the nature of temporary injunctions, under article 226 of the Constitution.
In our opinion, the language of article 226 does not permit such an action.
On that short ground the judgment of the Orissa High Court under appeal cannot be upheld.
Appeals allowed.
Agent for the appellant in all the appeals: P.A. Mehta.
Agent for the respondent in Case No. 300 : S.P. Varma.
Agent for the respondent in Cases Nos. 301 and 304: Ganpat Rai.
Agent for the respondent in Cases Nos. 302 and 303: P.K. Chatterjee.
| The High Court cannot make a direction under article 226 of the Constitution for the purpose of granting interim relief only pending the institution of a suit merely because the suit could not be instituted until after the expiry of 60 days from the date of a notice under Sec. 80 of the Civil Procedure Code and in the meanwhile, unless protected by the Court the applicant may suffer irreparable loss.
Even though writs can be issued under article 226 for purposes other than the enforcement of fundamental rights, the concluding words of the article have to be read in the context of what precedes the same, and the existence of a right is the foundation of the exercise of jurisdiction of the Court under this article.
An interim relief can be granted only in aid of, and as ancillary to, the main relief which may be available to the party on final determination of his rights in a suit or proceeding.
|
ivil Appeal No. 115 of 1950.
Appeal from the Judgment and Decree of the Bombay High Court (Macklin and Rajadhyaksha JJ.) dated 14th March.
1945, in First Appeal No. 274 of 1941 which arose out of a decree dated 15th March, 209 1941, of the First Class Subordinate Judge of Satara in Civil Suit No. 890 of 1938.
G.R. Madbhavi (K. R. Bergeri, with him) for their appellant.
H.J. Umrigar for respondent No. 1.
M.C. Setalvad, Attorney General for India (K. G.Datar, with him) for respondent No. 2. 1951.
December 17.
The Judgment of the Court was deliv ered by MUKHERJEA J.
This appeal is directed against a judgment and decree of a Division Bench of the Bombay High Court dated the 14th of March, 1945, which affirmed, on appeal, the decision of the First Class Subordinate Judge, Satara, passed in Civil Suit No 890 of 1938.
The appellants before us filed the suit as plaintiffs in the original court, for establishment of their title to the property in dispute which is known as Chikurde Estate, on the allegation that they were, under the Hindu Law, the nearest heirs of one Bhimabai, who was admittedly the last holder of the estate.
The suit was brought initially against one defendant, name ly, the Court of Wards, Satara, and admittedly the Court of Wards took possession of the property of Bhimabai, while she was alive, and is continuing in possession of the same even now after her death.
Later on, defendants 2, 3 and 4, who put forward rival claims of succession to the estate, were allowed to intervene in the suit and were added as parties defendants.
The Court of Wards, which now figures as defend ant No. 1, took up, all through, a neutral attitude and expressed its willingness to hand over the estate to any person who would be declared to be rightfully entitled to it by the Court.
The Courts below have negatived the claims of defendants 2 and 3 and they have not come up to press.
their claims in the appeal before us.
The two rival claim ants, who are now on the scene, are the plaintiffs on one side and defendant No. 4 on the other, and the whole contro versy in this appeal centres round the 210 point as to who amongst them have the preferential right to succeed to the disputed estate after the death of Bhimabai.
To appreciate the material facts of the case and the conten tions that have been raised by the parties, it will be convenient to refer to the following genealogy which is not disputed by either side.
Vithalrao (died 1896) Ganpatrao (died 1914) Nilkanthrao Anandrao Tangawa alias (died 1899) (died 1913) Anandibai (Deft. 2) Krishnabai Adopted Deft.
3 Vithalrao (Deft. 4) Babasaheb on adopted by 3 2 1939.
Krishnabai on 4 11 1924 Respdt.
Firangojirao (died Tanakka (predeceas angabai (died 15 11 1919.) ed her sister Gangabai on 14 2 1924) without any issue).
Nathgauda Annagauda Balgauda (Plff. 2) Bhimabai (daughter) (Plff. No. 1) Appellant No. 2. (died on 27 1 1932).
Appellant No. 1 It is the case of both the parties that Vithalrao, whose name appears at the top of the pedigree table, and who was the common ancestor of the parties, held the disputed property as watan property appertaining to the hereditary office of Deshmukhi service.
Vithalrao was the recipient of a Sanad dated 28th November, 1892, under what was called the Gordon Settlement, the object of which was to commute serv ices of certain watandars in that part of the country and relieve them from liability to perform the services attached to their office on certain terms and conditions which were agreed upon between the Government on the one hand and the watandars on the other.
The terms of the settlement were generally embodied in Sanads and one such Sanad was granted to Vithalrao in 1892.
It is not disputed that after this settlement Vithalrao continued to be watandar as defined by Bombay Act III of 1874, and that the watan in dispute was an impartible estate governed by the rule of 211 primogeniture.
In 1896 Vithalrao died and he was succeeded by his eldest son Ganpatrao under the law of primogeniture.
Ganpatrao died childless in 1914, leaving behind him his two widows Anandibai and indirabai, of whom the senior widow Anandibais defendant No. 2 in the present suit.
Both the two brothers of Ganpatrao, namely, Nilkanthrao and Anan drao had predeceased him.
Nilkanthrao left behind him one son named Firangojirao and two daughters, while Anandrao died childless, leaving him surviving his widow Krishnabai, who later on adopted Vithalrao, who is defendant No. 4 in the suit.
Ganpatrao had left a will bequeathing all his watan and nonwatan properties to Firangojirao and the latter succeeded to the estate both under the will as well as under the law of lineal promogeniture, he being the only male member of the family at that time.
Firangojirao died in 1919, leaving Bhimabai, his only daughter, who was a minor at that time.
On 23rd September, 1921, the name of Bhimabai was entered in the village records as watandar in place of Firangojirao and in the year following the Court of Wards, Satara, assumed superintendence of Bhimabai 's estate.
On 11th October, 1923, the Government of Bombay by their Reso lution No. A 471 declared the Chikurde Deshmukh watan as lapsed to Government, presumably on the ground that there was no male heir in the watan family after the death of Firangojirao.
A new entry was then made in the village register which recorded Bhimabai not as watandar, but as heir of Firangojirao and the lands were described as being converted into ryotvari lands after forfeiture by Govern ment and subjected to full assessment.
On 4th of November, 1924, Krishnabai, the widow of Anandrao, adopted defendant No. 4 as a son to her husband.
On 27th January, 1932, Bhima bai died unmarried and her estate continued under the man agement of the Court of Wards.
The appellants before us, who are the sister 's sons of Firangojirao, brought this suit on 5th of August, 1938, and their case, in substance, is that after the Resolution of the Government passed on 11th 212 of October, 1923, the Chikurde estate ceased to be a watan property and the succession to such estate was governed by the ordinary rules of Hindu Law and not by the provisions of Act V of 1886 which postpone relations claiming through a female to a male member of the watan family.
It was urged that the property being the absolute property of Bhimabai and she having died while still a maiden, the plaintiffs, being the nearest heirs of her father, were entitled to succeed under the general rules of Hindu Law.
As said al ready, the defendant No. 4, who is respondent No. 2 in this appeal, was added as a party defendant sometime after the suit was filed and the contention raised on his behalf was that by reason of his having been duly adopted.
to Anandrao on 4th of November, 1924, he was the nearest heir to the property in suit which was a watan property and prayed that a declaration in his favour might be made by the court.
The defendant No. 3 claimed to have been adopted as a son to her husband Ganpatrao by Anandibai, the defendant No. 2, some time in February 1939.
The trial court on a consideration of the evidence came to the conclusion that the Chikurde estate was an impartible property governed by the rules of primogeniture.
It was held that, it being an impartible joint estate, the rule of survivorship still applied and consequently on the death of Ganpatrao, without leaving any son, the estate passed by survivorship to the next senior branch which was that of Firangojirao.
The view taken by the Subordinate Judge is that after Firangojirao 's death Bhimabai took only a provi sional interest in the property which was liable to be divested by the emergence of a male member by adoption in the family and in fact she was legally divested of her interest in the property when defendant No. 4 was adopted by Anandrao 's widow.
In the opinion of the Subordinate Judge the resolution of the Government treating the Chikurde estate as lapsed was premature and could not be made legally so long as there were widows living, who were capable of adopting sonS.
The trial judge held further that even 213 if Bhimabai was taken to have held the property as watan till her death, the next heir to succeed under the Bombay Act V of 1886 would be defendant No. 4 and not the plain tiffs.
The result was that the plaintiffs ' suit was dismissed.
The plaintiffs then took an appeal to the High Court of Bombay and this appeal was heard by a Division Bench consisting of Macklin in and Rajadhyaksha JJ.
The learned Judges dismissed the appeal and confirmed the deci sion of the trial court, though the reasons given by them are not the same as those given by the trial judge.
It was held by the High Court, on a construction of the Sanad granted to Vithalrao in 1892, that the order of lapse or forfeiture of the watan estate passed by the Government in the year 1923 on the ground of failure of male heirs was not a valid and legal order and although under the relevant clause of the Sanad the Government could, in the absence of male heirs, resume the watan in the sense that they could make the property liable to full assessment, the other incidents of the watan estate still continued.
Consequently, Act V of 1886 would still govern succession to such property and defendant No. 4 had preferential rights over the plain tiffs under section 2 of that Act.
It is against this decision that the plaintiffs have come up on appeal to this court.
The learned Counsel appearing on behalf of the plain tiffs appellants has raised a two fold contention in support of the appeal.
It has been contended in the first place that the High Court was in error in holding that the Chikurde estate retained its watan character even after it was re sumed by the Government by its Resolution of 11th October, 1923; and if it was non watan, the plaintiffs would be nearer heirs to Bhimabai than defendant No. 4.
The other contention raised is that even if the property remained watan in the hands of Bhimabai, the latter would have to be regarded as a watandar in the true sense of the word and would be a fresh stock of descent.
In that view the plain tiffs would come within the family of 28 214 watandar as defined in Bombay Act V of 1886, whereas the defendant No. 4 would be outside the family.
The points undoubtedly are interesting, but having regard to the view which we have decided to take, it would not be necessary to investigate the merits of either of them.
It may be pointed out that the learned Judges of the High Court proceeded throughout on the assumption that the plaintiffs would have preferential rights of succession if the property was regarded as non watan in the hands of Bhimabai.
It is only if the property was watan that the Bombay Act of 1886 will apply and the plaintiffs, who were descended through females, would be postponed to defendant No. 4 who by adop tion became a male member of the family.
Mr. Setalvad, appearing for defendant No. 4 who is respondent No. 2 in this appeal, contended before us that this assumption is wrong, and that even if the property was regarded as nonwa tan property and belonging absolutely to Bhimabai as her stridhan, still as heir of Bhimabai 's absolute property the defendant No. 4 would have higher rights than the plain tiffs.
As this point was not touched upon in the judgments of either of the courts below, we heard the learned Counsel on both sides at great length upon it and the conclusion that we have reached is that the contention of the learned AttorneyGeneral is well founded and must prevail.
For the purpose of this argument we would assume that the property in suit was non watan stridhan property of Bhimabai and the only question is, as to who amongst the rival claimants would be the nearer heir after her death according to the Hindu Law of inheritance ? It is admitted that Bhimabai died while she was a maiden and that a maid en 's property under the Hindu Law goes in the first place to her uterine brothers, in default of them to the mother and then to the father.
This is according to the text of Baudhayana (1)which is accepted by all the commenta tors.
Viramitrodaya adds to this that "on failure of mother and father it goes to their (1) See Mitakshara, Chap.
II, sec.
XI, para 30.
215 nearest relations"(1).
It has been held in a large number of cases that the expression "nearest relations of the parents" means and refers to the sapindas of then, father and in their default the sapindas of the mother both in order of propinquity(2).
In the case c before us, both the plain tiffs and defendant No. 4 are sapindas of Firangojirao, the plaintiffs being the sister 's sons of Firangojirao, while the latter is his paternal uncle 's son.
It is not dis puted that apart from the changes introduced by the Hindu Law of Inheritance (Amendment) Act, (Act II of 1929), the place of the paternal uncle 's son in the line of heirs under the Mitakshara Law of Succession is much higher than that of the sister 's son and the Mayukha Law, which prevails in the State of Bombay, does not make any difference in this re spect.
Under the Mitakshara Law, the paternal uncle comes just after the paternal grandfather and his son follows him immediately.
By Act II of 1929, however, four other rela tions have been introduced between the grandfather and the paternal uncle and they are the son 's daughter, daughter 's daughter, sister and sister 's son, and the paternal uncle and his son are thus postponed to these four relations by the Hindu Law of Inheritance Act of 1929.
The question is, whether the provisions of this Act can at all be invoked to determine the heirs of a Hindu female in respect of her stridhan property.
The object of the Act as stated in the preamble is to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate; and section 1 (2) expressly lays down that "the Act applies only to persons who but for the passing of this Act would have been subject to the Law of Mitakshara in respect of the provisions herein enacted, and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will".
Thus the scope of the Act is limited.
It governs succession only to the separate property of a Hindu male who dies intestate.
It does (1) See Viramitrodaya, Chap.
V, Part II, Sec. 9.
(2) See Mayne 's Hindu Law, 11th edition, article 621, page 741.
216 not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all.
It is to be noted that the Act does not make these four relations statutory heirs under the Mitakshara Law under all circumstances and for all purposes;it makes them heirs only when the propositus is a male and the property in respect to which it is sought to be applied is his separate property.
Whether this distinction between male and female propositus is at all reasonable is another matter, but the language of the Act makes this distinction expressly and so long as the language is clear and unambiguous, no other consideration is at all relevant.
This is the view which has been taken, and in our opinion quite rightly, in a number of cases of the Madras, Patna and Nagput High Courts(1).
We are not unmindful of the fact that a contrary view has been expressed in certain decisions of the Bombay, Lahore and Allahabad High Courts (2).
The line of reasoning that is adopted in most of the decisions where the contrary view is taken can be thus stated in the language of Mr. Justice Somjee (3):__ "The Act is not sought to be applied to determine the succession to the stridhan of a Hindu maiden but is sought to be used by the petitioner to ascertain the fourth class of heirs to the stridhan of a Hindu maiden mentioned at page 139 of Mulla 's Hindu Law.
The heirs of the father at the time of her death have to be ascertained in accordance with the Hindu Law as it existed at the time of the death of Bai Champubai.
Thus the Act comes into operation for ascer taining the order in which the heirs of her father would be entitled to succeed to his estate, because the heirs of the father (1) Vide Manda Mahalakshmamma vs Mantravadi (I.L.R. ; Shakuntalabai vs Court of Wards (I.L.R. 1942 Nag. 629); Talukraj Kuer vs Bacha Kuer (I.L.R. 26 Pat.
150); Kuppuswami v Manickasari (A.I.R. (2) Shamrao vs Raghunandan (I.L.R. ; Mst.
Charjo vs Dinanath (A.I.R. ; Kehar Singh vs Attar Singh (A.I.R. 1944 Lah.
442); Indra Pal vs Humangi Debi (I.L.R. 1949 All. 816).
(3) Vide Shamrao vs Raghunandan (I.L.R. at 230).
217 in the order of propinquity who would be entitled to succeed to him if he died on August 3, 1937, would be the heirs of Bai Champubai in the absence of the uterine brother, the mother and the father.
" It is true that we have got to ascertain who the heirs of the father are at the date when the daughter dies, but the enquiry is for the purpose of finding out who the suc cessor to the estate of the daughter is.
This being the subject of the enquiry, the operation of Act II of 1029 is excluded by its express terms and for that purpose the Act is to be treated as non existent.
In other words, the stridhan heirs are to be ascertained with reference to the general provisions of the Hindu Law of Inheritance ignoring the statutory heirs who have been introduced by the Act.
The fallacy in the line of approach adopted in these cases seems to be that they treat the Inheritance Act of 1929 as amending or altering the Mitakshara Law of succession in all cases and for all purposes, whereas the Act has absolutely no operation when succession to the separate property of a male is not the subject matter of investigation.
The result is that in our opinion the plaintiffs are not the nearest heirs of Bhimabai even assuming that the property was non watan and belonged to her absolutely.
The appeal will thus stand dismissed.
We make no order as to costs in this appeal except that defendant No. 1, the Court of Wards, would have its costs as between attorney and client out of the estate.
The order for costs made by the courts below will stand.
Appeal dismissed.
Agent for respondent No. 1: P.A. Mehta.
Agent for respondent No. 2: K.J Kale.
| The Hindu Law of Inheritance (Amendment) Act (Act II of 1929) which introduced the son 's daughter, daughter 's daugh ter, sister and sister 's son between the grandfather and the paternal uncle in the order of succession applies only to the separate property of a Hindu male who dies intestate.
It does not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all.
The Act cannot therefore be invoked to determine the heirs of a Hindu female in respect of her stridhan property.
The property of a Hindu female who dies as a maiden goes in the first place to her uterine brothers, then to the mother and then to the father, and on failure of the mother and father, it goes to the nearest relations, that is to say, to the sapindas of the father and in their default the sapindas of the mother, both in the order of propinquity.
Under the Mitakshara law of succession as well as the Mayukha law the paternal uncle 's son is entitled to succeed to the property of a Hindu in preference to sister 's sons.
Manda Mahalakshmamma vs Mantravadi (I.L.R. 1947 Mad. 23), Shakuntala Bai vs Court of Wards (I.L.R. 1942 Nag.
629), Taluhraj Kuar vs Bacha Kuar (I.L.R. 28 Pat.
150), Kuppuswami vs Manickasari (A.I.R. approved.
Shamrao vs Raghunandan (I.L.R. , Mst.
Charjo vs Dinanath (A.I.R. , Kehar Singh vs Attar Singh (A.I.R. , Indra Pal vs Humangi Debi (I.L.R. 1949 All.
816) not approved.
|
N: Criminal Appeal No. 38 of 1950.
Appeal from the judgment and order of the High Court of Patiala (Teja Singh C.J., and Gurnam Singh J.) dated 5th October, 1950, in Criminal Appeal No. 28 of 1950, affirming the conviction and sentence of the appellant by the Sessions Judge of Sangrur.
Gopal Singh and Kartar Singh, for the appellant.
Narinder Singh, Advocate General for the Patiala and East Punjab States Union (Jindra Lal, with him) for the respond ent.
Jai Gopal Sethi (R. L. Kohli, with him) for the Cavea tor. 1951.
December 19.
The Judgment of the Court was deliv ered by FAZL ALl J.
This is an appeal against the judgment of the High Court at Patiala upholding the conviction and sentence of the appellant, who was tried by the Sessions Judge of Sangrut for the offence of murder and sentenced to death.
373 The prosecution story is a somewhat long and complicated one, but ignoring unnecessary details, the material facts may be shortly stated as follows : On the 5th October, 1949, there was a quarrel between the appellant and one Darbara Singh, in the course of which the appellant attacked the latter with a phawra (a cutting instrument).
About that time, Gurmail Singh, the deceased person, returned to his house, which was close to the house of Darbara Singh, from his cotton field, where he had been working, in order to take tea for his companions who were still working in his field.
The appellant asked Gutmail Singh to lend him a spear to enable him to kill Darbara Singh, but since the latter refused to do so, there ensued a quarrel between him and the appellant, in the course of which they exchanged abuses and grappled with each other, and the fight was stopped only by the intervention of cer tain persons present at the place.
It appears that the appellant was greatly affected by this quarrel, and thereaf ter he is said to have armed himself with a rifle and at tacked 3 persons in the vicinity of Gurmail Singh 's cotton field.
He fired firstly at Kartar Singh, son of Satwan Singh, while the latter was returning to his house from the field of Gutmail Singh, but he was not hurt.
Soon after that, while Gurmail Singh was returning to his field after attending to his buffaloes in a garden which was nearby, the appellant chased him and fired at him thereby causing his instantaneous death.
Lastly, he is said to have fired at Kartar Singh, son of Bishan Singh and one Jangir Singh, while they were raising an alarm, but the bullet missed them.
Upon these allegations, the following three charges were framed against him : "(1) That you. fired a shot at Gurmail Singh deceased with rifle P.I. with the intention of killing him and caused his death and thereby committed an offence pun ishable under section 302. (2) That you. fired a shot at Kartar Singh and Jangir Singh with rifle P.I. with the intention of causing death and made an attempt to cause their death 374 section 307. . (3) That you. . fired a gun shot at Kartar Singh s/o Satwan Singh. with the intention of killing him and made an attempt to cause his death and thereby committed an offence punishable under section 307. " It appears that the appellant was an Instructor in the Home Guards.
and the rifle which he is said to have used had been given to him by his superior officer with 20 rounds of ammunition.
To support their version of the occurrence, the prosecu tion examined 3 eye witnesses whose evidence has been ac cepted by both the courts below after careful scrutiny.
The learned Sessions Judge acquitted the appellant of the second and third charges under section 307 of the Indian Penal Code, holding that there was no convincing evidence that the appellant intended to murder Jangit Singh and the other 2 persons.
He however convicted him of the first charge under section 302 of the Indian Penal Code and sentenced him to death, which sentence was later confirmed by the High Court.
The learned counsel for the appellant had very little to argue on the merits of the case, but he seriously contended that there had been a misjoinder of charges which could not be tried together under the law, and the illegality so committed had vitiated the whole trial of the appellant.
It appears that in the High Court, the line of argument on this point was somewhat different from the line adopted in this court.
What was stressed in that court seems to have been that the three incidents in respect of which the appellant was charged not having happened in the course of the same transaction, they could not have been properly made the subject of one trial, and for this contention reliance was placed mainly on section 235 (1)of the Criminal Procedure Code, which provides that "if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be at one trial for, every such offence.
" It should be noted 375 that that section is only one of the exceptions to the general rule laid down in section 233 of the Code that for every distinct offence, there shall be a separate charge and every such charge shall be tried separately.
In this court, no reference was made to section 235, but the argument was confined to the question as to whether the present case falls within another exception of section 23 '3 which is contained in section 234 (1) which runs as 'follows : "When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for any number of them not exceeding three.
" It was argued before us that even though only 3 charges have been framed against the appellant, he has in fact been tried for 4 offences and not 3.
The 4 offences are said to be these : (1) Committing the murder of Gurmail Singh; (2) Attempting to murder Kartar Singh, son of Sarwan Singh; (3) Attempting to murder Jangit Singh; and (4) Attempting to murder Kartar Singh, son of Bishan Singh.
The learned counsel contended that the fact that the appellant has been acquitted of the last 3 offences and convicted only of the first offence was immaterial to the point raised by him, and we have only to see whether all the offences mentioned above could be properly tried together.
In our opinion, the short reply to this contention is that the second charge which relates to the appellant firing at Kartar Singh and Jangir Singh is not a charge with respect to 2 offences but is a charge with respect to one offence only.
The evidence adduced by the prosecution shows that the appellant fired only one bullet.
The word "offence" has been defined in the Criminal Procedure Code as meaning "any act or omission made punishable by any law for the time being in force".
There seems to be 49 376 nothing wrong in law to regard the single act of firing by the appellant as one offence only.
On the other hand, we think that it would be taking an extremely narrow and arti ficial view to split it into 2 offences.
There are several reported cases in which a similar view has been taken, and in our opinion they have not been incorrectly decided.
In Queen Empress vs Raghu Rai(1), where a person stole several bullocks from the same herdsman at the same time, it was held that only one offence had been committed.
In Promotha Nath Ray vs King Emperor(2), it was held that misappropria tion in regard to several account books constituted only one offence.
In Johan Subarna vs King EmPeror(3), it was held that when an attempt to cheat a number of men by speaking to them in a body had been committed, one joint charge was valid.
In Poonit Singh vs Madho Bhot (4), it was held that only one offence had been committed by a person who gave false information in one statement to the police against 2 persons.
In Sudheendrakumar Ray vs Emperor(5), a person who was chased by 2 constables had fired at them several times, but it seems to have been rightly assumed that the firing did not constitute more than one offence, though the point was not specifically raised or decided.
In our opinion, there is no substance in the point raised, though we should not be understood as laying down the wide proposition that in no case can a single act constitute more than one of fence.
The other points urged on behalf of the appellant before us were somewhat unsubstantial points relating to the merits of the case, which it is not usual for this court to allow to be raised in appeals by special leave.
In our opinion, this appeal is without merit, and it is accordingly dismissed.
Appeal dismissed.
Agent for the caveator: Vidya Sagar.
| The appellant was tried in respect of the following charges: (i) causing the death of A and thereby committing an offence punishable under section 302, Penal Code, (ii) firing a shot at B and 372 C with the intention of causing their death and thereby committing an offence punishable under section 307, Penal Code, and (iii) firing a shot at D with the intention of killing him and thereby committing an offence punishable under section 307, Penal Code.
It was contended on his behalf that there was a misjoinder of charges as the second charge was really a charge in respect of two offences viz., attempt to murder B and attempt to murder C and the accused had therefore been charged with, and tried for, more than three offences in contravention of section 234 (1) of the Criminal Procedure Code :.Held, that there was nothing wrong in the trial as the single act of firing a shot at B and C is one offence and not two offences and the trial was not bad for misjoinder of charges.
[Their Lordships however observed that they should not be understood as laying down the wide proposition that in no case can a single act constitute more than one of fence.] Promotha Natha Roy vs King Emperor , Johan Subarna vs King Emperor , Poonit Singh vs Madho Bhot (I.L.R. and Sudheendra Kumar Roy vs Emperor (I.L.R. approved.
|
N: Criminal Appeal No. 2 of 1951.
This Was an appeal under article 134 (1) (c) of the Constitution from the Judgment and Order of the High Court of Rajasthan (Nawal Kishore C.J., and Mehta J.) dated 16th October, 1950, in Criminal Appeal No. 63 of Samvat 2005, revising an order of acquittal of the Sessions Judge, Jai pur, in Criminal Appeal Case No. 200 of Sam vat 2004, and convicting the accused of an offence under sec.
376 of the Indian Penal Code.
The material facts are stated in the judgment.
K.N. Aggarwala, for the accused.
G.S. Mathur, for the State of Rajasthan.
December 20.
BOSE J. delivered judgment as fol lows.
FAZL ALI J. agreed.
BOSE J.
The appellant Rameshwar was charged with com mitting rape on a young girl Mst.
Purni, eight years of age.
He was committed to Sessions and was convicted by the As sistant Sessions Judge, Sawai Jaipur, and sentenced to one year 's rigorous imprisonment and a fine of Rs. 250.
An appeal was made to the Sessions Judge at Jaipur, that being the appropriate appellate tribunal in that area.
The learned Sessions Judge held that the evidence was sufficient for moral conviction but fell short of legal proof because, in his opinion, the law requires corroboration of the story of the prosecution in such cases as a matter of precaution and the corroborative evidence, in so far as it sought to connect the appellant with the crime, was legally insuffi cient though morally enough.
He was satisfied however that the girl had been raped by somebody.
Accordingly, he acquit ted the accused giving him the benefit of the doubt.
The State of Sawal Jaipur and Gangapur appealed against the acquittal to the High Court at Jaipur.
380 The learned High Court Judges held that the law requires corroboration in such cases but held that the girl 's state ment made to her mother was legally admissible as corrobora tion and considering that sufficient they set aside the acquittal and restored the conviction and sentence.
The High Court later granted leave to appeal under article 134 (1)(c) of the Constitution as the case involved questions of law of general importance.
The first point taken before us related to the admissi bility of the evidence of the girl herself.
Her age was stated to be seven or eight years at the time of the exami nation by the learned Assistant Sessions Judge who recorded her testimony.
He certified that she did not understand the sanctity of an oath and accordingly did not administer one to her.
He did not certify that the child understood the duty of speaking the truth.
The proviso to section 5 of the , prescribes that "Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the forego ing provisions of this section and the provisions of section 6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmis sible any evidence given by such witness nor affect the obligation of the witness to state the truth.
" The question is whether the opinion referred to must be formally recorded or whether it can be inferred from the circumstances in which the deposition was taken.
The proviso quoted above must be read along with section 118 of the Evidence Act and section 13 of the Oaths Act.
In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency.
The question of competency is dealt with in section 118.
Every 381 witness is competent unless the Court considers he is pre vented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind.
It will be observed that there is always competency in fact unless the court considers otherwise.
No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that section 118 must prevail.
Now the Oaths Act does not deal with competency.
Its main object is to render persons who give false evidence liable to prosecution.
It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, but in view of section 118 these matters only touch credibility and not admissibility.
In my opinion, section 13 of the Oaths Act places this beyond doubt.
It states "No omission to take any oath or make any affirmation. . and no irregularity whatever, in the form in which any one of them is administered, shall invali date any proceeding or render inadmissible any evidence whatever. . " Section 5 is the main provision regarding the adminis tration of oaths.
The proviso only sets out the cases in which the oath is not to be administered.
If, therefore, an omission to take the oath does not affect the admissibility of the evidence, it follows that irregularity of the kind we are considering which arises out of the proviso cannot affect the admissibility either.
Section 118 remains and unless the judge considers otherwise the witness is compe tent.
I do not think it will be useful to consider English authorities on the point because we are governed here by the terms of the various sections I have referred to.
But a decision of the Judicial Committee of the Privyi Council is in point.
Their Lordships stated in Mohamed Sugal Esa vs The King(1) : (1) A.I.R. 1946 P.C. 3 at 5 382 "Section 13, Oaths Act, is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occurs per incuriam.
If that had been the intention of the Legislature, it would have been simple to insert words in the section to that effect. .
It may be observed that this question can no longer arise in India because in 1939 the Legislature passed the Oaths (Amendment) Act (Act XXXIX of 1939) which settles the law in accordance with the Bengal and Oudh decisions referred to above.
" The decisions to which their Lordships refer are and Ram Samujh vs Emperor(2).
The decisions there were that the section being unqualified in terms did apply to a case where the Court accepted the evidence of a child to whom the oath was not administered on the ground that the witness did not understand its nature.
The principle of the decisions ap plies here because, as their Lordships observe, the section is unqualified in its terms.
I would add however that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the wit ness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether.
But whether the magistrate or judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate.
In the present case, it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence.
It is also an important fact that the accused, who was represented by counsel, did not object.
Had he raised the point the Judge would doubtless have made good the omission.
I am of opinion that Mst.
Purni was a competent witness and that her evi dence is admissible.
In (1) F.N. (2) (1907) 10 O.C. 337 383 the Privy Council case which I have just cited, their Lord ships said "It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessi ty of speaking the truth when examined as a witness.
" That is the very point here.
One can presume that the learned Judge had that in mind from the fact that he exam ined the child after referring to a fact which arises out of the proviso.
As regards her credibility, the learned trial Judge, who recorded her evidence and saw her in the box, has believed her, so has the High Court; and it is important to note that the learned Sessions Judge who acquitted the accused has not disbelieved her.
On the contrary he says he is morally convinced.
All he says is that in the absence of corrobora tion it will be unsafe to convict because the Privy Council and other cases advise corroboration as a matter of pru dence.
We were taken carefully through the evidence, as elabo rately as in a court of first appeal.
I am of opinion that the learned High Court Judges were fully justified in ac cepting the evidence of Purni and in believing her mother Mst.
Ghisi.
I consider it unnecessary to recapitulate their reasons.
After the careful analysis given by three Courts it is sufficient to say that I agree with the learned High Court Judges.
We are left therefore with the questions of law.
The first question is whether the law requires corrobo ration in these cases.
Now the Evidence Act now here says so.
On the other hand, when dealing with the testimony of an accomplice, though it says in section 114 (b) that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars, it makes it clear in section 133 that "An accomplice shall be a competent witness against an accused person; and a conviction is not 50 384 illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
" Now a woman who has been raped is not an accomplice.
If she was ravished she is the victim of an outrage.
If she consented there is no offence unless she is a married woman, in which case questions of adultery may arise.
But adultery presupposes consent and so is not on the same footing as rape.
In the case of a girl who is below the age of consent, her consent will not matter so far as the offence of rape is concerned, but if she consented her testimony will natural ly be as suspect as that of an accomplice.
So also in the case of unnatural offences.
But in all these cases a large volume of case law has grown up which treats the evidence of the complainant somewhat along the same lines as accomplice evidence though often for widely differing reasons and the position now reached is that the rule about corroboration has hardened into one of law.
But it is important to under stand exactly what the rule is and what the expression "hardened into a rule of law" means.
In my judgment, this branch of the law is the same as in England and I am of opinion that the lucid exposition of it given by Lord Reading, the Lord Chief Justice of England, in The King vs Baskerville(1) cannot be bettered.
In that case, Baskerville had been convicted of having committed acts of gross indecency with the two boys.
(There the boys were accomplices because they were freely consent ing parties and there was no use of force).
The learned Chief Justice says at page 663 : "There is no doubt that the uncorroborated evidence of an accomplice is admissible in law.
But it has long been a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence; but the judge should point out to the jury that it is (1) 385 within their legal province to convict upon such unconfirmed evidence.
This rule of practice has become virtually equivalent to a rule of law, and since the Court of Criminal Appeal came into operation this Court has held that, in the absence of such a warning by the judge, the conviction must be quashed.
If after the proper caution by the judge the jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon the ground that the accom plice 's testimony was uncorroborated.
" That, in my opinion, is exactly the law in India so far as accomplices are concerned and it is certainly not any higher in the case of sexual offences.
The only clarifica tion necessary for purposes of this country is where this class of offence is sometimes tried by a judge without the aid of a jury.
In these cases it is necessary that the judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corrob oration in that particular case.
I am of opinion that the learned High Court Judges were wrong in thinking that they could not, as a matter of law, convict without corrobora tion.
There is a class of cases which considers that though corroboration should ordinarily be required in the case of a grown up woman it is unnecessary in the case of a child of tender years.
Bishram.
vs Emperor(1) is typical of that point of view.
On the other hand, the Privy Council has said in Mohamed Sugal Esa vs The King(2) that as a matter of prudence a conviction should not ordinarily be based on the uncorroborated evidence of a child witness.
In my opinion, the true rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the judge.
In a jury case he must tell the (1) A.I.R. 1944 Nag. 363.
(2) A.I.R. 1946 P.C. 3 at 5.
386 jury of it and in a non jury case he must show that it is present to his mind by indicating that in his judgment.
But he should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the jury, or, when there is no jury, he himself, is satisfied that it is safe to do so.
The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a con viction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained.
The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corrobora tion unnecessary but that is a question of fact in every case.
The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them.
There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.
I turn next to the nature and extent of the corrobora tion required when it is not considered safe to dispense with it.
Here, again, the rules are lucidly expounded by Lord Reading in Baskerville 's case(1) at pages 664 to 669.
It would be impossible.
indeed it would be dangerous, to formulate the kind of evidence which should, or would, be regarded as corroboration.
Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged.
But to this extent the rules are clear.
First, it is not necessary that there should be inde pendent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the (1) , 387 accomplice, should in itself be sufficient to sustain con viction.
As Lord Reading says ``Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other and independent testimony.
" All that is required is that there must be "some addi tional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasona bly safe to act upon it.
" Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testi mony of the accomplice or complainant that the accused committed the crime.
This does not mean that the corrobora tion as to identity must extend to all the circumstances necessary to identify the accused with the offence.
Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness 's story that the accused was the one, or among those, who committed the offence.
The reason for this part of the rule is that "a man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all.
It would not at all tend to show that the party ac cused participated in it.
" Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another.
But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal.
I say this because it was contended that the mother in this case was not an independent source.
388 Fourthly, the corroboration need not be direct evidence that the accused committed the crime.
It is sufficient if it is merely circumstantial evidence of his connection with the crime.
Were it otherwise, "many crimes which are usually committed between accomplices in secret, such as incest, offences with females" (or unnatural offences) "could never be brought to justice." Next, I turn to another aspect of the case.
The learned High Court Judges have used Mst.
Purni 's statement to her mother as corroboration of her statement.
The ques tion arises, can the previous statement of an accomplice, or a complainant, be accepted as corroboration ? That the evidence is legally admissible as evidence of conduct is indisputable because of Illustration (j) to section 8 of the Evidence Act which is in these terms: "The question is whether A was ravished.
The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made are relevant.
" But that is not the whole problem.
for we are concerned here not only with its legal admissibility and relevancy as to conduct but as to its admissibility for a particular purpose, namely corroboration.
The answer to that is to be found in section 157 of the Evidence Act which lays down the law for India.
Section 157 states that "In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
" The section makes no exceptions, therefore, provided the condition prescribed, that is to say, "at or about the time etc. ," are fulfilled there can be no doubt that such a statement is legally admissible in India as corroboration.
The weight to be attached to it is, of course, another matter and it may be that in some 389 cases the evidentiary value of two statements emanating from the same tainted source may not be high, but in view of section 118 its legal admissibility as corroboration cannot be questioned.
To state this is, however, no more than to emphasise that there is no rule of thumb in these cases.
When corroborative evidence is produced it also has to be weighed and in a given case, as with other evidence, even though it is legally admissible for the purpose on hand its weight may be nil.
On the other hand, seeing that corrobo ration is not essential to a conviction, conduct of this kind may be more than enough in itself to justify acceptance of the complainant 's story.
It all depends on the facts of the case.
In the present case, Mst.
Purni told 'her mother about the incident about four hours after it occurred.
The reason for the delay was that her mother was not at home when she went there.
She says that when she went home she lay down and went to sleep and that when her mother returned she asked her why she was sleeping and then she told her mother what had happened.
Her mother tells much the same story.
She says she had gone out to her field in the morning and did not return till about 4 p.m.
When she reach home she found her daughter lying there weeping.
She has been be lieved by the learned trial Judge as also by the High Court and has not been disbelieved by the learned Sessions Judge.
All he says is that she is not an "independent" witness and is therefore not sufficient for corroboration.
The first question is whether this delay fulfills the "at or about" condition.
In my opinion, here also there can be no hard and fast rule.
The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportu nity for tutoring or concoction.
It was suggested that the child could have complained to some women who were working in the neighbourhood, but that would not be natural in a child.
She would be frightened and her first instinct would be to run home to her mother.
The High Court 390 was satisfied on these points and so am I.
Consequently, the matter does fall within the ambit of section 157 read with section 8, Illustration (j).
The next question is whether the mother can be regard ed as an "independent" witness.
So far as this case is con cerned, I have no doubt on that score.
It may be that all mothers may not be sufficiently independent to fulfill the requirements of the corroboration rule but there is no legal bar to exclude them from its operation merely on the ground of their relationship.
Independent merely means independent of sources which are likely to be tainted.
In the absence of enmity against the accused there is no reason why she should implicate him falsely.
It is true the ac cused suggested that they were on bad terms but that has not been believed by anyone.
The third question is whether there is independent corroboration connecting the accused with the crime.
The only corroboration relied on for that is the previous state ment of the child to her mother.
That might not always be enough but this rule can be waived in a given case just as much as the necessity for any corroboration at all.
In the present case, the learned High Court Judges would have acted on the uncorroborrated testimony of the girl had they not felt pressed by the corroboration rule.
Viewing all the circumstances I am satisfied that the High Court was right.
I am satisfied that in this case, considering the conduct of the girl and her mother from start to finish, no corrobora tion beyond the statement of the child to her mother was necessary.
I am satisfied that the High Court was right in holding that that was enough to make it safe to act on her testimony.
I would dismiss the appeal and direct the appellant to surrender to his bail in accordance with the terms of his bond, serve out his sentence and pay the fine.
FAZL ALI J.
I agree.
Appeal dismissed.
| An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency; so also an omission of the Court or the authori ty examining a child witness formally to record that in its opinion the witness understands the duty of speaking the truth though he does not understand the nature of an oath or affirmation, does not affect the admissibility of the evi dence given by that witness.
Though it is desirable that judges and magistrates should always record their opinion when a child is to be examined that the child understands the duty of speaking the truth, and state why they think so, whether a magistrate or judge was really of that opinion can be gathered from the circumstances when there is no formal certificate to that effect on the record.
Mohamed Sugal Esa vs The King (A.I.R. , R, vs Sewa Bhogta F.N.), Samujh vs Emperor (1907) 10 O.C. 337) referred to.
Though a woman who has been raped is not an accomplice, her evidence has been treated by the Courts on somewhat similar lines, and the rule which requires corroboration of such evidence save in exceptional circumstances has now hardened into law.
The rule laid down in King vs Baskerville (L. R. with regard to the admissibility of the uneorrobo rated evidence of an accomplice is the law in India also so far as accomplices are concerned and it is not any higher in the case of sexual offences.
The only clarification of the rule that is necessary for the purposes of India is where this class of offence is tried by a judge without the aid of a jury.
In such cases it is necessary that the judge should give some indication in his judgment that he has had the rule of caution in his mind and should proceed to give reasons for considering it unnecessary to require corrobora tion on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.
There is, however, no rule of law or 378 practice that there must in every case be corroboration before a conviction can be allowed to stand.
The view that though corroboration should ordinarily be required in the case of a grown up woman, it is unnecessary in the case of a child of tender years is not correct.
The true position is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the judge; whether corroboration is unnecessary is a question of fact in every case.
Bishram vs Emperor (A.I.R. not approved; Mohamed Sugal Esa vs The King (A.I.R. followed.
The nature and the extent of the corroboration that is required when it is not considered safe to dispense with it, must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged.
It is however clear (i) that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independ ent evidence in the case, apart from the testimony of the complainant or accomplice, should itself be sufficient to sustain conviction; all that is required is that there must be "some additional evidence rendering it probable that the story of the accomplice (or the complainant) is true and that it is reasonably safe to act upon it," (ii) The inde pendent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect the accused with it; (iii) the corroboration must come from independent sources and thus ordinarily the testi mony of one accomplice would not be sufficient to corrobo rate that of another accomplice;(iv) the corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.
A previous statement of an accomplice or a complainant is admissible as evidence of conduct; it is also admissible as corroborg live evidence provided it fulfills the condi tions laid down in see.
157 of the Evidence Act.
The main test as to whether a previous statement was made "at or about the time when the fact took place", within the meaning of sec.
157, Evidence Act, is whether the state ment was made as early as can reasonably be expected in the circumstances of the case and before there was an opportuni ty for tutoring or concoction.
Where a person was charged with having committed rape upon a girl eight years of age and the only evidence to corroborate the testimony of the girl connecting the accused with the crime was a statement made by her to her mother some four hours after the incident, that she had been raped by the accused: Held, that in the circumstances of the case the testimony of the mother was admissible as independent corroborative evidence and 379 the girl 's previous statement was sufficient corroboration of the girl 's testimony for convicting the accused.
|
N: Criminal Appeal No. 16 of 1950.
Appeal by special leave from the judgment and order dated 8th May, 1947, of the High Court of Judicature at Allahabad (Sankar Saran and Akbar Hussain JJ.) in Crimi nal Appeal No. 80 of 1946.
S.P. Sinha (G.C. Mathur, with him), for the appellant.
K.B. Asthana, for the respondent.
December 20.
The Judgment of the Court was deliv ered by FAZL ALl J.
This is an appeal against a judgment of the High Court of Judicature at Allahabad reversing the decision of the Sessions Judge of Aligarh in a criminal case.
The appellants were tried by the Sessions Judge on charges under section 302 read with section 149, section 148, sections 325 and 326 read with section 149, and section 201 of the Indian Penal Code, but were acquitted.
On appeal by the State Government, the High Court reversed the Sessions Judge 's decision, and convicted the appellants and sentenced them to transportation for life under section 302 read with section 149, to five years ' rigorous imprisonment under sections 325 and 326 read with section 149, and to two years ' rigorous imprisonment under section 147 of the Indian Penal Code, all the sentences being made to run concurrently.
The appellants thereafter applied to the Privy Council for special leave, which was granted on the 28th October, 1947.
The facts which were put before the court on behalf of the prosecution may be briefly stated as follows.
There is a plot No. 518 in Nagaria Patti Chaharum, village Shahgarh in the district of Aligarh which is about 30 bighas in area and is known as the "teesa" field.
This plot was the "sir" land of several landlords including Mst.
Bhagwati Kuer and Ratan Singh and had been let out to certain tenants.
In 1944, Mst.
Bhagwati Kuer, Ratan Singh and their co sharers filed a suit for the ejectment of the tenants, and the 195 suit was decreed.
On the 7th June, 1945, possession over the plot was delivered by the Amin to Surajpal Singh, the first appellant, who was the mukhtar i Am of Mst.
Bhagwati Kuer.
It was contended on behalf of Surajpal Singh that he took possession on behalf of all the co sharers, but certain statements made by Ratan Singh in his evidence do not sup port this contention.
However that may be, it appears that on the 17th June, 1945, Ratan Singh reported to the police that he had sent his labourers to irrigate the "teesa" field, and while they were irrigating it Surajpal Singh and certain other persons came and tried to stop the irrigation and damaged the ploughs of Ratan Singh.
On the 18th June, at about 7 A.M., the occurrence which is the subject matter of the present trial took place.
The prosecution version of the occurrence was that while Ratan Singh 's labourers were working in the field under the supervision of one Behari Singh, the appellants with many other persons came armed with guns, spears and lathis, and some of the members of the appellants ' party entered the field, cut off the nosestrings of the bullocks and abused and assaulted the labourers, most of whom ran away.
Thereupon, Deva Sukh, who was there to supply water to the labourers, protested and was beaten with lathis.
At that point of time, Behari Singh and 10 to 15 persons came and fight took place between the parties.
During the fight, one of the accused persons, Rajendra Singh, a young lad, fired his gun twice in the air, and thereafter Surajpal Singh took the gun from him and fired two shots hitting Nawab Mewati, who died instantaneously, and Behari Singh, who died later in the day.
Three other persons, Zorawar, Rajpal and Lakhan also received gun shot injuries.
Sometime later, Surajpal Singh along with the other three appellants came to the spot and removed the dead body of Nawab in a cart.
The body was thrown into a river and was recovered on the 20th June, 1945.
After investiga tion 25 persons including the appellants were sent up for trial.
After hearing the evidence in the case, the Ses sions Judge delivered judgment on the 20th February, 1946.
196 He held that the "teesa" field was in the possession of Surajpal Singh, that Behari Singh and Ratan Singh 's men were aggressors and wished to take forcible possession of the field, that when resisted they had attacked the appellants ' party, that the person who fired the gun had done so in self defence and not with a view to killing Behari Singh and Nawab Mewati, and that the evidence adduced by the prosecu tion was so unsatisfactory that it was unsafe to convict the accused upon it.
As to the charge of concealing evidence of the offence of murder by the removal of the dead body of Nawab, the Sessions Judge expressed the opinion that in order to convict a person on that charge it must be proved that the offence, the evidence of which the accused is alleged to have caused to disappear had actually been com mitted, but since in the present case the charge of murder was not proved the accused could not be convicted for having caused disappearance of evidence connected with it.
The Judge also held that the evidence being unreliable the charge under section 201 of the Indian Penal Code had not been established beyond reasonable doubt.
The High Court delivered its judgment on the 8th May, 1947, allowing the appeal of the State Government.
Shortly stated, the conclusion arrived at by the High Court was that Ratan Singh had as much right to the possession of the field as Bhagwati Kuer, that both parties were trying to take exclusive possession of the field, that both parties were prepared for all contingencies to vindicate and enforce their rights, and hence the question of possession was wholly immaterial and no right of private defence could be successfully pleaded by the appellants.
A perusal of the two judgments before us shows that while the Sessions Judge took great pains to discuss all the important aspects of the case and to record his opinion on every material point, the learned Judges of the High Court have reversed his decision without displacing the very substantial reasons given by him in support of his conclu sion.
The difference in the treatment of the case by the two courts below 197 is particularly noticeable in the manner in which they have dealt with the prosecution evidence.
We find that while the Sessions Judge took up the evidence of each witness and recorded his finding with regard to his credibility after discussing the minutest details of the evidence, all that the learned Judges of the High Court have to say about the prosecution evidence as a whole is as follows : "In Prag Dat 's case their Lordships observed: usual in cases of this kind the police have found it difficult to secure independent testimony of what did take place.
Those of the villagers who were present and looking on would probably by sympathy and bias be so attached to one or other of the disputing parties that it would be hopeless to get disinterested and reliable evidence from them. ' This difficulty the police find in most riot cases and this case is not free from it.
But as in Prag Dat 's case, in this case there are four witnesses, viz., Deo Sukh, Rori Singh, Ram Singh, and Ratan Singh, who could be characte rised as independent witnesses and they support the case for the prosecution, in the main.
In our judgment their testimo ny is on the whole worthy of credence and sufficient to justify the conviction of the respondents.
" In view of the summary treatment of the evidence by the High Court, we had to read the evidence adduced in the case with great care, and what we find is that the four witness es, whose evidence has been accepted by the High Court, are just the persons against whom very serious criticism was offered by the Sessions Judge.
Of these witnesses, Ratan Singh not being an eye witness may be ruled out.
As to the remaining witnesses, we are on the whole inclined to agree with the view expressed by the Sessions Judge.
According to the Sessions Judge, the manner in which Deva Sukh was brought into the picture and the circumstances attendant on his evidence, furnish strong reasons.
for rejecting the prosecution version.
What has been held is that the whole case of the prosecution 26 198 that Deva Sukh had received injuries in the course of the alleged occurrence was false and his injuries "were made up so as to create evidence of private defence" to be utilized by the prosecution to meet the charge of having caused injuries to the members of the appellants ' party.
It has been established that at least four persons on the side of the accused had received injuries.
Mahindarpal had received no less than 16 injuries, and his condition was serious for some time.
Karan Singh had 12 injuries, one of which was grievous.
Hari Singh had received 7 injuries including a grievous injury, and Nikka Singh also was injured, his injury having been noticed by the investigating sub inspec tor.
In the prosecution evidence, it was stated that many of the accused persons were armed with lathis and had used them, and it would be strange if it was not proved that any of the persons on their side had any injuries attributable to lathis.
It has been established that the four injured persons of Ratan Singh 's party, viz., Rajpal Singh, Lakhan Singh, Behari Singh and Zorawar Singh, had only gun shot wounds.
A serious question which arises in this case is at what stage the gun was used, and whether it was used in self defence after the members of the appellants ' party were assaulted with lathis or it was used before they were as saulted.
The prosecution witnesses had to admit that at first a gun was fired twice in the air and then the actual firing took place.
This version of the firing lends support to the defence story that the gun was fired in self defence when Ratan Singh 's men attacked members of the accused 's party.
The Sessions Judge has expressed the view that in order to meet the defence case the prosecution introduced the story of Deva Sukh having been assaulted with a lathi in the first instance so as to make the appellants ' party the aggressors, it being the prosecution case that Behari Singh and his men had used lathis in order to defend themselves.
In order to resolve the conflict in the cases of the parties and to get at the true picture, the 199 Sessions Judge went very minutely into the question as to whether there was trustworthy evidence about Deva Sukh having received any injury at all in the occurrence.
It seems to us that there is a formidable array of circum stances to support the conclusion ultimately reached by the Sessions Judge.
It appears that in the first information report there is no reference to Deva Sukh or to the injuries said to have been received by him.
The Sessions Judge has pointed out that there was a considerable interval of time between the occurrence and the lodging of the first informa tion report, and therefore it is surprising that the most important incident of the occurrence and the name of the most important witness was omitted in the report.
Again, no reference was made to Deva Sukh or to his injuries in the dying declaration of Behari Singh which was recorded by one Dr. Shankar Deo, and also in that of Lakhan Singh.
The Sessions Judge has further pointed out that the prosecution witnesses, Chokha, Prempal, Cheta and Gangola Singh, who were examined by the investigating officer on the 18th June, did not also refer to Deva Sukh.
The investigating sub inspector was informed of the injuries on Deva Sukh and his presence at the time of the occurrence for the first time on the 19th June, 1945, and Deva Sukh 's explanation for not appearing before him at the earliest opportunity was that he was frightened and had concealed himself in his house for about two days and had directed his relations not to inform the police of his presence.
He also stated that on his arrival in his house after the occurrence he did not inform his relations of what had happened.
Some of these matters might have been overlooked if there had been convincing evidence about his having actually received injuries, but we are satisfied that such evidence as is before us is extreme ly unsatisfactory and suspicious and we entertain grave doubts as to whether Deva Sukh received any injuries at all.
Dr. Shanker Deo, who examined Deva Sukh, is a retired Sub Assistant Surgeon practising in Kauiraganj, which is not far from village Shahgarh.
200 He admits that he had known Ratan Singh since his childhood, and when he was a child he used to be taught at the house of Ratan Singh by a teacher employed by Ratan Singh 's uncle.
He has stated that Deva Sukh had two bruises across the back of the middle of the left forearm, and one of them was grievous since the left ulna was fractured.
He further says that at the time of examination he did charge fees from Deva Sukh, that he was brought to him three days after the other injured persons, that when the latter group of persons came to him none of them told him that there was one more injured person to be examined, and that Deva Sukh was brought to him by Ratan Singh 's servant.
There are unsatisfactory fea tures in the evidence of this doctor relating to other matters which need not be referred to, but what is somewhat remarkable is that though there is a District Board Hospital at Jalali about four miles from Kauirganj, Deva Sukh did not obtain an injury certificate from the doctor in charge of that hospital.
Deva Sukh says that he did go to that hospi tal to have his injuries attended to, but there is no evi dence to corroborate this.
These facts as well as a number of other facts relied upon by the Sessions Judge do go to support his theory, and once it is held that the prosecution has to rely on fabricated evidence, it throws doubts on the entire case.
From the record, it appears that Surajpal Singh was the person who had been taking an active interest in the eject ment suit, and he was admittedly spending money.
Ratan Singh says that he had also paid money to Surajpal Singh towards the expenditure, but this is not probable because he and Surajpal had been on bad terms.
It is admitted that Suraj pal is the person to whom the Amin gave possession of the land, but in spite of this fact, Ratan Singh 's men started operations on the land ignoring Bhagwati Kuer, which Ratan Singh had no right to do, even assuming that the land was joint property.
If Behari Singh and the other men sent by Ratan Singh were trying to take exclusive possession of the land and had started 201 operations thereon, Surajpal Singh had every right to pro test, and if his men were beaten first, of which there are strong indications in the case, he was entitled ' to repel the attack in exercise of the right of private defence.
That Ratan Singh had made ample preparations through Behari Singh is quite clear.
Admittedly, there were a number of persons armed with lathis present at the scene on his behalf including outsiders like Nawab Mewati, who is said to have been a well known fighter, Zorawar and others.
As regards the remaining two witnesses, to whom the High Court has made reference, viz., Rori Singh and Pransukh, it seems to us that the High Court has overlooked the comments made by the Sessions Judge upon their evidence, some of which are of considerable force.
What has impressed us is that they were not independent witnesses and were not mentioned in the first information report as witnesses to the occurrence, and they were examined by the sub inspector as late as the 20th and 21st June, 1945.
After reading the two judgments, we see no reason why the opinion of the Sessions Judge regarding these witnesses should not receive the weight which should normally be attached to that of the trial court.
It is well established that in an appeal under section 417 of the Criminal Procedure Code, the High Court has full power to review the evidence upon which the order of acquit tal was founded, but it is equally well settled that the presumption of innocence of the accused is further rein forced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.
On the whole, we are inclined to hold that the Sessions Judge had taken a reasonable view of the facts of the case, and in our opinion there were no good reasons for reversing that view.
The assessors with whose aid the trial was held, were unanimously of the opinion that the accused were not guilty, and 202 though 25 persons were placed on trial on identical evi dence, the State Government preferred an appeal only against 5 of them on the sole ground that the acquittal was against the weight of evidence on the record.
In the result, we allow the appeal, set aside the con viction and sentences of the appellants and acquit them of all the charges.
Appeal allowed.
| It is well settled that in an appeal under section 417 of the Criminal Procedure Code, the High Court has full power to review the evidence upon which the order of acquittal was founded.
But it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial Court and the findings of the trial Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very sub stantial and compelling reasons.
|
328 of 1951.Petition under article 32 of the Constitution for issue of writs in the nature of certiorari, prohibition and mandamus.
The facts appear in the judgment.
The petitioner in person.
C.K. Daphtary, Solicitor General of India, (J. B. Dadachanji, with him) for the respondent.
December 21.
The Judgment of the Court was delivered by PATANJALI SASTRI.C.J.
This is a petition under article 32 of the Constitution for the enforcement of the petition er 's fundamental rights under article 19 (1) (f) and article 31(1) alleged to have been violated by the Central Bank of India Ltd., a company incorporated under the Indian Compa nies Act, 1882, and having its registered office at Bombay, (hereinafter referred to as "the Bank").
It appears that the petitioner held five shares in the Share capital of the Bank which sold those shales to a 51 392 third party in purported exercise of its right of lien for recovery of a debt due to it from the petitioner, and the transfer was registered in the books of the Bank in the year 1937.
The petitioner thereupon instituted a series of pro ceedings in the High Court at Bombay on its original and appellate jurisdiction challenging the validity of the said sale and transfer.
The latest of these proceedings was a suit filed against the Bank in 1951 wherein the plaint was rejected on 2nd March, 1951, under Order 7, Rule 11 (d), of the Code of Civil Procedure as barred by limitation.
The petitioner now prays that all the adverse orders made in the previous proceedings be quashed and the said High Court be directed to have "the above suit set down to be heard as undefended and pronounce judgment against the respondent or to make such orders as it thinks fit in relation to the said suit".
It may be mentioned here that though the aforesaid order rejecting the petitioner 's plaint was appealable, the petitioner did not prefer an appeal on the somewhat extraor dinary ground that "the appeal if filed could not be heard by the Judges of the said Court as all of them were disqual ified from hearing such appeal" either because of their interest in the Bank or because of their prejudice against him.
We are of opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground.
Neither article 19 (1) (f) nor article 31 (1) on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct.
Article 19 deals with the "right to free dom" and by clause (1) assures to the citizen certain funda mental freedoms including the freedom "to acquire, hold and dispose of property" subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in clauses (2) to (6).
The language and structure of article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regu late private rights in the public interest, 393 Violation of rights of property by individuals is not within the purview of the article.
The position is no better under article 31 (1).
The petitioner has urged that clause (1) should be construed apart from and independently of the rest of the article and, if so construed, its language is wide enough to cover in fringements of rights of property by private individuals.
He laid emphasis on the omission of the word "State" in clause (1) while it was used in clause (2) of the same article as well as in many other articles in Part III.
Referring to entry No. 33 of the Union List, entry No. 36 of the State List and entry No, 42 of the Concurrent List of the Seventh Schedule to the Constitution, he also argued that, while these entries read with article 246 empowered Parliament and the State Legislatures to make laws regarding acquisition or requisitioning of property for the purposes of the Union or the State as the case may be.
no power was conferred to make laws regarding "deprivation of property" by the State, so that the "deprivation" contemplated in clause (1) could only be deprivation by individuals.
Sub section (1) of section 299 of the Government of India Act, 1935, corresponding to clause (1) of article a 1 was, it was pointed out, omitted in the draft article 19 (later numbered as article 81) which retained in a modified form only the provision contained in sub section (2) of that section relating to compulsory acquisition of property for public purposes.
But, clause (1) was subsequently restored and article was enacted in its present form as recommended in Drafting Committee 's Report and this, it was claimed, showed that clause (1) was intended to operate as a distinct provi sion apart from clause (2).
We see no force in any of these arguments.
In support of the argument that clause (1 ) should be construed in isolation from the rest of the article, the petitioner relied on certain observations of our learned brother Das in Chiranjit Lal vs The Union of India (1), where the view was expressed that clause (1)enunciated the general principle that no person should be deprived (1) [1950] S.C,R,. 860.
394 of his property except by authority of law and laid down no condition for payment of compensation, while clause (2) dealt with deprivation of property brought about by acquisi tion or taking possession of it and required payment of compensation.
In other words, deprivation referred to in clause(1) must be taken to cover deprivation otherwise than by acquisition or requisitioning of property dealt with in clause (2).
We consider it unnecessary for the purpose of the present petition to go into that question.
Even assuming that clause (1) has to be read and construed apart from clause (2), it is clear that it is a declaration of the fundamental right of private property in the same negative form in which article 21 declares the fundamental right to life and liberty.
There is no express reference to the State in article 21.
But could it be suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals ? The words "except by procedure established by law" plainly exclude such a suggestion.
Similarly, the words "save by authority of law" in clause (1) of article 31 show that it is a prohibition of unauthorised governmental action against private property, as there can be no question of one private individual being authorised by law to deprive anoth er of his property.
The argument based on the entries in the Lists is fallacious.
It is not correct to suggest that, merely be cause there is no entry in the Lists of the Seventh Schedule relating to "deprivation of property" as such, it is not within the competence of the legislatures in the country to enact a law authorising deprivation of property.
Such a law could be made, for instance, under entry No. 1 of List II, entry No. 1 of List II or entry No. 1 of List III.
Article 31 (1) itself contemplates a law being passed authorising deprivation of the properties, and it is futile to deny the existence of the requisite legislative power.
Nor does the legislative history of the article lend any support to the petitioner 's contention.
Section 299 395 (1) of the Government of India Act, 1935, was never inter preted as prohibiting deprivation of property by private individuals.
Its restoration, therefore, in the same form in article 31, after omission in the original draft article 19, could lead to no inference in support c. of the peti tioner 's contention, which indeed proceeds on the fundamen tal misconception that article 19(1)(f) and article 31 (1), which are great constitutional safeguards against State aggression on private property, are directed against in fringements by private individuals for which remedies should be sought in the ordinary law.
In this view it is unnecessary to deal with certain other objections to the maintainability of the petition raised by the Solicitor General on behalf of the Bank.
The petition is dismissed.
We make no order as to costs.
Petition dismissed.
| Article 19(1)(f) of the Constitution is clearly intended to protect the freedom to acquire, hold and dispose of property against State action other than in the legitimate exercise of its power to regulate private rights in the public interest.
Similarly, article S1(1) provides a safe guard against deprivation of property by the State except by procedure established by law.
Violation of rights of property by private individuals is not within the purview of those articles.
A person whose rights of property are infringed by a private individual must therefore seek his remedy under the ordinary law and not by way of an application under article 32.
|
Case No. 351 of 1951.
Appeal under article 132 of the Constitution from the Judg ment and Order of the High Court of Judicature at Madras (Subba Rao and Venkatarama Ayyar JJ.) dated 11th December, 1951, in Writ Petition No. 746 of 1951.
The facts of the case and arguments of the counsel are set out in detail in the judgment.
N. Rajagopal Iyengar, for the appellant.
R. Ganapathi Iyer, for the 1st respondent.
M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the Union of India.
K.A. Chitale, Advocate General of Madhya Bharat (G. N. Joshi, with him) for the State of Madhya Bharat.
January 21.
Fazl Ali J. delivered Judgment as follows.
Patanjali Sastri C.J., Mahajan, Mukherjea, Das and Chandrasekhara Aiyar JJ.
agreed with Fazl Ali 5.
221 FAZL ALI J.
This is an appeal from an order of the Madras High Court dismissing the petition of the appellant praying for a writ of certiorari.
The appellant was one of the persons who had filed nomination papers for election to the Madras Legislative Assembly from the Namakkal Constituency in Salem district.
On the 28th November, 1951, the Returning Officer for that constituency took up for scrutiny the nomination papers filed by the various candidates and on the same day he rejected the appellant 's nomination paper on certain grounds which need not be set out as they are not material to the point raised in this appeal.
The appellant thereupon moved the High Court under article 226 of the Constitution praying for a writ of of certiorari to quash the order of the Re turning Officer rejecting his nomination paper and to direct the Returning Officer to include his name in the list of valid nominations to be published.
The High Court dismissed the appellant 's application on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of article 329(b) of the Constitution.
The appellant 's contention in this appeal is that the view expressed by the High Court is not correct, that the jurisdiction of the High Court is not affected by article 329 (b) of the Constitution and that he was enti tled to a writ of certiorari in the circumstances of the case.
Broadly speaking, the arguments on which the judgment of the High Court is assailed are two fold : (1) that the conclusion arrived at by the High Court does not follow from the language of article 329 (b) of the Constitution, whether that article is read by itself or along with the other articles in Part XV of the Constitu tion; and (2) that the anomalies which will arise if the construc tion put by the High Court on article 329 (b) is accepted, are so startling that the courts should lean in favour of the construction put forward on behalf of the appellant.
29 222 The first argument which turns on the construction of article 329 (b) requires serious consideration, but I think the second argument can be disposed of briefly at the out set.
It should be stated that what the appellant chooses to call anomaly can be more appropriately described as hardship or prejudice and what their nature will be has been stated in forceful language by Wallace J. in Sarvothama Rao vs Chairman, Municipal Council, Saidapet (1) in these words : "I am quite clear that any post election remedy is wholly inadequate to afford the relief which the petitioner seeks, namely, that this election, now published be stayed, until it can be held with himself as a candidate.
It is no conso lation to tell him that he can stand for some other elec tion.
It is no remedy to tell him that he must let the election go on and then have it set aside by petition and have a fresh election ordered.
The fresh election may be under altogether different conditions and may bring forward an array of fresh candidates.
The petitioner can only have his proper relief if the proposed election without him is stayed until his rejected nomination is restored, and hence an injunction staying this election was absolutely neces sary, unless the relief asked for was to be denied him altogether in limine.
In most cases of this kind no doubt there will be difficulty for the aggrieved party to get in his suit in time before the threatened wrong is committed; but when he has succeeded in so doing, the Court cannot stultify itself by allowing the wrong which it is asked to prevent to be actually consummated while it is engaged in trying the suit.
" These observations however represent only one side of the picture and the same learned Judge presented the other side of the picture in a subsequent case [Desi Chettiar vs Chinnasami Chettiar(2)] in the following passage : "The petitioner is not without his remedy.
His remedy lies in an election petition which we understand he has already put in.
It is argued for him (1) mad. 585 at 600.
(2) at 1272.
that that remedy which merely allows him to have set aside an election once held is not as efficacious as the one which would enable him to stop the election altogether;and certain observations at p. 600 of Sarvothama Rao vs Chairman, Munic ipal Council, Saidapet(1) are quoted.
In the first place, we do not see how the mere fact that the petitioner cannot get the election stopped and has his remedy only after it is over by an election petition, will in itself confer on him any right to obtain a writ.
In the second place, these observations were directed to the consideration of the propriety of an injunction in a civil suit, a matter with which we are not here concerned.
And finally it may.
be observed that these remarks were made some years ago when the practice of individuals coming forward to stop elections in order that their own individual interest may be safe guarded was not so common.
It is clear that there is anoth er side of the question to be considered, namely, the incon venience to the public administration of having elections and the business of Local Boards held up while individuals prosecute their individual grievances.
We understand the election for the elective seats in this Union has been held up since 31st May because of this petition, the result being that the electors have been unable since then to have any representation on the Board, and the Board is functioning, if indeed it is functioning, with a mere nominated fraction of its total strength; and this state of affairs the peti tioner proposes to have continued until his own personal grievance is satisfied." These observations which were made in regard to elec tions to Local Boards will apply with greater force to elections to legislatures, because it does not require much argument to show that in a country with a democratic consti tution in which the legislatures have to play a very impor tant role, it will lead to serious consequences, if the elections are unduly proracted or obstructed.
To this aspect of the matter I shall have to advert later.
but it is suffi cient for the present purpose (1) Mad, 585 at 600.
224 to state firstly that in England the hardship and inconven ience which may be suffered by an individual candidate has not been regarded as of sufficient weight to induce Parlia ment to make provision for immediate relief and the ag grieved candidate has to wait until after the election to challenge the validity of the rejection of his nomina tion paper, and secondly, that the question of hardship or inconvenience is after all only a secondary question, be cause if the construction put by the High Court on article 329 (b) of the Constitution is found to be correct, the fact that such construction will lead to hardship and inconven ience becomes irrelevant.
Article 329 is the last article in Part XV of the Constitution, the heading of which is "Elections", and it runs as follows : "Notwithstanding anything in this Constitution (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constit uencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court; (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for, by, or under any law made by the appropriate Legislature.
" In construing this article, reference was made by both parties in the course of their arguments to the other arti cles in the same Part, namely, articles 324, 325, 326, 327 and 328.
Article 324 provides for the constitution and appointment of an Election Commissioner to superintend, direct and control ejections to the legislatures; article 325 prohibits discrimination against electors on the ground of religion, race, caste or sex; article 326 provides for adult suffrage; article 327 empowers Parliament to pass laws making provision with respect to all matters relating to, or in connection with, elections to the legislatures, subject 225 to the provisions of the Constitution; and article 328 is a complementary article giving power to the State Legislature to make provision with respect to all matters relating to, or in connection with, elections to the State Legislature.
A notable difference in the language used in articles 327 and 328 on the one hand, and article 329 on the other, is that while the first ' two articles begin with the words" subject to the provisions of this Constitution" the last article begins with the words "notwithstanding anything in this Constitution.
" It was conceded at the bar that the effect of this difference in language is that whereas any law made by Parliament under article 327, or by the State Legislatures under article 328, cannot exclude the jurisdic tion of the High Court under article 226 of the Constitu tion, that jurisdiction is excluded in regard to matters provided for in article 329.
Now, the main controversy in this appeal centres round the meaning of the words "no election shall be called in question except by an election petition" in article 329 (b), and the point to be decided is whether questioning the action of the Returning Officer in rejecting a nomination paper can be said to be comprehended within the words, "no election shall be called in question.
" The appellant 's case is that questioning something which has happened before a candidate is declared elected is not the same thing as questioning an election, and the arguments advanced on his behalf in support of this construction were these: (1) That the word "election" as used in article 329 (b) means what it normally and etymologically means, namely, the result of polling or the final selection of a candidate; (2) That the fact that an election petition can be filed only after polling is over or after a candidate is declared elected, and what is normally called in question by such petition is the final result, bears out the conten tion that the word "election "can have no other meaning in article (b) than the result of polling or the final selec tion of a candidate; 226 (3) That the words "arising out of or in connection with" which are used in article 324 (1) and the words "with respect to all matters relating to, or in connection with" which are used in articles 327 and s28, show that the fram ers of the Constitution knew that it was necessary to use different language when referring respectively to matters which happen prior to and after the result of polling, and if they had intended to include the rejection of a nomina tion paper within the ambit of the prohibition contained in article S29 (b) they would have used similar language in that article and (4) That the action of the Returning Officer in reject ing a nomination paper can be questioned before the High Court under article 226 of the Constitution for the follow ing reason: Scrutiny of nomination papers and their rejec tion are provided for in section 36 of the Representation of the People Act, 1951.
Parliament has made this provision in exercise of the powers conferred on it by article 327 of the Constitution which is "subject to the provisions of the Constitution".
Therefore, the action of the Returning Offi cer is subject to the extraordinary jurisdiction of the High Court under article 226.
These arguments appear at first sight to be quite im pressive, but in my opinion there are weightier and basical ly more important arguments in support of the view taken by the High Court.
As we have seen, the most important ques tion for determination is the meaning to be given to the word "election" in article 329 (b).
That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning.
In the narrow sense, it is used to mean the final selection of a candidate which may em brace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll.
In the wide sense, the word is used to connote the entire process culminating in a candidate being declared 227 elected.
In Srinivasalu vs Kuppuswami(1), the learned Judges of the Madras High Court after examining the question, expressed the opinion that the term "election" may be taken to embrace the whole procedure whereby an "elected member" is returned, whether or not it be found necessary to take a poll.
With this view, my brother, Maimjan J. expressed his agreement in Sat Narain vs Hanuman Prasad (2); and I also find myself in agreement with it.
It seems to me that the word "election" has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature.
The use of the expression "conduct of elections" in article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including article 329 (b).
That the word "election" bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins.
The subject is dealt with quite concisely in Halsbury 's Laws of England in the following passage(s) under the heading" Commencement of the Election ": "Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date.
It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is "reason ably imminent".
Neither the issue of the writ nor the publi cation of the notice of election can be looked to as fixing the date when an election begins from this point of view.
Nor, again, does the nomination day afford any criterion.
The election will usually begin at least earlier than the issue of the writ.
The question when the election begins must be care (1) at 255.
(2) (3) See page 237 of Halsbury 's Laws of England, 2nd edition, Volume 12.
228 fully distinguished from that as to when "the conduct and management of" an election may be said to begin.
Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case.
" The discussion in this passage makes it clear that the word ' 'election" can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process.
The next important question to be considered is what is meant by the words "no election shall be called in ques tion".
A reference to any treatise on elections in England will show that an election proceeding in that country is liable to be assailed on very limited grounds, one of them being the improper rejection of a nomination paper.
The law with which we are concerned is not materially different, and we find that in section 100 of the Representation of the People Act, 1951, one of the grounds for declaring an elec tion to be void is the improper rejection of a nomination paper.
The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition.
In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropri ate manner before a special tribunal and should not be brought up at an intermediate stage before any court.
It seems to me that under the election law, the only signifi cance which the rejection of 229 a nomination paper has consists in the fact that it can be used as a ground to call the election in question.
Arti cle 329(b)was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question could be urged.
I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court.
If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like article 329 (b) and in setting up a special tribunal.
Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplat ed, one of them being that conflicting views may be ex pressed by the High Court at the pre polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.
I think that a brief examination of the scheme of Part XV of the Constitution and the Representation of the People Act, 1951, will show that the construction I have suggested is the correct one.
Broadly speaking, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made;(2) there should be an execu tive charged with the duty of securing the due conduct of elections; and (3)there should be a judicial tribunal to deal with disputes arising out of or in connection with elections.
Articles 327 and 328 deal with the first of these requisites, article 324 with the second and article 329 with the third requisite.
The other two articles in Part XV, viz, articles 325 and 326, deal with two matters of princi ple to which the Constitution framers have attached much importance.
They 30 230 are : (1) prohibition against discrimination in the prepa ration of, or eligibility for inclusion in, the electoral rolls, on grounds of religion, race, caste, sex or any of them; and (2) adult suffrage.
Part XV of the Constitution is really a code in itself providing the entire ground work for enacting appropriate laws and setting up suitable ma chinery for the conduct of elections.
The Representation of the People Act, 1951, which was passed by Parliament under article 327 of the Constitution.
makes detailed provisions in regard to all matters and all stages connected with elections to the various legislatures in this country.
That Act is divided into II parts, and it is interesting to see the wide variety of subjects they deal with.
Part Il deals with "the qualifications and disquali fications for membership", Part III deals with the notifica tion of General Elections, Part IV provides for the adminis trative machinery for the conduct of elections, and Part V makes provisions for the actual conduct of elections and deals with such matters as presentation of nomination pa pers.
requirements of a valid nomination, scrutiny of nomi nations, etc., and procedure for polling and counting of votes.
Part VI deals with disputes regarding elections and provides for the manner of presentation of election peti tions, the constitution of election tribunals and the trial of election petitions.
Part VII outlines the various cor rupt and illegal practices which may affect the elections, and electoral offences.
Obviously, the Act is a self contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with elections, we have only to look at the Act and the rules made thereunder.
The provisions of the Act which are material to the present discussion are sections 80, 100, 105 and 170, and the provi sions of Chapter II of Part IV dealing with the form of election petitions, their contents and the reliefs which may be sought in them.
Section 80, which is drafted in almost the same language as article 329 (b), provides that "no election shall be called in question except by an election 231 petition presented in accordance with the provisions of this Part".
Section 100, as we have already seen, provides for the grounds on which an election may be called in question, one of which is the improper rejection of a nomination paper.
Section 105 says that "every order of the Tribunal made under this Act shall be final and conclusive".
Section 170 provides that "no civil court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed under this Act in connection with an elec tion.
" These are the main provisions regarding election matters being judicially dealt with, and it should be noted that there is no provision anywhere to the effect that anything connected with elections can be questioned at an intermediate stage.
It is now well recognized that where a right or liability is created by a statute which gives a special remedy for en forcing it, the remedy provided by that statute only must be availed of.
This rule was stated with great clarity by Willes J. in Wolverhampton New Water Works Co. vs Hawkes ford(1) in the following passage : "There are three classes of cases in which a liability may be established founded upon statute.
One is, where there was a liability existing at common law and that li ability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law;there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy.
The second class of cases is, where the statute gives the right to suemerely, but provides no particular form of remedy: there, the party can only proceed by action at common law.
But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. .
The remedy provided by the statute must be followed, and it is not (1) ; , 356.
232 competent to the party to pursue the course applicable to cases of the second class.
The form given by the statute must be adopted and adhered to.
" The rule laid down in this passage was approved by the House of Lords in Neville vs London Express Newspaper Limit ed(1) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago vs Gordon Grant & Co.(2) and Secretary of State vs Mask & Co.(a); and it has also been held to be equally applicable to enforcement of rights: see Hurdutrai vs Official Assignee of Calcutta(4).
That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage.
It was argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under article 226 of the Constitution.
This argument however is completely shut out by reading the Act along with article 329 (b).
It will be noticed that the language used in that article and in section 80 of the Act is almost identical, with this difference only that the article is preceded by the words "notwithstanding anything in this Constitution".
I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress.
It may be stated that section 107(1) of the Representation of People Act, 1949 (12 & 13 Geo.
6, c. 68) in England is drafted almost in the same language as article 329(b).
That section runs thus : "No parliamentary election and no return to Parliament shall be questioned except by a petition complaining of an undue election or undue return (hereinafter referred to as a parliamentary election petition) presented in accordance with this Part of this Act.
" (1) (3) (2) [1935] A.C. 532.
(4) , 349.
233 It appears that similar language was used in the earlier statutes, and it is noteworthy that it has never been held in England that the improper rejection of a nomination paper can be the subject of a writ of certiorari or mandamus.
On the other hand, it was conceded at the bar that the ques tion of improper rejection of a nomination paper has always been brought up in that country before the appropriate tribunal by means of an election petition after the conclu sion of the election.
It is true that there is no direct decision holding that the words used in the relevant provi sions exclude the jurisdiction of the High Court to issue appropriate prerogative writs at an intermediate stage of the election, but the total absence of any such decision can be accounted for only on the view that the provisions in question have been generally understood to have that effect.
Our attention was drawn to rule 13 of the rules appended to the Ballot Act of 1872 and a similar rule in the Parliamen tary Elections Rules of 1949, providing that the decision of the Returning Officer disallowing an objection to a nomina tion paper shall be final, but allowing the same shall be subject to reversal on a petition questioning the election or return.
These rules however do not affect the main argument.
I think it can be legitimately stated that if words similar to those used in article 329 (b) have been consistently treated in England as words apt to exclude the jurisdiction of the courts including the High Court, the same consequence must follow from the words used in article 329 (b) of the Constitution.
The words "notwithstanding anything in this Constitution" give to that article the same wide and binding effect as a statute passed by a sover eign legislature like the English Parliament.
It may be pointed out that article 329 (b) must be read as complimentary to clause (a) of that article.
Clause (a) bars the jurisdiction of the courts with regard to such law as may be made under articles 327 and 328 relating to the delimitation of constituencies or the allotment of seats to such constituencies.
It was conceded before us that article 329 (b) ousts the jurisdiction of the courts with regard to matters 234 arising between the commencement of the polling and the final selection.
The question which has to be asked is what conceivable reason the legislature could have had to leave only matters connected with nominations subject to the jurisdiction of the High Court under article 226 of the Constitution.
If Part XV of the Constitution is a code by itself, i. e., it creates rights and provides for their enforcement by a special tribunal to the exclusion of all courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject matter of contest before the High Courts and thereby upset the time schedule of the elections The more reasonable view seems to be that article 329 covers all "electoral matters".
The conclusions which I have arrived at may be summed up briefly as follows : (1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme the elec tion law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are commit ted while it is in progress and they belong to the category or class which, under the law by which elections are gov erned, would have the effect of vitiating the ' 'election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dis pute before any court while the election is in progress.
It will be useful at this stage to refer to the deci sion the Privy Council in Theberge vs Laudry(1).
The (1) 235 petitioner in that case having been declared duly elected a member to represent an electoral district in the Legislative Assembly of the Province of Quebec, his election was after wards, on petition, declared null and void by judgment of the Superior Court, under the Quebec Controverted Elections Act, 1875, and himself declared guilty of corrupt practices both personally and by his agents.
Thereupon, he applied for special leave to appeal to Her Majesty in Council, but it was refused on the ground that the fair construction of the Act of 1875 and the Act of 1872 which preceded it providing among other things that the judgment of the Superior Court "shall not be susceptible of appeal" was that it was the intention of the legislature to create a tribunal for the purpose of trying election petitions in a manner which should make its decision final for all purposes, and should not annex to it the incident of its judgment being reviewed by the Crown under its prerogative.
In delivering the judgment of the Privy Council, Lord Cairns observed as follows : "These two Acts of Parliament, the Acts of 1872 and 1875, are Acts peculiar in their character.
They are not Acts constituting or providing for the decision of mere ordinary civil rights; they are Acts creating an entirely new, and up to that time unknown, jurisdiction in a partic ular Court. for the purpose of taking out, with its own consent, of the Legislative Assembly, and vesting in that Court, that very peculiar jurisdiction which, up to that time, had existed in the Legislative Assembly of decid ing election petitions, and determining the: status of those who claimed to be members of the Legislative Assembly.
A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive; and enable the constitution of the Legislative Assembly to be distinctly and speedily known.
" 236 After dealing with certain other matters, the Lord ChanCellor proceeded to make the following further observa tions : "Now, the subject matter, as has been said, of the legislation is extremely peculiar.
It concerns the rights and privileges of the electors and of the Legislative Assem bly to which they elect members.
Those rights and privi leges have always in every colony, following the example of the mother country, been jealously maintained and guarded by the Legislative Assembly.
Above all, they have been looked upon as rights and privileges which pertain to the Legisla tive Assembly, in complete independence of the Crown, so far as they properly exist.
And it would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legis lative Assembly, no longer belonged to the Superior Court which the Legislative Assembly had put in its place, but belonged to the Crown in Council, with the advice of the advisers of the Crown at home, to be determined without reference either to the judgment of the Legislative Assem bly, or of that Court which the Legislative Assembly had substituted in its place.
" The points which emerge from this decision may be stated as follows : (1) The right to vote or stand as a candidate for elec tion is not a civil right but is a creature of statute or special law and must be subject to the limitations emposed by it.
(2) Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribu nal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.
237 It should be mentioned here that the question as to what the powers of the High Court under articles 226 and 227 and of this Court under article 136 of the Constitution may be, is one that will have to be decided on a proper occasion.
It is necessary to refer at this stage to an argument advanced before us on behalf of the appellant which was based on the language of article 71 (1) of the Constitution.
That provision runs thus : "All doubts and disputes arising out of or in connection with the election of a President or Vice President shall be inquired into and decided by the Supreme Court whose deci sion shall be final.
" The argument was as follows.
There is a marked contrast between the language used in article 71 (1) and that of article 329 (b).
The difference in the phraseology employed in the two provisions suggests that they could not have been intended to have the same meaning and scope as regards matters to be brought up before the tribunals they respec tively deal with.
If the framers of the Constitution, who apparently knew how to express themselves, intended to include within the ambit of article 329 (b) all possible disputes connected with elections to legislatures, includ ing disputes as to nominations, they would have used similar words as are to be found in article 71 (1).
It is true that it is not necessary to use identical language in every provision, but one can conceive of various alternative ways of expression which would convey more clearly and properly what article 329 (b) is said to convey.
It seems to me that once it is admitted that the same idea can be expressed in different ways and the same phrase ology need not be employed in every provision, the argument loses much of its force.
But, however that may be, I think there is a good explanation as to why article 329 (b) was drafted as it stands.
A reference to the election rules made under the Govern ment of India Acts of 1919 and 1935 will show that the provisions in them on the subject were almost in the same language as article 329 (b).
The 21 238 corresponding rule made under the Government of India Act, 1919, was rule 31 of the electoral rules, and it runs as follows : "No election shall be called in question, except by an election petition presented in accordance with the provi sions of this Part.
" It should be noted that this rule occurs in Part VII, the heading of which is "The final decision of doubts and disputes as to the validity of an election".
These words throw some light on the function which the election tribunal was to perform, and they are the very words which the learned counsel for the appellant argued, ought to have been used to make the meaning clear.
The same scheme was followed in the election rules framed under the Government of India Act, 1935, which are contained in "The Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936", dated the 3rd July, 1936.
In that Order, the rule corre sponding to rule 31 under the earlier Act, runs thus : "No election shall be called in question except by an election petition presented in accordance with the provi sions of this Part of the Order." This rule is to be found in Part III of the Order, the heading of which is "Decision of doubts and disputes as to validity of an election and disqualification for corrupt practices.
" The rules to which I have referred were apparently framed on the pattern of the corresponding provisions of the British Acts of 1868 and 1872, and they must have been intended to cover the same ground as the provisions in England have been understood to cover in that country for so many years.
If the language used in article 329 (b) is considered against this historical background, it should not be difficult to see why the framers of the Constitution framed that provision in its present form and chose the language which had been consistently used in certain earlier legislative provisions and which had stood the test of time.
239 And now a word as to why negative language was used in article 829 (b).
It seems to me that there is an important difference between article 71 (1) and article 329 (b).
Article 71 (1) had to be in an affirmative form, because it confers special jurisdiction on the Supreme Court which that Court could not have exercised but for this article.
Arti cle 329 (b), on the other hand, was primarily intended to exclude or oust the jurisdiction of all courts in regard to electoral matters and to lay down the only mode in which an election could be challenged.
The negative form was there fore more appropriate, and, that being so, it is not sur prising that it was decided to follow the preexisting pat tern in which also the negative language had been adopted.
Before concluding, I should refer to an argument which was strenuously pressed by the learned counsel for the appellant and which has been reproduced by one of the learned Judges of the High Court in these words: "It was next contended that if nomination is part election, a dis pute as to the validity of nomination is a dispute relating to election and that can be called in question only in accordance with the provisions of article 329 (b) by the presentation of an election petition to the appropriate Tribunal and that the Returning Officer would have no juris diction to decide that matter and it was further argued that section 36 of Act XLIII of 1981 would be ultra vires inasmuch as it confers on the Returning Officer a jurisdic tion which, article 329 (b) confers on a Tribunal to be appointed in accordance with the article.
" This argument displays great dialectical ingenuity, but it has no bearing on the result of this appeal and I think it can be very shortly answered.
Under section 36 of the Representation.
of the People Act, 1951, it is the duty of the Returning Officer to scrutinize the nomination papers to ensure that they comply with the requirements of the Act and decide all objections which be made to any nomination.
It is clear that unless this duty is discharged properly, any number of candidates may stand for election without comply ing with the provisions of the Act and a great deal of 240 confusion may ensue.
In discharging the statutory duty imposed on him, the Returning Officer does not call in question any election.
Scrutiny of nomination papers is only a stage, though an important stage, in the election process.
It is one of the essential duties to be performed before the election can be completed, and anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the elec tion.
The fallacy of the argument lies in treating a single step taken in furtherance of an election as equivalent to election.
The decision of this appeal however turns not on the construction of the single word "election", but on the construction of the compendious expression "no election shall be called in question" in its context and setting, with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951.
Evidently, the argument has no bearing on this method of approach to the question posed in this appeal, which appears to me to be the only correct method.
We are informed that besides the Madras High Court, seven other State High Courts have held that they have no jurisdiction under article 226 of the Constitution to enter tain petitions regarding improper rejection of nomination papers.
This view is in my opinion correct and must be affirmed.
The appeal must therefore fail and is dismissed.
In view of the nature and importance of the points raised in this appeal, there should be no order to costs.
PATANJALI SASTRI C.J. I agree.
MEHR CHAND MAHAJAN J. I agree.
MUKHERJEA J. I agree.
DAS J. I agree.
CHANDRASEKHARA AIYAR J. I agree.
Appeal dismissed.
Agent for the 1st respondent: P.A. Mehta.
Agent for the Union of India and the State of Madhya Bharat: P.A. Mehta.
| Article 329 (b) of the Constitution of India provides that "no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for, by or under any law made by the appropriate Legislature.
" The Representation of the People Act, 1951, which made detailed provisions for election to the various Legislatures of the country also contains a provision (sec. 80) that no election shall be called in question except by an election petition presented in accordance with the provisions of the Act.
The appellant, who was a candidate for election to the Legislative Assembly of the State of Madras and whose nomi nation paper was rejected by the Returning Officer, applied to the High Court of Madras under article 226 of the Consti tution for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to direct the Returning Officer to include his name in the list of valid nominations to be published: Held by the Full Court (PATANJALI SASTRI, C.J., FAZL ALl, MAHAJAN, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ.) that in view of the provisions of article 329 (b) of the Constitution and sec.
80 of the Representation of the People Act, 1951, the High Court had no jurisdiction to interfere with the order of the Returning Officer.
The word "election" has by long usage in connection with the process of selection of proper representatives in demo cratic institutions acquired both a wide and a narrow mean ing.
In the 219 narrow sense it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling, or a particular candidate being returned unopposed when there is no poll.
In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Part XV of the Constitution in which article 329 (b) occurs.
The scheme of Part XV of the Constitution and the Repre sentation of the People Act, 1951, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropri ate manner before a special tribunal and should not be brought up at an intermediate stage before any court.
Under the election law, the only significance which the rejection of a nomination paper has, consists in the fact that it can be used as a ground to call the election in question.
Article 329 (b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged.
It follows by neces sary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court.
If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like article 329(b) and in setting up a special tribunal.
Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contem plated, one of them being that conflicting views may be expressed by the High Court at the pre polling stage and by the election tribunal which is to be an independent body, at the stage when the matter is brought up before it.
There fore, questioning the rejection of a nomination paper is "questioning the election" within the meaning of article ,329 (b) of the Constitution and sec.
80 of the Representa tion of the People Act, 1951.
Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
In conformity with this principle, the scheme of the election law in this country as well as in England is that no signif icance should be attached to anything which does not affect the "election"; and if any irregularities are committed while, it is in progress and they belong to the category or class which.
under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to 220 call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.
The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.
Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the elec tion of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.
Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.
Wolverhampton New Water Works Co. vs Hawkesford [6 C.B. (N. section ) 336], Neville vs London Express Newspaper Limited [1910] A.C. 368), Attorney General of Trinidad and Tobago vs Gordon Grant & Co. ([1935] A.C. 532), Secretary of State vs Mask & Co. , Hurdutrai vs Offcial Assign ee of Calcutta , The berge vs Laudry referred to.
Judgment of the High Court of Madras affirmed.
|
N: Criminal Appeal No. 30 of 1951.
Appeal from the Judgment and Order of the High Court of Calcutta (HARRIES C.J. and LAHIRI J.) dated 15th June, 1950, in Criminal Appeal No. 71 of 1950 and Revision No. 295 of 1950.
S.N. Mukherjee, for the appellant.
B. Sen, for the respondent.
December 14.
The Judgment of the Court was deliv ered by FAZL ALI J.
This is an appeal against the judgment of the High Court at Calcutta upholding the order of the Ses sions Judge of Midnapore convicting the appellant under section 326 of the Indian Penal Code and sentencing him to 3 years ' rigorous imprisonment.
The prosecution case against the appellant may be short ly stated as follows: The appellant and the injured person, Kurnad Patra, are first cousins, and they live in a village called Andaria, their houses being only 3 or 4 cubits apart from each other.
They had a dispute about a pathway adjoin ing their houses, which led to a tank, and they quarrelled about it on the 11th July, 1949.
Two days later, on the lath July, when Kumad Patra was washing his hands at the brink of the village tank, the appellant came from behind and inflicted on him 17 injuries.
with the result that two of his fingers had to be amputated and a piece of bone had to be extracted from his left thumb.
The police being informed, started investigation and submitted a charge sheet against the appellant who was finally committed to the Court of Sessions and tried by the Sessions Judge and a jury.
He was charged under section 307 of the Indian Penal Code, but the jury returned a verdict of guilty against him under section 326 of the Penal Code, and the learned Sessions Judge accepting the verdict convicted him under that section as aforesaid.
When the matter came up in appeal to the High Court, a rule was issued on the appellant calling upon him to show cause why his sentence 204 should not be enhanced, but, at the final hearing, the rule was discharged, his appeal was dismissed, and his conviction and the original sentence were upheld.
The first point urged on behalf of the appellant before us is that, inasmuch as there was no charge under section 326 of the Penal Code and the offence under that section was not a minor offence with reference to an offence under section 307 of the Code, he could not have been convicted under the former section.
This argument however overlooks the provisions of section 237 of the Criminal Procedure Code.
That section, after referring to section 236 which provides that alternative charges may be drawn up against an accused person where it is doubtful which of several of fences the facts which can be proved will constitute, states as follows : "If . . the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
" There can be no doubt that on the facts of this case, it was open to the Sessions Judge to charge the appellant alternatively under sections 307 and 326 of the Penal Code.
The case therefore clearly falls under section 237 of the Criminal Procedure Code and the appellant 's conviction under section 326 of the Penal Code was proper even in the absence of a charge.
In Begu vs The King Emperor (1) the Privy Council had to deal with a case where certain persons were charged under section 302 of the Penal Code, but were convicted under section 201 for causing the disappearance of evidence.
Their Lordships upheld the conviction, and while referring to section 237 of the Criminal Procedure Code, they ob served: "A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have (1) (1925) 52 I.A. 191, 205 been made .
Their Lordships entertain no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure.
" The second point urged on behalf of the appellant is that the High Court having issued a rule for the enhancement of the sentence, he should have been allowed to argue the merits of the case which he was not allowed to do.
The learned counsel for the appellant was not, however, able to show that even if it was open to him to argue on the merits of the case the decision would have been otherwise.
Only three contentions were put forward by him, these being : (1) that several material witnesses were not examined; (2.) that the appellant 's case was not placed before the jury in a fair manner; and (3) that there was no proper examination of the appel lant under section 342 of the Criminal Procedure Code.
We have examined these contentions and find that they are entirely without merit.
In urging his first contention, the learned counsel stated that though it was admitted that several persons have got houses to the east, north and north west of the tank where the occurrence is alleged to have taken place, they have not been examined by the prose cution.
He further argued that one Sarat Chandra Ghose, who was present at the house of the accused when it was searched, has also not been examined.
These arguments however have very little force, since there is no evidence to show that those persons had seen the occurrence, an d they also do not take note of the fact that such evidence as has been adduced by the prosecution, if believed, was suffi cient to support the conviction of the appellant.
The Ses sions Judge in his charge to the jury referred specifically to the very argument urged before us, and he told 'the jurors that if they thought it fit it was open to them to draw an inference against the prosecution.
There can be no doubt that the jurors were 27 206 properly directed on the point and they evidently thought that the evidence before them was sufficient for convicting the appellant.
The second contention urged on behalf of the appellant relates to his defence, which, briefly stated, was that Kumad Patra, the injured man, entered his house during his temporary absence, went to the bedroom of his wife, who was a young lady, and committed indecent assault on her and was assaulted in these circumstances.
This story was not sup ported by any evidence but was merely suggested in cross examination, and the Sessions Judge while referring to it in his charge to the jury, observed: ' 'If I were left alone, I would not have believed the defence version.
But you are not bound to accept my opin ion, nor you should be influenced by it It is for you to decide whether you will accept the defence suggestion in favour of which there is no such positive evidence.
" The Sessions Judge undoubtedly expressed himself some what strongly with regard to the defence suggestion, but he coupled his observations, which we think he was entitled to make, with an adequate warning to the jurors that they were not bound to accept his opinion and should not be influenced by it.
The defence version was rejected by the jury, and there can be no doubt that on the materials on the record it would have been rejected by any court of fact.
The last contention put forward by the learned counsel for the appellant was that he was not examined as required by law under section 342 of the Criminal Procedure Code.
It appears that three questions ware put to the appellant by the Sessions Judge after the conclusion of the prosecution evidence.
In the first question, the Sessions Judge asked the appellant what his defence was as to the evidence ad duced, against him; in the second question, the Judge re ferred to the dispute about the pathway and asked the appel lant whether he had inflicted injuries on Kumad Patra; and in the third question, the appellant was asked.
207 whether he would adduce any evidence.
The facts of the case being free from any complications and the points in issue being simple, we find it difficult to hold that the examina tion of the appellant in this particular case was not ade quate.
To sustain such an argument as has been put forward, it is not sufficient for the accused merely to show that he has not been fully examined as required by section 342 of the Criminal Procedure Code, but he must also show that such examination has materially prejudiced him.
In the present case, it appears that the point urged here was not raised in the grounds of appeal to the High Court, nor does it find a place in the grounds of appeal or in the statement of case filed in this court.
It has nowhere been stated that the accused was in any way prejudiced, and there are no materi als before us to hold that he was or might have been preju diced.
We have read the Sessions Judge 's charge to the jury, which is a very fair and full charge, and nothing has been shown to us to justify the conclusion that the verdict of the jury should not have been accepted.
The appeal accordingly fails and is dismissed.
Appeal dismissed.
| The appellant who inflicted serious injuries on another was charged under section 307 of the Indian Penal Code but the jury returned a verdict of guilty against him under section 326 of the Penal Code, and the Sessions Judge, accepting the verdict, convicted him under section 326.
It was contended that the conviction was illegal inasmuch as the offence under section 326 was not a minor offence with reference to the offence under section 307.
Held, that as it was open to the Sessions Judge, on the facts of the case, to charge the appellant alternatively under sections 307 and 326 of the Code the case was covered by section 237 of the Criminal Procedure Code, and the conviction under section 328 of the Penal Code was proper, even though there was no charge under the section.
Begu vs King Emperor (52 I.A. 191) applied.
In order that a conviction may be set aside for non compliance with the provisions of section 342 of the Criminal Procedure Code, it is not sufficient for the accused merely to show that he was not fully examined as required by the section, but he must also show that such examination has materially prejudiced him.
|
Criminal Appeal No. 56 of 1951.
Appeals by special leave from the Judgment and Order dated the 9th March, 1950, of the High Court of Judicature at Nagpur (C. R. Hemeon J.) in Criminal Revisions Nos. 152 and 153 of 1949 arising out of Judgment and Order dated the 24th March, 1949, of the Court of the Sessions Judge, Nag pur, in Criminal Appeals Nos. 26 and 27 of 1949 and Judgment and Order dated the 15th January, 1949, of the Court of the Special Magistrate, Nagpur, in Criminal Case No. 1 of 1948.
1092 N.C. Chatterjee (B. Bannerjee and A.K. Dart, with him) for the appellant in Criminal Appeal No. 56 of 1951.
Bakshi Tek Chand(K. V. Tarnbay, with him) for the appel lant in Criminal Appeal No. 57 of 1951.
T.L. Shivde, Advocate General of Madhya Pradesh (T. P. Naik, with him) for the respondent.
Sept. 23.
The Judgment of the Court was delivered by MAHAJAN J.
This is a consolidated appeal by special leave from the two orders of the High Court of Judicature at Nagpur passed on the 9th March, 1950, in Criminal Revisions Nos. 152 and 153 of 1949.
On a complaint filed by the Assistant Inspector General of Police, Anti Corruption Department, Nagpur, the appel lant in Criminal Appeal No. 56 of 1951 (H. G. Nargundkar, Excise Commissioner, Madhya Pradesh), and the appellant in Criminal Appeal No. 57 of 1951 (R.S. Patel) were tried in the court of Shri B.K. Chaudhri, Special Magistrate, Nag pur, for the offence of conspiracy to secure the contract of Seoni Distillery from April, 1947, to March 1951 by forging the tender, Exhibit P 3A, and for commission of the offences of forgery of the tender (Exhibit P 3A) and of another document, Exhibit P 24.
The learned Special Magistrate convicted both the appellants on all the three charges.
He sentenced R.S. Patel to rigorous imprisonment for one year under each charge and to pay fines of Rs. 2,000, Rs. 2,000, and Rs. 1,000, under the first, second and third charges respectively.
The appellant Nargundkar was sentenced to rigorous imprisonment for six months under each charge and to pay fines of Rs. 2,000, Rs. 2,000 and Rs. 1.,000, under the first, second and third charges respectively.
Each of the appellants appealed against their respective convictions and sentences to the Court of the Sessions Judge, Nagpur.
The learned Sessions Judge quashed the conviction of both the appellants under the first charge of criminal conspiracy under section 120 B, I.P.C., but maintained the 1093 convictions and sentences under section 465, I.P.C. or the charges of forging Exhibits P 3 (A) and P 24.
Both the appellants went up in revision against this decision to the High Court but without any success.
An application was then made under article 136 of the Constitution of India for special leave to appeal and this was allowed by this Court on 24th March, 1950 The appellant, Nargundkar, is a member of the Central Provinces & Berar Provincial Service and held the substan tive post of Deputy Commissioner for several years.
In April, 1946, he was appointed Excise Commissioner.
Madhya Pradesh, and continued to hold that office till the 5th September, '1947.
The appellant, R.S. Patel, is a sugar Technologist and Chemical Engineer.
He received his technical education and practical training in America and after working as Chief Chemist and General Manager in factories in Madras for five years, came to the Central Provinces in 1944, when the Provincial Government gave him a licence to set up a dis tillery for the manufacture of industrial spirit.
On the 11th September, 1946, Nargundkar in his capacity as Excise Commissioner invited tenders for working the Government distillery at Seoni and supplying spirit to certain specified districts f or a period of four years from 1st April, 1947, to 31st March, 1951.
The last date for submitting the tenders was the 31st October, 1946.
In response to this tender notice, five tenders were filed including those filed by (1) appellant, R.S. Patel, (2) K.B. Habibur Rahman, (3).
Zakirur Rahman, and (4) Edulji V. Doongaji (P. W. 4), in sealed covers with the Excise Commis sioner on the 31st October, 1946, and he handed them over with the seals intact to the office superintende.
nt, S.W. Gadgil (P. w. 13), for safe custody.
Gadgil took them to his room and kept them under lock and key in the office safe.
The case for the prosecution is that on the 9th Novem ber, 1946, accused Nargundkar took these sealed tenders home, that the tenders were opened by him at his house, that the rates of the tender (Exhibit 1094 P 6) of E.J. Doongaji (P. W. 4) were divulged to accused 2 (R. section Patel), who was allowed to substitute another tender (Exhibit P 3A), containing rates lower than those of Doongaji, that thereafter these open tenders were brought to the office on the 11th November, 1946, and given to Amarnath (P.W. 20) who was the Assistant Commissioner of Excise, for submitting a report and that on the recommendation of Nar gundkar the tender of accused 2 (Patel) was accepted and the contract was given to him.
In May, 1947, on receipt of an application (Exhibit P 1) from one Dilbagrai (P. W. 14), enquiries were started by the Anti Corruption Department.
Both the accused became aware of the enquiry.
In order to create evidence in their favour they brought into existence a letter (Exhibit P 24) and antedated it to 20th November, 1946.
This document was forged with the intention of com mitting fraud and of causing injury to Amarnath (P. W. 20) and also to Doongaji (P.W. 4).
Exhibit P 24 is alleged to have been typed on a typewriter (Article A) which was pur chased on the 30th December, 1946, by the National Industri al Alcohol Co., Nagpur, of which accused Patel was the managing director.
It Was further alleged that the endorse ment made by accused 1 (Nargundkar) in the said letter "No action seems necessary.
File", and marked to Superintendent "S" was not made on the 21st November, 1946, which date it bears.
This letter was handed over by accused 1 to the Office Superintendent, S.W. Gadgil (P.W. 13) about the middle of August, 1947, and thereafter accused I wrote a letter (Exhibit P. 26), on the 2nd October, 1947, to Sri section Sanyal (P.W. 19) who was then the Excise Commissioner, requesting that this letter (Exhibit P 24) and a note sheet (Exhibit P 27) be kept in sale custody.
Both the accused denied the commission of the offences of criminal conspiracy, forgery and abetment thereof.
Nargundkar denied having attended office on the 9th Novem ber, 1946.
He denied having taken the tenders home.
Ac cording to him, the tenders were opened by him in the office on the 1095 11th November, 1946.
Accused 2 denied that the tender of Doongaji was shown to him by accused 1 between the 9th and 11th November, 1946.
He stated that the tender (Exhibit P 3A) was the original tender submitted by him on the 31st October, 1946.
As regards Exhibit P 24, it was denied that it was fabricated or antedated.
Accused 2 stated that it was not typed on article A.
He also alleged that the allegations made in Exhibit P 24 were correct.
Accused Nargundkar stated that the endorsement was made by him on the 21st November, 1946.
The first charge having failed, nothing need be said about it herein.
In order to prove the second charge the prosecution had to establish that Gadgil, P.W. 13, handed over the sealed tenders on the 9th November, 1946, to accused Nargundkar, that the latter took them home, that between the 9th and the 11th November he met Patel at his house or elsewhere and that accused.
Nargundkar showed or communicated the particu lars of the tender of Doongaji to accused Patel who substi tuted Exhibit P 3A for his original tender before the 11th November, 1946.
Admittedly there is no direct evidence to prove any of these facts except the first one, and the nature of the case is such that recourse could only be had to circumstantial evidence to establish those facts.
The fact that the sealed tenders were handed over by Gadgil to accused Nargundkar on the 9th November has been held proved solely on the uncorroborated testimony of Gadgil as against the denial of Nargundkar.
Gadgil was himself a suspect in the case.
He was kept by the police away from the office for about eight months during the investigation, he was asked to proceed on leave at the instance of the police and his leave was extended at their request.
On the expiry of his leave he was kept off duty without salary for a period of about five months but later on he was paid his full salary after he had given evidence in support of the prosecution.
He made addi tions and improvements on vital points from stage to stage of his deposition and in certain particulars his statement was contradicted by Ramaswami, P.W. 80.
On his own admission he is an accomplice in respect 1096 of the forgery of Exhibit P 27, one of the documents al leged to have been forged for purposes of the defence but concerning which no prosecution was started.
Exhibit P 27 bears date 31st October, 1946.
Gadgil 's statement about it is as follows: "He (Nargundkar) put down his signature and the date 31st October, 1946.
This order was actually written by Sh.
Nargundkar in the note sheet, Exhibit P 27, in the month of July or August, 1947.
The dates were antedated.
In the margin of the note sheet I have put down my initials S.W.G. and put the date 31st October, 1946.
This note sheet was not prepared on gist October, 1946.
He asked me to keep it in my custody.
" The witness admittedly became a party to the preparation of a forged document.
Whether he was telling the truth, or he was telling a lie, as appears likely from his cross examination, he is in either event, not a person on whom any reliance could be placed.
It is curious that this aspect of the evidence of Gadgil has not been noticed by any of the three courts below.
When the court of first instance and the court of appeal arrive at concurrent findings of fact after believing the evidence of a witness, this court as the final court does not disturb such findings, save in most exceptional cases.
But where a finding of fact is arrived at on the testimony of a witness of the character of Gadgil and the courts below depart from the rule of prudence that such testimony should not be accepted unless it is corroborated by some other evidence on the record, a finding of that character in the circumstances of a particular case may well be reviewed even on special leave if the other circumstances in the ease require it, and substantial and grave injustice has result ed.
After fully examining the material on the record we have reached the conclusion that the courts below were in error in accepting the uncorroborated testimony of Gadgil to find the fact that he handed over the tenders to Nargund kar on the 9th November, 1946.
The witness was not allowed to live in a free atmosphere and was kept under police 1097 surveillance during the whole of the period of investigation and the trial and was rewarded with payment of his full salary after he had given evidence to the satisfaction of the prosecution.
He is a person who felt no hesitation in deposing on oath that he willingly became a party to the forgery of Exhibit 13 27.
Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution, in order to bring the guilt home to the accused, has yet to prove the other facts referred to above.
No direct ' evidence was adduced in proof of those facts.
Reliance was placed by the prosecution and by the courts below on certain circumstances, and intrinsic evidence contained in the impugned document, Exhibit P 3A.
In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind.
In such cases there is always the danger that conjecture or suspi cion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson to the jury in Reg vs Hodge (1) where he said : "The mind was apt to take a pleasure in adapting circum stances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to over reach and mislead itself, to supply some little link that 'is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
" It is well to remember that in cases where the evidence is of a circumstantial nature,the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so estab lished should be consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.
In (1) 141 1098 other words, there must be a chain of evidence so far com plete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
In spite of the force ful arguments addressed to us by the learned Advocate Gener al on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P 3A or ,outside and we are constrained to observe that the courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case.
The trial magistrate was of the opinion that friendship between the two accused was of a very rapid growth and that their relations were very intimate and accused 2 was in a position to influence accused 1.
He thus found that there was motive for the commission of the crime.
The learned Sessions Judge disagreed with this finding and the High Court agreed with the Sessions Judge on this point.
It observed that the evidence which tended to prove friendship or undue favour was not such as to form the basis for a finding.
It further found that there was nothing to show that the appellant Nargundkar received any illegal reward or the promise of one for showing Doongaji 's tender to accused R.S. Patel.
The first circumstance therefore on which the trial Judge placed considerable reliance was negatived by the court of appeal and in revision.
It having been found that there was no motive whatsoever for accused Nargundkar to show the tenders to accused Patel and to take a substi tuted tender from him, the main link in the chain of reason ing of the trial court vanishes.
Amiable relations between the two accused or their official relationship could not be regarded as sufficient motive for committing the crime of forgery.
The mainstay of the prosecution case is the intrinsic evidence of the contents of Exhibit P 3A itself which ac cording to the courts below are unusual, peculiar and strange and which according to the Advocate General could not be there if it was a genune 1099 document.
The argument would have force provided the prem ises on which it is based are correct.
Having examined the contents of Exhibit P 3A, we do not find anything very unusual or extraordinary in it which could not be there without its author having seen Exhibit P 6.
We now proceed to examine the so called peculiar features in Exhibit P 3A.
In order to appreciate the points made by the learned Advocate General it is necessary to set out certain facts.
Exhibit P 9 is the notice calling for tenders for the supply of country spirit in the Seoni distillery area.
The rates which were called for by this notice were as follows: 1.
Flat rate for four years.
Rates on sliding scale for four years.
All in rate on the sliding scale for one year 1947 48. 4.
Flat rates on the basis of the price of mahua flowers for three years 1948 51. 5.
All in sliding scale rate on the basis of the price of mahua flowers for three years 1948 51.
The trial magistrate held on a construction of it that no rate or rates of separate years were asked for in this notice and that one flat rate was only asked for, for four years.
Habibur Rahman and Zakirur Rahman in their tenders, Exhibits P 4 and P 5, quoted one flat rate for four years and did not mention separate flat rates for separate years.
Doongaji in his tender, Exhibit P 6, mentioned separate flat rates for each separate year also.
He did so because he consulted one Mr. Munshi, Personal Assistant to the Excise Commissioner, whether he should quote each rate separately and Mr. Munshi told him that he could give flat rate for the combined years as well as flat rates and also sliding scale rates for each year separately.
Admittedly accused 2 was working as an agent of Habibur Rahman and his son Zakirur Rahman for the distillery contracts of Betul and Seoni, and, therefore, he must have been the author not only of his own tender but of the tenders submitted by Habibur Rahman and Zakirur Rahman, Exhibits 1100 P 4 and P 5.
All of them were acting together with the object of getting the contract though they were submitting three separate tenders.
The trial magistrate held that as Habibur Rahman and Zakirur Rahman gave one flat rate for four years as called for by Exhibit P 9, but accused 2, the author of all these tenders, did not do it in Exhibit P 3A, but followed the method of Doongaji in giving the rates of each year separately as well as the rate for the combined four years.
lie must have done so as he was shown the tender Exhibit P section The question arises whether the circumstance that the accused Patel and Habibur Rahrnan and Zakirur Rahman were acting together was such from which a necessary inference arises that the accused Patel must have been the author of all the three tenders and, if he were, that he could not have departed from the method adopted by him in preparing Exhibits P 4 and P 5 unless and until he had seen Exhibit P 6.
We are clearly of the opinion that from the premises stated this inference does not necessarily follow.
Doongaji even after reading Exhibit P 9, could not make up his mind whether to submit the tender with one flat rate for all the four years or whether to submit it by giving sepa rate flat rates for each of the four years and made enquiry from the office of the Excise Commissioner and then quoted separate rates for each of the four years separately also.
Patel who has admittedly considerable experience of distill ery contracts and about the method of submitting tenders might very well have thought that it was best to quote a flat rate for all the years as well as a flat rate for each year separately.
The circumstance that he did not do so in the other two tenders prepared by him does not materially advance the prosecution case.
The very object of submitting several tenders on behalf of three persons acting in unison was to indicate to the excise authorities that they were being submitted by three different persons.
If there were no variations whatsoever between those tenders that would have defeated the very purpose of submitting them.
More over, a variation of this trifling nature between Exhibits P 3A and P 4 1101 and P 5 cannot be said to be of such an unusual or of such an extraordinary character as to warrant the inference that it could not have been made except without a look at the tender of Doongaji.
The circumstance is of a neutral charac ter and the trial magistrate and the learned Sessions Judge gave undue importance to it, being obsessed with the idea that such a quotation of flat rates for each year could not be mentioned in a tender by a contractor merely on a con struction of Exhibit P 9 and without any further inquiry or without seeing the tender of somebody else who had followed that method.
The next circumstance on which considerable reliance is placed is that accused 2 studiously maintained rates below the rates of Doongaji throughout, that when Doongaji lowered his rates for the second year accused 2 did the same, and when Doongaji raised his rates for the third and fourth years accused 2 also did so, at the same time maintaining rates lower than Doongaji 's rates.
It is said that the system followed by Habibur Rahman and Zakirur Rahman and Patel originally must have been the same as Patel was the author of all the three tenders, that Habibur Rahman 'srates were higher than Zakirur Rahman 's by six pies and this variation was constant throughout, that in Patel 's original tender which must have followed the same system his rates would be lower than Habibur Rahman 's by three pies through out.
Exhibit P 3A, however, shows that this is not so.
Patel abandoned the system when he found that his rates on his original scheme would be higher than the correspond ing rates of Doongaji.
Learned Advocate General contended that it was impossible for Patel unless he had seen Exhibit P 6, to quote rates of a large number of items numbering about 197, in every case lower than the rates given in Exhibit P 6 and the circumstance that in not a single case he has quoted a higher rate than Exhibit P 6 is conclusive of the fact that he had done so after he had seen Exhibit P 6.
It was also said that there is no satisfactory explana tion why Patel abandoned the scheme adopted by him in 1102 drawing up Exhibits P 4 and P 5 and his original tender.
In our view, this circumstance again is not so strange or peculiar as was made out by the learned Advocate General or in the courts below.
In the first place, there is no material whatsoever for the assumption that the so called original tender was drawn up on the same scheme as Exhibits P 4 and P 5 or that there was a constant variation in rates between it and Habibur Rahman 's tender.
It has been assumed on mere surmise that the first five rates in the tender, Exhibit P 3A, are the rates that had been originally quoted.
The original tender is not forthcoming and there is no evidence at all about its contents.
Moreover, in the depo sition of Doongaji it was elicited that in the year 1942 when tenders for the Seoni distillery contract were called for, the rates quoted by Ratanshah were lower than his rates for all items.
He, however, voluntarily added that Ratanshah obtained his rates of the previous contracts before he submitted his tender for the year 1942 and that he had made a reduction of annas two to three in those rates but he was forced to admit that the rate of Ratanshah in the tender was not only lower than his but was also lower throughout than the rates of Laxminarain, Haji Ismail and Habibur Rahman even without seeing their tenders.
From this statement it is quite clear that even without seeing the tenders of differ ent tenderers a contractor may quote rock bottom rates of all items on his own calculation or impelled by the desire of taking the contract anyhow.
We do not follow why Patel could not do in 1946 what was done by Ratanshah in his tenders in 1942 and quote rates lower in all particulars and regarding all items than the rates of Doongaji.
If a person is out to give rockbottom rates and his calculation is such that his rates work out lower than the rates of others, it may well be that he may quote lower rates in respect of all items.
It was then said that Patel had adopted a particular plan in submitting the three tenders, of himself, Habibur Rahman and Zakirur Rahman and that his plan was that his rates should be less by three pies 1103 than the rates he had quoted for Habibur Rahman, that in the first five items of Exhibit 145 he stuck to that plan and did not alter the rates of those items as originally submit ted by him, as those rates were lower than the rates of Doongaji but from the sixth item onwards he substituted new rates for the ones he had originally submitted and he de parted from the plan so that his rates for each item were to be lower only by three pies as compared with the rates of Habibur Rahman.
It is no doubt true that Patel did not adhere to the plan that he adopted in the first five items of his tender but is that a circumstance from which any inference can be drawn that the first five items are a part of his original tender or that he did so depart from them because he had seen Exhibit P 6 and he wanted to underbid Doongaji.
As we have already said, the object of submitting three separate tenders ostensibly by persons who were acting together was to secure the contract in one or the other name and Patel who was the author of all the three documents may very well in his own document have quoted much lower figures than were quoted by Habibur Rahman and Zakirur Rahman, in order also to give the impression that all these tenders had not been submitted by one and the same person.
Be that as it may, a closer examination of the tenders of Doongaji and Patel completely negatives the theory of the courts below.
The rates quoted in the first five items of Exhibit P 145 are lower than the rates of Doongaji by 102, 69, 18, 12 and 9 pies respectively.
Even in the subsequent quotations except in one case where the disparity in the tales of Doongaji and Patel is only two pies, the disparity in the rates is from 9 to 11 pies.
Patel is certainly a businessman and the whole object of quoting the rates was to earn the maximum profit.
If he had seen the tender of Doongaji he would have modelled the rates in a manner that would give him the highest profit.
The learned Advocate General could not suggest any reason whatsoever why Patel would maintain his quotation for the quantity of 50,000 gallons at Rs, 2 10 6 when the rate of Doongaji was Rs. 3 3 0 1104 He could easily raise the quotation to Rs. 3 and similarly in all other cases he could have underbid Doongaji by 2, 3 or 6 pies at the most.
He need not have maintained a dis parity of 9 to 11 pies between his rates and the rates of Doongaji.
In our opinion, therefore, no conclusion of any character could be drawn from the disparity in the rates of Doongaji or of Patel or of the expected uniformity in the rates of Habibur Rahman or of R.S. Patel which would estab lish that Exhibit P 3A had been prepared by having a look at Exhibit P 6.
Another circumstance on which reliance was placed was that certain rates in Exhibit P 3A are lower than the corre sponding rates in Exhibit P 6 by only one or two pies.
There is no doubt that one or two rates are lower by two pies than the rates in Exhibit P 6 but nothing follows from that innocent circumstance, unless one starts with a pre sumption of guilt.
Once it is assumed that the tender of Doongaji was shown to Patel, all these circumstances might to some extent fit in with the view that in certain respects it may have been copied from Exhibit P 6.
The courts below fell into this error and departed from the rule that in a criminal case an accused person is to be presumed to be innocent and that it is for the prosecution to establish his guilt conclusively.
Next it was urged that in the covering letter Exhibit P 3 sent by Patel he mentions three appendices numbered 1, 2 and 3, The same expression finds place in the covering letter Exhibit P 4 of Habibur Rahman and Exhibit P~5 of Zakirur Rahman, that appendices 1 to a of the tender of Habibur Rahman and Zakirur Rahman correctly answer to the reference in the covering letters but this is not so in Patel 's case; on the other hand, instead of appendix 1, Patel has appendix 1 (a) and 1 (b) and the number of his appendices thus goes up to four and this departure from Exhibits P 4 and P 5 came about because of his having seen Exhibit P 6 and the number of appendices annexed to it.
It was urged that the original tender of Patel must have contained three appendices like those of Habibur Rahman and 1105 Zakirur Rahman and not appendix l(a) and l(b) as now found and that this circumstance showed substitution of the 'tender.
The learned magistrate, in our opinion, in giving importance to this circumstance mislead himself completely.
In the first place, it is not accurate to say that the expression appendices 1, 2 and 3 was common to the covering letters Exhibts P 4 and P 5.
In Exhibit P 5 the appen dices are marked A, B and C. Therefore, no uniform method was adopted by Patel in marking the appendices to the ten ders, Exhibits P 4 and P 5.
Secondly, there is no conflict in the expression of the appendices of Habibur Rahman and Patel.
They have been marked as 1, 2 and 3 and a mere subdi vision of the first appendix into (a) and (b) could not be taken to be a departure from the method adopted in the description of the appendices.
It may further be observed that the covering letter signed by Patel mentions four appendices, while the covering letters of Habibur and Zaki rur Rahman only mention three appendices.
The trial magis trate as well as the Sessions Judge ignored all these dif ferences in the method of the description of the appendices and assumed that they had been uniformly described.
The result therefore is that all these so called peculiar features found by the courts below in Exhibit P 3A should be eliminated from consideration and it must be held that there are really no circumstances inconsistent with Exhibit P 3A being a genuine document.
It could have been made out without looking at Exhibit P 6.
In this view of the case the whole basis on which the judgments of the courts below are founded vanishes, and in the absence of any evidence of motive, we are of the opinion that the facts did not on any just or legal view of them warrant a conviction, and al though the proceedings are taken to have been unobjection able in form, justice has gravely and injuriously miscar ried.
We therefore set aside the conviction of both the appellants on the second charge and acquit them, 142 1106 In order to appreciate the third charge, it is necessary to set out the terms of Exhibit P 24 which it is said was antedated in order to create evidence for the defence of the accused and to injure Amarnath.
It is in these terms: Congress Nagar, Nagpur, 20th November, 1946.
The Commissioner of Excise, C.P. & Berar, Nagpur.
Dear Sir, I beg to submit few of my complaints for such action as you may be pleased to take, which are as under.
I went to see Mr. Amarnath last week, at his residence in connection with Seoni Distillery work.
I saw Mr. Edulji and his partner with Mr. Amarnath in the office room of his residence with some office files.
From the papers I could recognize my tender open on the table in front of them.
As soon as I went there, all of them were astonished and they could not speak with me for a moment, and then they carried on some dry general conversation with me.
Same way after about a week, when I went to Seoni for mahua bill, when Mr. Amarnath visited for sanctioning the advance, I had the opportunity to see Mr. Amarnath in dak bungalow at about 9 30 p.m. when I saw Mr. Mehta the ex manager of Mr. Edulji (who is also the manager of Seoni Electric Co.) with Mr. Amarnath near table with the same file of the tender.
No doubt after seeing the above two incidents I requested Mr. Amarnath to be fair in this af fair.
I am bringing these incidents to your notice, as I fear that something underhand may not be going on, and I am afraid that my tender may be tampered with.
Hoping to get justice, Yours faithfully, Sd.
R.S. Patel.
" 1107 The words "Congress Nagar, Nagpur, 20th November, 1946" are in manuscript, while the rest of the letter has been typed.
The digit 6 of the year 1946 has been over written on digit 7 written in continental style and it is apparent to the naked eye that originally the writer wrote 7 and subsequently changed it to 6.
It was contended by the learned Advocate General, and this is the finding of the courts below, that this letter was written some time during the investigation of the case in July or August 1947, and was antedated in order to implicate Amarnath and to use it as evidence in defence.
The point for decision is wheth er there is any evidence whatsoever to establish this act.
We have not been able to discover any such evidence on the record; on the other hand the intrinsic evidence in the letter proves that most likely it came into existence on the date it bears.
The relevant facts are that the tenders were opened by accused Nargundkar on the 11th November, 1946, he handed them over after making the endorsements to Amarnath and Amarnath had to submit a report about them.
It is alleged in this letter that "last week", i.e., during the week commencing on the 11th November, 1946, accused Patel went to see Amarnath and there he saw Edulji Doongaji with him with his tender open on his table in front of him and that he was astonished at it, that about a week later he again went to Seoni and had the opportunity to see Amarnath and Mr. Mehta, ex manager of Edulji Doongaji, was with him and the tender file was lying there.
It was stated that he had requested Amarnath to be fair in this affair and the Commissioner was asked that he should see that his tender was not tampered with and he got justice.
The whole purpose and object of this letter was to protect himself against any underhand dealing in the granting of the contract.
In his statement under section 342, Cr. P.C., Patel said that he saw Amarnath on the morning of the 15th or 16th November, 1946, and he met Amarnath at Seoni at the distillery prem ises on the 16th November, 1946, and on the same 1108 day he met him at about 9 p.m. at the Seoni dak bungalow and that he again met him on the 17th November, at 10 a.m.
He also stated that he had gone to see Amarnath at his resi dence at Nagpur between the dates 12th and 18th November.
It was contended by the learned Advocate General that his statement was inconsistent with the recitals contained in Exhibit P 24.
We see nothing inconsistent between this statement and the recitals.
If accused Patel saw Amarnath on the 12th, the letter having been written on the 20th November, it would be quite a correct thing to say that he saw him "last week" and the next recital when he said that about a week thereafter he saw him again is quite consistent with his going and seeing him on the 16th or 17th November.
That would be about a week after the first visit.
To draw any conclusion adverse to the accused from a slight inaccu racy in the description of dates and to conclude therefrom that it was established that the accused Patel had seen Amarnath on the 9th November, 1946, amounts to unnecessari ly stretching a point against the accused.
The recitals in the letter, true or false, are quite consistent with the letter bearing date 20th November, 1946.
The magistrate observed that the vagueness about the date and the week shows that the allegations therein are not correct.
We have not been able to understand how the vagueness about the date could lead to the conclusion arrived at.
Emphasis was laid on the overwriting of the figure 6 over the figure 7 in the manuscript part of the letter.
It was said that the normal experience is that it becomes a subconscious habit to automatically write the year correctly when several months have elapsed after the change of the year and that by sheer force of habit the correct year must have been put down when the date was entered in the letter Exhibit P 24 and that the figure was subsequently changed to 6 and this fact was an indication that the letter was written some time in the year 1947.
In our view this argument again involves an element 1109 of conjecture.
The mistake may well have been inadvertent ly made and the correction made there and then.
That such mistakes are not very uncommon or unusual and occur in official documents is fully established on the record, in para 93 of the judgment of the learned Sessions Judge and it is said as follows: "The appellants have produced a file which is Exhibit ID 35.
It contains a sheet which bears pages 9 and 10.
On the 10th page there are two office notes one is written by A.M. Naidu and the other by the appellant Nargundkar.
A.M. Naidu below his signature has written '6 4 1948 '.
The appellant Nargundkar below his signature has written '6 4 1947 '.
The other notes in the office file show that the correct date of the two signatures was 6th August, 1947.
Thus in this sheet there are two mistakes in mentioning the number of the month and one mistake in mentioning the number of the year.
The appellants contend that such mistakes are possible.
Nobody can deny that such mistakes are possible; but it has to be decided what inferences can be drawn from such mistakes, if there is other evidence also.
" We have looked in vain for other evidence to prove that the letter was not written on 'the date it bears.
Even Gadgil could not explain why he said that the letter was written in July, 1946.
It is clear that he is not telling the ' truth in this respect.
The endorsement made on the letter by accused Nargundkar clearly bears the date 21st November, 1946, and if this letter was not given to him on the date of the endorsement and was given to him several months afterwards he would in ordinary course have made some note either on the letter or in the receipt register of his office when that letter was received by him.
Then it was said that this letter was not in the file of the tenders which were kept separate.
The Commissioner had noted that the letter be filed and he sent it to the office.
If the office people did not put it in the file, from that circum stance no adverse inference could 1110 be drawn as to the date that the letter bears.
It is dear that no forger would have in such a clumsy manner corrected 1947 into 1946 so as to leave the original figure "7" intact and thus leave evidence of its suspicious character writ large on its face.
There was no hurry about it, and a second letter without the alteration could easily have been typed.
Next it was argued that the letter was not typed on the office typewriter that was in those days, viz., article B, and that it had been typed on the typewriter article A which did not reach Nagpur till the end of 1946.
On this point evidence of certain experts was led.
The High Court rightly held that opinion of such experts was not admissible under the Indian Evidence Act as they did not fall within the ambit of section 45 of the Act.
This view of the High Court was not contested before us.
It is curious that the learned Judge in the High Court, though he held that the evidence of the experts was inadmissible, proceeded nevertheless to discuss it and placed some reliance on it.
The trial magis trate and the learned Sessions Judge used this evidence to arrive at the finding that, as the letter was typed on article A which had not reached Nagpur till the end of December, 1946, obviously the letter was antedated.
Their conclusion based on inadmissible evidence has therefore to be ignored.
It was further held that the evidence of experts was corroborated by the statements of the accused recorded under section 342.
The accused Patel, when questioned about this letter, made the following statement: "Exhibit P 31 was typed on the office typewriter article B. Exhibit P 24 being my personal complaint letter was typed by my Personal Assistant on one of the typewriters which were brought in the same office for trial, with a view to purchase.
As this was my personal complaint no copy of it was kept in the Correspondence Files Exhibit P 34 and Exhib it P 35 just 1111 as there is no copy in these files of my tender Exhibit P 3A . . .
In the month of September, October and November, 194t5, several machines were brought for trial from various parties in our of rice till the typewrit er article A was purchased by National Industrial Alcohol Ltd. Company.
" If the evidence of the experts is eliminated, there is no material for holding that Exhibit P 24 was typed on article A.
The trial magistrate and the learned Sessions Judge used part of the statement of the accused for arriving at the conclusion that the letter not having been typed on article B must necessarily have been typed on article A.
Such use of the statement of the accused was wholly unwar ranted.
It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.
An admission must be used either as a whole or not at all.
If the statement of the accused is used as a whole, it completely demolishes the prosecution case and, if it is not used at all, then there remains no material on the record from which any inference could be drawn that the letter was not writeen on the date it bears.
For the reasons given above we hold that there is no evidence whatsoever on the record to prove that this letter Exhibit P 24 was antedated and that being so, the charge in respect of forgery of this letter also fails.
Read as a whole, this letter cannot be said to have been written with the intention of causing any injury to Amarnath or for the purpose of creating a defence in respect of the second charge.
The letter read as a whole is an innocuous document and its dominant purpose and intent was to safeguard the interests of accused Patel and to protect him against any underhand or unfair act of his rival contractors.
We cannot infer any intent to defraud or any intention to injure Amarnath, though in order to protect himself accused Patel made certain allegations against him.
We therefore set aside the conviction of both the appellants under the third charge and acquit them.
1112 The result is that the consolidated appeal is allowed, the judgments of all the three courts below are set aside and the appellants are acquitted.
Appellants acquitted.
Agent for the appellant in Criminal Appeal No. 56 of 1951: Ganpat Rai.
Agent for the appellant in Criminal Appeal No. S7 of 1951: Rajinder Narain.
| In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof.
It is therefore right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved.
In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
vs Hodge [(1838) referred to.
An admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.
It must be used either as a whole or not at all.
|
Civil Appeal No. 90 of 1950.
Appeal against the Judgment and Decree dated the 22nd July 1948 of the High Court of Judicature at Calcutta (K. C. Mitter, and K.C. Chunder J J) in appeal from Original Decree No. 49 of 1942 arising 74 574 out of Decree dated the 8th September 1941 of the Subordi nate Judge at Asansole in Suit No. 1 of 1941.
Purusottam Chatterji (section N. Mukherjee, with him) for the appellants.
Panchanan Ghose, (P. C. Chatterjee, with him) for the respondent.
May 4. 'the following judgments were delivered : DAS J.
This appeal arises out of a suit filed by the appellants on January 2, 1941, in the Court of the Subordi nate Judge, Asansole.
That suit came to be filed in circum stances which may now be stated shortly.
A suit had been instituted by one Kumar Dakhineswar Malia against Rameswar Malia, Rani Bhaba Sundari and others for partition of the Searsole Raj Estate.
One Bhagabati Charan Mitra was appointed receiver of that estate in that suit.
On August 10, 1908, the said receiver with the permis sion of the Court which had appointed him as receiver grant ed two mining leases, each for 999 years one in respect of 5/16 share of the Malias in Mouza Monohar Bahal and the other in respect of 230 bighas in village Marich Kota to a firm then carrying on business under the name and style of Laik Banerjee & Company.
On the same day the said receiver with like permission mortgaged these properties to the said firm as security for the due repayment of the loan of Rs. 100,000 advanced by that firm.
The Malias joined the re ceiver in executing the aforesaid leases and the mortgage.
As a result of these transactions the firm of Laik Banerjee & Company became the lessees for 999 years of the two properties as well as the mortgagee of the lessors ' interest in the same.
By diverse processes not necessary to be detailed, the appellants have become the successors in interest of the mortgagors and the respondent Deva Prasanna Mukerjee has become the successor in interest of the mortga gee under the mortgage of August 10, 1908.
575 On March 31, 1922, Deva Prasanna filed suit No. 78 of 1922 for enforcing the mortgage of 1908.
Preliminary decree was passed in the last mentioned suit on ' July 31, 1928, and a final decree for sale was made I on February 26, 1929.
In execution of this final decree the mortgaged properties were sold at a Court i sale and were purchased by Deva Prasanna for ' Rs. 59,000.
This sale was confirmed by the Court on June 30, 1931.
A large sum remaining still due to Deva Prasanna, he applied for, and on October 30, 1935, obtained a personal decree for Rs. 1,27,179 0 6 against Raja Pramatha Nath Malia who had by inheritance acquired the lessors ' interest and become the borrower.
In 1936, Deva Prasanna started execution case No. 118 of 1936 for execution of the personal decree and attached certain properties alleging that the same belonged to the Raja.
The exact date of the attachment does not appear from the printed record.
The Raja as Sibait of a certain deity and his two sons, the appellants before us, objected to the attachment of these properties and filed a claim case.
Negotiations for settlement started and eventually, on January 30, 1937, a petition (exhibit 2) was filed in the exe cuting Court stating as follows : "The judgment debtor having made special requests to the decree holder for an amicable settlement of the aforesaid execution case, the decree holder has agreed to the same.
But some time is required to settle the talks and all the terms etc.
The judgment debtor has paid to the decree holder the costs of this execution amounting to Rs. 76 14 0, and he having made requests for this execution case being struck off for the present on keeping the attachment in force, the decreeholder has agreed to it.
It is, therefore, prayed that under the circumstances aforesaid, the Court may be pleased to strike off this execution case keeping the attachment in force." Neither the original nor a certified copy of the order made on that date by the executing Court on the 576 above petition is forthcoming but the parties have definite ly agreed that the order is substantially and correctly entered in column 20 of exhibit F which is a certified copy of extract from the Register of applications for executions of decrees relating to execution Case No. 118 of 1936.
The heading of column 20 is 'Date on which execution case was finally disposed of and purport of final order.
" The entry in column 20 under that head is: "D. H. admits receipt of Rs. 76 14/ as costs of this case from the J.D.
The execution case is dismissed for non prosecution the attachment already effected in this case continuing.
30th January 1937.
" The entry under column 11 of that very exhibit reads as follows : "Claim case automatically drops as the execution case is dismissed.
It is, therefore, rejected without any sort of adjudication.
30th January 1937.
" In May 1937, the Searsole Raj Estate came under the charge of the Court of Wards.
By a Kobala executed with the permission of the Board of Revenue Raja Pramatha Nath Malia and his two sons Kumars Pashupati Nath Malia and Kshitipati Nath Malia represented by Kumar Kshitipati Nath Malia as the Manager of the Searsole Raj Wards Estate conveyed a property known as Senapati Mahal to Deva Prasanna in full settlement of his claim under the personal decree against the Raja.
By an agreement of even date, Deva Prasanna agreed to reconvey Senapati Mahal to the Kumars if he was paid Rs. 90,000/ within two years from that date.
Senapati Mahal orginally belonged to the Raja but had been tranSferred by him to his two sons.
A creditor, however, had filed a suit under sec tion 53 of the Transfer of Property Act challenging that transfer and had actually got a decree declaring that trans fer as fradulent and void as against the creditors of the Raja 577 An appeal was filed by the Kumars which was pending at the date of the Kobala of January 4, 1939, and, in the circum stances, it was considered safer to join the Raja in the last mentioned Kobala in favour of Deva Prasanna.
On June 2, 1939, a petition was filed in the Court of the Subordinate Judge, Asansole, on behalf of Deva Prasanna as the decree holder.
It was headed "Money Execution Case No. 118 of 1936.
The relevant portions of this petition were as follows; "That the above execution case was disposed of on the 30th January 1937 with the attachment of the properties subsisting; since then the decree put into execution in the above case has been adjusted after remission of a large amount of interest by the out and out sale of certain properties by a registered Kobala dated 4th January 1939 . . . . . . . . .So there is no longer any need of the said attachment remaining subsisting.
It is, therefore, prayed that the attachment may be withdrawn.
" On the same day the following order was made on that petition: " Heard learned pleaders for the parties.
They jointly ask me to cancel the attachment (existing by special order) in Money exhibit 118 of 1936 though that case was dismissed.
Order The said attachment is cancelled and the decree in question is recorded as adjusted as stated by learned plead er for the decree holder and pleader of the judgment debtor according to the adjustment mentioned but not detailed in this petition of to day.
Make necessary notes and send this petition to the District Record Room.
" In the remarks column No. 22 in exhibit F the following entry was made : "The said attachment is cancelled and the decree in question is recorded as adjusted as stated by learned 578 pleader for the D.H. and the pleader of the Judgment Debtor according to the adjustment mentioned but not detailed in this petition of to day.
Dated 2nd June 1989.
" The Raja died in August, 1940, leaving the two appellants as his sons and legal representatives.
The Bengal Money Lend ers Act, 1940 (Bengal Act X of 1940) hereinafter called the Act, came into force on September 1, 1940.
On January 2, 1941, the appellants who, as the legal representatives of the Raja, became "borrowers" within the meaning of the Act filed the suit out of which the present appeal has arisen.
The suit was filed by the appellants against the respondent under section 36 of the Act praying for reopening the trans actions and taking accounts and for release from all liabil ities in excess of the limits specified by law.
In short, they asked the Court to give them relief by exercising the powers given to the Court by section 36 of the Act.
There was also a prayer for reconveyance of the Senapati Mahal.
The respondent filed his written statement setting up a variety of defences rounded on merits as well as on legal pleas in bar.
On May 8, 1941, the Subordinate Judge settled the issues and fixed June 9, 1941, "for a preliminary hear ing of the suit and particularly of such of the issues as have been based on the pleas in bar." Eventually, the case was taken up for preliminary hearing on September 4, 1941, and by his judgment delivered on September 8, 1941, the learned Subordinate Judge dismissed the suit on issue No. 2 which was as follows: "Does the plaint disclose a valid cause of action for the suit ?" The appellants preferred an appeal to the High Court at Calcutta.
Although the High Court (R.C. Mitter and K.C. Chunder JJ.) did not accept all the reasonings on which the learned Subordinate Judge had based his decision, they, however, agreed that the appellants could get no relief as the decrees in suit No. 78 of 1922 could not be reopened, as they were not passed in 579 "a suit to which this Act applies" and consequently dis missed the appeal.
The appellants have now come up on appeal before us after having obtained a certificate from the High Court under section 110 of the Code of Civil Procedure.
Learned Advocate appearing in support of this appeal before us has contended that the High Court was in error in holding that the decrees in Suit No. 78 of 1922 were not liable to be reopened under the second proviso to section 36 (1).
Learned advocate for the respondent while joining issue on this point also raised a point which, however, did not find favour with the High Court, namely, that the respondent as a bona fide assignee for value of the mortgage debt was protected by sub section (5) of section 36.
It is quite clear that if either of the two points is decided against the appellants, this appeal must fail.
The main provisions of section 36 (1)are in the follow ing terms : "Notwithstanding anything contained in any law for the time being in force, if in any suit to which this Act ap plies, or in any suit brought by a borrower for relief under this section, whether heard ex parte or otherwise, the Court has reason to believe that the exercise of one or more of the powers under this section will give relief to the bor rower, it shall exercise all or any of the following powers as it may consider appropriate namely, shall (a) reopen any transaction and take an account between the parties; (b) notwithstanding any agreement, purporting to close previous dealings and to create new obligations, reopen any account already taken between the parties; (c) release the borrower of all liability in excess of the limits specified in clauses (t) and (2) of section 30; (d) if anything has been paid or allowed in account on or after the first day of January, 1939, in respect of the liability referred to in clause (c), order 580 the lender to repay any sum which the Court considers to be repayable in respect of such payment or allowance in account as aforesaid; (e) set aside either wholly or in part or revise or alter any security given or agreement made in respect of any loan, and if the lender has parted with the security, order him to indemnify the borrower in such manner and to such extent as it may deem just.
" It will be noticed (a) that the provisions of this section apply notwithstanding anything contained in any law for the time being in force, (b) that the powers conferred on the Court or to be exercised either in any suit to which this Act applies or in any suit brought by a borrower for relief under the section and (c) that the Court is called upon to exercise all or any of the powers conferred on it by the section if the Court has reason to believe that the exercise of one or more of the powers will give relief to the borrower.
In the present case the borrowers have insti tuted a substantive suit for relief under section 36 and, therefore, if there was nothing also in the section and the Court had the requisite belief, the Court could exercise all or any of the powers and give relief to the borrowers in terms of the prayers of the plaint.
There are, however, two provisions to sub section (1) of section 36.
The relevant portion of the second proviso is expressed in the words following: "Provided that in exercise of these powers the Court shall not (i) * * * * (ii) do anything which affects any decree of a Court, other than a decree in a suit to which the Act applies which was not fully satisfied by the first day of January, 1939, or * * * *" The proviso makes it quite clear that in exercise of the powers the Court cannot reopen or otherwise affect a decree of a Court unless such decree is one which was passed in a suit to which this Act applies and ' which was not fully satisfied by January 1, 1939.
In the light of the decision of the Full Bench of the 581 Calcutta High Court in Mrityunjay Mitra vs Satis Chandra Banerji(1) which was approved by the Privy Council in Jadu Nath Roy vs Kshitish Chandra Acharyya(2), it has not been contended, in view of the fact that the personal decree for the balance remained unsatisfied on January 1, 1939, that the decrees in Suit No. 78 of 1922 were fully satisfied within the meaning of the above proviso.
Therefore, the only thing that remains to be ascertained is whether the decrees were passed in "a suit to which this Act applies.
" Section 2 (22) of the Act is as follows: "2.
In this Act, unless there is anything repugnant in the subject or context" (22) "Suit to which this Act applies "means any suit or proceeding instituted or filed on or after the 1st day of January, 1939, or pending on that date and includes a pro ceeding in execution (a) for the recovery of a loan advanced before or after the commencement of this Act; (b) for the enforcement of any agreement entered into before or after the commencement of this Act, whether by way of settlement of account or otherwise, or of any security so taken, in respect of any loan advanced whether before or after the commencement of this Act; or (c) for the redemption of any security given before or after the commencement of this Act in respect of any loan advanced whether before or after the commencement of this Act.
" The words "instituted or filed on or after the 1st day of January, 1939, or pending on that date" have been read and understood as qualifying the words "any suit or proceed ing" in the beginning of the definition as well as the words "proceeding in execution" occurring further down: see per Spens C.J. in Bank of ' Commerce Ltd. vs Amulya Krishna (3).
Accordingly, it has (1) I.L.R. 11944) 2Cal. 376; (2) L.R. 76 I.A. 179 at p. 190.
(3) ;A.I.R. 1944 F.C. 18.
582 been held in Ram Kumar De vs Abhoya Pada Bhattacharjee (1) that where a decree is such that the suit in which it was passed had terminated before January 1, 1939, and no pro ceeding in execution was started or was actually pending on or after that date it is not a decree in "a suit to which this Act applies"and cannot be reopened.
The same view was upheld by a Special Bench of the Calcutta High Court in Aparna Kumari vs Girish Chandra (2)which overruled two earlier decisions to the contrary.
The construction put upon section 2 (22)by the Special Bench and the reasons given by them appear to us to be well founded.
In the case now before us, the Suit No. 78 of 1922 was instituted and all the three decrees were passed long before the specified date.
The only question that has therefore, to be consid ered is whether any proceeding in execution was pending on or after that date.
The answer to this question will depend on the true meaning and effect of the orders made by the executing Court (i) on January 30, 1937, and (ii) on June 2, 1939.
As to (i) It is not disputed that the order of January 30, 1937, was made under Order XXI, rule57, as amended by the Calcutta High Court.
Order XXI, rule 57, is expressed in the following terms : "Where any property has been attached in execution of a decree but by reason of the decree holder 's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date.
Upon the dismissal of such application the attachment shall cease.
" The marginal note of the rule is determination of at tachment.
The reason why rule 57 was introduced in the Code of 1908 has been explained by Rank in C.J. in Shibnath Singh Ray vs Sheikh Saberuddin Ahmad(3) as follows: (1) ; (2) (3) I.L.R. at pp.
421 422 583 "Rule 57 of Order XXI was a new provision introduced in 1908.
It is evident from the language of the rule itself, and it is still more evident from the circumstances under which it was passed, that it was intended to provide a remedy for the grievance or inconvenience which is apt to arise, where, after an attachment in execution, the applica tion for execution cannot further be proceeded with by reason of the decree holder 's default.
This was, and still is, a very common case.
The decree holder makes some informal arrangement to give the judgment debtor time with out obtaining full satisfaction of the decree ;the applica tion for execution is not further prosecuted; it is not withdrawn; neither party attends.
In these circumstances, the object of the rule is to say that the Court must make either an order for adjournment or an order of dismissal.
The reason why it was necessary to require the Court, if it did not adjourn a proceeding to a definite date, to dismiss the application for execution formally and definitely can be amply illustrated from the decided cases.
In the absence of a definite order of dismissal the files of the Courts became encumbered with a number of applications for execution which were water logged and derelict, and a practice arose whereby such applications were ordered to be 'struck off. ' This was a practice not justified by the Code and in cases where attachments in execution had already been entered, the question arose whether the effect of an order 'striking off ' was that the attachment made upon application for execution was itself struck off or whether it remained notwithstanding such an order.
Many other awkward and important questions arose out of this practice and the object of rule 57 was to ensure that this illogical and inconvenient practice should be stopped.
Applications for execution were to be definitely dismissed if they were not adjourned to a future date.
The object of the last sentence in rule 57 is to settle the question whether, when the application in execution is dismissed any attachment made under that application should fall to the ground or should subsist, and 584 the legislature has provided that it is to fall to the ground.
" The new rule thus ' introduced left two distinct courses open to the executing Court in the situation envisaged by the rule.
Each course had its advantage as well as its disadvantage.
Thus the adjournment of the execution pro ceedings kept the attachment alive without any special direction.
While the adoption of this course helped bona fide arrangement between the decree holder and the judgment debtor as to the time and manner of satisfaction of the decree it was calculated also to encourage desultory proceedings resulting in undesirable congestion in the files of the Executing Court by keeping alive so many execution proceedings.
On the other hand, while the dismissal of an application in the circumstances mentioned in the rule had the merit of preventing a congestion of the file by finally disposing of the application by a final order, it was calcu lated to discourage decreeholders from giving even reasona ble accommodation to the judgment debtor on account of the destruction of the attachment which left the judgment debtor free to deal with the property to the detriment of the decreeholder after the attachment ceased.
It was evidently with a view to preserve the advantage of a dismissal and at the same time to avoid the disadvantage of the rigid rule of cesser of the attachment that the Calcutta High Court amend ed rule 57 by adding the words "unless the Court shall make an order to the contrary" at the end of the last sentence of that rule.
The rule thus amended leaves three courses open to the Executing Court in case it finds it difficult to proceed with the execution case by reason of the default of the decree holder.
It may (1) adjourn the proceedings for good reason which will automatically keep the attachment alive or (2) simply dismiss the application which will automatically destroy the attachment or (3) dismiss the application but specifically keep alive the attachment by an express order.
The rule, as amended, therefore, contemplates three distinct forms of order, any one of which may be made by the Court in the 585 circumstances mentioned in the rule.
The question before us is as to the category in which the order made on January 30, 1937, in Execution Case No. 118 of 1936 falls.
It will be recalled that the order of January 30, 1937, was made on a petition (Exhibit 2) filed on that day in Execution Case No. 118 of 1936.
Great stress was laid by the learned advocate for the appellants on the words "struck off for the present" occurring in the body of that petition.
It will be noticed that those words formed part of the request of the judgmentdebtor which was being recited in the petition.
In the actual prayer portion the decree holder did not use the words "for the present" but only asked the Court "to strike off the execution case keeping the attachment in force.
" Further, apart from what the parties wanted, the Court made its intention clear in the very order that it passed and which is entered in column 20 of Exhibit F.
The Court regarded the willingness of the the decree holder to enter into a long and protracted negotiation with the judg ment debtor as evidence of unwillingness on the part of the decree holder to diligently prosecute the execution proceedings and accordingly dismissed the execution case for non prosecution but thought fit to expressly keep alive the attachment.
It is quite obvious that the Court made an order of the third kind mentioned above.
The three forms of order permissible under rule 57 as amended by the High Court are quite distinct and independent of each other and there is no room for their overlapping.
If the mere continuation of attachment will automatically convert an express order of dismissal of the execution application which is a final order into an order of adjournment which is not a final order then there was no point in the High Court taking the trouble of amending rule 57 at all.
The Court could by simply adjourning the proceedings automatically continue the attachment without any express direction in that behalf.
The fact that the Court gave an express direction that the attachment should continue clearly indicates that the 586 Court intended to make a final order of dismissal.
Again, the heading of column 20 in Exhibit F clearly indicates that only a final order is to be entered in that column.
The fact that the order was entered in that column affords some justification for the conclusion that the Court made a final order of dismissal.
That the claim case was automatically dropped is yet another indication that the execution case was at an end.
The fact that the judgment debtor had paid the full costs of the execution case is also a feature which goes to show, to a certain extent at any rate if not deci sively, that the execution proceeding was finally disposed of by the order.
The following endorsement appears on the petition exhibit 2 (a), dated June 2, 1939: "Heard learned pleaders for the parties.
They jointly ask me to cancel the attachment (existing by special order) in Money exhibit 118 of 1936 though that case was dismissed." This endorsement also clearly shows that the Court itself understood that the order that it made on January 30; 1937, was a final order of dismissal and that the attachment had been continued by a special order.
On a consideration of all these matters I have not the least doubt in my mind that the order of January 30, 1937, was in form and in substance a final order of dismissal of the Execution Case No. 118 of 1936 and that the attachment was continued by a special order such as is contemplated and authorised by the amend ment made by the Calcutta High Court in rule 57.
Learned advocate for the appellants contended that if the execution case came to an end the attachment could not be left hanging in the air.
There is no substance in this argument.
Ordi narily, an attachment is supported by an execution case and if the execution case is simply dismissed the attachment must fail with it.
But rule 57, as amended, expressly empow ers the Court to dismiss an execution application but at the same time to keep alive the attachment by a special order.
That is what was done in this case.
Here the attachment does not, to use the expression of the learned advocate for the appellants, 587 hang in the air.
It rests upon the solid foundation of a special order which rule 57, as amended, in terms authorises the Court to make.
The continuance of the attachment, in the circumstances, needs no execution proceeding to support it.
Take the case of an attachment before judgment.
Under Order XXXVIII, rule 11, where after an order of attachment before judgment a decree is passed in favour of the plaintiff, it is not necessary upon an application for execution of such a decree to apply for re attachment of the property.
It means that the attachment continues and the judgmentdebtor cannot deal with the property to the disadvantage of the decree holder.
After the decree is passed, the attachment continues but nobody will say that although there has been no applica tion for the execution of the decree at any time by the decree holder there is, nevertheless, an execution proceed ing pending merely because the attachment continues.
Here also the attachment subsists and rests only upon the terms of Order, XXXVIII rule 11, and without any proceeding.
Such attachment cannot be called a proceeding in execution, for none was ever initiated after the decree was passed.
In my judgment, the order of January 30, 1937, was a final order which brought the Execution Case No. 118 of 1936, to an and and the attachment continued, not because there was a pend ing execution proceeding but because a special order was made under Order XXI, rule 57, as amended by the High Court.
As to (ii) Learned advocate for the appellants then contended that the petition (exhibit 2a) dated June 2, 1939, amounted to a proceeding in execution and as that was insti tuted and was pending after January 1, 1939 the proceedings came within the definition in section 2 (22)of "a suit to which this Act applies".
I do not think this argument is sound.
The petition (Ex.2a) was not really an application at all.
See Raja Shri Prakash Singh vs The Allahabad Bank Ltd. (1).
In substance, it was nothing but a certification by the decree holder of the satisfaction of the decree.
The mere fact (1) 33 C.W.N. 267; A.I.R. 1929 P.C. 19, 588 that the document was in the form of a petition could not convert what was really the usual certifying procedure into a proceeding in execution for recovery of a loan or for enforcement of any agreement.
It was purely an intimation given to the Court by the decreeholder that the decree had been satisfied out of Court and the prayer for withdrawal of the attachment was merely consequential and would follow as a matter of course on full satisfaction of the decree being recorded.
The order made on that petition also shows that the decree was recorded as adjusted and the attachment was cancelled.
In my judgment, that petition (exhibit 2a) was not an application such as would initiate a proceeding in execution for any of the purposes mentioned in clauses (a) or (b) or (c) of section 2 (22) of the Act.
For reasons stated above, the decrees sought to be reopened were not decrees made in "a suit to which this Act applies".
Suit No. 78 of 1922 was neither instituted on or after January 1, 1939, nor was it pending on that date, all the three decrees having been passed long before that date.
Nor was any proceeding in execution such as is contemplated by section 2 (22) instituted or pending on or after that date.
The Execution Case No. 118 of 1936 was at an end on January 30, 1937, and the petition of June 2, 1939, was not an application at all and was certainly not a proceeding in execution within the meaning of section 2 (22) of the Act.
This conclusion is sufficient to dismiss this appeal and it is not necessary for us to consider the other question raised by the respondent on the strength of section 36 (5) of the Act and I express no opinion on that question.
The result is that this appeal must stand dismissed with costs and I order accordingly.
KANIA C.J. I agree.
PATANJALI SASTRI J.
The facts bearing on the dispute in this appeal are fully stated in the judgment of ray brother Das which I have had the advantage of reading and it is unnecessary to recapitulate them here.
589 The appellant mortgagor seeks in these proceedings the reliefs provided by the Bengal Money lenders Act, 1940 (hereinafter referred to as the Act) in respect of a decree debt payable by him.
The respondent who represents the sub mortgagee decree holder invokes the protection of two exemptions contained in the Act: (1) Section 86 (1), proviso (ii), which exempts inter alia "any decree other than a decree in a suit to which this Act applies which was not fully satisfied by the first day of January, 1939".
This raises a dispute as to whether the respondent 's decree was passed in a suit to which the Act applies.
(2) Section 36 (5) which exempts "the rights of any assignee or holder for value if the Court is satisfied that the assignment to him was bona fide and that he had not received the notice re ferred to in clause (a) of sub section (1) of section 28".
This raises the question whether a sub mortgagee is an assignee within the meaning of the Act.
On the first question "a suit to which this Act applies" is defined in section 2 (22) as meaning "any suit or pro ceeding instituted or filed on or after the 1st day of Janu ary, 1939, or pending on that date and includes a proceeding in execution for (among other things) the recovery of a loan advanced before or after the commencement of this Act.
" This definition has been construed as requiring that the "pro ceeding in execution "referred to therein should be pending on 1st January, 1939, and the question accordingly arises whether the order of the executing court dated 30th January, 1937, which purported to dismiss the respondent 's execution case for non prosecution while continuing the attachment already effected, terminated the proceeding in execution which had resulted in the attachment.
It was said that the order was made in accordance with Order XXI, rule 57, of the Civil Procedure Code as amended by the Calcutta High Court and must, therefore, be taken to have been intended to put an end to the execution proceeding altogether.
I am not satisfied that such was the result of the dismissal.
The amendment which added the words "unless the court shall make an order to the contrary" 200 at the end of the rule envisages a dismissal of an "applica tion for execution" while at the same time continuing a subsisting attachment.
The dismissal of 30th January, 1987, must, therefore, be taken to be a dismissal of the execution application then before the court and cannot be taken to have any wider operation.
On the other hand, the continu ance, in express terms, of 'the attachment notwithstanding the dismissal, indicates that the proceeding which had resulted in the attachment was kept alive to be carried forward later on by sale of the attached property.
Attachment itself is a "proceeding in execution" and, so long.as it subsists, the proceeding in execution can well be regarded as pending.
In In re Clagett 's Estate; Fordham vs Clagett (1) Jessel M.R. declared that "a pending matter in any court of justice means one in which some proceeding may still be taken".
The attachment was cancelled by the court only on 2nd June, 1939, when the decree in question was recorded as adjusted and then, and not before, could execu tion of the decree be properly considered to have terminat ed.
In this view, a "proceeding in execution" was pending on the 1st day of January, 1939, and the respondent 's decree must be taken to have been passed "in a suit to which this Act applies ' ', with the result that the respondent 's claim to exemption under proviso (ii) to sub section (1) of sec tion 36 of the Act must fail.
I am, however, of opinion that the respondent 's claim to recover his decree debt is protected under section 36 (5).
There is no question here but that the submortgage to the respondent 's predecessor in title was bona fide.
Nor could he have received the notice referred to in clause (a) of ' sub section (1) of section 28 as the transaction took place long before the Act was passed.
It is not disputed that section 36 (5) applies to pre Act debts.
[See Renula Bose vs Manmatha Nath Bose(2)].
The only question, therefore, is whether the respondent as sub mortgagee is an assignee within the meaning of sub section (5) of section 36.
The learned (1) (2) L.R. 72 I.A. 156, 591 Judges in the court below held that he was not, following an earlier decision of their own court in Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya(1).
That decision, however, was reversed by the Privy Council in Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya(2) where their Lordships dealt with the question now before us in the following terms : "It was suggested, in the judgment of Mitter J. (with which Waight J. agreed), and in the argument for the re spondents that if a sub mortgagee were an `assignee ' within section 36, sub section (5), of the Act.
, certain difficul ties and anomalies would result.
Their Lordships cannot agree with this suggestion.
They express no view as to the position which arises if the sub mortgage contains only a charge on the original mortgage debt, but when it contains an assignment of that debt, and of all the rights of the mortgagee, the position appears to be free from difficulty.
Relief can be given to the original mortgagor as against the original mortgagee under section 36, but such relief must not affect the rights of the assignee by way of sub mort gage.
To take an imaginary case by way of illustration, let it be assumed that the amount due on the original mortgage, for principal and interest at the original rate, is Rs. 1,000, and the sum due on the sub mortgage by assignment, for principal and interest at the original rate, is Rs. 500.
Let it further be assumed that if relief could be given, and were given, under section 36 as against both mortgagee and sub mortgagee, the sums due to them respectively would be Rs. 800 and Rs. 400.
By reason of sub section (5), the sub mortgagee 's rights cannot be affected.
He can therefore, as assignee of the mortgage debt: claim his full Rs. 500, as against both mortgagor and original mortgagee.
But if the court gives the mortgagor relief as against the original mortgagee, the mortgagor will only be liable to pay to the original mortgagee Rs. 300, the balance of the reduced debt after paying the sub mortgagee in full.
As to contention (b), it is impossible to read subsec tion (5) of section 36 as referring only to an assignee (1) (2) L.R. 76 I.A. 74.
592 of a mortgage decree.
The words and that he had not received the notice referred to in clause (a)of subsection (1) of section 28 make it plain that an assignee of a mortgage debt is within the sub section, since section 28, sub section (1) is concerned only with assignment of debts" (pp. 83 84).
The sub mortgage here in question also contains an assignment of the debt due under the original mortgage debt and of "the entire interest" of the original mortgagee.
After reciting their original mortgage, the mortgagees proceed to state in the deed of sub mortgage: "We mortgage all that is at present due and that will in future become due to us, the first, second, third and fourth parties, on account of the said one lakh of rupees together with interest and the entire interest under the mortgage taken by us on the basis of the said Indenture in respect of five annas share of the said Niskar Mouza Mono harbahal and in respect of sixteen annas of the surface and underground rights in the said Mouza Marichkota and we make over the said Deed of Indenture to you".
The decision referred to above is, therefore, directly in point and rules the present case.
It was suggested that the said decision was inconsist ent with the earlier decisions of the same tribunal in Ram Kinkar Banerjee vs Satya Charan Srimani(1) and Jagadamba Loan Co. vs Raja Shiba Prasad Singh(2).
Stress was laid upon the expression "all the rights of the mortgagee" used by their Lordships in the passage quoted above, and it was pointed out that in the earlier decisions they held that in India a legal interest remained in the mortgagor even when the mortgage was in the form of an English mortgage, and that the interest taken by the mortgagee was not an absolute interest.
This proposition, it was said, implied that in a sub mortgage all the rights of the original mortgagee are not assigned to the sub mortgagee and that the mortgagee still retains a legal (1) 64 I.A. 50.
(2) 68 I.A. 67.
593 interest in the original mortgage.
This is a rather super ficial view of the matter.
In the earlier cases their Lordships were considering the quantum of interest trans ferred by a mortgagor to a mortgagee in a mortgage of leasehold interest for the purpose of determining whether or not there was privity of estate between the landlord and the mortgagee.
If the mortgage could operate as an assign ment of the entire interest of the mortgagor in the lease, the mortgagee would be liable by privity of estate for the burdens of the lease.
If on the other hand, it operated only as a partial assignment of the mortgagor 's interest, no such result would follow.
It was in determining that issue that their Lordships held that no privity of estate arose in India because a legal interest remained in the mortgagor and the interest taken by the mortgagee was not an absolute interest.
These cases had no bearing on the question, which arose in Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya (1) and arises in the present case, as to whether a sub mortga gee becomes an assignee of the mortgage debt and of the mortgagee 's right to recover the debt from the original mortgagor.
The Act affords relief to certain classes of debtors by curtailing pro tanto the rights of the creditors, subject to certain exceptions in regard to "assignments of loans".
In such a context the only relevant consideration could be whether the assignment is such as to establish a debtor and creditor relation between the assignee and the debtor so as to bring the case within the purview of the Act.
If the sub mortgagee obtained, by virtue of the sub mortgage, the right to sue the original mortgagor for recov ery of the mortgage debt, that would seem sufficient to make him an assignee within the meaning of the Act.
It was from this point of view that the question as to the nature of the right transferred to a sub mortgagee under his sub mortgage was considered in Promode Kumar Roy vs Nikhil Bhusan Mukho padhya(1) as it has to be considered in the present case, and the reference to the sub mortgage containing an assign ment of all the rights (1) 76 I,A. 74.
594 of the mortgagee must, in that context, be understood with reference to the sufficiency of the right assigned to enable the sub mortgagee to sue the original mortgagor in his own right, so as to bring the relevant provisions of the Act into play as between them.
The reservation made by their Lordships in the case of a sub mortgage containing only a charge on the original mortgage is significant and supports this view.
I do not consider, therefore, that there is any inconsistency between Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya(1) and the earlier decisions, and even if there be any such inconsistency it has no relevance to the present case.
In the result I agree that the appeal fails and should be dismissed with costs.
Appeal dismissed.
| A decree on a mortgage was passed in a suit brought by the representatives in interest of a sub mortgagee in 1929 and a personal decree for recovery of the amount remaining due after the sale of the mortgaged properties was passed in 1935.
In 1936 the decree holder started execution of the personal decree and attached certain properties of the judgment debtor.
The decree holder filed a petition on January 30, 1937, praying that the execution case "may be struck off for non prosecution, keeping the attachment in force" in view of certain negotiations for amicable settle ment, and the court passed an order that the execution case "is dismissed for non prosecUtion, the attachment 573 already effected continuing".
On June 2, 1939, the decree holder filed a petition stating that the decree had been adjusted and attachment may be withdrawn.
The Bengal Money lenders Act came into force on September 1, 1940, and on January 2, 1941, the legal representatives of the judg ment debtor filed a suit under section 36 of the Act praying for re opening the transactions.
The question being whether any proceeding for execution was pending on or after January 1, 1939, within the meaning of the definition of "a suit to which this Act applies" contained in section 2 (22) of the Bengal Money lenders Act: Held, per KANIA C.J. and DAs J. That the order of January 30, 1937, was in form and in substance a final order of dismissal of the execution petition of 1936.
The attach ment continued not because there was a pending execution proceeding but because a special order for continuing the attachment was made under O. 21, r. 57 of the Civil Proce dure Code as amended by the Calcutta High Court, and not withstanding the fact that the attachment was continued there was no execution proceeding pending on January 1, 1939, and accordingly the decree sought to be reopened was not one passed in "a suit to which the Act applies" within the meaning of section 2 (22) of the Act and the Court had no power to re open the transactions under section 36 (2).
The petition of June 2, 1939, was also not a proceeding for execution but a mere certification by the decree holder of satisfaction of the decree.
PATANJALI SASTRI J.
The continuance of the attachment notwithstanding the dismissal of the execution petition, indicated that the proceeding which had resulted in the attachment was kept alive to be carried forward later on by sale of the attached property.
Attachment itself is "a proceeding in execution" and so long as it subsists, the proceeding in execution can well be regarded as pending.
In this view a proceeding in execution was pending on January 1, 1939, and the decree must be taken to have been passed in "a suit to which this Act applies ".
But inasmuch as the sub mortgage to the respondent 's predecessor in title was bona fide and he obtained by virtue of the sub mortgage the right to sue the original mortgagor for recovery of the mortgage debt, the decree holder was a bona fide assignee and his claim for the entire decree debt was protected by section 36 (5) of the Act.
Renula Bose v, Manmatha Nath Bose (L.R. 72 I.A. 156), Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya (50 C.W.N. 407) and Prom ode Kumar Roy vs Nikhil Bhusan Mukhopadhya (L.R. 76 I.A. 74) referred to.
|
Appeal No. 205 of 1953.
Appeal from the Judgment and Order dated the 24th February, 1953, of the High Court of Judicature at Calcutta in Appeal from Original Order No. 19 of 1952, arising out of the Order dated the 23rd day of August, 1951, of the High Court of Calcutta in its Ordinary Original Civil Jurisdiction Matter No. 157 of 1951.
K. P. Khaitan, (section N. Mukherjea and Rajinder Narain, with him) for the appellant.
M. C. Setalvad, Attorney General for India, (A. N. Sen, V. section Sawhney and section P. Varma, with him) for the respondents.
November 1.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal is directed against a judgment of an appellate bench of the Calcutta High Court, dated the 24th February, 1953, reversing, on appeal, the judgment and order of a single Judge sitting on the Original Side of that Court, passed on an application under section 34 of the .
The material facts are not in controversy and may be shortly stated as follows: On the 7th of July, 1950, the respondent, Moran and Company Limited, passed two Bought Notes to the appellant company, couched in identical terms, under which the appellant purchased 12,00,000 yards of hessian cloth, 6,00,000 yards under each contract, on certain terms and conditions stated therein.
The delivery was to be made every month from January, 1951, at the rate of 1,00,000 yards per month under 864 each of these notes and payments were to be made in cash 'on delivery, each delivery being treated as a separate and distinct contract.
The Bought Notes commenced thus: Dear Sirs, We have this day Bought by your order and on your account from our Principals.
" The particulars of the goods, the price, the time of delivery and other terms of the contract are then set out and amongst the terms is an arbitration clause worded as follows: " All matters, questions, disputes, differences and/ or claims arising out of and/or concerning and/or in connection with and/or in consequence of or relating to this contract, whether or not the obligations of either or both parties under this contract be subsisting at the time of such dispute and, whether or not this contract has been terminated or purported to be terminated or completed, shall be referred to the arbitration of the Bengal Chamber of Commerce under the rules of its Tribunal of Arbitration for the time being in force and according to such rules the arbitration shall be conducted.
" The notes were signed by the respondent, Moran and Company, describing themselves as brokers.
It is admitted that the goods covered by the Bought Notes were delivered to the appellant in all the months from January to June, 1951, with the exception of the goods due to be delivered for the month of March, 1951.
The appellant required from the respondent delivery of goods in respect of the month of March but the latter informed the appellant, by a letter dated the 27th March, 1951, that its principals disowned a liability in this respect as there was default on the part of the appellant in not giving shipping instructions for the said goods within the time mentioned in the contracts.
The appellant denied any default on its part and did not also accept the position that the respondent had any principal, and on the 27th of April, 1951, it sent its bills to the respondent claiming Rs. 1,13,042 3 0 as damages for non delivery of the 865 goods.
As the respondent did not comply with this demand, the appellant contemplated referring the matter in dispute to the arbitration of the Bengal Chamber of Commerce as provided in the contracts and while it was preparing to take steps in that direction, the respondent, on the 11th of June, 1951, filed a suit against the appellant in the Original Side of the Calcutta High Court (being Suit No. 2516 of 1951,) and it is in respect of this suit that the application under section 34 of the has been made.
It was alleged in the plaint that the plaintiff acted merely as broker and in that capacity brought about the two contracts of sale and purchase evidenced by the two Bought Notes mentioned above, that the real seller was a firm known as Gowarchand Danchand, and that the plaintiff not being a party to the contract could not incur any liability under its terms.
There were prayers in the plaint for a declaration that the plaint.
off was not a party to the said contracts and, that it had no liability under the same.
There was a further prayer for an injunction restraining the respondent from, claiming any damages in respect of the said contracts The writ of summons was served on the appellant on the 23rd of June, 1951.
On the 19th July, 1951, it filed an application under section 34 of the praying that the proceedings in the suit may be stayed in order that the matter in dispute between the parties may be dealt with under the arbitration clause contained in the contracts.
The application was heard by Das Gupta J. who allowed the prayer of the applicant and stayed further proceedings in the suit.
In the opinion of the learned Judge the dispute in this case was not whether there was any contract entered into by and between the appellant and the respondent: but whether the respondent, who admittedly passed the two Bought Notes to the appellant, could be made liable under the contract by reason of the fact that it described itself as broker.
The answer to this question depended according to the learned Judge upon the interpretation of the contract itself and the dispute arising as.
it did out of or concerning or relating to the 866 contracts would come within the purview of the arbitration clause.
Against this judgment the respondent took an appeal to the Appellate Division of the High Court and the appeal was heard by a bench consisting of Chakravartti C.J. and Sarkar J.
By two separate judgments which concurred in the result, the Chief Justice and the other learned Judge allowed the appeal and vacated the order for stay.
It is against this judgment that the appellant has come to this Court on the strength of a certificate under article 133(1)(a) of the Constitution.
The short point for our consideration is, whether on the facts of this case, the appellant is entitled to an order under section 34 of the , staying the proceedings of the suit commenced by the respondent.
Section 34 of the is in these terms: " Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings.
" Thus in order that a stay may be granted under this section, it is necessary that the following conditions should be fulfilled: (1)The proceeding must have been commenced by a party to an arbitration agreement against any other party to the agreement; (2)the legal proceeding which is sought to be.
stayed must be in respect of a matter agreed to be referred 867 (3)the applicant for stay must be a party to the legal proceeding and he must have taken no step in the proceeding after appearance.
It is also necessary that he should satisfy the Court not only that he is but also was at the commencement of the proceedings ready and willing to do everything necessary for the proper conduct of the arbitration; and (4)the Court must be satisfied that there is no sufficient reason why the matter should not be referred to an arbitration in accordance with the arbitration agreement.
The third condition can be taken to have been fulfilled on the facts of the present case, and the fourth is one which is exclusively for the determination of the Court.
The controversy between the parties centres round the other two conditions, namely, conditions (1) and (2) ; and unless the applicant for stay succeeds in establishing that the respondent is a party to an arbitration agreement and that the subject matter of dispute in the suit is a matter coming within the scope of such agreement, it cannot possibly ask the Court to order a stay of the proceedings, under section 34 of the .
The learned Judges of the appellate bench of the High Court have taken the view that the only matter in dispute between the parties to the suit is whether the plaintiff was a party to the contract.
It was definitely alleged by the plaintiff that the contract was not between it and the appellant but was one between the appellant and a third party and since the arbitration agreement is contained in the contract, it is an agreement between those parties only, which could not bind or affect the plaintiff in any way.
The dispute, it is said, which is the subject matter of the suit does not arise under the contract and does not relate to it; it is outside the contract altogether and does not come within the scope of the arbitration agreement.
The decision in the appeal therefore rests entirely on the finding of the learned Judges that the matter in dispute between the parties to the suit does not come within the ambit of the arbitration clause.
In view of this decision the learned Judges did not consider it necessary to go into the first point as to whether in fact 868 there was a binding arbitration agreement between the parties to the suit.
The learned Chief Justice no doubt did in a manner consider that point also, but he refrained from pronouncing any decision upon it, being of opinion that a decision on this question which was the only issue in the suit itself might prejudice the parties and create a bar of res judicata against one or the other.
We think that on the facts of this case it was necessary for the learned Judges of the appellate bench to decide the question as to whether or not the plaintiff in the suit which the applicant wants to stay was a party to the arbitration agreement.
This would have a material bearing on the decision of the other question upon which the learned Judges rested their judgments.
The first and essential pre requisite to making an order of stay under section 34 of the is that there is a binding arbitration agreement between the parties to the suit which is sought to be stayed.
The question whether the dispute in the suit falls within the arbitration clause really pre supposes that there is such agreement and involves consideration of two matters, viz., (1) what is the dispute in the suit and (2) what disputes the arbitration clause covers?(1).
The contention raised by the plaintiff in the present suit is, that the contract was really between the appellant and another party and not between it and the appellant and consequently it was not bound by the contract and could not be made liable for any damages in terms thereof.
In substance therefore the controversy between the parties in the suit is whether the plaintiff did incur any liability in terms of the contracts evidenced by the two Bought Notes to which it was a signatory no matter in whatever capacity.
The question whether the plaintiff was a party to the agreement at all is undoubtedly one which cannot go before the arbitrators and with that question they cannot possibly deal.
But as Lord Porter pointed out in Heyman vs Darwins (2), "this does not mean that in every instance (1) Vide per Viscount Simon in Heyman vs Darwins, at 360.
(2) , 393.
869 in which it is claimed that the arbitrator has no juris diction the Court will refuse to stay an action.
If this were the case such a claim would always defeat an agreement to submit disputes to arbitration, at any rate until the question of jurisdiction had been decided.
The Court to which an application for stay is made is put in possession of the facts and arguments and must in such a case make up its mind whether the arbitrator has jurisdiction or not as best it can on the evidence before it.
Indeed, the application for stay gives an opportunity for putting these and other considerations before the court that it may determine whether the action shall be stayed or not.
" Section 34 of the as is well known is a virtual reproduction of section 4 of the English of 1889.
The observations quoted above were approved of by Mr. Justice section R. Das in the case of Khusiram V. Hanutmal (1) and it was held by the learned Judge that where on an application made under section 34 of the for stay of a suit, an issue is raised as to the formation, existence or validity of the con.
tract containing the arbitration clause, the Court is not bound to refuse a stay but may in its discretion, on the application for stay, decide the issue as to the existence or validity of the arbitration agreement even though it may involve incidentally a decision as to the validity or existence of the parent contract.
We are in entire agreement with the view enunciated above.
As we have said already, it is incumbent upon the Court when invited to stay a suit under section 34 of the to decide first of all whether there is a binding agreement for arbitration between the parties to the suit.
So far as the present case is concerned if it is held that the arbitration agreement and the contract containing it were between the parties to the suit, the dispute in the present suit would be one relating to the rights and liabilities of the parties on the basis of the contract itself and would come within the purview of the arbitration clause worded as it is in the widest of terms, in accordance with the principle enunciated by this Court in A. M. Nair and (1) at 518.
870 Company vs Gordhandass (1).
If on the other hand it is held that the plaintiff was not a party to the agreement, the application for stay must necessarily be dismissed.
The appellate Judges of the High Court in our opinion held rightly that the decision in A. M. Mair and Company vs Gordhandass (1) was not in any sense conclusive in the present case on the question of the dispute in the suit being included in the arbitration agreement.
The report shows that the dispute in that case was whether the appellants had made the contract in their own right as principals or on behalf of the Bengal Jute Mill Company as agents of the latter.
The decision of this question was held to turn upon a true construction of the contract and consequently it was a dispute under or arising out of or concerning the contract.
The judgment proceeds on the footing that there was in fact a contract between the parties and the only dispute was in which character they were parties to it, the respondents contending that the appellants were not bound as principals while the latter said that they were.
Mr. Justice Fazl Ali in delivering the judgment pointed out that the error into which the learned Judges of the appellate bench of the High Court appeared to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract never having been entered into.
In this case it is certainly not admitted that the respondent was a party to the contract.
In fact that is the subject matter of controversy in the suit itself.
But, as has been said already, the question having been raised , in this application, under section 34 of the , the Court has undoubted jurisdiction to decide it for the purpose of finding as to whether or not there is a binding arbitration agreement between the, parties to the suit.
It has been said by Chakravartti C.J. and in our opinion rightly, that if the person whose concern with the agreement is in question is a signatory to,the contract and formally a (1) ; 871 contracting party, that will be sufficient to enable the Court to hold for purposes of section 34 that he is a party to the agreement.
It was the contention of the respondent in the Court below that this test was not fulfilled in the present case.
The point has been canvassed before us also by Mr. Sen and it has been argued on the authority of several decided cases that in cases of this description the Bought Note is a mere intimation to the buyer, that the orders of the latter have been carried out and purchases have been made from other persons and not from them.
The writer does not thereby become a party to the contract of purchase and sale even as an agent.
He remains a mere broker or intermediary and the provision of section 230(2) of the Contract Act 'Cannot be invoked against him.
Mr. Khaitan on the other hand argues that the English law being quite different from the Indian law regarding the liability of an agent contracting on behalf of an undisclosed principal, the English authorities are no guide to a solution of the problem.
It is said that the case of Patiram Banerjee vs Kanknarrah Co., Ltd.(1), upon which the respondent relies, was wrongly decided being based upon English authorities which have no application to India.
The respondent here, it is pointed out, signed an elaborate document setting out in full every particular of the contract entered into and it is impossible to say that he was not an agent executing a contract on behalf of another whose identity he did not disclose but was a mere intermediary conveying an information to the buyer.
In our opinion, the point is not free from doubt and requires careful consideration and as it was not decided by the learned Judges of the High Court and we have not the advantage of having their views upon it, the proper course for us to follow would be to send the case back for a hearing of and decision on this point.
We, therefore, allow the appeal and set aside the judgments of both the Courts below.
The matter will go back to the appellate bench of the Calcutta High Court which will decide as an issue in the proceeding under section 34 of the the question whether the respondent was or was not a party (1) Cal.
I050. 872 to the arbitration agreement.
If the Court is of opinion that the respondent was in fact a party, the suit shall be stayed and the appellant would be allowed to, proceed by way of arbitration in accordance with the arbitration clause.
If on the other hand the finding is adverse to the appellant, the application will be dismissed.
The appellant will have its costs of this appeal.
Further costs between the parties will abide the result.
Appeal allowed.
| Held, that in order that a stay may be granted under section 34 of the Indian , it is necessary that the following conditions should be fulfilled: (1) The proceeding must have been commenced by a party to an arbitration agreement against any other party to the agreement; (2) the legal proceeding which is sought to be stayed must be in respect of a matter agreed to be referred ; (3) the applicant for stay must be a party to the legal proceeding and he must have taken no step in the proceeding after appearance.
It is also necessary that he should satisfy the court not only that he is, but also was at the commencement of the proceedings, ready and willing to do everything necessary for the proper conduct of the arbitration ; and (4) the Court must be satisfied that there is no sufficient reason why the matter should not be referred to an arbitration in accordance with the arbitration agreement.
The first and essential pre requisite to making an order of stay under a. 34 of the is that there is a binding arbitration agreement between the parties to the suit which is sought to be stayed.
The question whether the dispute in the suit falls within the arbitration clause really pre supposes that there is such agreement and involves consideration of two matters, viz., (1) what is the dispute in the suit and (2) what disputes the arbitration clause covers.
It is incumbent upon the Court, when invited to stay a suit under section 34 of the Indian , to decide first of all whether there is a binding agreement for arbitration between the parties.
If, in the present case, it is held that the arbitration agreement and the contract containing it were between the parties to the suit, the dispute in the present suit would be one relating to the rights and liabilities of the parties on the basis of the contract itself and would come within the purview of the arbitration clause 863 worded as it is in the widest of terms.
If, on the other hand, it is held that the plaintiff was not a party to the agreement, the application for stay must necessarily be dismissed.
Case sent back for the decision of the question whether the respondent was or was not a party to the arbitration agreement.
Heyman vs Darwins ([1942] A.C. 356), Khusiram vs Hanutmal ((1948) , A. M. Mair and Companay vs Gordhandas ([1960] S.C.R. 792) and Patiram Y. Kankarah Company ((1915) I.L.R. referred to.
|
ivil Appeal No. 101 of 1950.
Appeal by special leave from the Judgment and Decree dated the 20th September, 1949, of the High Court of Judica ture at Calcutta (Hurries C.J.and Chatterice J.) in Appeal No. 46 of 1949 arising out of Decree dated the 31st August, 1948, of the Hon 'ble S.B. Sinha J. of the Calcutta High Court in Suit No. 343 of 1943 instituted under the Original Jurisdiction of the High Court).
M.C. Setalvad, Attorney General for India (B. Sen,with him) for the appellant.
S.C. Isaac (B. Barterice, with him) for the respond ent. 1951.
December 18.
The leading judgment was delivered by Bose J. Fazl Ali J. agreed, 180 Bose J.
This is a defendant 's appeal in a suit for contribution brought by the son of a mortgagor against the co mortgagors.
The parties are related as below : Balai Lall Seal (died1917) I Megharnala Dassi (died 1945) I I I I I Bejoy Lall Biswa Lall Tarak Lall Kedar Lall NakuLall (D. 23 5 33) (D. Nov. 1936) Deft 1 Deft. 2 (Born (Born I I Jugal Lall Hari Lall 22 11 1907) 7 2 1910) (Plff.) The mortgagors were the plaintiff 's father Tarak Lall and Tarak 's two brothers Kedar and Naku.
The mortgage was exe cuted on the 12th June, 1936, in favour of one Mst.
Gyarsi for a consideration of Rs. 80,000.
For convenience I will call this the suit mortgage though this is not a suit on the mortgage.
The mortgagee sued in the year 1938 and obtained a preliminary decree for sale on the 17th of February, 1939, for a sum of Rs. 89,485 12 9 plus costs.
The decree was made final on the 22nd of December, 1989.
In execution the mortgagee proceeded against the proper ty of the plaintiff alone (as Tarak 's son) and, during the pendency of the execution, assigned her rights in the decree to the Hooghly Flour Mills.
The Mills continued the execu tion and on the 11th of March, 1943, the claim was satisfied in this way.
An order of the Court was obtained sanctioning sale of a part of the mortgaged property, 20 Round Tank Lane (which belonged exclusively to the plaintiff), to the decree holder for a sum of Rs. 1,50,000.
It was directed that the consid eration should first be applied in payment of the claim and costs and that the decreeholder should execute a reconvey ance of the rest of the mortgaged properties in favour of the mortgagors.
The sanction of the Court was necessary because the judgment debtor Hari Lall (present plaintiff) was a minor.
181 This was done and 20, Round Tank Lane, was conveyed by the present plaintiff to the Hooghly Flour Mills on the 18th of March, 1943.
Out of the consideration a sum of Rs. 97,116 11 0 was paid to the Mills in lull satisfaction of the claim and costs then outstanding.
The Mills executed a reconveyance of the rest of the properties to the mortgagors in release of the mortgage on the same day.
In addition to this Rs. 97, 116 11 0, further sums of Rs. 14,400 and Rs. 8,100 had also been paid before the dates of these transactions.
These sums were paid by a Receiver who had been appointed by the Court pendente lite.
These sums came out of the rents which the Receiver obtained from the plaintiff 's property, 20 Round Tank Lane.
The plaintiff says that in this way he paid a total of Rs. 1,19,116 11 0 in satisfaction of the mortgage.
His one third share in this comes to Rs. 39,872 3 8.
He claims that he is entitled to receive the balance of Rs. 79,744 7 4 from the two defendants and that each of them is liable for a half of that sum namely, Rs. 39,872 3 8.
In addition to this the plaintiff had incurred costs amounting to Rs. 1,144 8 6 in resisting Mst.
Gyarsi 's claim and in connection with the reconveyance.
He also claims one third of this sum, namely Rs. 381 8 2, from each of the defendants.
The total claim against each defendant accord ingly comes to Rs. 40,253 11 10.
In addition to this the plaintiff asked for (1) "a declaration that the properties mentioned in Schedule 'A '. belonging to the defendants stand charged with the repayment of the sum of Rs. 80,507 7 8 being the aggregate amount due and payable by the two defendants," and (2) "Decree under Order XXXIV of the Civil Procedure Code in proper form." Schedule A contains a list of the rest of the mortgaged properties which belong exclusively to the defendants, 24 182 It will be seen that the plaintiff claims on the basis that each of the three mortgagors is liable to contribute in equal shares towards payment of the mortgage debt.
The defendants did not deny their liability to contribute.
They only challenged the basis on which it was to be comput ed.
They ,pleaded a special agreement between Tarak Lal and themselves under which their liabilities were to be calcu lated in the following way.
According to them, the bulk of the Rs. 80,000 was borrowed on what I have called the suit mortgage to pay off previous debts which had been incurred by the parties on earlier mortgages.
The amount which went towards satisfaction of the defendant 's portion of these earlier liabilities was only Rs. 13,259 2 4.
Therefore, the only benefit they got out of this Rs. 80,000 was to that extent.
The plaintiff 's father Tarak on the other hand benefitted to the extent of Rs. 53,481 11 4.
They therefore agreed at the date of the suit mortgage that their respec tive liabilities as between themselves should be proportion ate to the benefit derived by each as above.
Sinha J., who tried the suit on the Original Side of the Calcutta High Court, held that the agreement was proved.
On appeal the learned Chief Justice of the High Court and Chatterjee J. disagreed and held that it was not.
As I agree with the learned appellate Judges for reasons which I shall give hereafter, it will be necessary to set out the further facts.
But I need not do so in any detail as they are given in full in the two judgments of the High Court.
We are only concerned here with the question of principle; so it will be more convenient to reduce the problem to its simplest terms.
We are concerned here with four items of property which I shall term Chittaranjan Avenue, Strand Road, No. 16 Round Tank Lane and 20 Round Tank Lane.
These properties were originally joint family properties, but in the year 1932 there was a partition which was compelled by reason of a suit filed by Tarak 183 against his brothers and mother.
The upshot was that the properties were divided as follows: (1) Bejoy, Kedar, Naku and the mother Meghamala obtained Chittaranj an Avenue.
(2) Tarak (plaintiff 's father) obtained 16 Round Tank Lane and 20 Round Tank Lane.
(3) Kedar, Naku and Biswa Lall obtained Strand Road.
Before this partition there were three mortgages: The first of these was executed on the 16th of June, 1925.
All five brothers joined in it and they mortgaged the Strand Road property for Rs. 10,000.
This was in favour of Bhuvan Chandra Bhur.
The second was on the 11th of October, 1926.
In this Bejoy and Tarak mortgaged their 2/5 share in Chittaranjan, Strand, Dum Dum and 20 Round Tank Lane for Rs. 5,000.
The mortgagee was Binode Behari Sen.
The third was on the 28th January, 1927.
In this Bejoy and Tarak again mortgaged their 2/5 share in the same items of property for Rs. 7,000 to Binode Behari Sen and Kunja Behari Sen.
All three sets of mortgagees, or their representatives, instituted suits on their respective mortgages and obtained final decrees Bejoy died on the 23rd of May, 1933, leaving a son Jugal.
On the 12th of June, 1936, came what I have called the suit mortgage executed by the three brothers,Tarak, Kedar and Naku, for Rs. 80,000.
The properties mortgaged were (1) the shares of Kedar and Naku in Chittaranjan Avenue and 16 Round Tank Lane; (2) 20 Round Tank Lane which had been allotted to Tarak; (3) the reversionary interest of all three in the share allotted to the mother.
The consideration of Rs. 80,000 was expended as follows:Rs.
29,667 10 0 was paid by Tarak, Kedar and Naku in satisfaction of the first mortgage and the 184 later decretal charge; Rs. 11,519 11 0 in satisfaction of the second and Rs. 13,502 14 0 in satisfaction of the third.
The balance of Rs. 25,310 is alleged by the appellants to have been retained by Tarak.
I have taken these figures from the judgments of the High Court.
I understand some of the details are disputed, so I make it clear that I am not setting out the decision of this Court regarding the de tails but only giving an overall picture.
Shorn of overburdening detail the problem, reduced to its simplest terms, comes to this.
Three persons A, B and C separately own properties of unequal value, Blackman, Whiteacre and Greenacre.
Let us assume that their values at the material date are Rs. 30,000, Rs. 20,000 and Rs. 10,000 respectively.
A, B and C, acting in various combinations from time to time, incur debts.
It matters not for present purposes whether those debts are secured on these properties or not because a time must come when their separate liabilities as amongst themselves have to be ascertained and apportioned.
Let us assume that when that is done, A 's responsibility extends to Rs. 2,000, B 's to Rs. 3,000 and C 's to Rs. 5,000.
In order to clear off these debts, A, B and C jointly mortgage their three estates for Rs. 10,000, the total aggregate sum due at the date of the mortgage from the three of them.
There is no contract between them, either in the mortgage deed or otherwise, regarding their respective shares of responsibility in the Rs. 10,000.
At the date of redemption the mortgage debt has swollen to Rs. 15,000.
A alone redeems by selling Blackacre, which is his separate estate, to the mortgagee for Rs. 35,000 that being the value of Blackacre at the date of redemption.
Rs. 15,000 of this is applied in satisfaction of the mortgage debt and the balance of Rs. 20,000 is retained by A.
What are A 's rights as against B and C ? Three solutions readily suggest themselves.
One is that the three contribute equally.
In that event B would pay A Rs. 5,000 and C would pay Rs. 5,000.
185 A second solution is that they pay in proportion to the extent of the benefits derived.
In that event B 's share would be 3/10 of Rs. 15,000, that is to say, Rs. 4,500.
and C 's would be 5/10 of Rs. 15,000, that is Rs. 7,500.
A third solution is that they pay proportionately to the values of the properties mortgaged.
In that event B would have to pay 2/6 of Rs. 15,000, that is Rs. 5,000, and C 1/6 of Rs. 15,000 ' which come to Rs, 2,500.
The problem is to know which of these three solutions to apply.
In the absence of other considerations, the most equitable solution is obviously the second.
But the matter is not as simple as that.
There are certain statutory provi sions which must first be examined.
The learned counsel for the plaintiff respondent con tended that section 43 of the Contract Act applied.
He relied on the following provision : "Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract.
If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares.
" The argument is that unless a contrary intention appears from "the contract" the.
loss must be borne equally.
It was contended, and with that I agree, that the words "the con tract" can only refer to the main contract between the promisors on the one side and the promisee on the other.
That contract in this case is the suit mortgage.
There is no contract to the contrary in the document, therefore, it was contended, the section must apply.
That of course would be the clear, logical and simple conclusion ii there were no other provision of law to consider.
But we are dealing here with a mortgage and so we have also to look to the provisions of the Transfer of Property Act.
186 Incidentally, if this argument is pushed to its logical conclusion it would exclude any collateral or subsequent agreement between the promisors inter se which does not appear in the main contract.
But we need not enter into that here.
The sections of the Transfer of Property Act which concern us are 82 and 92.
The first confers a right of contribution.
The second a right of subrogation.
I will consider section 82 first.
It runs : "Where property subject to a mortgage belongs to two or more persons having distinct and separate rights of owner ship therein, the different shares in or parts of such property owned by such persons are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage . . " That is the position here.
Next I turn to section 92.
That runs " . any co mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor . " That also applies.
Now these provisions at once raise a competition between sections 82 and 92 of the Transfer of Property Act, section 43 of the Contract Act and what I might term the principle of beneficial, as opposed to proportionate or equal, distri bution of liability.
I am of opinion that the second solution adumbrated earlier in this judgment, based on equities, must be ruled out at once.
These matters have been dealt with by statute and we are now only concerned with statutory rights and cannot in the face of the statutory provisions have recourse to equitable principles however fair they may appear to be at first sight.
The Privy Council pointed out in Rani Chhatra Kumari vs Mohan Bikram (1) that the doctrine of the (1) Pat. 851 at 869.
187 equitable estate has no application in India.
So also refer ring to the right of redemption their Lordships held in Mohammad Sher Khan vs Seth Swami Dayal(1) that the right is now governed by statute, namely section 60, Transfer of Property Act.
Sulaiman c.
J. (later a Judge of the Federal Court) ruled Court equitable considerations in the Allahabad High Court in matters of subrogation under sections 91, 92, 101 and 105, Transfer of Property Act, in Hira Singh vs Jai Singh(2) and so did Stone C.J. and I in the Nagpur High Court in Taibai vs Wasudeorao (3).
In the ease of section 82 the Privy Council held in Ganesh Lal vs Charan Singh(4) that that section prescribes the conditions in which contribution is payable and that it is not proper to introduce into the matter any extrinsic principle to modify the statutory provisions.
So, both on authority and principle the deci sion must rest solely on whatever section is held to apply.
So far as section 43 is concerned, I am not prepared to apply it unless sections 82 and 92 can be excluded.
Both sections 43 and 82 deal with the question of contribution.
Section 43 is a provision of the Contract Act dealing with contracts generally.
Section 82 applies to mortgages.
As the right to contribution here arises out of a mortgage, I am clear that section 82 must exclude section 43 because when there is a general law and a special law dealing with a particular matter, the special excludes the general.
In my opinion, the whole law of mortgage in India, including the law of contribution arising out of a transaction of mort gage, is now statutory and is embodied in the Transfer of Property Act read with the Civil Procedure Code.
I am clear we cannot travel beyond these statutory provisions.
Now, when parties enter into a mortgage they know, or must be taken to know, that the law of mortgage provides for this very question of contribution.
It confers rights on the mortgagor who redeems and directs that, in the absence of a contract to the contrary, he (1) (1922) 49 I.A. 60 at Nag. 206 at 216.
(2) A.I.R. 1937 All.
588, at 594.
(4) (1930) 57 I.A. 189.
188 shall be reimbursed in a particular way out of particular properties.
The parties are at liberty to vary these rights and liabilities by special contract to the contrary but if they do not do so, I can see no reason why these provisions should be abrogated in favour of a section in the Contract Act which does not deal with mortgages.
Slightly to vary the language of the Judicial Committee it is the terms and nature of the transaction viewed in the light of the law of mortgage in India which exclude the personal liability and therefore section 43, except where there is a contract to the contrary.
It was suggested that the rule is inequitable and will operate harshly in cases like the present.
But the remedy lies in the parties ' own hands.
It is open to them to make a contract to the contrary.
If they do not, then the law steps in and makes statutory rules to which effect must be given.
It is not for judges to consider whether that is the best possible solution but the rule at any rate obviates the necessity of roving enquiries into the objects of a borrow ing and the application of the funds.
On an overall basis it is perhaps as good as any other.
But that hardly matters.
The rule is there and full effect must be given to it.
The learned counsel for the plaintiff respondent urged that the defendants are shut out from relying on section 82 because that was not their case and the question was never raised by them in the High Court.
Such reference as there is to the section was with reference to an argument urged on behalf of the plaintiff.
I am not impressed with this objection.
, On the facts set out by the plaintiff it is evident that he is entitled to contribution.
The method of computation is a matter of law and it is for the judges to apply the law to the facts stated and give the plaintiff such relief as is appropriate to the case.
I turn now to the question of fact, the special agree ment pleaded by the defendants.
The only evidence in sup port of it is that of the first defendant Kedar.
According to him, the agreement was an oral one 189 though the parties contemplated writing and registration.
His explanation for lack of any writing is this.
He was asked whether anything was put down in writing and he re plied : "No, nothing was done then, but there was an understand ing that it would be done but Tarak went away to Darjeeling and when he came back he died soon after he came back and nothing could be done in writing.
" Later, he was asked "Therefore, you, contemplated that there would be a document which would have to be registered in connection with the adjustment ?" and he replied ' 'Yes".
He also tells us that the parties regarded the matter as confidential and so only three per sons were present, Tarak, Naku and himself.
It is to be observed that Naku, who is the second defendant, has not entered the box.
Stopping there, it is evident that we have to rely on the memory of a very interested person speaking nearly thirteen years after the event about a transaction affecting some Rs. 80,000.
Nor is it the memory of some simple event which might well have fixed itself in his mind.
The question whether and at what stage parties reach finality when writ ing is in contemplation is a difficult and complex one involving delicate considerations of much nicety even when the preliminaries are all in writing.
The turn of a phrase here, the use of a word there, may make a world of differ ence.
The law regarding this was examined by me at some length in the Nagpur High Court in Shamjibhai vs Jagoo Hernchand Shah (1).
How much greater are the difficulties when we do not know the exact words the parties used and have to delve into the mind of a dead man (Tarak) through the impressions of an interested witness given some thirteen years after the event.
I find it difficult to accept this version and consider it would be dangerous to do so, particularly when the (1) I.L.R. at 586 588, and 598 25 190 witness is a hesitant and reluctant one, as his examination discloses, and even evasive on some points; also when the defendants have deliberately withheld from the Court assist ance which it was in their power to render I refer to the absence of Naku, the only other person present, from the box.
I am unable to accept this testimony.
Nor is this the only point.
Despite the insistence of the witness that the parties were on good terms and trusted each other, the fact remains that Tarak found it necessary to institute a suit for partition against his brothers and fight it to a finish.
They were not able to arrange matters amicably.
it was suggested in argument that was probably because of creditors who could not be persuaded to agree and it was pointed out that creditors were joined in the suit, but that is not wholly convincing particularly when it is admitted that Tarak was insisting on writing and regis tration.
It is evident that he, at any rate, was not prepared to leave matters as they were and trust to the good faith of his brothers.
Now we know that Tarak was in Calcutta about three months after the date of the alleged agreement.
We also know that Kedar was most anxious to have such an agreement, for he tells us so.
He tells us further that there was before them a rough draft of the terms.
That document was produced in Court.
But the draft was neither signed nor initialled.
The only inference I can draw from these facts is that Tarak either refused to agree or had not made up his mind.
The figures put forward by the defendants were contested on behalf of the plaintiff and we were given an alternative set of figures which in turn were contested by the other side, but they were enough to show that the matter is not as straightforward or as simple as the defendants would have us believe.
Therefore, Tarak 's inaction during the three months and the omission of either side to initial the draft point clearly, at the lowest, to hesitancy on Tarak 's part.
It may be he wanted his lawyers to examine his position or it may be he refused to have anything to do with it.
191 It is just possible that there were negotiations, but on those broad facts I am not prepared to believe the witness when he tells us, or rather suggests, that the parties reached finality.
It would in any event be dangerous to believe a witness in circumstances like this.
But when the defendants deliberately withheld from the Court that assist ance which is its due I can only conclude that their case was too shaky to stand further proving.
On these broad grounds alone I would hold that the agreement is not proved.
Much was made in argument about the rule regarding the weight to be given to the estimate of the judge who saw and heard a witness.
I do not doubt the soundness of the rule but it can be pushed too far as their Lordships of the Judicial Committee pointed out in Virappa vs Periakaruppan(1).
In the present case, the learned Judge who tried the case believed Kedar not because of his demea nour but because the learned Judge considered that his story was inherently probable.
That, however, is a matter which the learned appellate Judges were in as good a position to appreciate as the learned trial Judge.
If probability is to be the test, then the conduct of Tarak suggests that it is very improbable that he could have agreed.
That leaves at large the nature of the relief to which the plaintiff is entitled.
In the view I take, there being no contract to the contrary, the plaintiff 's only remedy is under section 92 of the Transfer of Property Act read with section 82.
The question is, has his suit been so framed ? The plaintiff has claimed separate personal reliefs against the defendants.
As there is no personal covenant as between the mortgagors or any "contract to the contrary", that relief ' cannot be granted.
The plaintiff has also asked for a declaration of charge and for a decree under Order XXXIV, Civil Procedure Code.
The declaration of charge standing by itself is superfluous although Order XXXIV, rule 2 (1) does require that the decree in a mortgage suit shall (1) A.I.R. 1945 P.C. 35 at 37.
192 "declare the amount so due" at the date of the decree.
But reading the two reliefs together, I am of opinion that though the claim is inartistically worded the plaintiff has in substance asked for a mortgage decree up to a limit of Rs. 40,253 11 10 with interest against each defendant.
No other kind of decree could be given under Order XXXIV.
Therefore, though he has not used the word "subrogation" he has asked in substance for the relief to which a subrogee would be entitled under the Transfer of Property Act.
I would be slow to throw out a claim on a mere techni cality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clum sily or inartistically the plaint may be worded.
In any event, it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs.
In the circumstances, in the absence of agreement be tween the parties as to the figures, I would remand this case to the High Court for (1) an enquiry regarding the sum paid by the plaintiff 's father for satisfaction of the mortgage dated the 12th June, 1936, (2) for the interest due on that sum at the contract rate in the mortgage from the date of payment to the date of decree, (a) lot the values of the various properties mortgaged at the date of the mort gage.
When the figures are ascertained, I would direct that the liability of each defendant be ascertained separately in the manner prescribed by section 82, Transfer of Property Act.
the event of this liability exceeding Rs. 40,253 11 10 with interest against either defendant, I would direct that his liability be reduced to Rs. 40,253 11 10 plus interest.
When these figures are ascertained, I would direct that a mortgage decree for sale be drawn up in the usual way affording either defendant the right to redeem the whole of the balance of the property 193 (excluding the plaintiff 's) for the aggregate sum due as above and, in default of payment, limiting the liabilities of each item of property to the sum rateably due on it under section 82.
On the question of costs.
The plaintiff repudiated section 82 in the course of the arguments before us and rested his case on section 43 of the Contract Act, nor did he clearly and unmistakably plead a case of subrogation in his plaint even in the alternative.
The defendants, on the other hand, set up a case which has failed on the facts.
I would, therefore, direct each side to bear its own costs in this appeal.
As regards the costs incurred in the Courts below and any costs which may be necessitated by a further enquiry, they will be determined according to the final result of the litigation and with due regard to all matters bearing on the question of costs.
FAZL ALI J.
I agree.
Case remanded.
| The right to contribution as between co mortgagors is governed by sections 82 and 92 of the Transfer of Property Act and not by section 43 of the Indian Contract Act, inasmuch as section 43 of the Contract Act deals with contracts generally, while sections 82 and 92 of the Transfer of Property Act specifically deal with the right of contribution between co mortgagors.
It is an established principle that when there is a general law, and a special dealing with a particular matter, the special excludes the general.
Consequently, in the absence a contract to the contrary, co mortgagors are bound to con tribute proportionately to the value of the shares or parts of the mortgaged property owned by them and not in propor tion to the extent of the benefits derived by each of them.
As sections 82 and 92 of the Transfer.
of Property Act prescribe the conditions in which contribution is payable in India when there is a mortgage, it is not proper to introduce into the matter extrinisic principles based on equitable consid erations.
|
s (Nos. 513, 566, 568, 570, 591,595, 596, 601, 616, 617, 623, 625, 631 and 632 of 1951) under article 32 of the Constitution for writs in the nature of habeas corpus.
The facts are stated in the judg ment.
Raghbir Singh (amicus curiae) for the petitioners in Petitions Nos.
513, 566, 568, 570.
595, 596, 609, 616, 617, 623,625 and 631.
A.S.R. Chari (amicus curiae) for the petitioner in Petition No. 591.
Shiv Charan Singh (amicus curiae) for the petitioner in Petition No. 632.
section M Sikri, Advocate General of the Punjab (Jindra Lal, with him) for the State of the Punjab.
January 25.
The Judgment of the Court was deliv ered by PATANJALI SASTRI C.J.
This is a petition under article 32 of the Constitution submitted through the Super intendent, Central Jail, Ambala, for the issue of a writ of habeas corpus for the release of the petitioner from custo dy.
On 5th July, 1950, the petitioner was arrested and detained under an order of the District Magistrate of Amrit sar in exercise of the powers conferred on him under section 3 of the , and the grounds of his detention were served on him as required by section 7 of the Act on 10th July, 1950.
The Act having been amended by the Preventive Detention (Amendment) Act, 1951, with effect from 22nd February, 1951, a fresh order No. 7853 ADSB, dated 17th May, 1951, was issued in the following terms : "Whereas the Governor of Punjab is satisfied with re spect to the person known as Naranjan Singh Nathawan, s/o Lehna Singh of village Chak Sikandar, 397 P.S. Ramdas, Amritsar District, that with a view to prevent ing him from acting in a manner prejudicial to the security of the State, it is necessary to make the following order: Now, therefore.
in exercise of the powers conferred by sub section (1) of section 3 and section 4 of the Preven tive Detention Act, 1950, as amended by the Preventive Detention (Amendment) Act, 1951, the Governor of Punjab hereby directs that the said Naranjan Singh Nathawan be committed to the custody of the Inspector General of Pris ons, Punjab, and detained in any jail of the State till 31st March, 1952, subject to such conditions as to maintenance, discipline and punishment for breaches of discipline as have been specified by general order or as contained in the Punjab Detenu Rules, 1950.
" This order was served on the petitioner on 23rd May, 1951, but no grounds in support of this order were served on him.
The petitioner thereupon presented this petition for his release contending that the aforesaid order was illegal inasmuch as (1) the grounds of detention communicated to him on 10th July, 1950, were "quite vague, false and imaginary" and (2) he was not furnished with the grounds on which the order dated 17th May, 1951, was based.
The petition was heard ex parte on 12th November, 1951, when this Court issued a rule nisi calling upon the respondent to show cause why the petitioner should not be released, and it was posted for final hearing on 23rd November, 1951.
Meanwhile, the State Government issued an order on 18th November, 1951.
revoking the order of detention dated 17th May, 1951, and on the same date the District Magistrate, Amritsar, issued yet another order for the detention of the petitioner under sections a and 4 of the amended Act; this last order along with the grounds on which it was based was served on the petitioner on 19th November, 1951.
Thereupon the petitioner submitted a supplemental peti tion to this Court on 28th November, 1951, challenging the validity of the last order on the ground 398 that "it was only a device to defeat the habeas corpus petition of the petitioner in which a rule had already been issued , and he put forward an additional ground of attack on the legality of the earlier order dated 17th may, 1951, namely, that it fixed the term of detention till 31st March, 1952, before obtaining the opinion of the Advisory Board as required by section 11 of the amended Act.
This ground was evidently based on the view expressed by this Court that the specification of the period of detention in the initial order of detention under section 3 of the amended Act before obtaining the opinion of the Advisory Board rendered the order illegal.
In the return to the rule showing cause filed on behalf of the respondent, the Under Secretary (Home) to the Govern ment explained the circumstances which led to the issue of the fresh order of detention dated 18th November, 1951.
After stating that the petitioner 's case was referred to and considered by the Advisory Board constituted under section 8 of the amended Act and that the Board reported on 30th May, 1951, that there was sufficient cause for the detention of the petitioner, the affidavit proceeded as follows: "That the Government was advised that the orders made under section 11 of the , as amended by the Preventive Detention (Amendment) Act, 1951, but carried out in the form of orders under section 3 of the said Act, should be followed by grounds of detention and, as this had not been done in most cases, the detentions were likely to be called in question.
The Government was further advised there were other technical defects which might render the detention of various detenus untenable.
In view of this, the Government decided that the cases of all dete nus should be reviewed by the District Magistrates con cerned.
Accordingly, the Punjab Government instructed the District Magistrates to review the cases and apply their minds afresh and emphasised that there must exist rational grounds with the detaining authority to justify the deten tion of a person and they were asked to report clearly in each case if the District 399 Magistrate concerned wanted the detenus to be detained.
The Punjab Government also reviewed some cases.
Accordingly all cases including the case of the petitioner were reviewed and in this case the District Magistrate was again satisfied that it was necessary that the detenu be detained with a view to prevent him from acting in a manner prejudicial to the security of the State and the maintenance of public order." And it concluded by stating "that the petitioner is detained now under the orders of the District Magistrate, Amritsar.
" The original and supplementary petitions came on in due course for hearing before Fazl Ali and Vivian Bose JJ.
on 17th December, 1951, when reliance was placed on behalf of t he petitioner on certain observations in an unreported decision of this Court in Petition No. 334 of 1951 (Naranjan Singh vs The State of Punjab) and it was claimed that in view of those observations and of the provisions of Part III of the Constitution, the decision in Basant Chandra Ghose vs King Emperor(1), on which the respondent relied.
was no longer good law.
The learned Judges thought that the matter should be considered by a Constitution bench and the case was accordingly placed before us.
It will be seen from the affidavit filed on behalf of the respondent that the case of the petitioner, along with his representation against the detention order of 17th May, 1951, was placed before the Advisory Board for its consider ation, and the Board reported on 30th May, 1951, that in its opinion there was sufficient cause for the detention of the petitioner.
It is said that, on the basis of that report, the Government decided that the petitioner should be de tained till 31st March, 1952, but while a properly framed order under section 11 should "confirm" the detention order and "continue" the detention for a specified period, the order of 17th May, 1951, was issued under a misapprehension in the form of an initial order under section 3 of the amended Act.
on the same grounds as before without any fresh communication thereof to the petitioner.
To (1) 52 400 avoid arguments based on possible defects of a technical and formal character, the said order was revoked under section 13, and on a review of the case by the District Magistrate, a fresh order of detention was issued under section 3 on 18th November, 1951, and this was followed by a formal communication of the same grounds as before as there could be no fresh grounds, the petitioner having throughout been under detention.
It is contended by the Advocate General of the Punjab that the decision reported in is clear authority in support of the validity of the aforesaid order.
On essentially similar facts the court laid down two propo sitions both of which have application here.
(1) Where an earlier order of detention is defective merely on formal grounds, there is nothing to preclude a proper order of detention being based on the pre existing grounds them selves, especially in cases in which the sufficiency of the grounds is not examinable by the courts, and (2) if at any time before the court directs the release of the detenu, a valid order directing his detention is produced, the court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention.
The question is not whether the later order validates the earli er detention but whether in the face of the later valid order the court can direct the release of the petitioner.
The learned Judges point out that the analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings has no application to proceedings in the nature of habeas corpus where the court is concerned solely with the question whether the applicant is being lawfully de tained or not.
The petitioner 's learned counsel conceded that he could not challenge the correctness of the second proposition, but took exception to the first as being no longer tenable after the Indian Constitution came into force.
It was urged that article 22 lays down the procedure to be followed in cases of preventive detention and the said procedure must be strictly observed 401 as the only prospect of release by a court must be on the basis of technical or formal defects, a long line of deci sions having held that the scope of judicial review in matters of preventive detention is practically limited to an enquiry as to whether there has been strict compliance with the requirements of the law.
This is undoubtedly true and this Court had occasion in the recent case of Makhan Singh Tarsikka vs The State of Punjab (Petition No. 308 of 1951)(1) to observe "it cannot too often be emphasised that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected".
This proposition, however, applied with equal force to cases of preventive detention before the commence ment of the Constitution, and it is difficult to see what difference the Constitution makes in regard to the position.
Indeed, the position is now made more clear by the express provisions of section 13 of the Act which provides that a detention order may at any time be revoked or modified and that such revocation shall not bar the making of a fresh detention order under section 3 against the same person.
Once it is conceded that in habeas corpus proceedings the court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceeding, it is difficult to hold, in the absence of proof of bad faith, that the detaining authority cannot supersede an earlier order of detention challenged as illegal and make a fresh order wherever possible which is free from defects and duly complies with the requirements of the law in that behalf.
As regards the observations in Naranjan Singh 's case, we do not understand them as laying down any general proposi tion to the effect that no fresh order of detention could be made when once a petition challenging the validity of an earlier order has been filed in court.
The learned Judges appear to have inferred from the facts of that case that the later order was (1) Since reported as ; 402 not made bona fide on being satisfied that the petitioner 's detention was still necessary but it was "obviously to defeat the present petition".
The question of bad faith, if raised would certainly have to be decided with reference to the circumstances of each case, but the observations in one case cannot be regarded as a precedent in dealing with other cases.
We accordingly remit the case for further hearing.
This order will govern the other petitions where the same ques tion was raised.
Petitions remitted.
| In the absence of bad faith the detaining authority can supersede an earlier order of detention which has been challenged as defective on merely formal grounds and make a fresh order wherever possible which is free from defects and duly complies with the requirements of the law in that behalf.
The question of bad faith, if raised, must be decided with reference to the circumstances of each case.
In habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceedings.
396 Basanta Chandra Ghose vs King Emperor ([1945] F.C.R. 81) followed.
Naranjan Singh vs The State of Punjab unreported) explained.
Makhan Singh Tarsikka vs The State of Punjab ([1952] S.C.R. 368) referred to.
|
eference No. 1 of 1951.
The circumstances which led to this Special Reference by the President and the questions referred appear from the full text of the reference dated 7th January, 1951, which is reproduced below : "WHEREAS in the year 1912 the Governor General of India in Council acting in his legislative capacity enacted the , section 7 of which conferred power on the Central Government by notification to extend to the Province of Delhi (that is to say, the present State of Delhi) or any part thereof, with such restrictions and modifications as it thought fit, any enactment which wag in force in any part of British India at the date of such notification; "AND WHEREAS in 1947 the Dominion Legislature enacted the Ajmer Merwara (Extension of Laws) Act, 1947, section 2 of which conferred power on the Central Government by notifica tion to extend to the Province of Ajmer Merwara (that is to say, the present State of Ajmer), with such restrictions and modifications as it thought fit, any enactment which was in force in any other Province at the date of such notifica tion; 753 "AND WHEREAS, by virtue of the powers conferred by the said sections of the said Acts, notifications were issued by the Central Government from time to time extending a number of Acts in force in the Governors ' Provinces to the Province of Delhi and the Province of Ajmer Merwara, sometimes with, and sometimes without, restrictions and modifications, and the Acts so extended and the orders,rules, by laws and other instruments issued under such Acts were and are re garded as valid law in force in the Province (now State) of Delhi and in the Province of Ajmer Merwara (now State of Ajmer), as the case may be, and rights and privileges have been created, obligations and liabilities have been in curred and penalties, forfeitures and punishments have been incurred or imposed under such Acts and instruments; "AND WHEREAS Parliament with the object inter alia of making a uniform provision for extension of laws with regard to all Part C States except Coorg and the Andaman and Nico bar Islands enacted the Part C States (Laws) Act, 1950, section 2, of which confers power on the Central Government by notification to extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification and also confers the power on the Central Government to make provision in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State; "AND WHEREAS section 4 of the Part C States (Laws) Act, 1950 has repealed section 7 of the , and the Ajmer Merwara (Extension of Laws)Act, 1947, but the effect of the provisos to the said section is, notwithstand ing the said repeals, to continue, inter alia in force the Acts extended to the Provinces of Delhi and Ajmer Merwara or the States of Delhi and Ajmer under the provisions repealed by the said section; "AND WHEREAS notifications have been issued by the Central (Government from time to time under section 9, of the States (Laws) Act, 1950, extending Acts in force in Part A States to various Part C States sometimes with, and sometimes without, restrictions and modifications; "AND WHEREAS the Federal Court of India in Jatindra Nath Gupta vs Province of Bihar(1) held by a majority that (1)[1949] F.C.R. 595.
754 the proviso to sub section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1947, was ultra vires of the Bihar Legislature inter alia on the ground that the said proviso conferred power on the Provincial Government to modify an Act of the Provincial Legislature and thus amounted to a delegation of legislative power; "AND WHEREAS, as a result of the said decision of the Federal Court, doubts have arisen regarding the validity of Section 7 of the , Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, and Section 2 of the Part C States (Laws) Act, 1950, and of the Acts extended to the Provinces of Delhi and Ajmer Merwara and various Part C States under the said sections respectively, and of the orders and other instruments issued under the Acts so extended: "AND WHEREAS the validity of Section 7 of the , and section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, and of the Acts extended by virtue of the powers conferred by the said sections has been challenged in some cases pending at present before the Punjab High Court, the Court of the Judicial Commissioner of Ajmer, and the District Court and the Subordinate Courts in Delhi; "AND WHEREAS, in view of what is hereinbefore stated, it appears to me that the following questions of law have.
arisen and are of such nature and of such public importance that it is expedient that the opinion of the Supreme Court of India should be obtained thereon; Now, THEREFORE, in exercise of the powers conferred upon me by clause (1) of article 143 of the Constitution, I, Rajendra Prasad, President of India, hereby refer the said questions to the Supreme Court of India for consideration and report thereon, namely : "(1) Was section 7 of the , or any of the provisions thereof and in what particular or particu lars or to what extent ultra vires the Legislature which passed the said Act ? "(2) Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Legislature which passed the said Act ? "(3) Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Parliament?" 755 Arguments were heard on the 9th, 10th, 11th, 12th, 16th, 17th, 18th, 19th, 20th, 23rd, 24th, 25th, 26th, 27th and 30th days of April, 1951.
M.C. Setalvad, Attorney General for India, (G. N. Joshi, with him) for the President of India.
C.K. Daphtary, Advocate General of Bombay (G. N. Joshi, with him) for the State of Bombay.
(R. Ganapathy lyer, for the State of Madras.
M.L. Saxena,for the State of Uttar Pradesh.
A.R. Somanatha lyer, Advocate General of Mysore (R. Ganapathy lyer, with him) for the State of Mysore.
P.S. Safeer, for Captain Deep Chand.
N.S. Bindra, for Pt.
Amarnath Bharadwaj.
M.M. Gharakhan, for the Ajmer Electric Supply Co. Ltd. N.C. Chatterjee, (G. C. Mathur, Basant Chandra Ghose, and Tilak Raj Bhasin, with him) for the Maidens Hotel.
Jessaram Banasingh, for Runglal Nasirabad.
Jyoti Sarup Gupta and K.B. Asthana, for the Municipal Committee, Ajmer.
Din Dayal Kapur, for Shri Munshilal and two others.
May 23.
The following judgments were delivered.
KANIA C.J. This is a reference made by the President of India under article 143 of the Constitution asking the Court 's opinion on the three questions submitted for its consideration and report.
The three questions are as fol lows: "(1) Was section 7 of the , or any of the provisions thereof and in what particular or particu lars or to what exent ultra vires the Legislature which passed the said Act ?" Section 7 of the , mentioned in question, runs as follows : 756 "The Provincial Government may, by notification in the official gazette, extend with such restrictions and modifi cations as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification.
" "(2) Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particu lar or particulars or to what extent ultra vires the Legis lature which passed the said Act ?" Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, runs as follows: ' 'Extension of Enactments to Ajmer Merwara.
The Cen tral Government may, by notification in the official ga zette, extend to the Province of Ajmer Merwara with such restrictions and modifications as it thinks fit any enact ment which is in force in any other Province at the date of such notification.
" "(3) Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and in what particu lar or particulars or to what extent ultra vires the Parlia ment ?" Section 2 of the Part C States (Laws) Act, 1950, runs as follows : "Power to extend enactments to certain Part C States.
The Central Government may, by notification in the Official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amend ment.
of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State.
" The three sections referred to in the three questions are all in respect of what is described as the delegation of.
legislative power and the three particular Acts are selected to raise the question in respect of the three main stages in the constitutional development of India.
757 The first covers the legislative powers of the Indian Legis lature during the period prior to the Government of India Act, 1915.
The second is in respect of its legislative power after the Government of India Act, 1935, as amended by the Indian Independence Act of 1947. 'The last is in respect of the power of the Indian Parliament under the present Consti tution of 1950.
It is therefore necessary to have an idea of the legislative powers of the Indian Legislature during those three periods.
Without going into unnecessary details, it will not be out of place to know the historical back ground.
The East India Company first started its operations as a trading company in India and gradually acquired politi cal influence.
The Crown in England became the legislative authority in respect of areas which had come under the control of the East India Company.
The Indian Councils Act of 1861, section 22, gave power to the Governor General in Council, with additional nominated members, to make laws.
The constitutional position therefore was that the British Parliament was the sovereign body which passed the Indian Councils Act.
It gave the Governor General in Council in his legislative capacity powers to make laws over the territo ries in India under the governance of the Crown.
Under the English Constitution the British Parliament with its legis lative authority in the King and the two Houses of Parlia ment is supreme and its sovereignty cannot be challenged anywhere.
It has no written Charter to define or limit its power and authority.
Its powers are a result of convention but are now recognised as completely absolute, uncontrolled and unfettered.
Sir Cecil Cart in his book on English Admin istrative Law at page 15 observes: "A more basic difference between the Constitutions of the United States and Britain is the notorious fact that Britain has no written Constitu tion, no fundamental statute which serves as a touchstone for all other legislation and which cannot be altered save by.
some specially solemn and dilatory process.
In Britain the King in Parliament is all powerful.
There is no Act which cannot be passed and will not be valid within 758 the ordinary limits of judicial interpretation . .
Even Magna Carts is not inviolate . .
The efficient secret of the English Constitution was the close union and nearly complete fusion of the executive and legislative powers.
In other words by the system of Cabinet Government the executive authority is entrusted to a committee consisting of members of the dominant party in the legisla ture and in the country." In Halsbury 's Laws of England, Vol.
VI, Article 429, it is further stated that it is for this reason that there is no law which the King in Parliament cannot make or unmake whether relating to the Constitution itself or otherwise; there is no necessity as in States whose Constitutions are drawn up in a fixed and rigid form and contained in written documents for the existence of a judicial body to determine whether any particular legislative Act is within the consti tutional powers of Parliament or not; and laws affecting the Constitution itself may be enacted with the same ease and subject to the same procedure as ordinary laws.
In England, when occasions of conferment of powers on subordinate bodies became frequent and assumed larger scope, questions about the advisability of that procedure were raised and a Commit tee on the Minister 's Powers, what is generally described as the Donoughmore Committee was appointed.
The Committee recommended that certain cautions should be observed by the Parliament in the matter of confermen of such powers on subordinate bodies.
This is natural because of the well recognised doctrine of the English Constitution that Parlia ment is supreme and absolute and no legislation can control its powers.
Such a legislative body which is supreme has thus cer tain principal characteristics.
It is improper to use the word "constitutional" in respect of laws passed by such a sovereign body.
The question of constitutionality can arise only if there is some touchstone by which the question could be decided.
In respect of a sovereign body like the British Parliament there is no 759 touchstone.
They are all laws and there is no distinction in the laws passed by the Parliament as constitutional or other laws.
Such laws are changed by the same body with the same ease as any other law.
What law follows from this is that no court or authority has any right to pronounce that any Act of Parliament is unconstitutional.
In Dicey 's Law of the Constitution, 9th Edition, in considering the Constitution of France,it was observed that the supreme legislative power under the Republic was not vested in the ordinary Parliament of two Chambers, but in a National Assembly or Congress composed of the Chamber of Deputies and the Senate sitting together.
The Constitutions of France which in this respect were similar to those of Continental polities exhibited as compared with the expansiveness or flexibility of English institutions that characteristic which was described by the author as rigid.
A flexible constitution was one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body.
The flexibility of the British Constitution consists in the right of the Crown and the two Houses to modify or repeal any law whatever.
They can modify or.repeal in the same manner in which they can pass an Act enabling a company to make a new railway from Oxford to London.
Therefore, in England laws are called constitutional because they refer to subjects proposed to affect the fundamental institutions of the State and not because they are legally more sacred or difficult to change than other laws.
Under the circumstances the term "constitutional law or enactment" is rarely applied to any English statute to give a definite description to its character.
Under a rigid constitution, the term "consti tutional" means that a particular enactment belongs to the articles of the constitution and cannot be legally changed with the same ease and in the same manner as ordinary laws, and it is because of this characteristic that courts are invested with powers to determine whether a particular legislation is permitted or not by the constitution.
Such a question can 760 never arise in respect of an enactment of the British Parliament.
As against this, the Governor General in Council with legislative powers established under the Indian Councils Act stood in a different position.
Its charter was the Indian Councils Act.
Its powers were there necessarily defined and limited.
That power, again, at any time could be withdrawn, altered and expanded or further curtailed.
Moreover, as the powers were conferred by an Act of the British parliament, the question whether the action of the Governor General in Council in his legislative capacity was within or without its legislative power was always capable of being raised and decided by a court of law.
In Dicey 's Law of the Constitution, 9th Edition the author has distin guished the position of a sovereign legislature and a subordinate law making body.
The distinction is drawn from the fact that the subordinate legislatures have a limited power of making laws.
At page 99, he has specifically considered the position of the legislative Council of British India prior to 1915 and stated as follows: "Laws are made for British India by a Legislative Council having very wide powers of Legislation.
This Council, or, as it is technically expressed, the Governor General in Council, can pass laws as important as any Acts passed by the Brit ish Parliament.
But the authority of the Council in the way of law making is as completely subordinate to, and as much dependent upon, Acts of Parliament as is the power of the London and North Western Railway Company to make bye laws .
Now observe, that under these Acts the Indian Council is in the strictest sense a non sovereign legisla tive body, and this independently of the fact that the laws or regulations made by the Governor General in Council can be annulled or disallowed by the Crown; and note that the position of the Council exhibits all the marks or notes of legislative subordination.
(1) The Council is bound by a large number of rules which cannot be changed by the Indian legislative body itself and which can be changed by the superior power of the Imperial parliament.
761 (2) The Acts themselves, from which the Council derives its authority, cannot be changed by the Council and. they stand in marked contrast with the laws or regulations which the Council is empowered to make.
These fundamental rules contain, it must be added, a number of specific restrictions on the subjects with regard to which the Council may legis late . (3) The courts in India . may, when the occasion arises, pronounce upon the validity or constitu tionality of laws made by the Indian Council.
" It is there fore clear that the Indian Legislature in 1861 and upto 1915 was a subordinate legislature and not a sovereign legisla ture.
At this stage it may again be noticed that the Govern ment was unitary and not federal.
There was no distribution of legislative powers as between the Centre and the differ ent Provinces.
Another important factor to be borne in mind is that while the British Parliament was supreme, its execu tive Government came into power and remained in power so long only as the Parliament allowed it to remain and the Parliament itself was not dissolved.
The result is that the executive government was a part of the legislature and the legislature controlled the actions of the executive.
Indeed, the legislature was thus supreme and was in a position effectively to direct the actions of the executive govern ment.
In India the position was quite different if not the reverse.
The Governor General was appointed by the Crown and even after the expansion of the legislative body before the Government of India Act of 1915 in numbers, it had no con trol over the executive.
In respect of the Indian Legisla ture functioning prior to the Government of India Act of 1915 the control from the Secretary of State was justified on the ground that the Provincial Legislatures were but an enlargement of the executive government for the purpose of making laws and were no more than mere advisory bodies without any semblance of power.
The executive Government of India was not responsible to the Indian Legislature and the composition of the Indian Legislature was such that the executive officers 762 together with the nominated members constituted the majority in the Legislature.
The result was that the Legislative Council was practically a creature of the executive Govern ment of India and its functions were practically limited to registering the decrees of the executive government.
It would not be wrong, according to Mr. Cowell in his lecture on "Courts and Legislative Authorities in India," to de scribe the laws made in the Legislative Councils as in reality the orders of Government.
Every Bill passed by the Governor General 's Council required his assent to become an Act.
The Indian Councils Act of 1892 empowered the Governor General in Council, with the approval of the Secre tary of State in Council, to make regulations as to the conditions under which nomination of the additional members should be made.
The word `election ' was carefully avoided.
The existence of a strong official block in the Councils was the important feature of the Act.
As noticed by a writer on Indian Constitution, the Government maintained a tight and close control over the conduct of official members in the Legislature and they were not allowed to vote as they pleased.
They were not expected to ask questions or move resolutions or (in some Councils) to intervene in debate without Government 's approval.
Their main function was to vote to vote with the Government.
However eloquent the non official speakers might talk and however reasonable and weighty their arguments might be, when the time for voting came the silent official flanks stepped in and decided the matter against them.
All these factors contributed to the unreality of the proceedings in the Council because the number of elected members was small and the issue was often known beforehand.
Speaking in the.
House of Lords in Decem ber 1908 on the Bill which resulted in the Government of India Act of 1909, Lord Morley, the then Secretary of State for India, declared: "If I were attempting to set up a Parliamentary system in India, or if it could be said that this chapter of rules led directly or necessarily up to the establishment of a Parliamentary system in India.
I for one would have 763 nothing at all to do with it . .
A Parliamentary system is not at all the goal to which I would for one moment aspire.
" The constitution of the Central Legislative Council under the Regulation of November, 1909, as revised in 1912, was this: Ordinary members of the Governor Gene ral 's Council, The Commander in Chief and the Lt. Governor . 8 Nominated members of whom not more than 28 must be officials . 33 Elected members, . 27 and The Governor General . 1 69 The executive government was thus supreme and was not bound to obey or carry out the mandates of the legislature.
Instances where Finance Bills were rejected and other Bills were backed by the popular feeling and which decisions the Governor General overruled, are well known.
The Indian Legislature was powerless to do anything in the matter.
Without the consent of the executive government no Bill could be made into an Act nor an Act could be amended or repealed without its consent.
The possibility of the Legis lature recalling the power given tinder an Act to the execu tive against the latter 's consent was therefore nil.
Once an Act giving such power (like the ) was passed, practically the power was irrevocable.
In my opinion, it is quite improper to compare the power and position of the Indian Legislature so established and functioning with the supreme and sovereign character of the British Parliament.
The legislative power of the Indian Legislature came to be changed as a result of the Act of 1915 by the creation of Provincial legislatures.
I do not propose to go into the details of the changes, except to the extent they are di rectly material for the discussion of the questions submit ted for the Court 's opinion, Diarchy 764 was thus created but there was no federation under the Act of 1915.
Under the Government of India Act, 1935, the legis lative powers were distributed between the Central legisla ture and the Provincial legislature, each being given exclu sive powers in respect of certain items mentioned in Lists I and II of the Seventh Schedule.
List III contained subjects on which it was open to the Centre or the Province to legis late and the residuary power of legislation was controlled by section 104.
This Act however was still passed by the British Parliament and therefore the powers of the Indian Central legislature as well as the Provincial legislatures were capable of being altered, expanded or limited according to the desire of the British Parliament without the Indian legislature or the people of India having any voice in the matter.
Even under this Act, the executive government was not responsible to the Central Legislature or the Provincial Legislature, as the case may be.
I emphasize this aspect because it shows that there was no fusion of legislative and executive powers as was the case with the Constitution in England.
The result of the Indian Independence Act, 1947, was to remove the authority of the British Parliament to make any laws for India.
The Indian Central Legislature was given power to convert itself into a Constituent Assembly to frame a Constitution for India, including the power to amend or repeal the Government of India Act, 1935, which till the new Constitution was adopted, was to be the Constitution of the country.
Even with that change it may be noticed that the executive government was not responsible to the Central Legislature.
In fact with the removal of the control of the Parliament it ceased to be responsible to anyone.
Under the Constitution of India as adopted on the 26th of January, 1950, the executive government of the Union is vested in the President acting on the advice of the Minis ters.
A Parliament is established to make laws and a Su preme Court is established with the powers defined in dif ferent articles of the Constitution.
The executive, legislative and judicial 765 functions of the Government, which have to be discharged, were thus distributed but the articles giving power to these bodies do not vest the legislative or judicial powers in these bodies expressly.
Under the Constitution of India, the Ministers are responsible to the legislatures and to that extent the scheme of the British Parliament is adopted in the Constitution.
While however that characteristic of the British Parliament is given to the Indian Legislature, the principal point of distinction between the British Parlia ment and the Indian Parliament remains and that is that the Indian Parliament is the creature of the Constitution of India and its powers, rights, privileges and obligations have to be found in the relevant articles of the Constitu tion of India.
It is not a sovereign body, uncontrolled with unlimited powers.
The Constitution of India has con ferred on the Indian Parliament powers to make laws in respect of matters specified in the appropriate places and Schedules, and curtailed its rights and powers under certain other articles and in particular by the articles found in Chapter 111 dealing with Fundamental Rights.
In case of emergency where the safety of the Union of India is in danger, the President is given express power to suspend the Constitution and assume all legislative powers.
Similarly.
in the event of the breaking.down of the administrative machinery of a State, the President is given powers under article 257 to assume both legislative and executive powers in the manner and to the extent found in the article.
There can be no doubt that subject to all these limitations and controls, within the scope of its powers and on the subjects on which it is empowered to make law% the Legislature is supreme and its powers are plenary.
The important question underlying the three questions submitted for the Court 's consideration is what is described as the delegation of legislative powers.
A legislative body which is sovereign like an autocratic ruler has power to do anything.
It may, like a Ruler, by an individual decision, direct that a certain person may be put to death or a cer tain property may be 766 taken over by the State.
A body of such character may have power to nominate someone who can exercise all its powers and make all its decisions.
This is possible to be done because there is no authority or tribunal which can question the right or power of the authority to do so.
The contentions urged on behalf of the President of India are that legislative power carries with it a power of delegation to any person the legislature may choose to appoint.
Whether sovereign or subordinate, the legislative authority can so delegate its function if the delegation can stand three tests.
(1) It must be a delegation in respect of a subject or matter which is within the scope of the legis lative power of the body making the delegation.
(2) Such power of delegation is not negatived by the instrument by which the legislative body is created or established.
And (3) it does not create another legislative body having the same powers and to discharge the same functions which it itself has, if the creation of such a body is prohibited by the instrument which establishes the legislative body it self.
It was urged that in the ease of an unwritten consti tution, like the British Parliament there can De no affirm ative limitation or negative prohibition against delegation and therefore the power of delegation is included to the fullest extent within the power of legislation.
The British Parliament can efface itself or even abdicate because it has a power to pass the next day a law repealing or annulling the previous day 's legislation.
When the British Parliament established legislative bodies in India, Canada and Austra lia by Acts of the British Parliament, the legislatures so established, although in a sense subordinate, because their existence depended on the Acts of the British Parliament and which existence could be terminated or further let tered by an Act of the British Parliament, neverthe less are supreme with plenary powers of the same nature as the British Parliament, on the subjects and matters within their respective legislative authority.
As the power of delegation is 767 included in the power of legislation, these legislative bodies have also, subject to the three limitations mentioned above, full power of delegation in their turn.
These legis lative bodies were not agents of the British Parliament.
Not being agents or delegates of the British Parliament, the doctrine delegata potestas non potest delegare cannot apply to their actions and if these legislatures delegate powers to some other authority to make rules or regulations, or authorise the executive government to enforce laws made by them or other legislatures wholly or in part and with or without restrictions or modifications, the legislatures are perfectly competent to do so.
The history of legislation in England and India and the other Dominions supports this contention.
It is recognised as a legislative practice and is seen in several Acts passed by the legislatures of the Dominions and in India.
Such delegation of the legislative functions has been recognised over a series of years by the Judicial Committee of the Privy Council and it is too late to contest the validity of such delegation.
It was lastly contended that the observations of the Federal Court in Jatindra Nath Gupta vs Province of Bihar(1), tending to show that delegation was not permissible, required to be recon sidered.
Before considering these arguments in detail, I think it is essential to appreciate clearly what is conveyed by the word "delegation ' '.
That word is not used, either in discus sions or even in some decisions of the courts, with the same meaning.
When a legislative body passes an Act it has exercised its legislative function.
The essentials of such function are the determination of the legislative policy and its formulation as a rule of conduct.
These essentials are the characteristics of a legislature by itself.
It has nothing to do with the principle of division of powers found in the Constitution of the United States of America.
Those essentials are preserved, when the legislature specifies the basic conclusions of fact, upon ascertainment of which, from relevant data, by a designated administrative agency, (1) 768 it ordains that its statutory command is to be effective.
The legislature having thus made its laws, it is clear that every detail for working it out and for carrying the enact ments into operation and effect may be done by the legisla ture or may be left to another subordinate agency or to some executive officer.
While this also is sometimes described as a delegation of legislative powers, in essence it is different from delegation of legislative power which means a determination of the legislative policy and formulation of the same as a rule of conduct.
I find that the word "delega tion" is quite often used without bearing this fundamental distinction in mind.
While the so called delegation, which empowers the making of rules and regulations, has been recognised as ancillary to the power to define legislative policy and formulate the rule of conduct, the important question raised by the Attorney General is in respect of the right of the legislature to delegate the legislative func tions strictly so called.
In support of his contention that the legislative power of the Indian Legislature carried with it the power of delegation, the Attorney General relied on several decisions of the Judicial Committee of the Privy Council and decisions of the Supreme Court of Canada and Australia.
The first is The Queen vs Burah(1).
Act XXII of 1869 of the Council of the Governor General of India for making laws and regula tions was an Act to remove the Garo Hills from the jurisdic tion of the tribunals established under the General Regula tions and Acts passed by any legislature in British India and provided that "no Act hereafter passed by the Council of the Governor General for making laws and regulations shall be deemed to extend to any part of the said territory unless the same was specifically named therein.
" The administration of civil and criminal justice within the said territory was vested in such officers as the Lieutenant Governor may from time to time appoint.
Sections 8 and 9 of the said Act provided as follows : (1) 51.
A. 178, 769 "Section 8.
The said Lieutenant Governor may from time to time, by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the Governor General ,or of the said Lieutenant Governor.
for making laws and regulations, and may on making such exten sion direct by whom any powers of duties incident to the provisions so extended shall be exercised or performed, and make any order which he shall deem requisite for carrying such provisions into operation." "Section 9.
The said Lieutenant Governor may from time to time, by notification in the Calcutta Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Nags Hills, and to such portion of the Khasi Hills as for the time being forms part of British India.
Every such notification shall specify the boundaries of the territories to which it applies.
" The Lieutenant Governor of Bengal issued a notification in exercise of the power conferred on him by section 9 and extended the provisions of the said Act to the territory known as the Khasi and Jaintia Hills and excluded therefrom the jurisdiction of the ordinary civil and criminal courts.
By a majority judgment the Calcutta High Court decided that the said notification had no legal force or effect.
In the Calcutta High Court, Mr. Kennedy, counsel for the Crown, boldly claimed for the Indian Legislative Council the power to transfer legislative functions to the Lieutenant Governor of Bengal and Markby J. framed the question for decision as follows: "Can the Legislature confer on the Lieutenant Governor legislative power?" Answer: "It is a general prin ciple of law in India that any substantial delegation of legislative authority by the Legislature of this country is void." Lord Selbourne after agreeing with the High Court that Act XXII of 1869 was within the legislative 770 power of the Governor General in Council, considered the limited question whether consistently with that view the 9th section of that Act ought nevertheless to be held void and of no effect.
The Board noticed that the majority of the Judges of the Calcutta High Court based their decision on the view that the 9th section was not legislation but was a delegation of legislative power.
They noticed that in the leading judgment Markby J. the principle of agency was relied upon and the Indian Legislature seemed to be regarded an agent delegate, acting under a man.date from the Imperial Parliament.
They rejected this view.
They observed: "The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament.
which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers.
But, when acting within those limits, it is not.
in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature as those of Parliament itself.
The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they.
can properly do.
so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted.
If what has been done is legislation, within the general scope of the affirm ative words which give the power, and if it violates no express condition or restriction by which that power is limited . it is not for any court of justice to inquire further, or to enlarge constructively those condi tions and restrictions.
"Their Lordships agree that the Governor General in Council could not, by any form of enactment, create in India and arm with general legislative authority, a new legislative power not created or authorised by the Councils Act.
Nothing of that kind has, in their Lordships opinion, been done or attempted in the present case.
What has been done is this.
The Governor General in Council has deter mined in the 771 due and ordinary course of legislation, to remove a particu lar district from the jurisdiction of the ordinary courts and offices, and to place it under new courts and offices, to be appointed by and responsible to the Lieut.
Governor of Bengal; leaving it to the Lieut.
Governor to say at what time that change shall take place; and also enabling him not to make what laws he pleases for that or any other district, but to apply by public notification to that district any law, or part of a law, which either already was, or from time to time might be, in force by proper legislative authority, in the other territories subject to his gov ernment.
The legislature determined that, so far, a certain change should take place; but that it was expedi ent to leave the time and the manner of carrying it into effect to the discretion of the Lieut.
Governor; and also, that the laws which were or might be in force in the other territories subject to the same Government were such as it might be fit and proper to apply to this district also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieut. Governor.
This having been done as to the Garo Hills, what was done as to the Khasi and.
Jaintia Hills ? The legislature decided that it was fit and proper that the adjoining district of the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing courts and brought under the same provisions with the Garo Hills . if and when the Lieut. Governor should think it desirable to do so; and that it was also possible that it might be expedient that not all, but some only, of those provisions should be applied to that adjoining district; and accordingly the legislature entrusted for these purposes also a discretionary power to the Lieut. Governor.
" The important part of the decision, dealing with the the question before them was in these terms : "Their Lordships think that it is a fallacy to speak of the 772 powers thus conferred upon the Lieut.
Governor (large as they undoubtedly are) as if, when they were exercised the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor Gener al in Council.
Their whole operation is directly and imme diately under and by virtue of this Act (XXI of 1869) it self.
The proper legislature has exercised its judgment as to place, person, laws powers and the result of that judg ment has been to legislate conditionally as to all these things.
The conditions having been fulfilled, the legisla tion is now absolute.
Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships judgment) be well exercised, either absolutely or condition ally.
Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrust ed by the legislature to persons in whom it places confi dence, is no uncommon thing;and, in many circumstances, it may be highly convenient.
The British Statute Book abounds with examples of it: and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legisla tion as within the scope of the legislative powers which is from time to time conferred.
It certainly used no words to exclude it." (The italics are mine).
They then mentioned by way of illustrations the power given to the Governor General in Council (not in his legislative capacity) to extend the Code of Civil Procedure and Code of Criminal Procedure by section 385, Civil Procedure Code.
and section 445, Criminal Procedure Code, to different territories.
They held that a different conclusion will be casting doubt upon the validity of a long series of legislation, appropriate, as far as they can judge, to the peculiar circumstances of India; great part of which belongs to the period antecedent to the year 1861, and must therefore be presumed to have been known to and in the view of, the Imperial Parliament, when the Coun cils Act of that year was passed.
For such doubt their Lordships were unable 773 to discover any foundation either in the affirmative or in the negative words of the Act before them.
I have quoted in extenso extracts from this judgment because it is considered the foundation for the argument advanced by the learned Attorney General.
In my opinion this judgment does not support the contention as urged.
The Privy Council noted the following:(1) That the Garo Hills were removed by the Act from the jurisdiction of the ordi nary courts.
(2) That in respect of the Khasi and Jaintia Hills the same position had been arrived at.
(:3) That the power was to be exercised over areas which, notwithstanding the Act, remained under the administrative control of the Lieut. Governor.
(4) That the authority given to the Lieut.
Governor was not to pass new laws but only to extend Acts which were passed by the Lieut.
Governor.
or the Gover nor General in respect of the Province both being competent legislatures for the area in question.
He was not given any power to modify any law.
(5) They rejected the view of the majority of the Judges of the Calcutta High Court that the Indian Legislature was a delegate or an agent of the British Parliament.
(6) That within the powers conferred on the Indian Legislature it was supreme and its powers were as plenary and of the same nature as the British Parliament.
(7) That by the legislation the Indian Parliament had not created a legislative body with all the powers which it had.
(8) The objection on the ground of delegation was rejected because what was done was not delegation at all but it was conditional legislation.
Throughout the judgment it is nowhere suggested that the answer of Markby J. to the ques tion framed by him (and quoted earlier in this judgment) was incorrect.
(9) It emphasized that the order of the Lieut Governor derived its sanction from the Act of the Governor General and not because it was an order of the Lieut.
Gover nor.
(10) That in the legislation of the Governor General in Council (legislative) all that was necessary to consti tute legislation was found.
This applied equally to future laws as the appropriate legislative body for the area was 774 the same.
This decision therefore carefully and deliberate ly did not endorse the contention that the power of delega tion was contained in the power of legislation.
The Board after affirming that what was done was no delegation at all held that the legislation was only conditional legislation.
In Emperor vs Benoari Lal Sarma and others (1), the question arose about the Special Criminal Courts Ordinance 1I of 1942, issued by the Governor General under the powers vested in him on the declaration of an emergency on the outbreak of war.
The validity of that Ordinance was chal lenged in India either (1) because the language of the section showed that the Governor General, notwithstanding the preamble, did not consider that an emergency existed but was making provision in case one should arise in future, or (2) else because the section amounted to what was called delegated legislation by which the Governor General without legal authority sought to pass the decision as to whether an emergency existed, to the Provincial Government instead of deciding it for himself.
The relevant provision of the Government of India Act, 1935, was in these terms: "72.
The Governor General may, in cases of emergency, make and promulgate ordinances for the peace and good gov ernment of British India or any part thereof, and any Ordi nance so made shall for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature;but the power of making Ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any Ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature and may be controlled or superseded by any such Act.
" In rejecting this second objection, their Lordships observed that under paragraph 72 of Schedule 9, the Gover nor General himself must discharge the duty of (I) 72 I.A. 27.
775 legislation and cannot transfer it to other authorities.
But the Governor General had not delegated his legislative powers at all.
After stating again that what was done was not delegated legislation at all, but was.
merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is deter mined by the judgment of a local administrative body as to its necessity, their Lordships disagreed with the majority view of the Federal Court that what was done was delegation of legislative functions.
If the power of delegation was contained in the power of legislation as wide as contended by the Attorney General, there appears no reason why the Privy Council should have rejected the argument that the Act was an act of delegation and upheld its validity on the ground that it was conditional legislation.
Moreover they reaffirmed the following passage from Russell vs The Queen (1): "The short answer to this objection (against delegation of legislative power) is that the Act does not delegate any legislative powers whatever.
It contains within itself the whole legislation on the matters with which it deals.
The provision that certain parts of the Act shall come into operation only on the petition of a majority electors does not confer on these persons powers to legislate.
Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled.
Conditional legislation of this kind is in many cases convenient, and is certainly not unusual, and the power so to legislate cannot be denied to the Parliament of Canada when the subject of legislation is within its competency." (The italics are mine).
Support for this last mentioned statement was found in the decision of the Privy Council in The Queen vs Burah(2).
It is clear that this decision does not carry the matter further.
Even though this was a war measure the Board emphasized that the Governor General must himself discharge the duty of legislation and cannot transfer it to other authorities.
They examined the impugned Act and (1) 7 App.
(2) 5 I.A. 178.
776 came to the conclusion that it contained within itself the whole legislation on the matters with which it dealt and there was no delegation of legislative functions.
A close scrutiny of these decisions and the observations contained therein, in my opinion, clearly discloses that instead of supporting the proposition urged by the Attorney General impliedly that contention is negatived.
While the Judicial Committee has pointed out chat the Indian Legislature had plenary powers to legislate on the subjects falling within its powers and that those powers were of the same nature and as supreme as the British Parliament, they do not endorse the contention that the Indian Legislature, except that it could not create another body with the same powers as it has, or in other words, efface itself, had unlimited powers of delegation.
When the argument of the power of the Indian Legislature to delegate legislative powers in that manner to subordinate bodies was directly urged before the Privy Council, in each one of their deci sions the Judicial Committee has repudiated the suggestion and held that what was done was not delegation but was subsidiary legislation or conditional legislation.
Thus while the Board has reiterated its views that the powers of the Indian Legislature were "as plenary and of the same nature as the British Parliament" no one, in no case, and in no circumstances, during the last seventy years, has stated that the Indian Legislature has power of delegation (as contended in this case) and which would have been a direct, plain, obvious and conclusive answer to the argument.
Instead of that, they have examined the impugned legislation in each case and pronounced on its validity on the ground that it was conditional or subsidiary legislation.
The same attitude is adopted by the Privy Council in respect of the Canadian Constitution.
The expressions "subsidiary" or "conditional legislation" are used to indicate that the powers conferred on the subordinate bodies were not powers of legislation but powers conferred only to carry the enact ment into operation and effect, or that the Legislature having discharged legislative functions had specified the basic conclusions of fact upon 777 ascertainment of which, from relevant data by a designated administrative agency, that body was permitted to bring the statute into operation.
Even in such cases the Board has expressly pointed out that the force of.
these rules, regu lations or enactments does not arise out of the decision of the administrative or executive authority to bring into operation the enactment or the rules framed thereunder.
The authoritative force and binding nature of the same are found in the enactment passed by the legislature itself.
Therefore, a correct reading of these decisions does not support the contention urged by the Attorney General.
Some decisions of the Privy Council on appeal from the Supreme Court of Canada and some decisions of the Supreme Court of Canada, on the point under discussion, on which the learned Attorney General relied for his contention, may be noticed next.
In Hodge vs The Queen(1), which was an appeal from the Court of Appeal, Ontario, Canada, a question about the validity of the Liquor Licences Act arose.
After hold ing that the temperance laws were under section 92 of the British North America Act for "the good government", their Lordships considered the objection that the Imperial Parlia ment had conferred no authority on the local legislature to delegate those powers to the Licence Commissioners.
In other words, it was argued that the power conferred by the Imperial Parliament on the local legislature should be exercised in full by that body and by that body alone.
The maxim delegata potestas non potest delegare was relied upon to support the objection.
Their Lordships observed: "The objection thus raised by the appellants was founded on an entire misconception of the true character and position of the Provincial Legislatures.
They are in no sense delegates of, or acting under mandate from, the Imperial Parliament.
When the British North America Act enacted that there should be a legislature for Ontario and that its Legislative Assem bly should have exclusive authority to make laws for the Province and for Provincial purposes in relation to the matters (1) 9 App.
Cas.117.
778 enumerated in section 92, it conferred powers, not in any sense to be exercised by delegation from, or as agents of, the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow.
Within these limits of subjects and area the local legislature is supreme and has the same authority as the Imperial Parliament, or the Parliament of the Domin ion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make byelaws or resolutions as to subjects specified the enactment, and with the object of carrying the enactment into operation and effect.
It is obvious that such authority is ancillary to legislation ' and without it an attempt to provide for vary ing details and machinery to carry them out might become oppressive or absolutely fail .
It was argued at the Bar that a legislature committing important regulations to agents or delegates effaces itself.
That is not so.
It retains its power intact and can whenever.
it pleases de stroy the agency it has created and set up another or take the matter directly into its own hands.
How far it shall seek the aid of subordinate agencies and how long it shall continue them are matters for the legislature and not for the courts of law to decide." (The italics are mine.) As regards the creation of new offences, their Lordships ob served that if byelaws or resolutions are warranted the power to enforce them seemed necessary and equally lawful.
This case also does not help the Attorney General.
It recognises only the grant of power to make regulations which are "ancillary to legislation".
In In re The Initiative and Referendum Act(1), the Act of the Legislative Assembly of Manitoba was held outside the scope of section 92 of the British North America Act inas much as it rendered the Lieut Governor powerless to prevent the Act from becoming actual law, if approved by the voters, even without his consent.
Their Lordships observed: "Section 92 of the (1) 779 Act of 1867 entrusts the legislative power in a Province to its legislature and to that legislature only.
No doubt a body with power of legislation on the subjects entrusted to it.so ample as that enjoyed by a Provincial Legislature in Canada could, while preserving its own capacity intact, seek the assistance of subordinate agencies as had been done in Hodge vs The Queen(1), but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own exist ence.
" In In re George Edwin Gray(2), the question of delega tion of powers in respect of the War Measures Act, 19 14, came for consideration.
The provisions there were very similar to the Defence of India Act and the Rules made thereunder in India during the World War I.
In delivering judgment Sir Charles Fitzpatrick C.J. observed as follows: "The practice of authorising administrative bodies to make regulations to carry out the object of an Act instead of setting out all the details of the Act itself is well known and its legality is unquestioned. ' ' He rejected the argument that such power cannot be granted to the extent as to enable the express provisions of a statute to be amended or re pealed, as under the Constitution, Parliament alone is to make laws under the Canadian Constitution.
He observed that Parliament cannot indeed abdicate its function but within reasonable limits at any rate it can delegate its powers to the executive government.
Such powers must necessarily be subject to determination at any time by Parliament.
He observed: "I cannot however find anything in that Constitu tional Act which would impose any limitation on the authori ty of the Parliament of Canada to which the Imperial Parlia ment is not subject." Against the objection that such wide discretion should not be left to the executive he observed that this objection should have been urged when the regula tions were submitted to Parliament for its approval or better still when the War Measures Act was being discussed.
The Parliament was the delegating authority and it was for that body to put any (1) 9 App.
(2) 57 S.C.R. Canada 150.
780 limitations on the powers conferred upon the executive.
He then stated: "Our legislators were no doubt impressed in the hour of peril with the conviction that the safety of the country was the supreme law against which no other law can prevail.
It is clearly our duty to give effect to their patriotic intentions." In the Chemical Reference case(D, Duff C.J. set out the true effect of the decision in the War Measures Act.
He held that the decision of the Privy Council in the Fort Frances ' case(2) had decided the validity of the War Measures Act and no further question remained in that respect.
He stated: "In In re Gray(3) was involved the principle, which must be taken in this Court to be settled, that an Order in Council in conformity with the conditions prescribed by, and the provisions of, the War Measures Act may have the effect of an Act of Parliament." The Court considered that the regu lations framed by the Governor General in Council to safe guard the supreme interests of the State were made by the Governor General in Council "who was conferred subordinate legislative authority." He stated: "The judgment of the Privy Council in the Fort Frances ' case(2), laid down the principle that in an emergency, such as war, the authority of the Dominion in respect of legislation relating to the peace, order and good government of Canada may, in view of the necessities arising from the emergency, disable or over bear the authority of the Provinces in relation to a vast field in which the Provinces would otherwise have exclusive jurisdiction.
It must not however be taken for granted that every matter within the jurisdiction of the Parliament of Canada even in ordinary times could be validly committed by Parliament to the executive for legislative action in the case of an emergency.
" Unlike the Indian Constitution, in the British North America Act there is no power to suspend the Constitution or enlarge the legislative powers in an emergency like war.
The Courts therefore stretched the langugage of the sections to meet the emergen cy in (1) [1943] S.C.R. Canada 1.
(3) [1918] 57 S.C.R, Canada 150.
(2) 781 the highest interest of the country but it also emphasized that such action was not permissible in ordinary times.
The War Measures Acts were thus considered by the z Supreme Court of Canada on a different footing.
The question was of competence but owing to the unusual circumstances and exigencies what was stated in the legislation was considered a sufficient statement of the legislative policy.
It ap pears to be thought that the same test cannot be applied in respect of legislation made in normal times, in respect of a permanent statute which is not of limited duration.
The discussion in Benaori Lal Sarma 's case(1) in the judgment of the Privy Council mentioned above may be usefully noted in this connection as the legislation in that case was also a war measure but was held valid as conditional legislation.
In so far as the observations in the Canadian decisions go beyond what is held in the Privy Council decisions, with respect, I am unable to agree.
It appears that the word "delegation" has been given an extended meaning in some observations of the Canadian courts, beyond what is found in the Privy Council decisions.
It is important to notice that in all the judgments of the Privy Council, the word "delega tion" as meaning conferment of_legislative functions strict ly, is not used at all in respect of the impugned legisla tion and has been deliberately avoided.
Their validity was upheld on the ground that the legislation was either conditional or subsidiary or ancillary legislation.
An important decision of the Supreme Court of Australia may be noticed next.
In the Victorian Stevedoring and Gener al Contracting Company Proprietary Ltd. vs Dignan(2), the question whether delegation of legislative power was accord ing to the Constitution came to be examined by the High Court of Australia.
It was argued that section 3 of the Act in question was ultra vires and void in so far as it pur ported to authorise the Governor General to make regulations which (nothwithstanding anything in any other Act) shall have (1) 72 I.A. 27.
(2) 782 the force of law.
In the judgment of Gavan Duffy C.J. and Starke J. it was stated: "The attack upon the Act itself was based upon the American Constitutional doctrine that no legislative body can delegate to another department of the Government or to any other authority the power either gener ally or specially to enact laws.
This high prerogative has been entrusted to its own wisdom, judgment and patriotism and not to those of other persons and it will act ultra vires ii it undertakes to delegate the trust instead of executing it.
(Cooley 's Principles of Constitutional Law, 3rd Edition, p. 111).
Roche vs Kronheimer(1) was an authori ty for the proposition that an authority of subordinate law making may be invested in the executive.
Whatever ,may be said for or against that decision I think we should not now depart from it." Mr. Justice Dixon considered the argu ment fully in these terms: "The validity of this provision is now attacked upon the ground that it is an attempt to grant to the executive a portion of the legislative power vested by the Constitution in the Parliament which is incon sistent with the distribution made by the Constitution of legislative, executive and judicial powers.
In support of the rule that Congress cannot invest another organ of gov ernment with legislative power a second doctrine is relied upon in America but it has no application to the Australian Constitution.
Because the powers of Government are consid ered to be derived from the authority of the people of the Union no agency to whom the people have confided a power may delegate its exercise.
The well known maxim delegata potesta non potest delegare applicable to the law of agency in the general and Common Law is well understood and has had wider application in the construction of our Federal and State Constitutions than it has in private laws.
No similar doc trine has existed in respect of British Colonial legisla tures, whether erected in virtue the prerogative or by Imperial Statute.
It is important to observe that in Ameri ca the intrusion of the doctrines of agency into Constitu tional interpretation (1) (1921) 29 Corn.
L.R. 329.
783 has in no way obscured the operation of the separation of powers.
In the opinion of the Judicial Committee a general power of legislation belonging to a legislature constituted under a rigid Constitution does not enable it by any form of enactment to create and arm with general legislative authority a new legislative power not created or authorized by the instrument by which it is established.
" In respect of the legislation passed during the emergency of war and where the power was strongly relied upon, Dixon J. observed: "It might be considered that the exigencies which must be dealt with under the defence power are so many, so great and so urgent and are so much the proper concern of the execu tive that from its very nature the power appears by neces sary intendment to authorise a delegation otherwise general ly forbidden to the legislature . .
I think it certain that such a provision would be supported in America and the passage in Burah 's case appears to apply to it in which the Judicial Committee deny that in fact any delega tion there took place . .
This does not mean that a law confiding authority to the executive will be followed, however extensive or vague the subject matter may be, if it does not fall outside the boundaries of federal power.
Nor does it mean that the distribution of powers can supply no considerations or weight affecting the validity . .
It may be acknowledged that the manner in which the Constitution accomplishes the separation of power itself logically and theoretically makes the Par liament the executive repository of the legislative power of the Commonwealth.
The existence in Parliament of power to authorise subordinate legislation may be ascribed to a conception of that legislative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law . .
Such subordinate legislation remains under Parliamentary control and is lacking in the independent and unqualified authority which is an attribute of true legisla tive power." He concludes: " But whatever it may be, we should now adhere to the interpretation 784 which results from the decision of Roche vs Kronheimer(1).
This whole discussion shows that the learned Judge 12,was refuting the argument that because under the Consti tution of U.S.A. such conferment of power would be invalid it should be held invalid under the Canadian Constitution also.
He was not dealing with the question raised before us.
Ultimately he said that Roche vs Kronheimer(1) was conclu sive.
Mr. Justice Evatt stated that in dealing with the doctrine of the separation of legislative and executive powers "it must be remembered that underlying the Common wealth frame of government there is the notion of the British system of an executive which is responsible to Parliament.
That system is not in operation under the United States ' Constitution.
He formulated the larger proposition that every grant by the Commonwealth Parliament of authority to make rules and regulations, whether the grantee is the executive government or some such authority, is itself a grant of legislative power.
The true nature and quality of the legislative power of the Commonwealth Parlia ment involves as a part of its content power to confer law making powers upon authorities other than Parliament itself.
If such power to issue binding commands may lawfully be granted by Parliament to the executive or other agencies an increase in the extent of such power cannot of itself inval idate the grant.
It is true that the extent of the power granted will often be a very material circumstance in the examination of the validity of the legislation conferring the grant.
" In this paragraph the learned Judge appears certainly to have gone much beyond what had been held in any previous decision but he seems to have made the observations in those terms because (as he himself had stated just previ ously) in his view every conferment of power whether it was by conditional legislation or ancillary legislation was a delegation of legislative power.
He concluded however as follows:"On final analysis therefore the (1) (1921) 29 Corn.
L.R. 329.
785 Parliament of the Commonwealth is not competent to abdicate its powers of legislation.
This is not because Parliament is bound to perform any or all of its legislative powers or functions for it may elect not to do so and not because the doctrine of the separation of powers prevents Parliament from granting authority to other bodies to make laws or byelaws and thereby exercise legislative power for it does so in almost every statute but because each and every one of the laws passed by Parliament must answer the description of law upon one or more of the subject matters stated in the Constitution.
A law by which Parliament gives all its lawmaking authority to another body would be bad merely because it would fail to pass the test last mentioned.
"Read properly, these judgments therefore do not support the contention of the learned Attorney General.
The decisions of the Privy Council on appeal from Canada do not carry the matter further.
In the judgments of the two decisions of the Supreme Court of Canada and the deci sion of the Supreme Court of Australia there are observa tions which may appear to go beyond the limit mentioned above.
These observations have to be read in the light of the facts of the case and the particular regulation or enactment before the court in each case.
These decisions also uniformly reiterate that the legislature must perform its functions and cannot leave that to any other authority.
Moreover the word "delegation" as stated by Evatt J. in his judgment is understood by some Judges to cover what is described as subsidiary or conditional legislation also.
Therefore because at some places in these judgments the word "delegation" is used it need not be assumed that the word necessarily means delegation of legislative functions, as understood in the strict sense of the word.
The actual decisions were on the ground that they were subordinate legislation or conditional legislation.
Again, in respect of the Constitutions of the Dominions of Canada and Austra lia I may observe that the legislatures of those Dominions were not packed, as in India, and their Constitution was 786 on democratic lines.
The principle of fusion of powers between the Legislature and Executive can well be considered in operation in those Dominions, while as I have pointed out above there was no such fusion at all so far as the Indian Constitution in force till 1935 was concerned.
Conclusions therefore based on the fusion of legislative and executive powers are not properly applicable to the Indian Constitu tion.
In my opinion therefore to the extent the observa tions in the Canadian and Australian decisions go beyond what is clearly decided by the Privy Council in respect of the Indian Legislature, they do not furnish a useful guide to determine the powers of the Indian Legislature to dele gate legislative functions to administrative or executive authorities.
The Canadian and Australian Constitutions are both based on Acts of the British Parliament and therefore are crea tures of written instruments.
To that extent they are rigid.
Moreover in the Australian Constitution in distribut ing the powers among the legislative and executive authori ties, the word "vest" is used as in the Constitution of the U.S.A.
To that extent the two Constitutions have common features.
There is however no clear.
separation of powers between the legislature and executive so as to be mutually and completely exclusive and there is fusion of power so that the Ministers are themselves members of the legisla ture.
Our attention was drawn to several decisions of the Supreme Court of the United States of America mostly to draw a distinction between the legislative powers of the Congress in the United States of America and the legislative powers of the legislature under Constitutions prepared on the British Parliament pattern.
It was conceded that as the Constitution itself provided that the legislative and execu tive powers were to vest exclusively in the legislature and the executive authority mentioned in the Constitution, it was not permissible for one body to delegate this authority and functions to another body.
It may be noticed that several decisions of the Supreme Court of U.S.A, 787 are based on the incompetence of the delegate to receive the power sought to be conferred on it.
Its competence to function as the executive body is expressly set out in the Constitution, and it has been thought that impliedly the Constitution has thereby prevented such body from receiving from the legislative body other powers.
In view of my final conclusion I shall very briefly notice the position accord ing to the U.S.A. Constitution.
In Crawford on Statutory Construction, it is stated as follows: "So far however as the delegation of any power to an executive official or Administrative Board is concerned, the legislature must declare the policy of the law and fix the legal principles which are to control in given cases and must provide a standard to guide the official or the ,Board empowered to execute the law.
This standard must not be too indefinite or general.
It may be laid down in broad general terms.
It is sufficient if the legislature will lay down an intelligible principle to guide the executive or administra tive official .
From these difficult criteria it is apparent that the Congress exercises considerable liberali ty towards upholding legislative delegations if a standard is established.
Such delegations are not subject to the objection that the legislative power has been unlawfully delegated.
The filling in mere matters of details within the policy of, and according to, the legal principles and stand ards, established by the Legislature, is essentially minis terial rather than legislative in character, even ' if considerable discretion is conferred upon the delegated authority.
" In Hampton & Co. vs United States(1), Taft C.J. ob served: "It is a breach of the national fundamental law if Congress gives up its legislative power and transfers it to the President or to the judicial branch or if by law it attempts to invest itself or its members with either execu tive or judicial power.
This is not to say that the three branches are not co ordinate parts of one Government and that each in the field of duties (1) ; , 406 & 407.
788 may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch .
The field of Congress involves all and many varieties of legislative action and Congress has found it frequently necessary to use officers of the executive branch within defined limits to secure the exact effect intended by its act of legislation by vesting discretion in such officers to make public regulations, interpreting a statute and direct ing the details of its executive even to the extent of providing for penalizing a preach of such regulations . .
Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an executive.
" He agreed with the often cited passage from the judgment of Ranny J. of the Supreme Court of Ohio in Cincinnati W. & Z.R. Co. vs Clin ton County Commissioners (1), viz., "The true distinction therefore is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring an authority or discretion as to its execution to be exercised under and in pursuance of the law.
The first cannot be done; to the latter no valid objection can be made.
" In Locke 's Appeal(2), it.
is slated: "The proper dis tinction is this.
The legislature cannot delegate its power to make a law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend.
To deny this would be to stop the wheels of Government.
There are many things upon which useful legislation must depend, which cannot be known to the law making power, and must therefore be a subject of enquiry and determination outside the halls of legislature." In Panama Refining Co. vs Ryan (s), it was observed by Hughes C.J. "The Congress is not permitted to (1) (3) ; (2) , 789 abdicate or transfer to others the essential legislative functions with which it is vested.
Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the National Legislature cannot deal directly.
The Constitution has never been regarded as denying to the Congress the necessary resources of flexibil ity and practicality which will enable it to perform its function in laying down policies and establish standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determi nation of facts to which the policy as declared by the legislature is to apply.
Without capacity to give authori sations of that sort we should have the anomaly of a legis lative power which in many circumstances calling for its exertion would be but a futility but the constant recogni tion of the necessity and validity of such provisions and the wide range of administrative authority which has been declared by means of them cannot be allowed to obscure the limitations of the authority to delegate if our constitu tional system is to be maintained.
Similarly, in Schechter vs United States (1), it is stated: "So long as the policy is laid down and standard established by a statuten no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determi nation of facts to which the policy as declared by the legislature is to apply.
" The complexity of this question of delegation of power and the consideration of the various decisions in which its application has led to the support or invalidation of Acts has been somewhat aptly put by Schwartz on American Adminis trative Law.
After quoting from Wayman vs Southend (2) the observations of Marshall C.J. that the line has not been exactly drawn which separates those important subjects which must be entirely regulated by the legislature itself from those of less interest in which a general provision may be made and power given to those who are to (1) (2) ; U.S. 1825.
790 act under such general provision to fill up details, the author points out that the resulting judicial dilemma, when the American courts finally were squarely confronted with delegation cases, was resolved by the judicious choice of words to describe the word "delegated power".
The authority transferred was, in Justice Holmes ' felicitous phrase, "softened by a quasi", and the courts were thus able to grant the fact of delegated legislation and still to deny the name.
This result is well put in Prof. Cushman 's syllo gism: "Major premise: Legislative power cannot be constitu tionally delegated by Congress.
Minor premise: It is essential that certain powers be delegated to administrative officers and regulatory commis sions.
Conclusions: Therefore the powers thus delegated are not legislative powers.
They are instead administrative or quasi legislative powers. ' ' It was argued on behalf of the President that the legis lative practice in India for over eighty years has recog nised this kind of delegation and as that is one of the principles which the court has to bear in mind in deciding the validity of Acts of the legislature, this Court should uphold that practice.
In support of this contention a sched ule annexed to the case filed on behalf of the President, containing a list of Acts, is relied upon.
In my opinion, out of those, the very few Acts which on a close scrutiny may be cited as instances, do not establish any such prac tice.
A few of the instances can be supported as falling under the description of conditional legislation or subsid iary legislation.
I do not discuss this in greater detail because unless the legislative practice is overwhelmingly clear, tolerance or acquiescence in the existence of an Act without a dispute about its validity being raised in a court of law for some years cannot be considered binding, when a question about the validity of such practice is raised and comes for decision before the Court.
In my opinion, there fore; this broad 791 contention of the Attorney General that the Indian Legisla ture prior to 1935 had power to delegate legislative func tions in the sense contended by him is neither supported by judicial decisions nor by legislative practice.
A fair and close reading and analysis of all these decisions of the Privy Council, the judgments of the Supreme Courts of Canada and Australia without stretching and straining the words and expressions used therein lead me.
to the conclusion that while a legislature, as a part of its legislative functions, can confer powers to make rules and regulations for carrying the enactment into operation and effect, and while a legislature has power to lay down the policy and principles providing the rule of conduct, and while it may further provide that on certain data or facts being found and ascertained by an executive authority, the operation of the Act can be extended to certain areas or may be brought into force on such determination which is de scribed as conditional legislation, the power to delegate legislative functions generally is not warranted under the Constitution of India at any stage.
In cases of emergency, like war where a large latitude has to be necessarily left in the matter of enforcing regulations to the executive, the scope of the power to make regulations is very wide, but.
in those cases the suggestion that there was delega tion of "legislative functions" has been repudiated.
Simi larly, varying according to the necessities of the case and the nature of the legislation, the doctrine of conditional legislation or subsidiary legislation or ancillary legisla tion is equally upheld under all the Constitutions.
In my opinion, therefore, the contention urged by the learned Attorney General that legislative power carries with it a general power to delegate legislative functions, so that the legislature may not define its policy at all and may lay down no rule of conduct but that whole thing may be left either to the executive authority or administrative or other body, is unsound and not supported by the authorities on which he relies.
I do not think that apart from the sover eign character of 792 the British Parliament which is established as a matter of convention and whose powers are also therefore absolute and unlimited, in any legislature of any other country such general powers of delegation as claimed by the Attorney General for a legislature, have been recognised or permit ted.
It was contended by the learned Attorney General that under the power of delegation the legislative body cannot abdicate or efface itself.
That was its limit.
It was argued that so long as the legislature had power to control the actions of the body to which power was delegated, that so long as the actions of such body were capable of being revoked there was no abdication or effacement.
In support of this argument some reliance was placed on certain obser vations in the judgments of the Privy Council in the cases mentioned above.
It should be noticed that the Board was expressing its views to support the conclusion that the particular piece of legislation under consideration was either a conditional legislation or that the legislation derived its force and sanction from what the legislature had done and not from what the delegate had done.
I do not think that those observations lead to the conclusion that up to that limit legislative delegation was permitted.
The true test in respect of ' 'abdication" or "effacement" appears to be whether in conferring the power to the delegate, the legislature, in the words used to confer the power, retained its control.
Does the decision of the delegate derive sanc tion from the act of the delegate or has it got the sanction from what the legislature has enacted and decided ? Every power given to a delegate can be normally called back.
There can hardly be a case where this cannot be done because the legislative body which confers power on the delegate has always the power to revoke that authority and it appears difficult to visualize a situation in which such power can be irrevocably lost.
It has been recognised that a legisla tive body established under an Act of the British Parliament by its very establishment has not the right to create anoth er legislative body with the same junctions and 793 powers and authority.
Such power can be only in the British Parliament and not in the legislature established by an Act of the British Parliament.
Therefore, to say that the true test of effacement is that the authority which confers power on the subordinate body should not be able to withdraw the power appears to be meaningless.
In my opinion, therefore, the question whether there is "abdication" and "effacement" or not has to be decided on the meaning of the words used in the instrument by which the power is conferred on the au thority.
Abdication, according to the Oxford Dictionary, means abandonment, either formal or virtual, of sovereignty.
Abdication by a legislative body need not necessarily amount to a complete effacement of it.
Abdication may be partial or complete.
When in respect of a subject in the Legisla tive List the legislature says that it shall not legislate on that subject but would leave it to somebody else to legislate on it, why does it not amount to abdication or effacement ? If full powers to do anything and everything which the legislature can do are conferred on the subordi nate authority, although the legislature has power to control the action of the subordinate authority, by recall ing such power or repealing the Acts passed by the subordi nate authority, the power conferred by the instrument, in my opinion, amounts to an abdication or effacement of the legislature conferring such power.
The power to modify an Act in its extension by the order of the subordinate authority has also come in for considera ble discussion.
Originally when power was conferred on the subordinate authority to apply existing legislation to specified areas it was given only to apply the whole or a portion thereof.
That power was further expanded by giving a power to restrict its application also.
In the next stage power was given to modify "so as to adapt the same" to local conditions.
It is obvious that till this stage the clear intention was that the delegate on whom power was con ferred was only left with the discretion to apply what was Considered suitable, as a whole or in part, 794 and to make adaptations which became necessary because of local conditions and nothing more.
Only in recent years in some Acts power of modification is given without any words of limitation on that power.
The learned Attorney General contended that the word "modify" according to the Oxford Dictionary means to limit, restrain, to assuage, to make less severe, rigorous, or decisive ;to tone down.
" It is also given the meaning "to make partial changes in;to alter without radical transformation." He therefore contended that if the done of the power exceeded the limits of the power of modification beyond that sense, that would be exceeding the limits of the power and to that extent the exercise of the power may be declared invalid.
He claimed no larger power under the term "modification.
" On the other hand, in Rowland Burrows ' "Words and Phrases ", the word "modify" has been defined as meaning" vary, extend or enlarge, limit or restrict.
" It has been held that modification implies an alteration.
It may narrow or enlarge the provisions of the former Act.
It has been pointed out that under the powers conferred by the , the Central Government has extended the application of the Bombay Debtors ' Relief Act to Delhi.
The Bombay Act limits its application to poor agriculturists whose agricultural income is less than Rs. SO0.
Under the power of modification conferred on it by the , the Central Government has removed this limit on the income, with the result that the principles, policy and machinery to give relief to poor peasants or agriculturists with an income of less than Rs. 500 is made applicable in Delhi to big landowners even with an income of 20 lakhs.
This shows how the word ' 'modification" is understood and applied by the Central Government and acqui esced in by the Indian Legislature.
I do not think such power of modification as actually exercised by the Central Government is permitted in law.
If power of modification so understood is permitted, it will be open to the Central Legislature in effect to change the whole basis of the legislation and the reason for making the 795 law.
That will be a complete delegation of legislative power, because in the event of the exercise of the power in that manner the Indian legislature has not applied its mind either to the policy under which relief should be given nor the class of persons, nor the circumstances nor the machin ery by which relief is to be given.
The provisions of the Rent Restriction Act in different Provinces are an equally good example to show how dangerous it is to confer the power of modification on the executive government.
Having considered all the decisions which were cited before us and giving anxious consideration to the elaborate and detailed arguments advanced by the learned Attorney General in the discussion of this case, I adhere to what I stated in Jatindra Nath Gupta 's case(1) that the power of delegation, in the sense of the legislature conferring power, on either the executive government or another author ity, "to lay down the policy underlying a rule of conduct" is not permitted.
The word "delegation ", as I have pointed out, has been somewhat loosely used in the course of discus sion and even by some Judges in expressing their views.
As I have pointed out throughout the decisions of the Privy Council the word "delegation" is used so as not to cover what is described as conditional legislation or subsidiary or ancillary legislation, which means the power to make rules and regulations to bring into operation and effect the enactment.
Giving "delegation" the meaning which has always been given to it in the decisions of the Privy Council, what I stated in Jatindra Nath Gupta 's case, as the legisla ture not having the power of delegation is, in my opinion, correct.
Under the new Constitution of 1950, the British Parlia ment, i.e. an outside authority, has no more control over the Indian Legislature.
That Legislature 's powers are de fined and controlled and the limitations thereon prescribed only by the Constitution of India.
But the scope of its legislative power has not become (1) 796 enlarged by the provisions found in the Constitution of India.
While the Constitution creates the Parliament and although it does not in terms expressly vest the legislative powers in the Parliament exclusively, the whole scheme of the Constitution is based on the concept that the legisla tive functions of the Union will be discharged by the Par liament and by no other body.
The essential of the legisla tive functions, viz., the determination of the legislative policy and its formulation as a rule of conduct, are still in the Parliament or the State Legislatures as the case may be and nowhere else.
I take that view.because of the provi sions of article 357 and article 22 (4) of the Constitution of India.
Article 356 provides against the contingency of the failure of the constitutional machinery in the States.
On a proclamation to that effect being issued, it is provid ed in article 357 (1) (a) that the power of the legislature of the State shall be exercisable by or under the authority of the Parliament, and it shall be competent for the Parlia ment to confer on the President the power of the legislature of the State to make laws "and to authorise the President to delegate, subject to such conditions as he may think fit to impose.
the powers so conferred to any other authority to be specified by him in that behalf.
" Sub clause (b) runs as follows : " For Parliament, or for the President or other authority in whom such power to make laws is vested under sub cl.
(a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and author ities thereof.
" It was contended that on the breakdown of such machinery authority had to be given to the Parliament or the President, firstly, to make laws in respect of sub jects on which the State Legislature alone could otherwise make laws and, secondly, to empower the Parliament or the President to make the executive officers of the State Gov ernment to act in accordance with the laws which the Parlia ment or the President may pass in such emergency.
It was argued that for this purpose the word "to delegate" is used.
I do not think this argument is sound.
Sub clause (2) re lates to the power 797 of the President to use the State executive officers.
But under clause (a) Parliament is given power to confer on the President the power of the legislature of the State to make laws.
Article 357 (1) (a) thus expressly gives power to the Parliament to authorise the President to delegate his legis lative powers.
If powers of legislation include the power of delegation to any authority there was no occasion to make this additional provision in the article at all.
The word ing of this clause therefore supports the contention that normally a power of legislation does not include the power of delegation.
Article 22 (4) again is very important in this connec tion.
It deals with preventive detention and provides that no law shall be valid which will permit preventive detention of a person for a period over three months, unless the conditions laid down in article 22 (4) (a) are complied with.
The exception to this is in respect of an Act of the Parliament made on the conditions mentioned in article 22 (4) (b).
According to that, the Parliament has to pass an Act consistently with the provisions of article 22 (7).
The important point is that in respect of this fundamental right given to a person limiting the period of his detention up to three months, an exception is made in favour of the Parlia ment by the article.
It appears to me a violation of the provisions of this article on fundamental rights to suggest that the Parliament having the power to make a legislation within the terms of article 22(7) has the power to delegate that right in favour of the executive government.
In my opinion, therefore the argument that under the Constitution of 1950 the power of legislation carries with it the power of delegation, in the larger sense, as contended by the Attorney General cannot be accepted.
Having regard to the position of the British Parliament, the question whether it can validly delegate its legislative functions cannot be raised in a court of law.
Therefore from the fact that the British Parliament has delegated legisla tive powers it does not follow.
that the power of delegation is recognised in law as necessarily included in the power of legislation, Although 798 in the Constitution of India there is no express separation of powers, it is clear that a legislature is created by the Constitution and detailed provisions are made for making that legislature pass laws.
Is it then too much to say that under the Constitution the duty to make laws, the duty to exercise its own wisdom, judgment and patriotism in making laws is primarily cast on the legislatures ? Does it not imply that unless it can be gathered from other provisions of the Constitution, other bodies, executive or judicial, are not intended to discharge legislative functions ? I am unable to read the decisions to which our attention has been drawn as laying down that once a legislature observes the procedure prescribed for passing a bill into an Act, it becomes a valid law, unless it is outside the Legislative Lists in the Seventh Schedule prescribing its respective powers.
I do not read articles 245 and 246 as covering the question of delegation of legislative powers.
In my opinion, on a true construction of articles 245 and 246 and the Lists in the Seventh Schedule, construed in the light of the judicial decisions mentioned above, legislation delegating legislative powers on some other bodies is not a law on any of the subjects or entries mentioned in the Legislative Lists.
It amounts to a law which states that instead of the legislature passing laws on any subject covered by the entries, it confers on the body mentioned in the legislation the power to lay down the policy of the law and make a rule of conduct binding on the persons covered by the law.
As a result of considering all these decisions together it seems to me that the legislature in India, Canada, Aus tralia and the U.S.A. has to discharge its legislative functions, i.e., to lay down a rule of conduct.
In doing so it may, in addition, lay down conditions, or state facts which on being fulfilled or ascertained according to the decision of another body or the executive authority, the legislation may become applicable to a particular area.
This is described as conditional legislation.
The legislature may also, in laying down the rule of conduct, express itself generally if the conditions and circumstances so require.
The extent of the 799 specific and detailed lines of the rule of conduct to be laid down may vary according to the circumstances or exigen cies, of each case.
The result will be that if, owing to unusual circumstances or exigencies, the legislature does not choose to lay down detailed rules or regulations, that work may be left to another body which is then deemed to have subordinate legislative powers.
Having regard to the distinction noticed above between the power of delegation of legislative functions and the authority to confer powers which enables the donee of the power to make regulations or rules to bring into effect or operation the law and the power of the legislature to make conditional legislation, I shall proceed to consider the three specific questions mentioned in the Reference.
It may be noticed that occasions to make legislation of the type covered by the three sections mentioned in the three ques tions began in the early stages of the occupation of India where small bits of territories were acquired and in respect of which there was no regular legislative body.
It was thought convenient to apply to these small areas laws which were made by competent ' legislature in contiguous areas.
That practice was adopted to avoid setting up a separate, sometimes inconvenient and sometimes costly, machinery of legislation for the small area.
Nor might it have been considered possible for the Governor General in Council to enact laws for the day to day administration of such bits of territory or for all their needs having regard to different local conditions.
As local conditions may differ to a cer tain extent, it appears to have been considered also conven ient to confer powers on the administrator to apply the law either in whole or in part or to restrict its operation even to a limited portion of such newly acquired area.
This aspect of legislation is prominently noticed in Act XXII of 1869 discussed in The Queen vs Burah(1).
Under section 22 of the Indian Councils Act of 1861, the Governor General in Council was given power to make laws for all persons and for all places and things whatever within British India.
The Province of Delhi was carved out of the Province of Punjab and was put (1) 5 I.A. 178. 800 under a Chief Commissioner and by section 2 of the the laws in force in the Punjab continued to be operative in the newly created Province of Delhi.
The Province of Delhi had not its legislative body and so far as this Chief Commissioner 's Province is concerned it is not disputed that the power to legislate was in the Governor General in Council in his legislative capacity.
The first question as worded has to be answered according to the powers and position of the legislature in 1912.
Section 7 of the enables the Government (executive) to extend by notification with such restrictions and modifica tions as it thinks fit, to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India, at the date of such notification, i.e., a law which was in force not necessarily in the Province of Punjab only, from which the Province of Delhi was carved out, but any Central or provincial law in force in any Province.
Again, the Government is given power to extend any such law with such restrictions and modifications as it thinks fit.
Moreover it enables the Provincial Government to extend an Act which is in force "at the date of such notification.
" Those words therefore permit extension of future laws which may be passed either by the Central or any Provincial legis lature, also with such restrictions and modifications as the Provincial Government may think fit.
At this stage, sections 8 and 9 of Act XXII of 1869 under which powers were given to the Lieut.
Governor in The Queen vs Burah(1) may be com pared.
They permitted the extension of Acts which were or might be made by the Governor General in Council (legisla tive) or the Lieut.
Governor, both of whom were the competent legislative authorities for the whole area under the admin istrative jurisdiction of the Lieut. Governor.
The power was confined to extend only those Acts, over the area specified in Act XXII of 1869, although that area was declared by Act XXII of 1869 as not subject to the laws of the Province, unless the area was specifically mentioned in the particular Act.
On (1) 5 I.A. 178.
801 the authority of that decision therefore, so far as section 7 of the gives power to the executive (Cen tral) Government to extend Acts passed by the Central Legis lature to the Province of Delhi, the same may be upheld.
The question then remains in respect of the power of the executive government to extend Acts of other Provincial legislatures (with or without restrictions or modifications) to the Chief Commissioner 's Province.
It is obvious that in respect of these Acts the Central Legislature has not ap plied its mind at all.
It has not considered whether the Province of Delhi requires the rule of conduct laid down in those Acts, as necessary or beneficial for the welfare of the people of the Province or for its government.
They are passed by other Provincial legislatures according to their needs and circumstances.
The effect of section 7 of the therefore in permitting the Central Govern ment to apply such Provincial Acts to the Province of Delhi is that, instead of the Central Legislature making up its mind as to the desirability or necessity of making laws on certain subjects in respect of the Province of Delhi, that duty and right are conferred on the executive government.
For example, the question whether a rent act, or an excise act, or what may be generally described as a prohibition act, or a debt relief act is desirable or necessary, as a matter of policy for the Province of Delhi is not considered and decided by the Central Legislature which, in my opinion, has to perform that duty, but that duty and function without any reservation is transferred over to the executive govern ment.
Section 7 of the thus contains an entirely different quality of power from the quality of power conferred by sections 8 and 9 of Act XXII of 1869.
All the decisions of the Privy Council unequivocally affirm that it is not competent for the Indian Legislature to create a body possessing the same powers as the Central Legislature itself.
It is stated that the legislature cannot efface itself.
One may well ask, if section 7 of the has done 802 anything else.
The Privy Council decisions emphasize two aspects in respect of this question.
The first is whether the new body is empowered to make laws.
The second is, does the sanction flow from the legislation made by the legisla ture or from the decision of the newly created body.
As regards the first, it is obvious that in principle there is no difference if the newly created body itself writes out on a sheet of paper different sections of an Act or states that the Act will be what is written or printed on another clear ly identifiable paper.
Therefore if such new body says that the law in Delhi will be the same as Bombay or Madras Act so and so of such and such year it has made the law.
Moreover it may be remembered that in doing so the new body may re strict or modify the provisions of such Act also.
On the second aspect the sanction flows clearly from the notifica tion of the newly created body that Bombay or Madras Act so and so with such modifications as may be mentioned, will be the law.
That has not been the will or decision of the legis lature.
The legislature has not applied its mind and said "Bombay Act . . . is the law of this Province".
In my opinion, it is futile to contend that the sanction flows from the statement of the legislature that the law will be what the newly created body decides or specifies, for that statement only indicates the new body and says that we confer on it power to select a law of another province.
The illustrations of the extension of the Civil and Criminal Procedure Codes, mentioned in the judgment in The Queen vs Burah(1) have to be considered along with the fact that at that time the Governor General in Council, in its legislative capacity, had power of legislation over the whole of India on all subjects.
The Civil and Criminal Procedure Codes were enacted by the Central Legislature and it could have made the same applicable at once to the whole of India.
But having passed the laws, it laid down a condi tion that its application may be referred to certain areas until the particular Provincial Government (executive) considered it convenient for these Codes to be made (1) 5 I.A. 178, 803 applicable to its individual area.
A Provincial Govern ment, e.g., of Bombay, was not empowered to lay down any policy in respect of the Civil Procedure Code or the Crimi nal Procedure Code nor was it authorised to select, if it liked, a law passed by the Legislature of Madras for its application to the Province of Bombay.
If it wanted to do so, the Legislature of the Province of Bombay had to exer cise its judgment and decision and pass the law which would be enforceable in the Province of Bombay.
It may be noticed that the power to extend, mutatis mutandis, the laws as contained in sections 8 and 9 of Act XXII of 1869 brings in t.he idea of adaptation by modification, but so far only as it is necessary for the purpose.
In my opinion, therefore, to the extent section 7 of the permits the Central executive government to apply any law passed by a Provincial legislature to the Province of Delhi, the same is ultra vires the Central Legislature.
To that extent the Central Legislature has abdicated its functions and there fore the Act to the extent is invalid.
Question 2 relates to Ajmer Merwara (Extension of Laws) Act.
Till the Government of India Act, 1915, there was unitary government in India.
By the Act of 1915, Provincial legislatures were given powers of legislation but there was no distribution of legislative powers between the Centre and the Provinces.
That was brought about only by the Govern ment of India Act, 1935.
Section 94 of that Act enumerates the Chief Commissioner 's Provinces.
They include the Prov inces of Delhi and Ajmer Merwara.
Under sections 99 and 100 there was a distribution of legislative powers between Provinces and Centre, but the word "Province" did not in clude a Chief Commissioner 's Province and therefore the Central Legislature was the only law making authority for the Chief Commissioner 's Provinces.
The Ajmer Merwara Act was passed under the Government of India Act as adapted by the Indian Independence Act.
Although by that Act the control of British Parliament over the Government of India 804 and the Central Legislature was removed, the powers of the Central Legislature were still as those found in the Govern ment of India Act, 1935.
The Independence Act therefore made no difference on the question whether the power of delega tion was contained in the legislative power.
The result is that to the extent to which section 7 of the is held ultra vires, section 2 of the Ajmer Merwara Act, 1947, should also be held ultra vires.
This brings me to Question 3.
section 2 of the Part C States (Laws) Act, 1950, is passed by the Indian Parliament.
Under article 239 of the Constitution of India, the powers for the administration of Part C States are all vested in the President.
Under article 240 the Parliament is empowered to create or continue for any State specified in Part C, and administered through a Chief Commissioner or Lieutenant Governor; (a) a body whether nominated or elected or partly nominated or partly elected, to function as a legislature for the State, or (b) a Council of Advisers or Ministers.
It is common ground that no law creating such bodies has been passed by the Parliament so far.
Article 246 deals with the distribution of legislative powers between the Centre and the States but Part C States are outside its operation.
Therefore on any subject affecting Part C States, Parliament is the sole and exclusive legislature until it passes an Act creating a legislature or a Council in terms of article 240.
Proceeding on the footing that a power of legislation does not carry with it the power of delegation (as claimed by the Attorney General), the question is whether section 2 of the Part C States (Laws) Act is valid or not.
By that section the Parliament has given power to the Central Government by notification to extend to any part of such State (Part C State), with such restrictions and modifications as it thinks fit, any enactment which is in force in Part A State at the date of the.notification.
The section although framed on the lines of the and the Ajmer Merwara Act is restricted in 805 its scope as the executive government is empowered to extend only an Act which is in force in any of the Part A States.
For the reasons I have considered certain parts of the two sections covered by Questions 1 and 2 ultra rites, that part of section 2 of the Part C States (Laws) Act, 1950, which empowers the Central Government to extend laws passed by any Legislature of Part A State, will also be ultra vires.
To the extent the Central Legislature or Parliament has passed Acts which are applicable to Part A States, there can be no objection to the Central Government extending, if necessary, the operation of those Acts to the Province of Delhi, be cause the Parliament is the competent legislature for that Province.
To the extent however the section permits the Central Government to extend laws made by any legislature of Part A State to the Province of Delhi, the section is ultra vires.
In view of my conclusion in respect of the first part of section 2 of the Part C States (Laws) Act, 1950, I do not think it necessary to deal with separately the other part of the section relating to the power to repeal or amend a corresponding law for the time being applicable to that Part C State.
Before concluding, I must record the appreciation of the Court in the help the learned Attorney General and the counsel appearing in the Reference have rendered to the Court by their industry in collecting all relevant materials and putting the same before the Court in an extremely fair manner.
My answers to the questions are that all the three sections mentioned in the three questions are ultra vires the Legislatures, functioning at the relevant dates, to the extent power is given to the Government (executive) to extend Acts other than Acts of the Central Legislature as mentioned in the judgment.
FAZL ALI J.
The answer to the three questions which have been referred by the President under article 143 of the Constitution of India, depends upon the proper answer to another question which was the 806 subject of very elaborate arguments before us and which may be stated thus: Can a legislature which is sovereign or has plenary powers within the field assigned to it, delegate its legislative functions to an executive authority or to anoth er agency, and, if so.
to what extent it can do so ? In dealing with this question, three possible answers may be considered.
They are : (1) A legislature which is sovereign in a particular field has unlimited power of delegation and the content of its power must necessarily include the power to delegate legislative functions; (2) Delegated legislation is permissible only within certain limits; and (3) Delegated legislation is not permissible at all by reason of certain principles of law which are wellknown and well recognised.
I will first consider the last alternative, but I should state that in doing so I will be using the expressions, "delegated legislation," and "delegation of legislative authority," in the loose and popular sense and not in the strict sense which I shall explain later.
One of the principles on which reliance was placed to show that legislative power cannot be delegated is said to be embodied in the well known maxim, delegatus non potest delegare, which in simple language means that a delegated authority cannot be redelegated, or, in other words, one agent cannot lawfully appoint another to perform the duties of agency.
This maxim however has a limited application even in the domain of the law of contract or agency wherein it is frequently invoked and is limited to those cases where the contract of agency is of a confidential character and where authority is coupled with discretion or confidence.
Thus, auctioneers, brokers, directors, factors, liquidators and other persons holding a fiduciary position have generally no implied authority to employ deputies or sub agents.
The rule is so stated in Broom 's Legal Maxims, and many other books, and it is also stated that in a number of cases the authority to employ 807 agents is implied.
In applying the maxim to the act of a legislative body, we have necessarily to ask "who is the principal and who is the delegater" In some cases where the question of the power of the Indian or a colonial legisla ture came up for consideration of the courts, it was sug gested that such a legislature was a delegate of the British Parliament by which it had been vested with authority to legislate.
But this view has been rightly repelled by the Privy Council on more than one occasion, as will appear from the following extracts from two of the leading cases on the subject: "The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can of course do nothing beyond the limits which circum scribe these powers.
But when acting within those limits it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation as large, and of the same nature, as those of Parliament itself.
" Reg.
vs Burah (1).
"It appears to their Lordships, however, that the objec tion thus raised by the appellants is founded on an entire misconception of the true character and position of the Provincial Legislatures.
They are in no sense delegates of or acting under any mandate from the Imperial Parliament.
When the British North America Act enacted that there should be a Legislature for Ontario, and that its Legislative Assembly should have exclusive authority to make laws for the Province and for Provincial purposes in relation to the matters enumerated in section 92, it conferred powers, not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample, within the limits prescribed by section 92, as the Imperial Parliament in the plenitude of its power possessed and could bestow.
Within these limits of subjects and areas the Local Legislature is supreme, and has the same authority as the Imperial Parliament.": Hodge vs The Queen (2).
(1) 3 App.
(2) 9 App.
117. 808 It has also been suggested by some writers that the legislature is a delegate of the people or the electors.
This view again has not been accepted by some constitutional writers, and Dicey dealing with the powers of the British Parliament with reference to the Septennial Act, states as follows : "That Act proves to demonstration that in a legal point of view Parliament is neither the agent of the electors nor in any sense a trustee for its constituents.
It is legally the sovereign legislative power in the state, and the Sep tennial Act is at once the result and the standing proof of such Parliamentary sovereignty." (1) The same learned author further observes: "The Judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the elec tors." (2) There can be no doubt that members of a legislature represent the majority of their electors, but the legisla ture as a body cannot be said to be an agency of the elec torate as a whole.
The individual members may and often do represent different parties and different shades of opinion, but the composite legislature which legislates, does so on its own authority or power which it derives from the Consti tution, and its acts cannot be questioned by the electorate, nor can the latter withdraw its power to legislate on any particular matter.
As has been pointed out by Dicey, "the sole legal right of electors under the English Constitution is to elect members of Parliament.
Electors have no legal right of initiating, of sanctioning, or of repealing the legislation of Parliament." (3) It seems to me therefore that it will not be quite accurate to say that the legislature being an agent of (1) Dicey 's:"Law of the Constitution", 8th edn., p. 45.
(2) Ibid, p. 72.
(3) Dicey 's "Law of the Constitution", 8th edn., p. 57.
809 its constituents, its powers are subject to the restrictions implied in the Latin maxim referred to.
I shall however advert to this subject again when I deal with another principle which is somewhat akin to the principle underlying the maxim.
The second principle on which reliance was placed was said to be founded on the well known doctrine of "separation of powers.
" It is an old doctrine which is said to have originated from Aristotle, but, as is well known, it was given great prominence by Locke and Montesquieu.
The doc trine may be stated in Montesquieu 's own words: "In every government there are three sorts of power, the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law .
When the legislative and the executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may rise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the judi ciary power be not separated from the legislative and the executive.
Were it joined with the legislative, the life and liberty of the subject would be exposed to abritrary control; for the judge would be then the legislator.
Were it joined to the executive power, the judge might behave with violence and oppression.
There should be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolu tions, and of trying the causes of individuals.
"(1) The doctrine found many enthusiasts in America and was virtually elevated to a legal principle in that country.
Washington, in his farewell address, said : "The spirit of enroachment tends to consolidate the powers of all governments in one, and thus to (1) Montesquieu 's Spirit of Laws, Vol. 1 by J. V. Pritchard, 1914 edn, pp. 162 3. 810 create, whatever the form of government, a real despotism." John Adams wrote on similar lines as follows:" It is by balancing one of these three powers against the other two that the efforts in human nature toward tyranny can alone be checked and restrained and any degree of free dom preserved." (1) These sentiments are fully reflected in the Constitu tions of the individual States as well as in the Federal Constitution of America.
Massachusetts in her Constitution, adopted in 1780, provided that "in the govern ment of this commonwealth the legislative department shall never exercise the executive and judicial powers or either of them; the executive shall never exercise legislative and judicial powers or either of them; the judicial shall never exercise legislative and executive powers or either of them; to the end that it may be a government of laws and not of men.
"(2) The Constitutions of 39 other States were drafted on similar lines, and so far as the Federal Constitution of the United States was concerned, though it does not express ly create a separation of governmental powers, yet from the three articles stating that the legislative power vests in Congress, the judicial power in the Supreme Court and the executive power in the President, the rule has been deduced that the power vested in each branch of the Government cannot be vested in any other branch.
nor can one branch interfere with the power possessed by any other branch.
This rule has been stated by Sutherland J. in Springer vs Government of the Philiipine Islands(s) in these words : "It may be stated then, as a general rule inherent in the American constitutional system, that unless otherwise expressly provided or incidental to the powers conferred, the Legislature cannot exercise either executive or judicial power; the Executive (1) Vide, Works, Vol. 1, p. 186. (2) Willoughby 's Constitution of the United States, Vol.
III, 1616.
(3) ; at 201, 811 cannot exercise either legislative or judicial power; the Judiciary cannot exercise either executive or legislative power.
" From the rule so stated, the next step was to deduce the rule against delegation of legislative power which has so often been stressed in the earlier American decisions.
It was however soon realized that the absolute rule against delegation of legislative power could not be sustained in practice, and as early as 1825, Marshall C.J. openly stated that the rule was subject to limitations and asserted that Congress "may certainly delegate to others powers which the Legislature may rightfully exercise itself ,,(1).
In course of time, notwithstanding the maxim against delegation, the extent of delegation had become so great that an American writer wrote in 1916 that "because of the rise of the admin istrative process, the old doctrine prohibiting the delega tion of legislative power has virtually retired from the field and given up the fight".(2) This is in one sense an over statement, because the American Judges have never ceased to be vigilant to check any undue or excessive au thority being delegated to the executive as will appear from the comparatively recent decisions of the American Supreme Court in Panama Refining Co. vs Ryan (3) and Schechter Poultry Corp. vs United States(4).
In the latter case, it was held that the National Industrial Recovery Act, in so far as it purported to confer upon the President the author ity to adopt and make effective codes of fair competition and impose the same upon members of each industry for which such a code is approved, was void because it was an uncon stitutional delegation of legislative power.
Dealing with the matter, Cardozo J. observed as follows : ' "The delegated power of legislation which has found expression in this code is not canalized within (1) Wayman vs Southard (2) 41 American Bar Asscn.
Reports, 356 at 368.
(3) ; (4) ; 812 banks that keep it from overflowing.
It is unconfined and vagrant .
Here, in the case before us, is an attempt ed delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard.
Here in effect is a roving commission to inquire into evils upon discovery to correct them .
This is delegation running riot.
No such plenitude of power is capable of transfer.
"(1) The fact however remains that the American courts have upheld the so called delegated legislation in numerous instances, and there is now a wide gulf between the theoret ical doctrine and its application in practice.
How numerous are the exceptions engrafted on the rule will appear on a reference to a very elaborate and informing note appended to the report of the case of Panama Refining Co. vs Ryan in 79, Lawyer 's Edition at page 448.
In this note, the learned authors have classified instances of delegation upheld in America under the following 8 heads, with numerous sub heads : 1.
Delegation of power to determine facts or conditions on which operation of statute is contingent.
Delegation of non legislative or administrative functions.
Delegation of power to make administrative rules and regulations.
Delegation to municipalities and local bodies.
Delegation by Congress to territorial legislature or commission.
Delegation to private or non official persons or corporations.
Vesting discretion in judiciary.
Adopting law or rule of another jurisdiction.
The learned American Judges in laying down exceptions to the general rule from time to time, have offered various expla nations, a few of which may be quoted as samples: (1) ; at 551. 813 " . however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believ ing that it is, or that the Constitution requires.
" [Per Holmes J. in Springer vs The Government of Phillipine Is lands(1)] " . too much effort to detail and particularize, so as to dispense with the administrative or fact finding assist ance, would cause great confusion in the laws, and would result in laws deficient in both provision and execution." [Mutual Film Corporation vs Industrial Commission(2)] "If the legislature ' 'were ' strictly required to make provision for all the minutiae of regulation, it would, in effect, be deprived of the power to enact effective legisla tion on subjects over which it has undoubted power." "The true distinction. is this.
The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.
To deny this would be to stop the wheels of government.
"(3) "The true distinction is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be.
and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.
The first cannot be done; to the latter no valid objection can be made." [Per Ranney J. in Cincinnati W. & Z.R. Co. vs Clinton County Commissioners(4)].
(1) ; (31 Locke 's Appeal, (2) ; (4) 814 "Half the statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them.
But it cannot be said that the exercise of such discretion is the making of law." [Moore v.Reading(1)] "Congress may declare its will and, after fixing a primary standard, devolve upon administrative officers the power to fill up the details by prescribing administrative rules and regulations." [United States vs Shreveport Grain & E. Co.(2)] . . . . "The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality which will enable it to perform its functions in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordi nate rules within the prescribed limits, the determination of facts to which the policy as declared by the legislature is to apply.
Without capacity to give authorizations of that sort, we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility." [Per Hughes C.J. in Panama Refining Co. Ryan(3)] "This is not to say that the three branches are not co ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch." [Per Taft C.J. in J.W. Hampton Jr. & Co. vs U. S.(4)] I have quoted these extracts at the risk of encumbering my opinion for 2 reasons:firstly, because they (1) (3) ; (2) (4) ; 815 show that notwithstanding the prevalence of the doctrine of separation of powers in America, the rule against delega tion of legislative power is by no means an inelastic one in that country, and many eminent Judges there have tried to give a practical trend to it so as to bring it in line with the needs of the present day administration, and secondly, because they show that the rule against delegation is not a necessary corollary from the doctrine of separation of powers.
It is to be noted that though the principle of separa tion of powers is also the basis of the Australian Constitu tion, the objection that the delegation of legislative power was not permissible because of.the distribution of powers contained in the Constitution has been raised in that Com monwealth only in a few cases and in all those cases it has been negatived.
The first case in which this objection was raised was Baxter vs Ah Way(1).
In that case, the validity of section 52 of the Customs Act, 1901, was challenged.
That section after enumerating certain prohibited imports provid ed for the inclusion of "all goods the importation of which may be prohibited by proclamation.
" Section 56 of the Act provided that "the power of prohibiting importation of goods shall authorise prohibition subject to any specified condition or restriction and goods imported contrary to any such condition or restriction shall be prohibited imports.
" The ground on which these provisions were chal lenged was that they amounted to delegation of legislative power which had been vested by the Constitution in the Federal Parliament.
Griffith C.J. however rejected the contention and in doing so relied on Queen vs Burah(2) and other cases, observing : " . . . unless the legislature is prepared to lay down at once and for all time, or for so far into the future as they may think fit, a list of prohibited goods, they must have power to make a prohibition depending upon a condition, and that condition may be the coming into exist ence or the discovery of some fact (1) ; (2) 3 App.
889. 816 . .
And if that fact is to be the condition upon which the liberty to import the goods is to depend, there must be some means of ascertaining that fact, some person with power to ascertain it; and the Governor in Council is the authority appointed to ascertain and declare the fact.
" The other cases in which a similar objection was taken, are Welebach Light Co. of Australasia Ltd. vs The Common wealth(1), Roche vs Kronheimer(2), and Victorian Stevedor ing and General Contracting Co. Pry.
Ltd. and Meakes vs Dignan(3).
In the last mentioned case in which the matter has been dealt with at great length, Dixon J. observed thus : " . . the time has passed for assigning to the constitutional distribution of powers among the separate organs of government, an operation which confined the legis lative power to the Parliament so as to restrain it from reposing in the Executive an authority of an essentially legislative character.
"(4) In England, the doctrine of separation of powers has exer cised very little influence on the course of judicial deci sions or in shaping the Constitution, notwithstanding the fact that distinguished writers like Locke and Blackstone strongly advocated it in the 17th and 18th centuries.
Locke in his treatise on Civil Government wrote as follows : "The legislature cannot transfer the power of making laws to any other hands; for it being a delegated power from the people, they who have it cannot pass it over to others.
(g 141).
Blackstone endorsed this view in these words : Wherever the right of making and enforcing the law is vested in the same man or one and the same body of men, there can be no public liberty.
"(5) Again, Montesquieu, when he enunciated the doctrine of sepa ration of powers, thought that it represented the (1) ; (3) (1931) 46C.L.R. 73.
(2) (4) Ibid, p. 100.
(5) Commentaries on the Laws of England, 1765.
817 quintessence of the British Constitution for which he had great admiration.
The doctrine had undoubtedly attracted considerable attention in England in the 17th and 18th centuries, but in course of time it came to have a very different meaning there from what it had acquired in the United States of America.
In the United States, the empha sis was on the mutual independence of the three departments of Government.
But, in England, the doctrine means only the independence of the judiciary, whereas the emergence of the Cabinet system forms a ]ink between the executive and the legislature.
How the Cabinet system works differently from the so called non parliamentary system which obtains in the United States, may be stated very shortly.
In the United States, the executive power is vested in the Presi dent, to whom, and not to the Congress, the members of the Cabinet are personally responsible and neither the President nor the members of the Cabinet can sit or vote in Congress, and they have no responsibility for initiating bills or seeking their passage through Congress.
In England, the Cabinet is a body consisting of members of Parliament chosen from the party possessing a majority in the House of Com mons.
It has a decisive voice in the legislative activities of Parliament and initiates all the important legislation through one or other of the Ministers, with the result that "while Parliament is supreme in that it can make or unmake Government, the Government once in power tends to control the Parliament.
" The conclusion which I wish to express may now be stated briefly.
It seems to me that though the rule against delega tion of legislative power has been assumed in America to be a corollary from the doctrine of separation of powers, it is strictly speaking not a necessary or inevitable corollary.
The extent to which the rule has been relaxed in America and the elaborate explanations which have been offered to justi fy departure from the rule, confirm this view, and it is also supported by the fact that the trend of decisions in Australia, notwithstanding the fact that its Constitution 818 is at least theoretically based on the principle of separa tion of powers, is that the principle does not stand in the way of delegation in suitable circumstances.
The division of the powers of Government is now a normal feature of all civilised constitutions, and, as pointed out by Rich J. in New South.
Wales vs Commonwealth.(1), ,, it is "well known in all British communities ; yet, except m the United States, nowhere it has been held that by itself it forbids delegation of legislative power.
It seems to me that the American jurists have gone too far in holding that the rule against delegation was a direct corollary from the separa tion of powers.
I will now deal with the third principle, which, in my opinion, is the true principle upon which the rule against delegation may be founded.
It has been stated in Cooley 's Constitutional Limitations, Volume 1 at page 224 in these words : "One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.
Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed.
The power to whose judgment, wisdom, and patriotism this high prerogative has been in trusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be de volved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.
" The same learned author observes thus in his wellknown book on Constitutional Law (4th Edition, page 138): "No legislative body can delegate to another depart ment of the government, or to any other authority, the power, either generally or specially, to enact (1) ; at 108.
819 laws.
The reason is found in the very existence of its own powers.
This high prerogative has been intrusted to its own wisdom, judgment, and patriotism, and not to those of other persons, and it will act ultra vires if it undertakes to delegate the trust, instead of executing it.
" This rule in a broad sense involves the principle underly ing the maxim, delegatus non potest delegare, but it is apt to be misunderstood and has been misunderstood.
In my judg ment, all that it means is that the legislature cannot abdicate its legislative functions and it cannot efface itself and set up a parallel legislature to discharge the primary duty with which it has been entrusted.
This rule has been recognized both in America and in England, and Hughes C.J. has enunciated it in these words : "The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative func tions with which it is thus vested.
"(1) The matter is again dealt with by Evatt J. in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Neakes vs Dignan(2), in these words : "On final analysis therefore, the Parliament of the Commonwealth is not competent to 'abdicate ' its powers of legislation.
This is not because Parliament is bound to perform any or all of its legislative powers or functions, for it may elect not to do so; and not because the doctrine of separation of powers prevents Parliament from granting authority to other bodies to make laws or bye laws and thereby exercise legislative power, for it does so in almost every statute; but because each and every one of the laws passed by Parliament must answer the description of a law upon one or more of the subject matters.stated in the Con stitution.
A law by which Parliament gave all its lawmaking authority to another body would be bad merely because it would fail to pass the test last mentioned." (1) , (2) at 121, 820 I think that the correct legal position has been compre hensively summed up by Lord Haldane in In re the Initiative and Referendum Act(3): "No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as has been done when in Hodge vs The Queen, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relat ing to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence.
" What constitutes abdication and what class of cases will be covered by that expression will always be a question of fact, and it is by no means easy to lay down any comprehen sive formula to define it, but it should be recognized that the rule against abdication does not prohibit the Legisla ture from employing any subordinate agency of its own choice for doing such subsidiary acts as may be necessary to make its legislation effective, useful and complete.
Having considered the three principles which are said to negative delegation of powers, I will now proceed to consid er the argument put forward by the learned Attorney General that the power of delegation is implicit in the power of legislation.
This argument is based on the principle of sovereignty of the legislature within its appointed field.
Sovereignty has been variously described by constitutional writers, and sometimes distinction is drawn between legal sovereignty and political sovereignty.
One of the writers describes it as the power to make laws and enforce them by means of coercion it cares to employ, and he pro ceeds to say that in England the legal sovereign, i.e., the person or persons who according to the law of the land legislate and administer the Government, is the King in Parliament, whereas the political (1) at 945. 821 or the constitutional sovereign, i.e., the body of persons in whom power ultimately resides, is the electorate or the voting public(1).
Dicey states that the legal conception of sovereignty simply means the power of law making unrestrict ed by any legal limit, and if the term "sovereignty" is thus used, the sovereign power under the English Constitution is the Parliament.
The main attribute of such sovereignty is stated by him in in these words : "There is no law which Parliament cannot change (or to put the same thing somewhat differently, fundamental or so called constitutional laws are under our Constitution changed by the same body and in the same manner as other laws, namely, by Parliament acting in its ordinary legisla tive character) and any enactment passed by it cannot be declared to be void.
According to the same writer, the characteristics of a non sovereign law making body are : ( 1 ) the existence of laws which such body must obey and cannot change;(2) the formation of a marked distinction between ordinary laws and fundamental laws;and (3) the existence of some person or persons, judicial or otherwise, having authority to pro nounce upon the validity or constitutionality of laws passed by such law making body.
Dealing with the Indian or the colonial legislature, the learned writer characterizes it as a non sovereign legislature and proceeds to observe that its authority to make laws is as completely subordinate to and as much dependent upon Acts of Parliament as is the power of London and NorthWestern Railway Co. to make byelaws.
This is undoubtedly an overstatement and is certainly not ap plicable to the Indian Parliament of today.
Our present Parliament, though it may not be as sovereign as the Parlia ment of Great Britain, is certainly as sovereign as the Congress of the United States of America and the Legisla tures of other independent countries having a Federal Con stitution.
But what is more relevant (1) Modern Political Constitutions, by Strong.
822 to our purpose is that Dicey himself, dealing with colonial and other similar legislatures, says that "they are in short within their own sphere copies of the Imperial Parlia ment, they are within their own sphere sovereign bodies, but their freedom of action is controlled by their subordination to the Parliament of the United Kingdom.
" These remarks undoubtedly applied to the Legislative Council of 1912 which passed the , and they apply to the present Parliament also with this very material modification that its freedom of action is no longer controlled by subor dination to the British Parliament but is controlled by the Indian Constitution.
At this stage, it will be useful to refer to certain cases decided by the Privy Council in England in which the question of the ambit of power exercised by the Indian and colonial legislatures directly arose.
The leading case on the subject is Queen vs Burah(1), which has been cited by this court on more than one ' occasion and has been accepted as good authority.
In that case, the question arose whether a section of Act No. XXII of 1869 which conferred upon the Lieutenant Governor of Bengal the power to determine whether a law or any part thereof should be applied to a certain territory was or was not ultra vires.
While holding that the impugned provision was intra vires, the Privy Council made certain observations which have been quoted again and again and deserve to be quoted once more.
Having held that the Indian Legislature was not a delegate of the Imperial Parliament and hence the maxim, delegatus non potest dele gare, did not apply (see ante for the passage dealing with this point), their Lordships proceeded to state as follows:. "Their Lordships agree that the Governor General in Council could not by any form of enactment, create in India, and arm with general legislative authority, a new legisla tive power, not created or authorized by the Councils Act.
Nothing of that kind has, in their Lordships ' opinion, been done or attempted in the (1) 5 I.A. 178.
823 present case.
What has been done is this.
The Governor General in Council has determined, in the due and ordinary course of legislation, to remove a particular district from the jurisdiction of the ordinary Courts and offices, and to place it under new Courts and offices., to be appointed by and responsible to the Lieutenant Governor of Bengal, leav ing it to the Lieutenant Governor to say at what time that change shall take place; and also enabling him, not to make what laws he pleases for that or any other district, but to apply by public notification to that district any law, or part of a law, which either already was, or from time to time might be, in force, by proper legislative authority, 'in the other territories subject to his government '.
" Then, later they added : "The proper Legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things.
The conditions having been fulfilled, the legislation is now absolute.
Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a provin cial legislature, they may (in their Lordships judgment) be well exercised, either absolutely or conditionally.
Legis lation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient.
The British Statute Book abounds with examples of it; and it cannot be supposed that the Imperial Parlia ment did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers which it from time to time conferred.
" The next case on the subject is Russell vs The Queen (1).
In that case, the Canadian Temperance Act, 1878, was challenged on the ground that it was (1) 7 App, Cas.
824 ultra vires the Parliament of Canada.
The Act was to be brought into force in any county or city if on vote of the majority of the electors of that county city favouring such a course, the Governor General in Council declared the relative part of the Act to be on force.
It was held by the Privy Council that this provision did not amount to a dele gation of legislative power to a majority of the voters in a city or county.
The passage in which this is made clear, runs as follows: "The short answer to this objection is that the Act does not delegate any legislative powers whatever.
It contains within itself the whole legislation on the matters with which it deals.
The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer on these persons power to legis late.
Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled.
Conditional legislation of this kind is in many cases con venient, and is certainly not unusual, and the power so to legislate cannot be denied to the Parliament of Canada when he subject of legislation is within its competency.
If authority on.
this point were necessary, it will be found in the case of Queen vs Burah, lately before this Board.
The same doctrine was laid down in the case of lodge vs The Queen (1), where the question arose as to whether the legislature of Ontario had or had not the power of entrust ing to a local authority the Board of Commissioners the power of making regulations with respect to the Liquor Licence Act, 1877, which among other things created offences for the breach of hose regulations and annexed penalties thereto.
their Lordships held that the Ontario Legislature had that power, and after reiterating that the Legislature which passed the Act was not a delegate, they observed as follows : "When the British North America Act enacted that there should be a legislature for Ontario, and that (1) 9 App.
825 its legislative assembly should have exclusive authority to make laws for the Province and for provincial purposes in relation to the matters enumerated in section 92, it con ferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament in the plenitude of its powers possessed and could bestow.
Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make byelaws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect." Another case which may be usefully cited is Powell vs Apollo Candle Co. (1).
The question which arose in that case was whether section 133 of the Customs Regulations Act of 1879 of New South Wales was or was not ultra rites the colonial legislature.
That section provided that "when any article of merchandise then unknown to the collector is imported, which, in the opinion of the collector or the commissioners, is apparently a substitute for any known dutiable article, or is apparently designed to evade duty, but possesses properties in the whole or in part which can be used or were intended to be applied for a similar purpose as such dutiable article, it shall be lawful for the Gover nor to direct that a duty be levied on such article at a rate to be fixed in proportion to the degree in which such unknown article approximates in its qualities or uses to such dutiable article.
" Having repelled the contention that the colonial legislature was a delegate of the Imperial Parliament and having held that it was not acting as an agent or a delegate, the Privy Council proceeded to deal with the question raised in the following manner : (1) 10App.
826 "It is argued that the tax in question has been imposed by the Governor, and not by the Legislature, who alone had power to impose it.
But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued.
The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him.
Under these circumstances their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulations Act of 1879 to be beyond the power of the Legislature.
" Several other eases were cited at the Bar in which the supremacy of a legislature (which would be nonsovereign according to the tests laid down by Dicey) within the field ascribed to its operation, were affirmed, but it is unnec essary to multiply instances illustrative of that princi ple.
I might however quote the pronouncement of the Privy Council in the comparatively recent case of Shannon vs Lower Mainland Dairy Products Board (1), which runs as follows : "The third objection is that it is not within the powers of the Provincial Legislature to delegate so called legislative powers to the Lieutenant Governor in Council, or to give him powers of further delegation.
This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the constitution has granted legislative powers.
Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament; and it is unnecessary to try to enu merate the innumerable occasions on which Legislatures, Provincial, Dominion and Imperial, have entrusted var ious persons and bodies with similar powers to those con tained in this Act.
" I must pause here to note briefly certain important principles which can be extracted from the cases (1) at 722.
827 decided by the Privy Council which I have so far cited, apart from the principle that the Indian and colonial legis latures are supreme in their own field and that the maxim, delegatus non potest delegare, does not apply to them.
In the first place, it seems quite clear that the Privy Council never liked to commit themselves to the statement that delegated legislation was permissible.
It was easy for them to have said so and disposed of the cases before them, but they were at pains to show that the provisions impugned before them were not instances of delegation of legislative authority but they were instances of conditional legislation which, they thought, the legislatures concerned were compe tent to enact, or that the giving of such authority as was entrusted in some cases to subordinate agencies was ancil lary to legislation and without it "an attempt to provide for varying details and machinery to carry them out might become oppressive or absolutely fail.
" They also laid down: (1) that it will be not correct to describe conditional legislation and other forms of legislation which they were called upon to consider in several cases which have been cited as legislation through another agency.
Each Act or enactment which was impugned before them as being delegated legislation, contained within itself the whole legislation on the matter which it dealt with, laying down the condition and everything which was to follow on the condition being fulfilled; (2) that legislative power could not be said to have been parted with if the legislature retained its power intact and could whenever it pleased destroy the agency it had created and set up another or take the matter directly into its own hands; (3) that the question as to the extent to which the aid of subordinate agencies could be sought by the legislatures and as to how long they should continue them were matters for each legislature and not for the court of law to decide; (4) that a legislature in committing important regulations to others does not efface itself; and (5) that the legislature, like the Governor General in Council, could not by any form of enactment create, and arm with legislative 828 authority, a new legislative power not created or authorised by the Councils Act to which it (the Governor General in Council) owes its existence.
I have already indicated that the expressions "delegated legislation" and "delegating legislative power" are some times used in a loose sense, and sometimes in a strict sense.
These expressions have been used in the loose or popular sense in the various treatises or reports dealing with the so called delegated legislation; and if we apply that sense to the facts before the Privy Council, there can be no doubt that every one of the cases would be an instance of delegated legislation or delegation of legislative au thority.
But the Privy Council have throughout repelled the suggestion that the cases before them were instances of delegated legislation or delegation of legislative authori ty.
There can be no doubt that if the legislature completely abdicates its functions and sets up a parallel legislature transferring all its power to it, that would undoubtedly be a real instance of delegation of its power.
In other words, there will be delegation in the strict sense if legislative power with all its attributes is transferred to another authority.
But the Privy Council have repeatedly pointed out that when the legislature retains its dominant power intact and can whenever it pleases destroy the agency it has created and set up another or take the matter directly into its own hands, it has not parted with its own legislative power.
They have also pointed out that the act of the subordinate authority does not possess the true legislative attribute, if the efficacy of the act done by it is not derived from the subordinate authority but from the legisla ture by which the subordinate authority was entrusted with the power to do the act.
In some of the cases to which reference has been made, the Privy Council have referred to the nature and principles of legislation and pointed out that conditional legislation simply amounts to entrusting a limited discretionary authority to others, and that to seek the aid of subordinate agencies in carrying out the object of the legislation is ancillary to legislation and properly 829 lies within the scope of the powers which every legislature must possess to function effectively.
There is a mass of literature in America also about the socalled delegated legislation, but if the judgments of the eminent American Judges are carefully studied, it will be found that, though in some cases they have used the expression in the popular sense, yet in many cases they have been as careful as the Privy Council in laying down the principles and whenever they have upheld any provision impugned before them on the ground that it was delegation of legislative authority they have rested their conclusion upon the fact that there was in law no such delegation.
The learned Attorney General has relied on the authority of Evatt J. for the proposition that "the true nature and scope of the legislative power of the Parliament involves as part of its content power to confer law making power upon authorities other than Parliament itself"(1).
It is undoubt edly true that a legislature which is sovereign within its own sphere must necessarily have very great freedom of action, but it seems to me that in strict point of law the dictum of Evatt J. is not a precise or an accurate state ment.
The first question which it raises is what is meant by law making power and whether such power in the true sense of the term can be delegated at all.
Another difficulty which it raises is that once it is held as a general proposition that delegation of lawmaking power is implicit in the power of legislation, it will be difficult to draw the line at the precise point where the legislature should stop and it will be permissible to ask whether the legislature is competent to delegate 1, 10 or 99 per cent of its legislative power, and whether the strictly logical conclusion will not be that the legislature can delegate the full content of its power in certain cases.
It seems to me that the correct and the strictly legal way of putting the matter is as the Privy Council have put it in several cases.
The legislature in order to function effectively, has to call for sufficient data, has to (1) See the Victorian Stevedoring case: 830 legislate for the future as well as for the present and has to provide for a multiplicity of varying situations which may be sometimes difficult to foresee.
In order to achieve its object, it has to resort to various types and forms of legislation, entrusting suitable agencies with the power to fill in details and adapt legislation to varying circum stances.
Hence, what is known as conditional legislation, an expression which has been very fully explained and de scribed in a series of judgments, and what is known as subordinate legislation, which involves giving power to subordinate authorities to make rules and regulations to effectuate the object and purpose for which a certain law is enacted, have been recognized to be permissible forms.
of legislation on the principle that a legislature can do everything which is ancillary to or necessary for effective legislation.
Once this is conceded, it follows that the legislature can resort to any other form of legislation on the same principle, provided that it acts within the limits of its power, whether imposed from without or conditioned by the nature of the duties it is called upon to perform.
The conclusions at which I have arrived so far may now be summed up : (1) The legislature must normally discharge its primary legislative function itself and not through others.
(2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds neces sary for doing things which it is unable to do itself or finds it inconvenient to do.
In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation.
(3) It cannot abdicate its legislative functions, and therefore while entrusting power to an outside 831 agency, it must see that such agency, acts as a subordinate authority and does not become a parallel legislature.
(4) The doctrine of separation of powers and the judi cial interpretation it has received in America ever since the American Constitution was framed, enables the American courts to check undue and excessive delegation but the courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America.
Therefore, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to "abdicacation and self effacement".
I will now deal with the three specific questions with which we are concerned in this Reference, these being as follows : (1) Was section 7 of the , or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act ? (2) Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act ? (3) Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Parliament ? Before attempting to answer these questions, it will be Useful to state briefly a few salient facts about the compo sition and power of the Indian Legislature at the dates on which the three Acts in question were passed.
It appears that formerly it was the executive Government which was empowered to make regulations and ordinances for "the good government of the factories and territories acquired in India", and up to 1833, the laws used to be passed by the Governor General in Council or by the Governors of Madras and 832 Bombay in Council, in the form of regulations.
By the Charter Act of 1833, the Governor General 's Council was extended by the inclusion of a fourth member who was not entitled to sit or vote except at meetings for making laws and regulations.
The Governor General in Council was by this Act empowered to make laws and regulations for the whole of India and the legislative powers which vested in the Governors of Madras and Bombay were withdrawn, though they were allowed to propose draft schemes.
The Acts passed by the Governor General in Council were required to be laid before the British Parliament and they were to have the same force as an Act of Parliament.
In 1853, the strength of the Council of the Governor General was further increased to 12 members, by including the fourth member as an ordinary member and 6 special members for the purpose of legislation only.
Then came the Councils Act of 1861, by which the power of legislation was restored to the Governors of Madras and Bombay in Council, and a legislative council was ap pointed for Bengal; but the Governor General in Council was still competent to exercise legislative authority over the whole of India and could make laws for "all persons and all places and things", and for legislative purposes the Council was further remodelled so as to include 6 to 12 members nominated for a period of 2 years by the Governor General, of whom not less than one half were to be non officials.
In this Council, no measure relating to certain topics could be introduced without the sanction of the Governor General, and no law was to be valid until the Governor General had given his assent to it and the ultimate power of disallowing a law was reserved to the Crown.
Further, local legislatures were constituted for Madras and Bombay, wherein half the members were to be non officials nominated by the Governors, and the assent of the Governor as well as that of the Governor General was necessary to give validity to any law passed by the local legislature.
A similar legislature was directed to be constituted for the lower Provinces of Bengal, 833 and powers were given to constitute legislative councils for certain other Provinces.
In 1892, the Indian Councils Act was passed, by which the legislative councils were further expanded and certain fresh rights were given to the members.
In 1909, came the MorleyMinto scheme under which the strength of the legislative council was increased by the inclusion of 60 additional members of whom 27 were elected and 33 nominated.
Soon after this, in 1912, the was passed, and the points which may be noticed in connection with the legislature which functioned at that time are: firstly, within its ambit, its powers were as plenary as those of the legislature of 1861, whose powers came up for consideration before the Privy Council in Bu rah 's case, and secondly, considering the composition of the legislative council in which the non official and the executive elements predominated, there was no room for the application of the doctrine of separation of powers in its full import, nor could it be said that by reason of that doctrine the legislature could not invest the GovernorGener al with the powers which we find him invested with under the .
It should be stated that in section 7 of that Act as it originally stood, the Governor General was mentioned as the authority who could by notification extend any enactment which was in force in any part of British India at the date of such notification, The "Provincial Government" was substituted for the "Governor General" subsequently.
Coming to the second Act, namely, the Ajmer Merwara (Extension of Laws) Act, 1947, we find that when it was enacted on the 31st December, 1947, the Government of India Act, 1935, as adapted by the India (Provisional Constitu tion) Order, 1947, issued under the Indian Independence Act, 1947, was in force.
Under that Act, there were three Legis lative Lists, called the Federal, Provincial and Concurrent Legislative Lists.
Lists I and II contained a list of sub jects on which the Central Legislature and the Provincial Legislature could respectively legislate, and List III contained subjects on which both the Central and the 834 Provincial Legislatures could legislate.
Section 100(4) of the Act provided that "the Dominion Legislature has power to make laws with ' respect to matters enumerated in the Provin cial Legislative List except for a Province or any part thereof.
" Section 46 (3) stated that the word "Province", unless the context otherwise required, meant a Governor 's Province.
Therefore, section 100 (4) read with the defini tion of "Province", empowered the Dominion Legislature to make laws with respect to subjects mentioned in all the three Lists for Ajmer Merwara, which was not a Governor 's Province.
The Central Legislature was thus competent to legislate for Ajmer Merwara in regard to any subject, and it had also plenary powers in the entire legislative field allotted to it.
Further, at the time the Act in question was passed, the Dominion Legislature was simultaneously functioning as the Constituent Assembly and had the power to frame the Constitution.
The third Act with which we are concerned was passed after the present Constitution had come into force.
Article 245 of the Constitution lays down that "subject to the provisions of this Constitution, Parliament may make laws from the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.
" On the pattern of the Government of India Act, 1935, Lists I and II in the Seventh Schedule of the Constitution enumerate the subjects on which the Parlia ment and the State Legislatures can respectively legislate, while List 11 enumerates subjects on which both the Parlia ment and the State Legislatures can legislate.
Under article 246 (4), "Parliament has power to make laws with respect to any matter for any part of the territory of India not in cluded in Part A or Part B of the First Schedule notwith standing that such matter is a matter enumerated in the State List.
" The points to be noted in connection with the Part C States (Laws) Act, 1950, are : (1) The present Parliament derives its authority from the Constitution which has been framed by the 835 people of India through their Constituent Assembly, and not from any external authority, and within its own field it is as supreme as the legislature of any other country possess ing a written federal Constitution.
(2) The Parliament has full power to legislate for the Part C States in regard to any subject.
(3) Though there is some kind of separation of govern mental functions under the Constitution, yet the Cabinet system, which is the most notable characteristic of the British Constitution, is also one of the features of our Constitution and the doctrine of separation of powers, which never acquired that hold or significance in this country as it has in America, cannot dominate the interpretation of any of the Constitutional provisions.
I may here refer to an argument which is founded on articles 353 (b) and 357 (a) and (b) of the Constitution.
Under article 353 (b), when a Proclamation of Emergency is made by the President " the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumer ated in the Union List.
" Under article 357, when there is a failure of constitu tional machinery in a State, "it shall be competent (a) for Parliament to confer on the President the power of the Legislature of the State to make laws, and to autho rise the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf; (b) for Parliament, or for the President or other au thority in whom such power to make laws is vested under sub clause (a), to make laws conferring powers and imposing duties, or authorising the Conferring of 108 836 powers and the imposition of duties, upon the Union or officers and authorities thereof.
In both these articles, the power of delegation is ex pressly conferred, and it is argued that if delegation was contemplated in normal legislation, there would have been an express power given to the ' Parliament, similar to the power given in articles 353(b) and 357(a) and (b).
In other words, the absence of an express provision has been used as an argument for absence of the power to delegate.
It should however be noticed that these are emergency provisions and give no assistance in deciding the question under considera tion.
So far as article 353(b) is concerned, it is enough to say that a specific provision was necessary to empower the Parliament to make laws in respect of matters included in the State List upon which the Parliament was not otherwise competent to legislate.
When the Parliament was specially empowered to legislate in a field in which it could not normally legislate, it was necessary to state all the powers it could exercise.
Again, article 357(a) deals with complete transfer of legislative power to the President, while clause (b) is incidental to the powers conferred on the Parliament and the President to legislate for a State in case of fail ure of constitutional machinery in that State.
These provi sions do not at all bear out the conclusion that is sought to be drawn from them.
Indeed, the Attorney General drew from them the opposite inference, namely, that by these provisions the Constitution makers have recognized that delegation of power is permissible on occasions when it is found to be necessary.
In my opinion, neither of these conclusions can be held to be sound.
I will now deal with the three provisions in regard to which the answer is required in this Reference.
They are as follows: Section 7 of the .
"The Provincial Government may, by notification in the official gazette, extend with such restrictions and modifi cations as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in 837 force in any part of British India at the date of such notification.
" Section 2 of the Ajmer Merwara (Extension of Laws).
Act, 1947.
"The Central Government may, by notification in the official gazette, extend to the Province of Ajmer Merwara with such restrictions and modifications as it thinks fit any enactment which is in force in any other Province at the date of such notification.
" Section 2 of the Part C States (Laws) Act, 1950. "The Central Government may, by notification in the official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification; and provision may be made in any enactment so extended for the repeal or amend ment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State.
" At the first sight, these provisions appear to be very wide, their most striking features being these : 1.
There is no specification in the Act by way of a list or schedule of the laws out of which the selection is to be made by the Provincial or the Central Government, as the case may be, but the Government has been given complete discretion to adopt any law whatsoever passed in any part of the country, whether by the Central or the Provincial Legis lature.
The provisions are not confined merely to the laws in existence at the dates of the enactment of these Acts but extend to future laws also.
The Government concerned has been empowered not only to extend or adopt the laws but also to introduce such restrictions and modifications as it thinks fit; and in the Part C States (Laws) Act, 1950, power has been given to the Central Government to make a provision in the enactment extended under the Act for the repeal or amendment of any corresponding law 838 (other than a Central Act) which is for the time being applicable to the Part C State concerned.
There can be no doubt that the powers which have been granted to the Government are very extensive and the three Acts go farther than any Act in England or America, but, in my judgment, nothwithstanding the somewhat unusual features to which reference has been made, the provisions in question cannot be held to be invalid.
Let us overlook for the time being the power to intro duce modifications with which I shall deal later, and care fully consider the main provision in the three Acts.
The situation with which the respective legislatures were faced when these Acts were passed, was that there were certain State or States with no local legislature and a whole bundle of laws had to be enacted for them.
It is clear that the legislatures concerned, before passing the Acts, applied their mind and decided firstly, that the situation would be met by the adoption of laws applicable to the other Prov inces inasmuch as they covered a wide range of subjects approached from a variety of points of view and hence the requirements of the State or States for which the laws had to be framed could not go beyond those for which laws had already been framed by the various legislatures, and second ly, that the matter should be entrusted to an authority which was expected to be familiar and could easily make itself familiar with the needs and conditions of the State or States for which the laws were to be made.
Thus, everyone of the Acts so enacted was a complete law, because it em bodied a policy, defined a standard, and directed the au thority chosen to act within certain prescribed limits and not to go beyond them.
Each Act was a complete expression of the will of the legislature to act in a particular way and of its command as to how its will should be carried out.
The legislature decided that in the circumstances of the case that was the best way to legislate on the subject and it so legislated.
It will be a misnomer to describe such legisla tion as amounting to abdication of powers, because from the very nature of the legislation 839 it is manifest that the legislature had the power at any moment of withdrawing or altering any power with which the authority chosen was entrusted, and could change or repeal the laws which the authority was required to make applica ble to the State or States concerned.
What is even more important is that in each case the agency selected was not empowered to enact laws, but it could only adapt and extend laws enacted by responsible and competent legislatures.
Thus, the power given to the Governments in those Acts was more in the nature of ministerial than in the nature of legislative power.
The power given was ministerial, because all that the Government had to do was to study the laws and make selections out of them.
That such legislation is neither unwarranted on princi ple nor without precedent, will be clear from what follows: 1.
The facts of the case of Queen vs Burah(1) are so familiar that they need not be reproduced, but for the purpose of understanding the point under discussion, it will be necessary to refer to section 8 of Act XXII of 1869 and some of the observations of the Privy Council which obvious ly bear on that section.
The section runs as follows : "The said Lieutenant Governor may from time to time, by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the Governor General, or of the said Lieutenant Governor, for making laws and regulations, and may on making such extension direct by whom any powers or duties incident to the provi sions so extended shall be exercised or performed, and make any order which he shall deem requisite for carrying such provisions into operation.
" In their judgment, the Privy Council do not quote this section, but evidently they had it in mind when they made the following observations : (1) 5 I.A. 178. 840 "The legislature determined that, so far, a certain change should take place; but that it was expedient to leave the time and the manner, of carrying it into effect to the discretion of the Lieutenant Governor; and also, that the laws which were or might be in force in the other territo ries subject to the same Government were such as it might be fit and proper to apply to this district also; but that,.as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieutenant Governor.
" The language used here can be easily adapted in the following manner so as to cover the laws in question: "The legislature determined that . . the laws which were or might be in force in the other territories . . (omitting the words "subject to the same Government" for reasons to be stated presently) were such as it might be fit and proper to apply to this State also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Central or Provincial Government.
" It seems to me that this line of reasoning fully fits in with the facts before us.
The words "territories sub ject to the same Government" are not in my opinon material, because in Burah 's case only such laws as were in force in the other territories subject to the same Government were to be extended.
We are not to lay undue emphasis on isolated words but look at the principle underlying the decision in that case.
In the as originally enacted, the agency which was to adapt the laws was the Governor General.
In the other two Acts, the agency was the Central Govern ment.
In 1912, the Governor General exercised jurisdiction over the whole of the territories the laws of which were to be adapted for Delhi.
The same remark applies to the Central Government, while dealing with the other two Acts.
As I have already 841 stated, Burah 's case has been accepted by this Court as having been correctly decided, and we may well say that the impugned Acts are mere larger editions of Act XXII of 1869 which was in question in Burah 's case.
It is now well settled in England and in America that a legislature can pass an Act to allow a Government or a local body or some other agency to make regulations consist ently with the provisions of the Act.
At no stage of the arguments, it was contended before us that such a power cannot be granted by the legislature to another body.
We have known instances in which regulations have been made creating offences and imposing penalties and they have been held to be valid.
It seems to me that the making of many of these regulations involves the exercise of much more legis lative power and discretion than the selection of appropri ate laws out of a mass of ready made enactments.
The fol lowing observations in a well known American case, which furnish legal justification for empowering a subordinate authority to make regulations, seem to me pertinent : "It is well settled that the delegation by a State legislature to a municipal corporation of the power to legislate, subject to the paramount law, concerning local affairs, does not violate the inhibition against the delega tion of the legislative function.
It is a cardinal principle of our system of government that local affairs shall be managed by local authorities, and general affairs by the central authority, and hence, while the rule is also fundamental that the power to make laws cannot be delegated, the creation of municipalities exercising local self government has never been held to trench upon that rule.
Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, subject, of course, to the interposition of the superior in cases of necessity." (Per Fuller J. in Stoutenburgh vs Hennick(1).
(1) ; 842 3.
A point which was somewhat similar to the one raised before us arose in the case of Sprigg vs Sigcau(1).
In that case, section 2 of the Pondoland Annexation Act, 1894, was brought into question.
That section gave authority to the Governor to add to the existing laws in force in the terri tories annexed, such laws as he shall from time to time by Proclamation declare to be in force in such territories.
Dealing with this provision, the Privy Council observed as follows : "The legislative authority delegated to the Governor by the Pondoland Annexation Act is very cautiously expressed, and is very limited in its scope.
There is not a word in the Act to suggest that it was intended to make the Governor a dictator, or even to clothe him with the full legislative powers of the Cape Parliament.
His only authority, after the date of the Act, is to add to the laws, statutes and ordi nances which had already been proclaimed and were in force at its date, such laws, statutes and ordinances as he 'shall from time to time by proclamation declare to be in force in such territories '.
In the opinion of their Lordships, these words do not import any power in the Governor to make "new laws" in the widest sense of that term; they do no more than authorise him to transplant to the new territories, and enact there, laws, statutes and ordinances which already exist, and are operative in other parts of the Colony.
It was argued for the appellant that the expression "all such laws made" occurring in the proviso, indicates authority to make new laws which are not elsewhere in force; but these words cannot control the plain meaning of the enactment upon which they are a proviso; and, besides that enactment is left to explain the meaning of the proviso by the reference back which is implied in the word "such" (pp. 247 8).
Following the line of reasoning in the case cited, it may be legitimately stated that what the Central or the Provincial Government has been asked to do under the Acts in question is not to enact "new laws" but to transplant" to the territory concerned laws operative (1) , 843 in other parts of the country.
I notice that in section 2 of the Pondoland Annexation Act, 1894, there was a proviso requiring that "all such laws made under or by virtue of this Act shall be ]aid before both Houses of Parliament within fourteen days after the beginning of the Session of Parliament next after the proclamation thereof as aforesaid, and shall be effectual, unless in so far as the same shall be repealed, altered, or varied by Act of Parliament." This provision however does not affect the principle.
It was made only as a matter of caution and to ensure the superin tendence of Parliament, for the laws were good laws until they were repealed, altered or varied by Parliament.
If the Privy Council have correctly stated the principle that the legislature in enacting subordinate or conditional legisla tion does not part with its perfect control and has the power at any moment of withdrawing or altering the power entrusted to another authority, its power of superintendence must be taken to be implicit in all such legislation.
Refer ence may also be made here to the somewhat unusual case of Dorr vs United States(1), where delegation by Congress to a commission appointed by the President of the power to legis late for the Phillipine Islands was held valid.
There are also some American cases in which the adopt ing of a law or rule of another jurisdiction has been per mitted, and one of the cases illustrative of the rule is Re Lasswell(2), where a California Act declaring the existence of an emergency and providing that where the Federal author ities fixed a Code for the government of any industry, that Code automatically became the State Code therefor, and fixing a penalty for violation of such Codes, was held to be constitutional and valid, as against the contention that it was an unlawful delegation of authority by the State legis lature to the Federal government and its administrative agencies.
This case has no direct bearing on the points before us, but it shows that application of laws made (1) ; (2) (1934) 1 Cal.
(2d), 183.
109 844 by another legislature has in some cases been held to be permissible.
There are many enactments in India, which are not without their parallel in England, in which it is stated that the provisions of the Act concerned shall apply to certain areas in the first instance and that they may be extended by the Provincial Government or appropriate author ity to the whole or any part of a Province.
The , is an instance of such enactment, as section 1 thereof provides as follows : "It (the Act) extends in the first instance to all the Provinces of India except Bombay, East Punjab and Delhi.
But this Act or any part thereof may by notification in the official Gazette be extended to the whole or any part of the said Provinces by the Provincial Government concerned.
" It is obvious that if instead of making similar provi sions in 50 or more Acts individually, a single provision is made in any one Act enabling the Provincial Governments to extend all or any of the 50 or more Acts, in which provision might have been but has not been made for extension to the whole or any part of the Provinces concerned there would be no difference in principle between the two alternatives.
It was pointed out to us that in the Acts with which we are concerned, power has been given to extend not only Acts of the Central Legislature, which is the author of the Acts in question, but also those of the Provincial Legislatures.
But it seems to me that the distinction so made does not affect the principle involved.
The real question is: Can authority be given by a legislature to an outside agency, to extend an Act or series of Acts to a particular area ? This really brings us back to the principle of conditional legislation which is too deeply rooted in our legal system to be ques tioned now.
Our attention has been drawn to several Acts con taining provisions similar to the Acts 845 which are the subject of the Reference, these being : 1.
Sections 1 and 2 of Act I of 1865.
Sections 5 and 5A of the Scheduled Districts Act, 1874 (Act XIV of 1874).
The Burma Laws Act, 1898 (Act XIII of 1898).
section 10 (1).
Section 4 of the (Act XLVII of 1947).
The Merchant Shipping Laws (Extension to Acceding States and Amendment) Act, 1949 (Act XVIII of 1949), section 4.
The relevant provisions of two of these Acts, which were passed before the Acts in question, may be quoted, to bring out the close analogy.
The Scheduled Districts Act, 1874.
"The Local Government, with the previous sanction of the Governor General in Council, may, from time to time by notification in the Gazette of India and also in the local Gazette (if any), extend to any of the Scheduled Districts, or to any part of any such District, any enactment which is in force in any part of British India at the date of such extension.
In declaring an enactment in force in a Scheduled District or part thereof under section 3 of this Act, or in extending an enactment to a Scheduled District or part thereof under section 5 of this Act, the Local Government with the previous sanction of the Governor General in Coun cil, may declare the operation of the enactment to be sub ject to such restrictions and modifications as that Govern ment think fit.
" The Burma Laws Act, 1898.
10(1).
"The Local Government, with the previous sanction of the Governor General in Council, may, by notification in the Burma Gazette, extend, with such restrictions and modi fications as it thinks fit, to all or any of the Shan States, or to any specified local area in the Shan State any enactment which is in force 846 in any part of Upper Burma at the date of the extension.
" It is hard to say that any firm legislative practice had been established before the and other Acts we are concerned with were enacted, but one may presume that the legislature had made several experiments before the passing of these Acts and found that they had worked well and achieved the object for which they were intended.
I will now deal with the power of modification which de pends on the meaning of the words "with such modifications as it thinks fit.
" These are not unfamiliar words and they are often used by careful draftsmen to enable laws which are applicable to one place or object to be so adapted as to apply to another.
The power of introducing necessary re strictions and modifications is incidental to the power to apply or adapt the law, and in the context in which the provision as to modification occurs, it cannot bear the sinister sense attributed to it.
The modifications are to be made within the framework of the Act and they cannot be such as to affect its identity or structure or the essential purpose to be served by it.
The power to modify certainly involves a discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes.
The provision empowering an extraneous authority to introduce modifications in an Act has been nicknamed in England as "Henry VIII clause", because that monarch is regarded popu larly as the personification of executive autocracy.
Sir Thomas Carr, who bad considerable experience of dealing with legislation of the character we are concerned with, refers to "Henry VIII clause" in this way in his book "Concerning English Administrative Law" at page 44: "Of all the types of orders which alter statutes, the so called 'Henry VIII clause ' sometimes inserted in big and complicated Acts, has probably caused the greatest flutter in England.
It enables the Minister 847 by order to modify the Act itself so far as necessary for bringing it into operation.
Any one who will look to see what sort of orders have been made under this power will find them surprisingly innocuous.
The device is partly a draftsman 's insurance policy, in case he has overlooked something, and is partly due to the immense body of local Acts in England creating special difficulties in particular areas.
These local Acts are very hard to trace, and the draftsman could never be confident that he has examined them all in advance.
The Henry VIII clause ought, of course, to be effective for a short time only.
" It is to be borne in mind that the discretion given to modify a statute is by no means absolute or irrevocable in strict legal sense, with which aspect alone we are princi pally concerned in dealing with a purely legal question.
As was pointed out by Garth C.J. in Empress vs Burah(1), the legislature is " 'always in a position to see how the powers, which it has conferred, are being exercised, and if they are exercised injudiciously, or otherwise than in accordance with its intentions, or if, having been exercised, the result is in any degree inconvenient, it can always by another Act recall its powers, or rectify the inconvenience." The learned Chief Justice, while referring to the Civil Procedure Code of 1861, pointed out that it went further than the Act impugned before him, because "it gave the Local Governments a power to alter or modify the Code in any way they might think proper, and so as to intro duce a different law into their respective Provinces from that which was in force in the Regulation Provinces." Nevertheless, the Privy Council considered the Civil Proce dure Code of 1861 to be a good example of valid conditional legislation.
In the course of the arguments, we were sup plied with a list of statutes passed by the Central and some of the Provincil Legislatures giving express power of modi fication to certain authorities, and judging from the number of instances included in it, it is not an unimpressive list.
A few of the Acts which may be mentioned by (1) I.L.R. S Cal. 63 at 140.
848 way of illustration are: The Scheduled Districts Act, 1874, The Burma Laws Act, 1898, The Bombay Prevention of Prostitu tion Act, 1928, The Madras City Improvement Trust Act, 1945, The Madras Public Health Act, 1939, U.P. Kand Revenue Act, 1901.
There are also many instances of such legislation in England, of which only a few may be mentioned below to show that such Acts are by no means confined to this coun try.
In 1929, a Bill was proposed to carry out the policy of having fewer and bigger local authority in Scotland.
During the debate, it was suddenly decided to create a new kind of body called the district council.
There was no time to work out details for electing the new district councillors, and the Bill therefore applied to them the statutory provisions relating to the election of county councillors in rural areas "subject to such modifications and adaptations as the Secretary of State may by order prescribe." In 1925, the Parliament passed the Rating and Valua tion Act, and section 67 thereof provided that if any diffi culty arose in connection with its application to any excep tional area, or the preparation of the first valuation list for any area, the Minister "may by order remove the diffi culty.
" It was also provided that "any such order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the order into effect." In 1929, a new Local Government Bill was introduced in Parliament, and section 120 thereof provided that "the Minister may make such order for removing difficulties as he may judge necessary. . and any such order may modify the provisions of this Act.
" Section 1(2) of the Road Transport Lighting Act, 1927, provided that" the Minister of Transport may exempt wholly or partially, vehicles of particular kinds from the require ments of the Act," and sub section (3) empowered him to "add to or vary such requirements" by regulations.
849 By section 1 of the Trade Boards Act, 1918, "the Minis ter of Labour may, by special order, extend the provisions of the Trade Boards Act, 1909, to new trades. . and may alter or amend the Schedule to the Act.
" The Unemployment Insurance Act, 1920, by sec tion 45 provided that "if any difficulty arises with respect to the constitution of special or supplementary schemes. . the Minister of Labour. . may by order do anything which appears to him to be necessary or expedient. . and any such order may modify the provi sions of this Act. . " Similar instances may be multiplied, but that will serve no useful purpose.
The main justification for a provision empowering modifications to be made, is said to be that, but for it, the Bills would take longer to be made ready, and the operation of important and wholesome measures would be delayed, and that once the Act became operative, any defect in its provisions cannot be removed until amending legisla tion is passed.
It is also pointed out that the power to modify within certain circumscribed limits does not go as far as many other powers which are vested by the legislature in high officials and public bodies through whom it decides to act in certain matters.
It seems to me that it is now too late to hold that the Acts in question are ultra vires, merely because, while giving the power to the Government to extend an Act, the legislatures have also given power to the Government to subject it to such modifications and restric tions as it thinks fit.
It must, however, be recognised that what is popularly known as the "Henry VIII clause" has from time to time provoked unfavourable comment in England, and the Committee on Ministers ' Powers, while admitting that it must be occasionally used, have added:" . . we are clear in our opinion, first, that the adoption of such a clause ought on each occasion when it is, on the initiative of the Minister in charge of the Bill, proposed to Parliament to be justified by him up to the essential.
It can only be essential for the limited purpose of 850 bringing an Act into operation and it should accordingly be in most precise language restricted to those purely machin ery arrangements vitally requisite for that purpose;and the clause should always contain a maximum time limit of one year after which the powers should lapse.
If in the event the time limit proves too short which is unlikely the Government should then come back to Parliament with a one clause Bill to extend it.
" It may also be stated that in England "delegated legislation" often requires the regula tions or provisions made by the delegate authority to be laid before the Parliament either in draft form or with the condition that they are not to operate till approved by Parliament or with no further direction.
The Acts before us are certainly open to the comment that this valuable safe guard has not been observed, but it seems to me that however desirable the adoption of this safeguard and other safe guards which have been suggested from time to time may be, the validity of the Acts, which has to be determined on purely legal considerations, cannot be affected by their absence.
I will now deal with section 2 of the Part C States (Laws) Act, 1950, in so far as it gives power to the Central Government to make a provision in the enactment extended under the Act for the repeal or amendment of any correspond ing law which is for the time being applicable to the Part C State concerned.
No doubt this power is a far reaching and unusual one, but, on a careful analysis, it will be found to be only a concomitant of the power of transplantation and modification.
If a new law is to be made applicable, it may have to replace some existing law which may have become out of date or ceased to serve any useful purpose, and the agency which is to apply the new law must be in a position to say that the old law would cease to apply.
The nearest parallel that I can find to this provision, is to be found in the Church of England Assembly (Powers) Act, 1919.
By that Act, the Church Assembly is empowered to propose legislation touching matters concerning the Church of England, and 851 the legislation proposed may extend to the repeal or amend ment of Acts of Parliament including the Church Assembly Act itself.
It should however be noticed that it is not until Parliament itself gives it legislative force on an affirma tive address of each House that the measure is converted into legislation.
There is thus no real analogy between that Act and the Act before us.
However, the provision has to be upheld, because, though it goes to the farthest limits, it is difficult to hold that it was beyond the powers of a legislature which is supreme in its own field; and all we can say is what Lord Hewart said in King vs Minister of Health(1), namely, that the particular Act may be regarded as "indicating the high water mark of legislative provisions of this character," and that, unless the legislature acts with restraint, a stage may be reached when legislation may amount to abdication of legislative powers.
Before I conclude, I wish to make a few general observa tions here on the subject of "delegated legislation" and its limits, using the expression once again in the popular sense.
This form of legislation has become a present day necessity, and it has come to stay it is both inevitable and indispensable.
The legislature has now to make so many laws that it has no time to devote to all the legislative details, and sometimes the subject on which it has to legis late is of such a technical nature that all it can do is to state the broad principles and leave the details to be worked out by those who are more familiar with the subject.
Again, when complex schemes of reform are to be the subject of legislation, it is difficult to bring out a selfcontained and complete Act straightaway, since it is not possible to foresee all the contingencies and envisage all the local requirements for which provision is to be made.
Thus, some degree of flexibility becomes necessary, so as to permit constant adaptation to unknown future conditions without the necessity of having to amend the law again and again.
The advantage of such a course is that it enables the delegate authority (1) at 236.
110 852 to consult interests likely to be affected by a particular law, make actual experiments when necessary, and utilize the results of its investigations and experiments in the best way possible.
There may also arise emergencies and urgent situations requiring prompt action and the entrustment of large powers to authorities who have to deal with the var ious situations as they arise.
There are examples in the Statute books of England and other countries, of laws, a reference to which will be sufficient to justify the need for delegated legislation.
The British Gold Standard (Amendment) Act, 1931, empowered the Treasury to make and from time to time vary orders authorising the taking of such measures in relation to the Exchanges and otherwise as they may consider expedient for meeting difficulties arising in connection with the suspension of the Gold Standard.
The National Economy Act, 1931, of England, empowered "His Majesty to make Orders in Council effecting economies in respect of the services specified in the schedule" and proved that the Minister designated in any such Order might make regulations for giving effect to the Order.
The Food stuffs (Prevention of Exploitation) Act, 1931, authorised the Board of Trade to take exceptional measures for prevent ing or remedying shortages in certain articles of food and drink.
It is obvious that to achieve the objects which were intended to be achieved by these Acts, they could not have been framed in any other way than that in which they were framed.
I have referred to these instances to show that the complexity of modern administration and the expansion of the functions of the State to the economic and social sphere have rendered it necessary to resort to new forms of legis lation and to give wide powers to various authorities on suitable occasions.
But while emphasizing that delegation is in these days inevitable, one should not omit to refer to the dangers attendant upon the injudicious exercise of the power of delegation by the legislature.
The dangers in volved in defining the delegated power so loosely that the area it is intended to cover cannot be clearly ascertained, and in giving 853 wide delegated powers to executive authorities and at the same time depriving a citizen of protection by the courts against harsh and unreasonable exercise of powers, are too obvious to require elaborate discussion.
For the reasons I have set out, I hold that none of the provisions which are the subject of the three questions referred to us by the President is ultra vires and I would answer those questions accordingly.
PATANJALI SASTRI J. The President of India by an order, dated the 7th January, 1951, has been pleased to refer to this Court, under article 14:3 (1) of the Constitution, for consideration and report the following questions: 1.
Was section 7 of the , or any of the provisions thereof and in what particular or particu lars or to what extent ultra vires the legislature which passed the said Act ? 2.
Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act ? 3.
Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars or to what extent ultra rites the Parliament ? The reasons for making the reference are thus set out in the letter of reference: "And whereas the Federal Court of India in Jatindra Nath Gupta vs The Province of Bihar(1) held by a majority that the proviso to sub section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1947, was ultra vires the Bihar Legislature inter alia on the ground that the said proviso conferred power on the Provincial Government to modify an act of the Provincial Legislature and thus amounted to a delegation of legislative power; And whereas as a result of the said decision of the Federal Court, doubts have arisen regarding (1) 854 the validity of section 7 of the , section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, and section 2 of the Part C States (Laws) Act, 1950, and of the Acts extended to the Provinces of Delhi and Ajmer Merwara and various Part C States under the said sections respectively, and of the orders and other instru ments issued under the Acts so extended; And whereas the validity of section 7 of the , and section 2 of the Ajmer Merwara (Extension of Laws) 'Act, 1947, and of the Acts extended by virtue of the powers conferred by the said sections has been challenged in some cases pending at present before the Punjab High Court, the Court of the Judicial Commissioner of Ajmer, and the District Court and the Subordinate Courts in Delhi.
" The provisions referred to above are as follows: Section 7 of the : The Provincial Government may, by notification in the official Gazette, extend with such restrictions and modifi cations as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification.
" Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947: "Extension of enactments to Ajmer Merwara.
The Central Government may, by notification in the official Gazette, extend to the Province of Ajmer Merwara with such restric tons and modifications as it thinks fit any enactment which is in force in any other Province at the date of such noti fication.
Section 2 of the Part C States (Laws) Act 1950: "Power to extend enactments to certain Part C States.
The Central Government may, by notification in the official Gazette, extend to any Fart C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any 855 enactment which is in force in a Part A State at the date of the notification; and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State.
" The Central Legislature, which enacted these provisions, had, at all material times, the power to make laws itself for the designated territories.
But, instead of exercising that power, it empowered the Provincial Government in the first mentioned case, and the Central Government in the others, to extend, by notification in the official Gazette, to the designated territories laws made by Provincial Legis latures all over India for territories within their respec tive jurisdiction.
The principal features of the authority thus delegated to the executive are as follows: (1) The laws thus to be extended by the executive are laws made not by the delegating authority itself, namely, the Central Legislature, but by different Provincial Legis latures for their respective territories.
(2) In extending such laws the executive is to have the power of restricting or modifying those laws as it thinks fit.
(3) The law to be extended is to be a law in force at the time of the notification of extension, that is to say, the executive is empowered not only to extend laws in force at the time when the impugned provisions were enacted, which the Central Legislature could be supposed to have examined and found suitable for extension to the territories in question, but also laws to be made in future by Provincial Legislatures for their respective territories which the Central Legislature could possibly have no means of judging as to their suitability for such extension.
(4) The power conferred on the executive by the enact ments referred to in Question No. a is not only to extend to the designated territories laws made by other legislatures but also to repeal or amend any corresponding law in force in the designated territories.
856 The question is: Was the delegation of such sweeping discretionary power to pick and choose laws made by other legislatures to operate elsewhere and to apply them to the territories in question within the competence of the Central Legislature ? In Jatindra Nath Gupta vs The Province of Bihar (1), which has led to this reference, the Federal Court of India held by a majority (Kania C.J., Mahajan and Mukher jea JJ.) that the proviso to sub section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1937, pur porting to authorise the Provincial Government, on cer tain conditions which are not material here, to extend by notification, the operation of the Act for a further speci fied period after its expiry with or without modifications amounted to a delegation of legislative power and as such was beyond the competence of the legislature.
The deci sion proceeded to some extent on the concession by counsel that delegation of legislative power was incom petent though it must be admitted there are observations in the judgments of their Lordships lending the weight of their authority in support of that view.
Fazl Ali J. in a dissenting judgment held that the power to extend and the power to modify were separate powers and as the Provincial Government had in fact extended the operation of the Act without making any modification in it, the proviso operated as valid conditional legislation.
While agreeing with the conclusion of the majority that the detention of the petitioners in that case was unlawful, 1 preferred to rest my decision on a narrower ground which has no rele vancy in the present discussion.
In the light of the fuller arguments addressed to us in the present case, I am unable to agree with the majority view.
The Attorney General, appearing on behalf of the Presi dent, vigorously attacked the majority view in Jatindra Nath Gupta 's case(1) as being opposed alike to sound con stitutional principles and the weight of authority.
He cited numerous decisions of the Privy (1) 857 Council and of the American, Australian and Canadian Courts and also called attention to the views expressed by various writers on the subject in support of his contention that legislative power involves as part of its content a power to delegate it to other authorities and that a legislative body empowered to make laws on certain subjects and for a certain territory is competent, while acting within its appointed limits, to delegate the whole of its legislative power to any other person or body short of divesting itself completely of such power.
It is now a commonplace of constitutional law that a legislature created by a written constitution must act within the ambit of its powers as defined by the constitu tion and subject to the limitations prescribed thereby, and that every legislative act done contrary the provisions of the constitution is void.
In England no such problem can arise as there is no constitutional limitation on the powers of Parliament, which, in the eye of the law, is sovereign and supreme.
It can, by its ordinary legislative procedure, alter the constitution, so that no proceedings passed by it can be challenged on constitutional grounds in a court of law.
But India, at all material times, in 1912, 1947 and 1950 when the impugned enactments were passed had a written constitution, and it is undoubtedly the function of the courts to keep the Indian legislatures within their consti tutional bounds.
Hence, the proper approach to questions of constitutional validity is "to look to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they were restrict ed.
If what has been done is legislation within the general scope of the affirmative words which gave the power and if it violates no express condition or restriction by which the power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it) it is not for any court of justice to inquire further or, to enlarge constructively those conditions and restrictions.": Empress vs Burah(1).
We (1) s I.A. 178.
858 have,therefore, to examine Whether the delegation of author ity made in each of the impugned enactments is contrary to the tenor of the constitution under which the enactment itself was passed.
No provision is to be found in the relevant constitutions authorising or prohibiting in express terms the delegation of legislative power.
Can a prohibi tion against delegation be derived inferentially from the terms of the constitution and, if so, is there anything in those terms from which such a prohibition can be implied ? Before examining the relevant constitutions to find an answer to the question, it will be useful to refer to the two main theories of constitutional law regarding what has been called delegated legislation.
Though, as already explained, no question of constitutionality of such legisla tion could arise in England itself, such problems have frequently arisen in the British commonwealth countries which have written constitutions, and British Judges, trained in the tradition of parliamentary omnipotence, have evolved the doctrine that every legislature created by an Act of Parliament, though bound to act within the limits of the subject and area marked out for it, is, while acting within such limits, as supreme and sovereign as Parliament itself.
Such legislatures are in no sense delegates of the Imperial Parliament and, therefore, the maxim delegatus non potest delegare is not applicable to them.
A delegation of legislative functions by them, however extensive, so long as they preserve their own capacity, cannot be challenged as unconstitutional.
These propositions were laid down in no uncertain terms in the leading case of Hodge vs Queen(1) decided by the Privy Council in 1883.
Upholding the validity of an enactment by a Provincial Legislature in Canada where by authority was entrusted to a Boar6 of Commissioners to make regulations in the nature of bylaws or municipal regu lations for the good government of taverns and thereby to create offences and annex penalties thereto, their Lordships observed as follows: (1) 9 App.
117 859 "It was further contended that the Imperial Parliament had conferred no authority on the local legislature to delegate those powers to the Licence Commissioners, or any other persons.
In other words, that the power conferred by the Imperial Parliament on the local legislature should be exercised in full by that body, and by that body alone.
The maxim delegatus non potest delegare was relied on.
It appears to their Lordships, however, that the objection thus raised by the appellant is founded on an entire misconcep tion of the true character and position of the provincial legislatures.
They are in no sense delegates of or acting under any mandate from the Imperial Parliament.
When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the Prov ince and for provincial purposes in relation to the matters enumerated in section 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow.
Within these limits of subjects and area the local legislature is supreme. . .
It was argued at the bar that a legislature committing important regulations to agents or delegates effaces itself.
That is not so.
It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into its own hands.
How far it can seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legislature, and not for courts of law, to decide.
Here is a clear enunciation of the English doctrine of what may be called "supremacy within limits"; that is to say, within the circumscribed limits of its legislative power, a subordinate legislature can do what the Imperial Parliament can do, and no constitutional limit on its power to delegate can be imported (1) 9 App.
Cas. 117 131, 111 860 on the strength of the maxim delegatus non potest delegare, because it is not a delegate.
The last few words of the quotation are significant.
They insist, as does the pas sage already quoted from Burah 's case(1), that the scope of the enquiry when such an issue is presented to the court is strictly limited to seeing whether the legislature is acting within the bounds of its legislative power.
The remarks about "authority ancillary to legislation" and "abundance of precedents for this.
legislation entrusting a limited des cretionary authority to others " have, obviously, reference to the particular authority delegated on the facts of that case which was to regulate taverns by issuing licences, and those remarks cannot be taken to detract from or to qualify in any way the breadth of the general principles so unmis takably laid down in the passages quoted.
The same doctrine was affirmed in Powell vs Apollo Candle Co. Ltd.(2), where, after referring to Burah 's case (1) and Hodge 's case(3), their Lordships categorically stated: "These two cases have put an end to a doctrine which appears at one time to have had some currency, that a Colo nial Legislature is a delegate of the Imperial Legislature.
It is a legislature restricted in the area of its powers, but within that area unrestricted, and not acting as an agent or a delegate.
" An objection that the legislature of New South Wales alone had power to impose the tax in ques tion and it could not delegate that power to the Governor, was answered by saying "But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued.
The legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him"(4).
If Hodge 's ease(3) did not involve an extensive dele gation of legislative power, Shannon 's case(5) did.
(1) 5 I.A. 178.
(4) 10 App.
282, 291.
(2) 10 App.
(5) (3) 9 App.
861 A provincial legislature in Canada had passed a compulsory Marketing Act providing for the setting up of Marketing Boards but leaving it to the Government to determine what powers and functions should be given to those Boards.
One of the objections raised to the legislation was that it was only a "skeleton of an Act" and that the legislature had practically "surrendered its legislative responsibility to another body." Lord Haldane 's dictum in what is known as the Referendum case(1) (to which a more detailed reference will be made presently) suggesting a doubt as to a provin cial legislature 's power to "create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence" was cited in support of the objection.
The objection, however, was summarily repelled without calling upon Government counsel for an answer.
Their Lordships contented themselves with reiterating the English doctrine of "plenary powers of delegation within constitu tional limits" and said: "This objection appears to their Lordships subversive of the rights which the provincial legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the constitu tion has granted legislative powers.
Within its appointed sphere the provincial legislature is as supreme as any other parliament. .
Martin C.J. appears to have disposed of this objection very satisfactorily in his judgment on the reference, and their Lordships find no occasion to add to what he there said.
" What Martin C.J. said is to be found in Re Natural Products Marketing (B.C.) Act(2).
He said "1 shall not, however, pursue at length this subject (delega tion of legislative powers) because, to use the language of the Privy Council in Queen vs Burah(3), 'The British Statute book abounds with examples of it ' and a consideration for several days of our early and late 'statute book ' discloses such a surprising number of delegations to various persons and bodies in all sorts of subject matters that it would (1) (3) 3 App.
Cas. 889, 906.
(2) , 310. 862 take several pages even to enumerate them, and it would also bring about a constitutional debacle to invalidate them.
I must, therefore, content myself by selecting four statutes only." The learned Judge then proceeded to refer, among others, to a statute whereby "carte blanche powers were delegated over affected fruit lands areas to cope with a pest", and to another "whereby power was conferred upon the Lieutenant Governor in Council to make rules of the widest scope" and the first importance in our system of jurisprudence whereby our whole civil practice and proce dure, appellate and trial, are regulated and constituted to such an extent that even the sittings we hold are thereto subjected.
" This recent pronouncement of the Privy Council on the Eng lish view of the delegability of legislative power is, in my opinion, of special interest for the following reasons : (1) The case involved such an extensive delegation of legislative power counsel thought the ' 'limit" had been reached that it squarely raised the question of the constitutional validity of surrender or abdication of such power and Lord Haldane 's dictum in the Referendum case(1) was relied upon.
(2) Nevertheless, the objection was considered so plainly unsustainable that Government counsel was not called upon to answer, their Lordships having regarded the objection as "subversive" of well established constitutional princi ples.
(3) Martin C.J. 's instances of "carte blanche delegation" were approved and were considered as disposing of the objection "very satisfactorily.
" (4) All that was considered necessary to repel the objection was a plain and simple statement of the English doctrine, namely, within its appointed sphere the provin cial legislature was as supreme as any other parliament, or, in other words, as there can be no legal limit to Parliament 's power to delegate, so can there (1) 863 be none to the power of the provincial legislature to dele gate legislative authority to others.
Thus, the English approach to the problem of delegation of legislative power is characterised by a refusal to regard legislation by a duly constituted legislature as exercise of a delegated power, and it emphatically repudiates the application of the maximum delegatus non potest delegate.
It recognises the sovereignty of legislative bodies within the limits of the constitutions by which they are created and concedes plenary powers of delegation to them within such limits.
It regards delegation as a revocable entrustment of the power to legis late to an appointed agent whose act derives its validity and legal force from the delegating statute and not as a relinquishment by the delegating body of its own capacity to legislate.
On the other hand, the American courts have approached the problem along wholly different lines which are no less the outcome of their own environment and tradition.
The American political scene in the eighteenth century was dominated by the ideas of Montesque and Locke that concen tration of legislative, executive and judicial powers in the hands of a single organ of the State spelt tyranny, and many State constitutions had explicitly provided that each of the great departments of State, the legislature, the executive and the judiciary, shall not exercise the powers of the others.
Though the Federal Constitution contained no such explicit provision, it was construed, against the background of the separatist ideology, as embodying the principle of separation of powers, and a juristic basis for the conse quent non delegability of its power by one of the depart ments to the others was found in the old familiar maxim of the private law of agency delegatuts non potest delegare which soon established itself as a traditional dogma of American constitutional law.
But the swift progress of the nation in the industrial and economic fields and the result ing complexities of administration forced the realisation on the American Judges of the unavoidable necessity for 864 large scale delegation of legislative powers to administra tive bodies, and it was soon recognised that to deny this would be "to stop the wheels of government.
" The result has been that American decisions on this branch of the law consist largely of attempts to disguise delegation "by veiling words" or "by softening it by a quasi" (per Holmes J. in Springer vs Government of the Phillipine Islands(1).
"This result", says a recent writer on the subject, "is well put in Prof. Cushman 's syllogism ' Major premise: Legislative power cannot be constitu tionally delegated by Congress.
Minor premise: It is essential that certain powers be delegated to administrative officers and regulatory commis sions.
Conclusion: Therefore the powers thus delegated are not legislative powers.
" They are instead "administrative"or "quasi legisla tive" (American Administrative Law by Bernard Schwartz, p. 20).
After considerable confusion and fluctuation of opin ion as to what are "essentially" legislative powers which cannot be delegated and what are mere "administrative" or "ancillary" powers, the delegation of which is permissible, the recent decisions of the Supreme Court would seem to place the dividing line between laying down a policy or establishing a standard in respect of the subject legislated upon on the one hand and implementing that policy and en forcing that standard by appropriate rules and regulations on the other: (vide Schechter Poultry Corpn.
vs United States(2) and Panama Refining Co. vs Ryan(3)), a test which inevitably gives rise to considerable divergence of judicial opinion as applied to the facts of a given case.
I will now turn to the questions in issue.
The first question which relates to the validity of section 7 of the .
has to be determined with reference to the competency of "the legislature which (1) ; (3) ; (2) ; 865 passed the said Act", that is, with reference to the consti tution then in force.
It may be mentioned her, e that the , as well as the AjmerMerwara (Extension of Laws) Act, 1947, to which the second question relates, were repealed by section 4 of the Part C States (Laws) Act, 1950, but the Acts already extended under the repealed provisions have been continued in force and hence the neces sity for a pronouncement on the constitutional validity of the repealed provisions.
In 1912 the Indian Legislature was the Governor General in Council, and his law making powers were derived from section 22 of the Indian Councils Act, 1861 (24 and 25 Vic.
Ch. 7) which conferred power "to make laws and regulations for repealing, amending or altering any laws or regulations whatever now in force or hereafter to be in force in the Indian territories now under the dominion of Her Majesty and to make laws and regulations for all persons whether British or native, foreigners or others, and for all courts of justice whatever and for all places and things whatever within the said territories," subject to certain conditions and restrictions which do not affect the impugned provi sions.
The composition and powers of the Governor General in Council were altered in other respects by the Councils Acts of 1892 and 1909, but his law making powers remained essentially the same in 1912.
The question accordingly arises whether section 7 of the , was within the ambit of the legislative powers conferred on himby section 22 of the Indian Councils Act, 1861.
As the power is defined in very wide terms " for all persons. . and for all places and things whatever " within the Indian territories the issue of competency reduces itself to the question whether section 7 was a "law" within the meaning of section 22 of the Indian Councils Act of 1861.
This question is, in my opinion, concluded by the decision of the Privy Council in Empress vs Burah(1).
(1) 5 I.A. 178.
866 That was an appeal by the Government from a judgment of the majority of a Full Bench of the Calcutta High Court holding that sections 8 and 9 of Act XXII of 1869 were ultra vires the Governor General in Council as being an unautho rised delegation of legislative power to the Lieutenant Governor of Bengal.
The combined effect of those provisions was to authorise the Lieutenant Governor to extend to cer tain districts by notification in the Calcutta Gazette "any law or any portion of any law now in force in the other territories subject to his government or which may hereafter be enacted by the Council of the Governor General or of the said Lieutenant Governor, for making laws and regulations. . "Markby J., who delivered the leading judgment of the majority, held (1) that section 9 amounted to a delegation of legislative authority to the Lieutenant Governor by the Indian Legislature which, having been en trusted with such authority as a delegate of the Imperial Parliament, had no power in its turn to delegate it to another, and (2) the Indian Legislature could not "change the legislative machinery in India without affecting the provisions of the Acts of Parliament which created that machinery and if it does in any way affect them, then ex consensu omnium its Acts are void." The learned Judge referred to the argument of Government counsel, namely, "where Parliament has conferred upon a legislature the general power to make laws, the only question can be 'Is the disputed Act a law '.
If it is, then it is valid unless it falls within some prohibition." The learned Judge remarked that this argument was "sound", but met it by holding that "it was clearly intended to restrict the Legislative Council to the exercise of functions which are properly legislative, that is, to the making of laws, which (to use Blackstone 's expression)are rules of action prescribed by a superior to an inferior or of laws made in furtherance of those rules.
The English Parliament is not so restricted.
It is not only a legislative but a paramount sovereign body.
The Legislative Council, when it merely grants permission 867 to another person to legislate, does not make a law within the meaning of the Act from which it derives its authority"(1) The learned Judge rejected the argument based on previous legislative practice as the instances relied on were not "clear and undisputed instances of a transfer of legislative authority.
" Garth C.J. in his dissenting opinion pointed out that "by the Act of 1833 the legislative powers which were then conferred upon the Governor General in Council were in the same language, and (for the purposes of the present case) to the same effect, as those given by the Councils Act in 1861; and from the time when that Act was passed, the Governor General in Council has constantly been in the habit of exercising those powers through the instru mentality of high officials and public bodies, in whom a large discretion has been vested for that purpose.
"(2) It could not therefore be supposed that "the Imperial Parlia ment would have renewed in the Councils Act of 1861 the legislative powers which the Governor General in Council had so long exercised, if they had disapproved of the course of action which the Legislature had been pursuing.
The fact that with the knowledge of the circumstances which they must be assumed to have possessed, Parliament did in the Councils Act renew the powers which were given by the Act of 1833, appears to me to amount to a statutory acknowledgment that the course of action which had been pursued by the legisla ture in the exercise of those powers was one which the Act had authorised.
"(3) The learned Chief Justice accordingly came to the conclusion that Act XXII of 1869 was a law "which the legislature was justified in passing.
" I have referred at some length to the reasoning and conclusions of the learned Judges in the High Court as I think they will be helpful in understanding the full import of the judgment of the Privy Council.
It will be seen, in the first place, that the line of approach adopted by Government counsel in the High (1)I.L.R. at 90, 91.
(3) Ibid 144.
(2) Ibid, 140.
112 868 Court was endorsed by their Lordships as the correct ap proach to the problem, that is to say, the court has to see whether "what has been done is legislation within the gener al scope of affirmative words which give the power, and if it violates no express condition by which that power is limited it is not for any court to inquire further or to enlarge constructively those conditions and restrictions" (italics mine).
This passage clearly lays down [what we have already seen was reiterated in Hodge 's case(1)]: (1) that the scope of judicial review in such cases is limited only to determining whether the impugned enactment is within the law making power conferred on the legislature and wheth er it violates any express condition limiting that power, and (2) that in determining the latter question the court should have regard only to express conditions and should not enlarge them inferentially by a process of interpretation.
In the second place, their Lordships repudiated the doctrine [as they did also in respect of a provincial legislature in Canada in Hodge 's case(1)] that the Indian Legislature is in any sense an agent or delegate of the Imperial Parliament, and that the rule against delegation by an agent applies to the situation.
Thirdly, the distinction made by Markby J. between Parliament and the Indian Legislature that the latter is "restricted to the. making of laws" in the sense defined by Blackstone, while Parliament was not so restricted, or, in other words, that while Parliament could make a "law" delegating its legislative power, the Indian Legislature could not make such a "law, ' was rejected, and the English doctrine of supremacy within limits was laid down specifically in regard to the Indian.
Legislature, which, when acting within the limits circumscribing its legislative power "has and was intended to have plenary powers of legislation as large and of the same nature as those of Parliament itself" (italics mine).
It must follow that it is as competent for the Indian Legislature to make a law delegating legislative power, both quantitatively and qualitatively, as it is for (1) 9 App.
117. 869 Parliament to do so, provided, of course, it acts within the circumscribed limits.
Fourthly, their Lordships "agree that the Governor General in Council could not by any form of enactment create in India and arm with general legisla tive authority a new legislative power not created or autho rised by the Councils Act.
Nothing of that kind has in their Lordships ' opinion been done or attempted in the present case." Mr. Chatterjee, on behalf of the opposite party, submit ted that the remark regarding the incompetency of the Gover nor General in Council to create in India a new legislative power had reference to the subordinate agency or instrumen tality to which the legislative authority was to be delegat ed and thus negatived the legislature 's right to delegate.
The context, however, makes it clear that their Lordships were expressing agreement on this point with Markby J. who, as we have seen, had stated that the Indian Legislature could not "change the legislative machinery in India without affecting the provisions of the Acts of Parliament which created that machinery." This shows that their Lordships were envisaging the setting up of a new legislative machin ery not authorised by the Councils Act, that is, a new legislature in the sense in which the Central and Provincial Legislatures in the country were legislatures.
While they agreed that that could not.
be done (because it would be a contravention of the Act of Parliament which confers no power to create such legislatures) their Lordships proceeded to point out that that was not what was done by the impugned Act and that Markby J. fell into an error in thinking that it was.
Their Lordships gave two reasons: first, because "it is a fallacy to speak of the powers thus conferred upon the Lieutenant Governor (large as they undoubtedly are) ' as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor General in Council.
Their whole operation is, directly and immediately, under and by virtue of this Act (No. XXll of 1869) itself." Here, indeed, their Lordships touch the core of the problem by indicating 870 the true nature of delegated legislation as distinct from creating a new legislative body.
The point is developed to its logical consequence in later cases as will be seen presently, but here they expose to view the not uncommon "fallacy" of treating the one as of the same nature and as having constitutionally the same consequence as the other, a fallacy which perhaps accounts for much of the confusion of thought on the subject.
It will be recalled that in Hodge 's case(1) it was made clear that in delegated legislation the delegating body does not efface itself but retains its legislative power intact and merely elects to exercise such power through an agency or instrumentality of its choice.
There is no finality about this arrangement, the delegating body being free to "destroy the agency it has created and set up another or take the matter directly into its own hands.
" In Burah 's case(2) their Lordships emphatically stated one consequence of that view, namely, that the act done by the authority to which legislative power is delegat ed derives its whole force and efficacy from the delegating legislature, that is to say, when the delegate acts under the delegated authority, it is the legislature that really acts through its appointed instrumentality.
On the other hand, in the creation of a new legislative body with general legislative authority and functioning in its own right, there is no delegation of power to subordinate units, but a grant of power to an independent and co ordinate body to make laws operating of their own force.
In the first case, according to English constitutional law, no express provi sion authorising delegation is required.
In the absence of a constitutional inhibition, delegation of legislative power, however extensive, could be made so long as the delegating body retains its own legislative power intact.
In the second case, a positive enabling provision in the constitutional document is required.
The second reason why their Lordships regarded the majority view as erroneous was that Act XXII of 1869 was, in truth, nothing more than conditional legislation (1) 9 App.
(2) 5 I.A. 178.
871 and there was no question of delegating legislative power.
Their Lordships were of opinion that neither in fixing the time for commencement of the Act nor in enlarging the area of its operation was the Lieutenant Governor exercising "an act of legislation." "The proper legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things.
The conditions having been ful filled, the legislation is now absolute.
Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships ' judgment) be well exercised, either absolutely or conditionally.
Legislation, conditional on the use of particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient.
The British Statute book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when consti tuting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legisla tive powers which it from time to time conferred.
It cer tainly used no words to exclude it.
" Their Lordships finally proceeded to refer to the legis lative practice in this country of delegating to the execu tive government a discretionary power of extending enact ments to new territories subject in certain cases to such "restriction, limitation or proviso" as the Government may think proper, and they expressed their approval of the reasoning of Garth C.J. based on such practice.
"If their Lordships," they said, "were to adopt the view of the major ity of the High Court they would (unless distinction were made on grounds beyond the competency of the judicial of fice) be casting doubt upon the validity of a long course of legislation appropriate, as far as they can judge to the peculiar circumstances of India. .
For such doubt their Lordships are unable to discover any foundation either in the affirmative or the negative words of that Act" 872 (Indian Councils Act, 1861).
The parenthetic remark (which I have italicised) is significant.
It is not com petent for the court, according to their Lordships, to dis criminate between degrees of delegation.
It might be extensive in some cases and slight in others.
Its validity must, however, be founded "on the affirmative or the nega tive words" of the Constitution Act.
Another logical consequence of the British theory of dele gation has been worked out in Co operative Committee on Japanese Canadians vs Attorney General for Canada(1), where the question arose as to whether an order made by the Governor in Council pursuant to authority delegated by the Parliament of Canada was a law made by the Parliament of Canada within the meaning of the Statute of Westminster and, if so, whether it was such a law made after the pass ing of that Statute.
The delegation of authority to the Governor was made before that Statute was passed but the Governor 's order was promulgated after the Statute.
Holding that the order was a "law" made by the Parliament of Canada after the Statute of Westminster their Lordships observed: "Undoubtedly, the law as embodied in an order or regulation is made at the date when the power conferred by the Parlia ment of the Dominion is exercised.
Is it made after that date by the parliament of the Dominion ? That Parliament is the only legislative authority for the Dominion as a whole and it has chosen to make the law through machinery set up and continued by it for that purpose.
The Governor in Council has no independent status as a law making body.
The legislative activity of Parliament is still resent at the time when the orders are made, and these orders are" law".
In their Lordships ' opinion they are law made by the Parlia ment at the date of their promulgation.
"(2) Mr. Chatterice has urged that in Burah 's case(3) the Privy Council did no more than hold that the type of legis lation which their Lordships there called conditional legis lation was within the competence of the (1) (3) S I.A. 178.
(2) Ibid 106 107.
873 Indian legislature and was valid, and that the con siderations adverted to 'by their Lordships in upholding such legislation have no relevancy in determining the validity of the provisions impugned in the present case.
It is true that the kind of legislation here in question does not belong to that category, for the operation of the impugned Acts is not made to depend upon the exercise of a discretion by an external authority, but it is not correct to say that Burah 's case(1) has application only to facts involving conditional legislation.
As I have endeavoured to show, it lays down general principles of far reaching importance.
It was regarded in Powell 's case(2) referred to above as "laying down the general law" and as "putting an end" to the false doctrine that a subordinate legislature acts as an agent or a delegate.
Mr. Chatterjee next relied on the dictum of Lord Haldane in the Referendum case.
(3) In that case their Lordships held that the Initiative and Referendum Act of Manitoba (Canada) was, in so far as it compelled the Lieutenant Governor to submit a proposed law to a body of voters total ly distinct from the legislature of which he was the consti tutional head and rendered him powerless to prevent it from becoming an actual law if approved by those voters, ultra vires the Provincial Legislature, as the power to amend the Constitution of the Province conferred upon that Legislature by the British North America Act, 1867, excluded from its scope "the office of the Lieutenant Governor ".
Lord Hal dane, however, proceeded to make the following observations: "Section 92 of the Act of 1867 entrusts the legislative power in a Province to its Legislature, and to that Legisla ture only.
No doubt, a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge vs The Queen(4) the Legislature of Ontario was (1) 5 I.A. 178.
(3) (2) 10 App.
(4) 9 App.
Cas. 117, 874 held entitled to entrust to a Board of Commissioners au thority to enact regulations relating to taverns; but it does not follow that it can create and endow with, its own capacity a new legislative power not created by the Act to which it owes its own existence.
Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise.
"(1) Mr. Chatterjee submitted that the grave constitutional question, to which Lord Haldane drew attention, arose in the present case.
I do not think so.
The dictum, like the obser vation of Lord Selborne in Burah 's case(2) regarding the power of the Governor General in Council "to create in India and arm with general legislative authority a new legislative power," to which reference has been made, seems to envisage the unauthorised creation of a new legislature with an independent status as a law making body, which, for reasons already indicated, is quite different from delegation of legislative power, and my remarks in connection with that observation equally apply here.
The only other decision of the Privy Council to which reference need be made is King Emperor vs Benoari Lal Sarma.
(3) It was an appeal from a judgment of the majority of the Federal Court of India (reported in holding, inter alia, that sections 5, 10 and 16 of the Special Criminal Courts Ordinance (No. II of 1942) passed by the Governor General in exercise of his emergency powers were ultra vires and invalid.
The ground of decision was that although the powers of the High Court were taken away in form by section 26 of the Ordinance, they were, in fact, taken away by the order of the executive officer to whom it was left by sections 5, 10 and 16 to direct what offences or classes of offences and what cases or classes of cases should be tried by the special courts established under the Ordinance.
In so far as these sections thus purported to confer on the executive officers absolute and uncontrolled discretion without any legislative provision or direction laying down (1) , 945.
(2) 5 I.A. 178.
(3) 72 I.A. 57.
875 the policy or conditions with reference to which that power was to be exercised, they were beyond the competence of the Governor General.
Varadachariar C.J., with whom Zafrulla Khan J. concurred, went elaborately into the whole question of delegation of legislative powers, and while conceding, in view of the Privy Council decisions already referred to, that the Governor General (whose legislative power in emer gencies was co extensive with that of the Indian Legisla ture) could not be regarded as a delegate of the Imperial Parliament and that, therefore, the maxim delegatus non potest delegare had no application, nevertheless expressed the opinion that "there is nothing in the above decisions of their Lordships that can be said to be inconsistent with the principle laid down in the passage from the American author ity which the Advocate General of India proposed to adopt as his own argument.
" That principle was this: "The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.
The first cannot be done, to the latter no valid objection can be made :" (per Judge Ranney of the Supreme Court of Ohio, often cited in American decisions).
The learned Chief Justice then proceeded to examine the American decisions bearing upon the delegation of powers and the opinions expressed by writers on administrative law and came to the following conclusion : "As we have already observed, the considerations and safeguards suggested in the foregoing passages may be no more than considerations of policy or expediency under the English Constitution.
But under Constitutions like the Indian and the American, where the constitutionality of legislation is examinable in a court of law, these consider ations are, in our opinion, an integral and essential part of the limitation on the extent of delegation of responsi bility by the legislature to the executive.
In the present case, it is impossible to deny that the Ordinance making 113 876 authority has wholly evaded the responsibility of laying down any rules or conditions or even enunciating the policy with reference to which cases are to be assigned to the ordinary criminal courts and to the special courts respec tively and left the whole matter to the unguided and uncontrolled action of the executive authorities.
This is not a criticism of the policy of the law as counsel for the Crown would make it appear but a complaint that the law has laid down no policy or principle to guide and control the exercise of the undefined powers entrusted to the execu tive authorities by sections 5, 10 and 16 of the Ordinance.
"(1) I have set out at some length the reasoning and conclu sion of the learned Chief Justice because it summarises and accepts most of what has been said before us by Mr. Chatter jee in support of his contention that the American rule as to delegation of legislative powers should be followed in this country in preference to the views of English Judges on the point and that the delegation of a too wide and uncon trolled power must be held to be bad.
The Privy Council, however, rejected the reasoning and conclusion of the major ity of the 'Court in a clear and emphatic pronouncement.
Their Lordships scouted the idea that what might be no more than considerations of policy or expediency under the Brit ish Constitution could, in India, as in America, become.
constitutional limitations on the delegation of legislative responsibility merely because the constitutionality of legislation was open to judicial review under the constitu tion of this country.
They said: "With the greatest respect to these eminent Judges, their Lordships feel bound to point out that the question whether the Ordinance is intra vires or ultra vires does not depend on considerations of juris prudence or of policy.
It depends simply on examining the language of the Government Of India Act and of comparing the legislative authority conferred on the Governor General with the provisions of the ordinance by which he is 'purporting to exercise that authority" the old traditional approach, "It (1) , 139 140, 877 may be that as a matter of wise and well framed legislation it is better, if circumstances permit, to frame a statute in such a way that the offender may,know in advance before what court he will be brought if he is charged with a given crime; but that is a question of policy, not of law.
There is nothing of which their Lordships are aware in the Indian constitution to render invalid a statute, whether passed by the Central legislature or under the Governor General 's emergency powers, which does not accord with this principle.
There is not, of course, the slightest doubt that the Parliament of Westminster could validly enact that the choice of courts should rest with an executive authori ty, and their Lordships are unable to discover any valid reason why the same discretion should not be conferred 'in India by the law making authority, whether that authority is the legislature or the Governor General, as an exercise of the discretion conferred on the authority to make laws for the peace order, ' and good government of India.
"(1) The English doctrine of supremacy within limits is here asserted once again, and its corollary is applied as the determining test: "What the British Parliament could do, the Indian legislature and the Governor General legislating within their appointed sphere could also do.
" There was here a 'delegation of an "unguided and uncontrolled" discretion ary power affecting the liberty of the subject.
In the lan guage of an American Judge,it was "unconfined and vagrant" and was not "canalised within banks that kept it from over flowing :"(per Cardozo J. in Panama Refining Co. vs Ryan.(2) Yet, the delegation was upheld.
Why? Because "their Lordships are unable to find any such constitutional limita tion is imposed.
" There is, however, a passage in the judgment of their Lordships, which, torn from its context, may appear, at first blush, to accept the maxim of delegatus non potest delegare as a principle of English constitutional law, notwithstanding its consistent repudiationby the same tribu nal in the previous decisions already (1) 72 I.A. 57, 70 72.
(2) ; 878 referred to, and Mr. Chatterjee was not slow to seize on it as making a veering round to the American point of view.
I do not think that their Lordships meant anything so revolutionary.
The passage is this: "It is undoubtedly true that the Governor General, acting under section 72 of Schedule IX, must himself discharge the duty of legislation there cast on him, and cannot transfer it to other authorities"(1) (italics mine).
This was said, however, in answering the "second objection" which was that section 1 (3) of the Ordinance "amounted to what was called delegated legislation by which the Governor Gener al, without legal authority, sought to pass the decision whether an emergency existed to the Provincial Governmen tinstead of deciding it for himself.
" Now, the opening words of section 72 of Schedule IX of the Government of India Act declare: "The Governor General may, in case of an emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof." The ordinance was thus passed avowedly in exercise of a special power to legislate to meet an emergency, and the argument was that the very basis of this ordinance making power must be an exercise of per sonal judgment and discretion by the Governor General which he could not delegate to the Provincial Government or its officers.
Their Lordships accepted the major premise of this argument but went on to point out that there was no delegation of his legislative power by the Governor General at all and that "what was done is only conditional legislation.
" It was with reference to this special ordinance making power to meet emergencies that their Lordships said that the Governor General must himself exercise it and could not transfer it to other authorities.
The words "acting under section 72 of Sched ule IX" and "there, cast on him" make their meaning clear, and the passage relied on by Mr. Chatterjee lends no support to his argument regarding the nondelegability of legislative power in general.
In the light of the authorities discussed above and adopting the line of approach laid down there, I am 879 of opinion that section 7 of the , fell within the general scope of the affirmative words of section 22 of the Indian Councils Act, 1861, which conferred the law making power on the Governor.
General in Council and that the provision did not violate any of the clauses by which, negatively, that power was restricted.
The same line of approach leads me to the conclusion that section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, was also constitutional and valid.
This Act was passed by the Dominion Legislature of India, and the governing constitutional provision was section 99 (1) of the Govern ment of India Act, 1935.
The Indian Independence Act, 1947, authorised the removal of certain restrictions on the law making powers of the Central Legislature and section 108 of the Constitution Act was omitted; but the material words in section 99 (1) which granted the legislative power remained the same, namely, "may make laws for the whole or any part of the Dominion.
" No doubt, as between the Dominion and the Provinces there was a distribution of legislative power according to the Lists in Schedule VII, but such distribu tion did not affect the power of the Dominion Legislature to make laws for what are known as Chief Commissioners ' Prov inces, of which Ajmer Merwara is one.
This was made clear by section 100 (4) read with section 46.
Section 2 of the impugned Act was, therefore a "law" which the Dominion Legislature was competent to make and the restrictive words "subject to the provisions of this Act" had no application to the case, as no provision was brought to our notice which affected the validity of the law.
There was some discussion as to the scope and meaning of the words "restrictions" and "modifications".
It was sug gested by Mr. Chatterjee that these words occurring in the impugned provisions would enable the executive authority to alter or amend any law which it had decided to apply to the territories in question and that a power of such undefined amplitude could not be validly delegated by the legislature.
On 880 the other hand, the Attorney General submitted that in such context "modification" was usually taken to connote "making a change without altering the essential nature of the thing changed," and that the use of the word would make no difference to the delegability or otherwise of the legislative power.
He drew attention to an instance men tioned by the Privy Council in Burah 's case, where their Lordships thought that the power given to the local govern ment by Act XXIII of 1861 to extend the Civil Procedure Code of 1859 "subject to any restriction, limitation or proviso".
which it may think proper was not bad.
In the view I have expressed above, however wide a meaning may be attributed to the expression, it would not affect the constitutionality of the delegating statute, because no constitutional limitation on the delegation of legislative power to a subordinate unit is ' to be found in either of the constitutions discussed above.
That, I apprehend, is also the reason why the Privy Council too attached no importance to the words in section 39 of Act XXIII of 1861 referred to above.
Turning next to section 2 of the Part C States (Laws) Act, 1950, it is framed on the same lines as the other two impugned provisions save for the addition of a clause empow ering repeal or amendment of any corresponding law (other than a Central Act) which is for the time being in force in the State.
This additional clause, however, need not detain us, for, if there is no constitutional inhibition against delegation of legislative power under the present Constitu tion, delegation can as Well extend to the power of repeal as to the power of modification and the Court cannot hold such ' delegation to be ultra vires.
The Constitutional validity of the additional clause thus stands or falls with that of the first part of the section and the only question is: What is the position in regard to delegated legislation under the present Constitution ? Here we do not have the advantage of Privy Council decisions bearing on the question as we had in Burah 's case (1) on the Indian Councils Act, 1861, and Benoari Lal (1) 5 I.A. 178.
881 Sarma 's case(1) on the Government of India Act, 1935.
But the line of approach laid down in those cases and in numer ous others, to which reference has been made, must be fol lowed, not because of the binding force of those decisions, but because it is indubitably the correct approach to prob lems of this kind.
Indeed, there is no difference between the English and the American decisions on this point.
In both countries it is recognised that the correct way of resolving such problems is to look to the terms of the constitutional instrument, and to find out whether the impugned enactment falls within the ambit of the lawmaking power conferred on the legislature which passed the enact ment and, if so, whether it transgresses any restrictions and limitations imposed on such power.
If the enactment in question satisfies this double test, then it must be held to be constitutional.
We therefore begin by looking to the terms of the Con stitution and we find that article 245 confers lawmaking power on Parliament in the same general terms as in the other two cases discussed above.
The article says "subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India. "Then we have the scheme of distribution of legislative powers worked out in article 246 as between Parliament and the legislatures of the States specified in Part A and Part B of the First Schedule, which, however, does not affect the question we have to determine, for article 246 (4), like section 100 (4) of the Government of India Act, 1935, provides that Parliament has power to make laws with respect to any matter for any part of the.territo ry of India not included in Part A or Part B notwithstanding that such matter is a matter enumerated in the State List.
The position, therefore, is substantially similar to that under the Indian Councils Act, 1861, and the Government of India Act, 1935, so far as the words conferring law making power are concerned.
Is then this impugned enact ment, which merely purports to (1) 72 I.A. 57. 882 delegate law making power to the Central Government for Part C ,States, a "law" within the meaning of article 245 (1) ? There can be no question but that the Act was passed by Parliament in accordance with the prescribed legislative procedure, and I can see no reason why it should not be regarded as a law.
It will be recalled that the restricted interpretation which Markby J. (1) put on the word in sec tion 22 of the Indian Councils Act in accordance with Black stone 's definition (formulation of a binding rule of conduct for the subject) was not accepted by the Privy Council in Burah 's case.
Even if a mere delegation of power to legis late were not regarded as a law ' 'with respect to" one or other of the "matters" mentioned in the three Lists, it would be a law made in exercise of the residuary powers under article 248.
The question next arises whether there is anything in the Constitution which prohibits the making of such a law.
The main restrictions and limitations on the legislative power of Parliament or of the States are those contained in Part III of the Constitution relating to Fundamental Rights.
Our attention has not been called to any specific provision in that Part or elsewhere in the Constitution which prohib its or has the effect of prohibiting the making of a law delegating legislative power to a subordinate agency of Parliament 's choice.
What Mr. Chatterjee strenuously urged was that, having regard to the Preamble to the Constitution, whereby the people of India resolved, in exercise of their sovereign right, "to adopt, enact and to give to themselves the Constitution," Parliament, which is charged with the duty of making laws for the territories of the Union, must, as in the American Constitution, be deemed to be a delegate of the people, and that this fundamental conception, which approximates to the conception ' underlying the American Constitution, attracts the application of the maxim delega tus non potest delegare, and operates as an implied prohibi tion against the delegation of legislative power by Parlia ment or, for that matter, by any other legislature (1) I.L.R. , 91, 883 in the country.
It is true to say that, in a sense, the people delegated to the legislative, executive and the judicial organs of the State their respective powers while reserving to themselves the fundamental right which they made paramount by providing that the State shall not make any law which takes away or abridges the rights con ferred by that Part.
To this extent the Indian Constitution may be said to have been based on the American model, but this is far from making the principle of separation of powers, as interpreted by the American courts, an essential part of the Indian Constitution or making the Indian Legis latures the delegates of the people so as to attract the application of the maxim.
As already stated, the historical background and the political environment which influenced the making of the American Constitution were entirely absent here, and beyond the creation of the three organs of the State to exercise their respective functions as a matter of convenient governmental mechanism, which is a common feature of most modern civilised governments, there ' is not the least indication that the framers of the Indian Constitution made the American doctrine of separation of powers, namely, that in their absolute separation and vesting in different hands lay the basis of liberty, an integral and basic fea ture of the Indian Constitution.
On the contrary, by provid ing that there shall be a Council of Ministers to aid and advise the President in the exercise of his functions and that the Council shall be collectively responsible to the House of the People, the Constitution following the British model has effected a fusion of legislative and executive powers which spells the negation of any clear cut division of governmental power into three branches which is the basic doctrine of American constitutional law.
Without such a doctrine being incorporated in the Constitution and made its structural foundation, the maxim delegatus non potest dele gare could nave no constitutional status but could only have the force of a political precept to be acted upon by legis latures in a 884 democratic polity consisting of elected representatives of the people in the discharge of their function of making laws, but cannot be enforced by the court as a rule of constitutional law when such function is shirked or evaded.
The American courts are able to enforce the maxim because it has been made by the process of judicial construction an integral part of the American Constitution as a necessary corollary of the doctrine of separation of powers.
But the position in India, as pointed out above, is entirely differ ent, and the courts in this country cannot strike down an Act of Parliament as unconstitutional merely because Parlia ment decides in a particular instance to entrust its legis lative power to another in whom it has confidence, or, in other words to exercise such power through its appointed instrumentality, however repugnant such entrustment may be to the democratic process.
What may be regarded as politi cally undesirable is constitutionally competent.
Mr. Chatterjee also attempted to spell out an implied prohibition against delegation on the strength of article 357 (1) (a) which provides specifically for delegation by the President of the law making powers conferred on him by Parliament in case of failure of constitutional machinery in States.
This express provision, it is claimed, shows that whenever the makers of the Constitution wanted to authorise delegation of legislative powers they have made specific provision in that behalf and, in the absence of any such provision in other cases, no delegation of such powers is permissible.
I see no force in this argument.
Merely be cause in a particular instance of rare and extraordinary occurrence an express provision authorising the President to delegate to another the law making powers conferred on him by Parliament is made in the Constitution, it is not reason able to infer that it was intended to prohibit the delega tion of powers in all other cases.
The maxim expressio unius est exclusio alterius is not one of universal applica tion, and it is inconceivable that the framers of the Con stitution could have intended to deny to the Indian Legisla tures 885 a power which, as we have seen, has been recognised on all hands as a desirable, if not, a necessary con comitant of legislative activity in modern States America, having started with a rule against delegation as a necessary corollary of the constitutional doctrine of separation of powers, has made and is making numerous inroads on the rule, and English constitutional law has allowed, as we have seen, even to subordinate legislatures, the widest latitude to delegate their legislative powers so long as they retain their own law making capacity intact.
In such circumstances, a provision for express delegation in a remote contingency is far too flimsy a ground for infer ring a general prohibition against delegation of legislative power in all other eases.
In this connection, it will be useful to recall Lord Selborne 's observation in Burah 's case that all that the court has to see in adjudging an enactment constitutional is "that it violates no express condition or restriction by which the law making power conferred on the legislature is limited, and that it is not for the court to enlarge constructively those conditions and restrictions," and as recently as 1944, the Privy Council, as we have seen in Benoari Lal Sharma 's case referred to what has always been regarded as an established doctrine of English consti tutional law, namely, that the Indian legislature could do, in the matter of delegating its legislative powers, what the British Parliament could do.
It would indeed be strange if, in framing the constitution of the Independent Republic of India at the present day, its makers were to ignore the experience of legislative bodies all the world over and to deny to Parliament a power which its predecessors unques tionably possessed.
I have no hesitation in rejecting this argument.
In the result, I hold that section 7 of the , section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, and section 2 of the Part C States (Laws) Act, 1950, are in their entirety constitutional and valid and I answer the reference accordingly.
886 MAHAJAN J.
In exercise of the powers conferred by clause (1) of article 143 of the Constitution the Presi dent of India has referred the following questions to this Court for its opinion : (1) Was section 7 of the , or any of the provisions thereof and in what particular or particulars and to what extent ultra vires the legislature which passed the said Act ? (2) Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars and to what extent ultra vires the legislature which passed the said Act ? (a) Was section 2 of Part C States (Laws)Act, 1950, or any of the provisions thereof and in what particular or particulars and to what extent ultra vires the Parliament ? The reference raises questions of great importance concerning the administration of the affairs of the Republic and is the first one of the kind since the inauguration of the new constitution.
The only point canvassed in the reference is as to the vires of the laws mentioned therein.
It was contended by the learned Attorney General that legis lative power without authority or power to delegate is a futility and that unless legislative power includes.
the power to delegate, power to administer will be ineffective.
It was suggested that the true nature and scope of the legislative power of Parliament involves as part of its content power to confer law making powers upon authorities other than Parliament itself and that this is a natural consequence of the doctrine of the supremacy of Parliament.
It was said that the Indian legislature when acting within the ambit of its legislative power has plenary powers of legislation as large and of the same nature as the British Parliament and unless the prescribed limits are exceeded, no question of ultra vires can possibly arise, that the proper approach to the question is "Look at the terms of the in strument by which affirmatively the legislative powers are created and by which negatively they are restricted.
If what 887 has been done is legislation within the general scope of the affirmative words which give the power and if it violates no express condition or restriction by which the power is limited, it is not for any court of justice, to enquire or to enlarge constructively those conditions and restrictions.
"(1) Reliance was also placed on the legisla tive practice in India and other countries of the the Com monwealth sanctioning constitutionality of statutes drawn up in the same form as the impugned enactments.
The questions referred cover 'three distinct periods of legislation in the constitutional and political history of this country.
The first question relates to the period when the government of this country was unitary in form and was constituted under the Indian Councils Act, 1861, as amended from time to time up to the stage of the introduction of the Morley Minto Reforms, when the Indian Legislature achieved the status of a political debating society and when as a result of the undoing of the partition of Bengal the capital of India was transferred from Calcutta to Delhi.
The unitary form of government was changed after the different Round Table Conferences in London into a Federation by the Consti tution Act 'of 1935.
This Act with certain adaptations remained in force till 26th January, 1950, when the new constitution was inaugurated.
Under the Independence Act, 1947, India became a Dominion of the British Empire but the legislative power of the Parliament of the Dominion remained within the ambit of the Constitution Act of 1935, though the Parliament as a Constituent Assembly was conferred unlimited powers like that of a sovereign.
The federal form of govern ment that had been adopted 'by the Constitution Act of 1935 was also adopted by the framers of the new constitution.
The second question relates to the period when India had at tained the status of a dominion under the Indian Independ ence Act, while the last question concerns the legislative competency of Parliament under the new constitution of the Republic of India.
(1) Queen vs Burah, 5 I.A. 178.
888 It is futile to ask in the year of grace 1951 whether delegated legislation is necessary or not.
This kind of legislation is only a special aspect of the problem of administrative discretion.
The necessity of delegating rule making power on the largest scale to administrative authorities is as much a basic fact of modern industrial society as the assumption by the State of certain obliga tions of social welfare.
The problem, however, is how dele gated legislation and administrative discretion are confined and controlled so as to comply with the elementary princi ples of law in a democratic society.
The answer to the problem has to be found within the ambit of the constitution of the country concerned and on the construction that a lawyer or a jurist would place on it with a constructive and not a purely legalistic approach.
In this back ground it is instructive to see how the question has been solved in other countries.
It was customary for the mother of Parliaments told ele gate minor legislative power to subordinate authorities and bodies.
Some people took the view that such delegation was wholly unwise and should be dispensed with.
Prof. Dicey, however, pointed out that it was futile for Parliament to endeavour to work out details of large legislative changes and that such anendeavour would result in cumbersome and prolix statutes.
Blackstone remarked that power of this kind were essential to the effective conduct of the government.
Constitutional practice grew up gradually as and when the need arose in Parliament, without a logical system, and power was delegated by Parliament for various reasons: because 'the topic required much detail, or because it was technical, or because of pressure of other demands on par liamentary time.
The Parliament being supreme and its power being unlimited, it did what it thought was right.
The doctrine of ultra vires has no roots whatever in a country where the doctrine of supremacy of Parliament holds the field.
The sovereignty of Parliament is an idea fundamental ly inconsistent with the notions which govern inflexible and rigid constitutions existing in countries 889 which have adopted any scheme of representative government.
In England supremacy of law only means the right of judges to control the executive and it has no greater constitution al value than that.
The basis of power in England is the legal supremacy of Parliament and its unrestricted power to make law.
In the words of Coke, "It is so transcendent and absolute as it cannot be confined either for causes or persons within any bounds," or again, as Blackstone put it, "An act of Parliament is the exercise of the highest author ity that this kingdom acknowledges upon earth.
It hath power to bind every subject in the land, and the dominions there unto belonging; nay, even the King himself, if particularly named therein.
And it cannot be altered amended, dispensed with, suspended or repealed, but in the same forms and by the same authority of Parliament." (1).
The Parliament being a legal omnipotent despot, apart from being a legislature simpliciter, it can in exercise of its sovereign power delegate its legislative functions or even create new bodies conferring on them power to make laws.
The power of delegation is not necessarily implicit in its power to make laws but it may well be implicit in its omnipotence as an absolute sovereign.
Whether it exercises its power of delegation of legislative power in its capacity as a mere legislature or in its capacity as an omnipotent despot, it is not possible to test it on the touchstone of judicial precedent or judicial scrutiny as courts of justice in England cannot inquire into it. 'The assertion therefore that this power Parliament exercises in its purely legisla tive capacity has no greater value than that of an ipse dixit.
For these reasons I am in respectful agreement with the view of that eminent judge and jurist, Varadachariar J., expressed in Benoari Lal arma 's case(2) that the constitu tional position in India approximates more closely to the American model than to the English model and on this subject the decisions of the United States so far as they lay down any principle are a valuable guide on this question.
(1) Vide Allen "Law in the Making " 3rd Edn., p. 367.
(2) 890 This view finds support also from the circumstance that the constitutions of the two countries are fundamentally different in kind and character.
They fail in two distinct classes having different characteristics.
England has a unitary form of ' government with a flexible constitution, while in India we have always had a rigid constitution and since 1935 it is federal in form.
It is unsafe, therefore, to make any deductions from the legislative power exercised under a system of government which is basically different in kind and not merely in degree from the other on the question of its legislative competency and reach conclusions on the basis of such deductions.
In my opinion, search for a solu tion of the problem referred to us in that direction is bound to produce no results.
I have, therefore, no hesita tion in rejecting the contention of the learned Attorney General that the answer to the questions referred to us should be returned by reference to, the exercise of power of Parliament in the matter of delegation of legislative power to the executive.
It may, however, be observed that in spite of the widest powers possessed by the British Parliament, it has adopted a policy of self abnegation in the matter of delegated legis lation.
A committee was appointed to report on the Minis ters ' powers, popularly known as the Donoughmore Committee.
It made its recommendations and stated the limits within which power of delegated legislation should be exercised.
Means were later on adopted for keeping a watchful eye on such legislation.
The Donoughmore Committee discovered a few instances of cases where delegation had gone to the extent of giving a limited power of modifying Parliamentary statutes.
One of these instances was in section 20 of the Mental Treatment Act, 1930 (20 & 21 Geo.
V, c. 23).
It empowered the Minister of Health by order to modify the wording of an enactment so far as was necessary to bring it into conformity with the provisions of the section.
The whole section related to terminology, its intention being to replace certain statutory expressions in previous use by others which at the moment were regarded less 891 offensive.
The other instance was found in section 76 of the Local Government Scotland Act, 1929, (19 & 20 Geo.
V, c. 25).
By this section the Secretary of State was empowered between 16th May, 1929, and 31st December, 1930, by order to make any adaptation or modification in the provisions of any Act necessary to bring these provisions in conformity with the provisions of other Acts.
Such a clause in a statute bore the nickname "Henry VIII clause".
Concerning it the Committee made the following recommendation: "The use of the so called Henry VIII clause conferring power on a Minister to modify the provisions of Acts of Parliament (hitherto limited to such amendments as may appear to him to be neces sary for the purpose of bringing the statute into operation) should be abandoned in all but most exceptional cases and should not be permitted by Parliament except upon special grounds stated in a ministerial memorandum to the bill.
Henry VIII clause should never be used except for the sole purpose of bringing the Act into operation but subject to the limit of one year.
" The language in which this recommendation is couched clearly indicates that even in a country where Parliament is supreme the power of modifying Parliamentary statutes has never been exercised except in the manner indicated in the above recommendation, and even as regards that limited power the recommendation was that the exercise of it should be abandoned.
It is significant that since then Henry VIII clause has not been used by Parliament.
The Dominion of Canada has a written constitution, The British North Amercia Act (30 & 31 Vict., c. 31).
It is not modelled on the doctrine of exclusive division of power between the departments of State, legislative, executive and judicial.
It does not place them in three water tight compartments and it is somewhat similar in shape in this respect to the British constitution where the King is still a part of the legislature, the House of Lords still a part of the judicial as well as legislative and where all parts of government form 892 a mutual check upon each other.
This similarity, however, does not mean that the legislature in Canada is of the same kind as the British Parliament.
It falls in the class of non sovereign legislatures, like all colonial parliaments.
The decisions of Canadian courts are by no means uniform on the power of the Canadian Parliament to delegate legislative power.
Those cited to us of recent date seem to have been given under the pressure of the two world wars and under the provisions of the War Measures Act.
With great respect and in all humility, I am constrained to observe that in these decisions, to establish the vires of the powers delegated, arguments have been pressed into service which are by no means convincing or which can be said to be based on sound juristic principles.
They can only be justified on the ground that during a period of emergency and danger to the State the dominion parliament can make laws which in peace time it has no competency to enact.
There are a number of Privy Council decisions which have concerned themselves with the vires of legislative enactments in Canada which purported to transfer legislative power to outside authorities and it seems to me that these decisions furnish a better guide to the solution of the problem before us than the later decisions of the Supreme Court of Canada which seemingly derive support from these Privy Council decisions for the rules stated therein.
The first of these decisions is in the case of Russell vs The Queen(1) decided in 1882.
Two questions were raised in the appeal.
The first was as to the validity of the Canada Temperance Act, 1878.
It was urged that having regard to the provisions of the British North America Act, 1867, relating to the distribution of legislative powers it was not competent for the Parliament of Canada to pass the Act in question.
The second question was that even if the Dominion Parliament possessed the powers which it assumed to exercise by the Act, it had no power to delegate them (1) 7 App.
Cas. 829, 893 and to give local authorities the right to say whether the provisions of the Act should be operative or not.
It is the second question which is relevant to the present enquiry the mode of bringing the second part of the Act into force, stating it succinctly, was as follows: "On a petition to the Governor in Council, signed by not less than one fourth in number of the electors of any county or city in the Dominion qualified to vote at the election of a member of the House of Commons, praying that the second part of the Act should be in force and take effect in such county or city, and that the votes of all the electors be taken for or against the adoption of the petition, the GovernorGeneral, after certain prescribed notices and evi dence, may issue a proclamation, embodying such petition, with a view to a poll of the electors being taken for or against its adoption.
When any petition has been adopted by the electors of the county or city named in it, the Gover nor General in Council may, after the expiration of sixty days from the day on which the petition was adopted, by Order in Council published in the Gazette, declare that the second part of the Act shall be in force and take effect in such county or city, and the same is then to become of force and take effect accordingly.
" It was urged before their Lordships that assuming that the Parliament of Canada had authority to pass a law for prohibiting and regulating the sale of intoxicating liquors, it could not delegate its powers, and that it had done so by delegating the power to bring into force the prohibitory and penal provisions of the Act to a majority of the electors of counties and cities.
Their Lordships ' answer to the coun sel 's contention was in these words : "The short answer to this objection is that the Act does not delegate any legislative powers whatever.
It contains within itself the whole legislation on the matters with which it deals.
The provision that certain parts of the Act shall come into operation only 894 on the petition of a majority of electors does not confer on these persons power to legislate.
Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled.
Conditional legislation of this kind is in many cases convenient, and is certainly not unusual, and the power so to legislate cannot be denied to the Parliament of Canada, when the subject of legislation is within its competency.
Their Lordships entirely agree with the opinion of Chief Justice Ritchie on this objection.
If authority on the point were necessary, it will be found in the case of Queen vs Burah(1), lately before this Board.
" It seems to me that their Lordships acquiesced and assented in the proposition urged by the learned counsel that delegation of legislative power was not permissible when they combated his arguments with the remark that the Act does not delegate any legislative power whatever.
Otherwise, the short answer to the objection was that dele gation of legislative power was implicit within the power of legislation possessed by the legislature.
It was not neces sary to base the decision on the ground of conditional legislation.
Though Queen vs Burgh(1) was an appeal from the High Court of Bengal, a reference was made to it and the decision therein was mentioned as laying down an apposite rule for the decision of cases arising under the British North Ameri ca Act, 1867.
In order to appreciate and apprehend the rule to which their Lordships gave approval in the above men tioned case, it seems necessary to state precisely what Queen vs Burgh(1) decided.
Act XXII of 1869 of the Council of the Governor General of India which is entitled "An Act to remove the Garo Hills from the jurisdiction of the tribu nals established under the General Regulations and Acts, and for other purposes" among other things provided as follows : "Sec. 4.
Save as hereinafter provided, the territory known as the Garo Hills. is hereby removed from the jurisdiction of the Courts of Civil and (1) 5 I.A, 178.
895 Criminal Judicature, and from the control of the offices of revenue constituted by the Regulations of the Bengal Code and the Acts passed by any legislature now or heretofore established in British India, as well from the law pre scribed for the said courts and offices by the Regulations and Acts aforesaid.
And no Act hereafter passed by the Council of the Governor General for making Laws and Regula tions shall be deemed to extend to any part of the said territory, unless the same be specially named therein.
Sec. 5.
The administration of civil and criminal jus tice, and the superintendence of the settlement and realiza tion of the public revenue, and of all matters relating to rent, within the said territory, are hereby vested in such officers as the said Lieutenant Governor may, for the pur pose of tribunals of first instance or of reference and appeal, from time to time appoint.
The officers so appointed shall, in the matter of the administration and superin tendence aforesaid, be subject to the direction and con trol of the said Lieutenant Governor and be guided by such instructions as he may from time to time issue.
Sec. 8.
The said Lieutenant Governor may from time to time by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the Gover nor General, or of the said Lieutenant Governor, for making laws and regulations, and may on making such extension direct by whom any powers or duties incident to the provi sions so extended shall be exercised or performed, and make any order which he shall deem requisite for carrying such provisions into operation.
Sec. 9.
The said Lieutenant Governor may from time to time, by notification in the Calcutta Gazette extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills as for the time being forms part of British India.
" 896 Under the provisions of the Act the Lieutenant Governor of Bengal on the 14th October, 1871, issued a notification and in exercise of the powers conferred upon him by section 9, he extended the provisions of the said Act to the terri tory known as the Khasi and Jaintia Hills and excluded therefrom the jurisdiction of the Courts of Civil and Crimi nal Judicature, and specified in the notification the bound aries of the said territory.
The notification extended all the provisions of the Act to the districts of Khasi and Jaintia Hills.
The Lieutenant Governor did not exercise the power of selecting parts of these Acts for purposes of local application.
Section 9 of the Act did not empower the Lieu tenant Governor to modify any of the provisions of the Act.
The High Court of Bengal by a majority judgment held that the notification had no legal force or effect in removing the said territories from the jurisdiction which the High Court had previously possessed over it, inasmuch as the Council of the Governor General of India for making laws and regulations had under its constitution, by the Councils Act, 1861, no power to delegate such authority to the Lieutenant Governor as it had by Act XXII of 1869 in fact purported to delegate.
The Indian Councils Act, 1861, 24 & 25 Vict.
c. 67, by section 22, gave the Governor General in Council power for the purpose of making laws and regulation$, power for repealing, amending or altering any laws or regulations whatever then in force or thereafter to be in force and to make laws and regulations for all per sons, whether British or native, foreigners or others, and for all courts of justice whatever, and for all places and things whatever within the said territories, and for all servants of the Government of India within the dominions of princes and states, provided always that the said Governor General in Council shall not have the power of making any laws or regulations which shall repeal or in any way affect any of the provisions of the Act.
As regards section 9 of the Act their Lordships made the following observations : 897 "The ground of the decision to that effect of the major ity of the Judges of the High Court was, that the 9th section was not legislation, but was a delegation of legis lative power.
In the leading judgment of Mr. Justice Mark by, the principles of the doctrine of agency are relied on; and the Indian Legislature seems to be regarded as, in effect, an agent or delegate, acting under a mandate from the Imperial Parliament, which must in all cases be executed directly by itself. "Their Lordships cannot but observe that, if the princi ple thus suggested were correct, and justified the conclu sion drawn from it, they would be unable to follow the distinction made by the majority of the Judges between the power conferred upon the Lieutenant Governor of Bengal by the 2nd and that conferred on him by the 9th section.
If, by the 9th section, it is left to the Lieutenant Governor to determine whether the Act, or any part of it, shall be applied to a certain district, by the 2nd section it is also left to him to determine at what time that Act shall take effect as law anywhere.
Legislation which does not directly fix the period for its own commencement, but leaves that to be done by an external authority, may with quite as much reason be called incomplete, as that which does not itself immediately determine the whole area to which it is to be applied, but leaves this to be done by the same external authority.
If it is an act of legislation on the part of the external authority so trusted to enlarge the area within which a law actually in operation is to be applied, it would seem a fortiori to be an act of legislation to bring the law originally into operation by fixing the time for its com mencement.
"But their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legisla ture, and indeed of the nature and principles of legisla tion.
The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do 898 nothing beyond the limits which circumscribe these powers.
But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large and of the same nature as those of Parliament itself.
The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted.
If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any court of justice to inquire further, or to enlarge constructively those conditions and restrictions.
" The learned Attorney General placed considerable reli ance on these observations in support of his proposition that if the legislation is within the ambit of the field prescribed for exercise of legislative power, then from it it follows that within that field power can be exercised to delegate to the widest extent.
This quotation, however, cannot be torn off from the context and read by itself.
Meaning can only be given to these observations in the light of the observations that follow the quotation cited above and which are in these terms : " "Their Lordships agree that the Governor General in Council could not, by any form of enactment, create ' in India, and arm with general legislative authority a new legislative power not created or authorised by the Councils Act.
Nothing of that kind has, in their Lordships ' opinion, been done or attempted in the present case.
What has been done is this.
The Governor General in Council has deter mined, in the due and ordinary course of legislation, to remove a particular district from the 899 jurisdiction of the ordinary courts and offices, and to place it under new courts and offices, to be appointed by and responsible to the Lieutenant Governor of Bengal; leav ing it to the Lieutenant Governor to say at what time that change shall take place; and also enabling him, not to make what law he pleases for that or any other district, but to apply by public notification to that district any law, or part of law, which either already was, or from time to time might be, in force, by proper legislative authority, in the other territories subject to his government.
The legisla ture determined that, so far, a certain change should take place; but that it was expedient to leave the time, and the manner of carrying it into effect to the discretion of the Lieutenant Governor; and also, that the laws which were or might be in force in the other territories subject to the same government were such as it might be fit and proper to apply to this district also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieutenant Gover nor. "Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor General in Council.
Their whole operation is, directly and immediately, under and by virtue of this Act (XXII of 1869) itself.
The proper legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things.
The conditions having been ful filled, the legislation is now absolute.
Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a provincial legislature, they may (in their Lordships ' judgment) be well exercised, either absolutely or conditionally.
Legislation, conditional on the use of particular powers, or on the exercise of a limit ed 116 900 discretion, entrusted by the legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient.
The British Statute book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when consti tuting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legisla tive powers which it from time to time conferred.
It cer tainly used no words to exclude it.
" Towards the close of the judgment certain illustrations were mentioned of legislation in India described as condi tional legislation.
Reference was made to the Codes of Civil and Criminal Procedure and particularly, section 39 of Act XXIII of 1861 which authorised the Local Government with the previous sanction of the Governor General in Council (not in his legislative capacity) to extend the provisions of the Act "subject to any restriction, limitation or proviso which the Local Government may think 'proper.
" In my opinion, in this case their Lordships did not affirmatively assent to the proposition that the Indian Legislature had full power of delegation within the ambit of its legislative field and they did not dissent from the conclusion of Markby J. in the concluding part of the judg ment that under general principles of law in India any substantial delegation of legislative power by the legisla ture of the country was void.
On the other hand, they re marked that legislation of this kind was conditional legis lation and it only becomes complete on the fulfilment of those conditions and that the determination of those condi tions could be left to an external authority.
In spite of expressing their disapproval of the view of the majority of the Full Bench in applying the principles of the doctrine of agency and in treating the Indian Legislature as an agent of the Imperial Parliament, their Lordships clearly expressed the opinion that the exercise of the legislative will and judgment could not be transferred to an external authority and that it was for the proper legislature to exercise its own judgment as to the.
901 place, persons, laws and powers.
It seems to me that though their Lordships were not prepared to assent to the proposi tion that the matter should be dealt with on principles deducible from the doctrine of the law of agency, they were also not prepared to depart from the rule that apart from the doctrine of the law of agency a person to whom an office or duty is assigned or entrusted by reason of a special qualification cannot lawfully devolve that duty upon another unless expressly authorised so to do.
Public func tionaries charged with the performance of public duties have to execute them according to their own judgment and discre tion except to the extent that it is necessary to employ ministerial officers to effectively discharge those duties.
For the reasons given above presumably the Privy Council was not prepared to lay down that delegation of legislative power was a content of the power itself.
It contented itself by holding the law valid under the name and style of condi tional legislation.
It is difficult to conceive that the Privy Council would have hesitated in saying so if it felt that delegation of legislative power was a content of the power itself.
Reference in this connection may be made to a passage in the judgment of Markby J. which reads thus : The various Parliamentary statutes nowhere confer any express power upon the Indian Legislature to change the machinery of legislation in India.
But they do confer that power subject to important restrictions upon the executive government.
Mr. Kennedy boldly claimed for the Indian Legislative Council the power to transfer legislative func tions to the Lieutenant Governor of Bengal.
Indeed as I understand him, the only restriction he would attempt was that the Legislative Council could not destroy its own power to legislate though I see no reason why he should stop there.
The Advocate General did not go so far.
There are no words in the Acts of Parliament upon which the legislative authority could be made transferable in one class of cases and not in others because I do not 902 for a moment suggest that every time a discretion is en trusted to others there is the transfer of legislative authority.
Every Act of the legislature abounds with exam ples of discretion entrusted to judicial and executive officers of government, the legality of which no one would think of questioning. 'the broad question, however, is ' Can the legislature confer on the Lieutenant Governor legisla tive power? ' Answer: 'It is a general principle of law in India that any substantial delegation of legislative author ity by the legislature of this country is void '.
" It was then contended that the illustration cited in the concluding part of the judgment of their Lordships suggests their approval of the proposition that the legislative power could be delegated conferring power to modify a statute passed by the legislature itself.
This contention seems to be based on a misapprehension of what their Lordships decid ed.
In the Full Bench decision of the Calcutta High Court in Empress vs Burgh & Book Singh(1) Markby J. made the following observations while dealing with these illustra tions : "Lastly it was argued that the Indian Legislature had done so (delegated power) for a long series of years, and a long list of Acts passed between 1845 and 1868 has been handed in to us, all of which, it is said, must be treated as instances of delegation of legislative authority and Act XXII of 1869 should be so treated.
The Acts contained in the list do not appear to me to afford (as was asserted) so many clear and undisputed instances of transfer of legisla tive authority.
I may observe that as to the provisions which these and many other Acts contain for the making of rules by executive government in conformity with the Act we have the highest authority in Biddie vs Tariney Churn Baner jee(2) that the power to make such rules may be conferred without delegation of legislative authority. .
The list of Acts does not seem to me to show any clear practice of transferring legislative authority.
" (1) I.L.R. (2) 1 Tay.
& Bell, 390.
903 Ainslie J. specifically considered the provisions of section 39 of Act XXIII of 1861 and the meaning of the words "reservations ", "limitations" and "provisos" and said as follows : "The provisions of section 39, Act XXIII of 1861, do not affect my view of this matter.
This section allows a local Government, with the previous sanction of the Governor General in Council, to annex any restriction, limitation, or proviso it may think proper when extending the Code of Civil Procedure to any territory not subject to the general regu lations; but this is merely another form of delaying the full extension of the Code.
So far as the Code obtains operation, it is still, because the extension is pro tanto, a carrying out of the intention of the superior legislature that this shall be sooner or later the law in the particular tract of country.
As I read the section, no power is given to amend the law itself; it is only a power to keep some portion in abeyance or to make its operation contingent on something external to it, which again is only another form of postponing its full operation." No doubt was cast on this construction of the language of section 39 either in the minority judgment of the High Court or in the judgment of their Lordships of the Privy Council.
In view of this clear expression of opinion of Ainslie J. as to the meaning of the language used in section 39 and not disapproved by their Lordships of the Privy Council it cannot with any force be contended that their Lordships in Burahs case(1) gave approval to the proposition that the power of conditional legislation included the power of amendment or modification of the Act of the legis lature itself.
In my opinion, the result of the decision in Burah 's case(1) is that it was decided that the Indian Legislature had power to conditionally legislate.
This case is no authority for the proposition that it could delegate the exercise of its judgment on the question as to what the law should be to an external agency.
This case does not support the (1) 5 I.A. 178.
904 proposition that amendment of a statute of the legislature itself is a matter which could form the subject of delegated legislation.
The expression that Indian Legislature could not arm with legislative power a new legislative body not created by the Indian Councils Act only means that it must function itself in making laws and not confer this power on any other body.
In other words, it could not create a person having co extensive power of legislation and could not clothe it with its own capacity of law making, that is in laying down principles and policies.
The possession of plenary powers within the ambit laid down only means that within that particular field it can make any laws on those subjects, but it does not mean that it can shirk its duty in enacting laws within the field by making a law that it shall not itself operate on that field but somebody else will operate on its behalf.
In my opinion, their Lordships ' judgment amounts to saying that though within the field prescribed it has the largest power of legislation, yet at the same time it is subject to the condition that it cannot abandon formally or virtually its high trust.
Hodge vs The Queen(1) was the next Canadian case decid ed by the Privy Council in 1883.
The appellant Hodge, was the holder of a liquor licence issued on 25th April, 1881, by the Board of Licence Commissioners for the City of Toron to under the Liquor Licence Act of the Province of Ontario in respect of the St. James Hotel.
He was also the holder of a licence under the authority of the Municipal Act, authorising him to carry on the business or calling of a keeper of a billiard saloon with one table for hire.
The appellant did on the 7th May, 1881, unlawfully permit and suffer a billiard table to be used and a game of billiards to be played thereon, in his tavern during the time prohib ited by the Liquor Licence Act for sale of liquor therein.
It was urged that the Ontario Assembly was not competent to legislate in regard to licences for the sale of liquor and that even if the Ontario legislature could, it could not delegate its power to Licence Commissioners.
( 1) 9 App.
905 The local legislature had assigned to three officials the power to define offences and impose penalties.
This conten tion was met with the plea that there was no delegation of legislative authority but only of the power to make by laws.
The Court of the King 's Bench Division held that the local legislature had no power to delegate in the matter and that such power could be exercised by the legislature alone.
The Court of Appeal reversed this decision and it was upheld by their Lordships of the Privy Council.
It was found that sections 4 and 5 of the Liquor Licence Act were intra vires the constitution.
In the course of their judgment their Lordships made the following observations: "It appears to their Lordships, however, that the objec tion thus raised by the appellants is founded on an entire misconception of the true character and position of the provincial legislatures.
They are in no sense delegates of or acting under any mandate from the Imperial Parliament.
When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the Province and for provincial purposes in relation to the matters enumerated in section 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow.
Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Domin ion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect.
It is obvious that such an authority is ancillary to legislation, and without it an attempt for varying details and machinery to carry them out might 906 become oppressive, or absolutely fail, The very full and very elaborate judgment of the Court of Appeal con tains abundance of precedents for this legislation, entrusting a limited discretionary authority to others, and has many illustrations of its necessity and convenience.
It was argued at 'the bar that a legislature committing important regulations to agents or delegates effaces itself.
That is not so.
It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into its own hands.
How far it shall seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legis to decide. "lature, and not for courts of law This case, in my opinion, decided the following points : (1) Power to make by laws or regulations as to subjects specified in the enactment and with the object of carrying that enactment into operation and effect can be transferred to municipal 'institutions or local bodies.
(2) Such an authority is ancillary to legislation.
(3) Giving such power of making regulations to agents and delegates does not amount to an effacement of the legislature itself.
The case does not sanction the proposition that power to amend or to modify a statute passed by the legislature itself can be delegated.
Power of amending a statute or altering it cannot be described as ancillary to legislation, nor is such a power within the armit of the doctrine of subsidiary legis lation.
It is significant, that their Lordships of the Privy Council never gave their approval to the wide propo sition that what the legislature itself can do, it can employ an agent with coextensive powers for doing the Same.
They have been careful in saying to what extent and in what measure delegation was permissible.
All that they sactioned was delegation of authority ancillary to legislation or delegation to municipal institutions to make regulations and by laws and no more.
It was not held by their Lordships that power to declare what the law shall be could ever be delegated or that such delegation will be intra vires the Parliament of Canada or of the 907 Indian Legislature.
It was contended that by implication their Lordships held in this case that short of effacing itself the legislature could delegate.
In my opinion, there is no justification for placing such a construction on the language used by their Lordships while they were combat ing an argument that was placed before them by the learned counsel.
In re The Initiative and Referendum Act (1) is the third Canadian case decided by the Privy Council.
By the Initia tive and Referendum Act of Manitoba the Legislative Assembly sought to provide that the laws of the province will be made and repealed by the direct vote of the electors instead of only by the Legislative Assembly whose members they elect.
It was held that the powers conferred on a provin cial legislature by section 92 include the power of amend ment of the constitution of the province except as regards the office of the Lieutenant Governor and that the Initia tive and Referendum Act of Manitoba excludes the Lieu tenant Governor wholly from the new legislative authority set up and that this was ultra rites the provincial legisla ture.
The Act was therefore held void.
Lord Haldane who delivered the opinion of the Privy Council, after having found that the Act was ultra vires the legislature, made the following observations: "Having said so much, their Lordships, following their usual practice of not deciding more than is strictly neces sary, will not deal finally with another difficulty which those who contend for the validity of this Act have to meet.
But they think it right, as the point has been raised in the court below, to advert to it.
Section 92 of the Act of 1867 entrusts the legislative power in a province to its legisla ture and to that legislature only.
No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a provincial legislature in Canada, could, while preserving its own capacity intact, seek (1) 117 908 the assistance of subordinate agencies as had been done when in Hodge vs The Queen (1) the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence.
Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise.
" These observations reiterate the ratio of the decision in Hodge vs The Queen(1) and they do not amount to saying that power to amend or modify Acts of the legislature itself could be given by delegation of legislative power.
It is, however, important that their Lordships in clear and unam biguous language laid it down that section 92 entrusts legislative power to its legislature and to that legisla ture only and to no other.
The principle underlying Lord Haldane 's remarks is thus stated in Street 's book on the Doctrine of Ultra Vires, at page 430: "The decision in this case, that the statute was ultra vires, did not turn precisely on the ground of delegation, but these remarks suggest that a legislature will not ordi narily be permitted to shift the onus of legislation, though it may legislate as to main principles and leave details to subordinate agencies.
" Reference may also be made to the case of King vs Nat Bell Liquors Ltd.(2) The Liquor Act (6 Geo.
V, c. 4, Alber ta) was held intra vires the power of the province under the British North America Act, 1867, and it was found that it was not ultra vires by reason of being passed pursuant to a popular vote under the Direct Legislation Act (4 Geo.
V, c. 3, Alberta).
Here the law was made by the provincial legis lature itself and it was passed in accordance with the regular procedure of the Houses of Legislature.
This case is no authority for the contention raised by the learned Attorney General.
Il) 9 App.
117 (21 909 The next Canadian case decided by the Privy Council is reported in Croft vs Dunphy(1).
Antismuggling provisions enacted operating beyond territorial limits which had long formed part of Imperial customs legislation and presumably were regarded as necessary for its efficacy were held valid and within the ambit of the constitutional powers.
This case does not suggest any new line of thought, not already con sidered in Queen vs Burah(2), or Hodge vs The Queen(3).
Shannon vs Lower Mainland Dairy Products Board (4) is a case in which the question arose whether Natural Products Market ing Legislation Scheme of control or regulation and imposi tion of licence fees were intra vires the provincial legis lature.
It was argued that it was not within the powers of the provincial legislature to delegate legislative power to the Lieutenant Governor in Council or to give him further power of delegation.
This contention was met with the fol lowing observations : "The objection seems subversive of the rights which the provincial legislature enjoys while dealing with matters within its ambit.
It is unnecessary to enumerate the innu merable occasions on which legislature has entrusted similar powers to various persons and bodies.
On the basis of past practice the delegation was upheld.
" So far as I have been able to ascertain, the past prac tice was in respect of conferring necessary and ancillary powers to carry on the policy of a statute.
Reference was also made to Powell vs Apollo Candle Co. (5) decided in the year 1885.
There the question arose as to the validity of section 133 of the Customs Regulating Act of 1879 which authorizes the levy of certain duties under an Order in Council.
The section was held intra vires the constitution.
It was argued that the power given to the colonial legislature to impose duties was to be executed by themselves (1) (4) (2) 5 I.A. 178.
(5) 10 App.
(3) 9 App.
117. 910 only and could not be entrusted wholly or in part to the Governor or anybody else.
This objection was answered in the following way "The duties levied under the Order in Council are really levied by authority of the Act under which the order was issued.
The legislature has not parted with its perfect control of the Governor and has the power of withdrawing or altering the power entrusted.
" On this construction of the power delegated, that what the delegate was doing was done under the authority of the Act no question of delegation of lawmaking power arises.
Fort Frances Pulp & Power Co. vs Manitoba Free Press (1), Co operative Committee on Japanese Canadians vs Attorney General for Canada (2), and Cooperative Committee vs Attorney General of Canada (3) cited at the Bar are not helpful in giving an opinion on the present matter.
Four recent Canadian cases were cited for the extreme view that short of effacing itself Parliament or a legisla ture has the widest power of delegation and that it acts intra vires the constitution in doing so.
The first of these cases is In re George Edwin Gray(4).
The case was under section 6 of the War Measures Act, 1914, which con ferred very wide powers on the Governor General in Council for the efficient prosecution of the war.
The decision was given by a majority of four to two and in the majority judgment the following observations occur : "The practice of authorizing administrative bodies to make regulations to carry out the objectives of an act instead of setting out all details in the Act itself is well known and its legality is unquestioned but it is said that the power to make such regulations could not constitu tionally be granted to such an extent as to enable the express provisions of the statute to be amended or repealed; that under the constitution (1) (3) (2) (4) 57 S.C.R. (Canada) 150.
911 Parliament alone is to make laws, the Governor General to execute them and the court to interpret them, then it fol lows that no one of the fundamental branches of government can constitutionally either delegate or accept the function of any other branch.
In view of Rex vs Halliday(1), I do not think this broad proposition can be maintained.
Parliament cannot indeed abdicate its functions, within reasonable limits at any rate it can delegate its power to execute government orders.
Such powers must necessarily be subject to determination at any rate by Parliament and needless to say that the acts of the executive under its delegated authority must fall within the ambit of the legislative pronouncement by which this authority is measured.
It is true that Lord Dunedin in Rex vs Halliday(1) said that the British Constitution has entrusted to the two Houses of Parliament subject to assent by the King an absolute power untrammelled by any other circumstance, obedience to which may be compelled by a judicial body.
That undoubtedly is not the case in this country.
Nothing in the Act imposes any limitations on the authority of the Parliament.
" To the proposition stated in the opening part of the quotation there can be no possible objection.
But when the learned Judges proceed to lay down the rule that in the absence of any limitations in the constitution Parliament can delegate the power to amend and repeal laws made by itself to an external authority unless it amounts to an abdication of its functions does not in my humble opinion seem to be sound.
In the first instance, these observations seem inconsistent with the fundamental proposition that a duty entrusted to a particular body of persons and which is to be performed according to certain procedure by that body can be entrusted to an external agency which is not con trolled by any rules of procedure in the performance of that duty and which would never have been entrusted to perform it.
Moreover, abdication by a legislative body need not necessarily amount to a (1) ; 912 complete effacement of it.
Abdication may be partial or complete.
It would certainly amount to abdication when in respect of a subject of legislative list that body says it shall not legislate on that subject but would leave it to somebody else to legislate on it.
That would be delegation of the law making power which is not authorized.
There is no justification for the assumption that the expression "abdi cation" is only applicable when there is a total effacement or a legal extinction of such a body.
In my opinion, it is the abdication of the power to legislate when a legislature refuses to perform its duty of legislating on a particular subject and entrusts somebody else to perform that function for it.
"Abdication" according to the Oxford Dictionary means abandonment, either formal or virtual, of sovereignty or other high trust.
It is virtual abandonment of the high trust when the person charged with the trust says to some body else that the functions entrusted to him in part or whole be performed by that other person.
Be that as it may, the point of view contained in the above quotation cannot be supported on the decisions of their Lordships of the Privy Council discussed in the earlier part of this judgment.
Duff J. stated his view in the following way : "The true view of the effect of this type of legisla tion is that the subordinate body in which a lawmaking authority is vested by it is intended to act as the agent or the organ of the legislature and that the acts of the agent take effect by virtue of the antecedent declaration that they shall have the force of law." These observations, in my opinion, and I speak with great respect cannot again be justified on any juristic principle.
In the matter of making law there cannot be an anticipatory sanction of a law not yet born or even con ceived.
Moreover, an organ of the legislature for making laws can only be created by the constitution and not by the legislature which is itself confided with that power by the constitution.
The learned dissenting Judge in this case observed that a wholesale surrender of the will of the people to any 913 autocratic power would not be justified either in cons titutional law or by the past history of their ancestors.
These observations were made in respect to the power of amendment or repeal conferred on the delegate.
As I have pointed out earlier in this judgment, such a power has not even been exercised by the British Parliament and the Do noughmore Committee recommended that its exercise as far as possible should be abandoned.
The decision in this case, in my opinion, is not an apposite authority for arriving at a correct conclusion on the questions involved in the refer ence.
The next case to which our attention was drawn is Ref.
re Regulations (Chemicals)(1).
This case arose in connection with the regulations respecting chemicals made pursuant to powers conferred by the Department of Munitions and Supply Act and by the War Measures Act.
The question was whether these regulations were ultra vires the constitution.
It was held that except in one part the regulations were intra rites, and it was observed that the War Measures Act does not attempt to transform the executive government into a legislature in the sense in which the Parliament of Canada and the legislatures of provinces are legislatures and that the regulations derive legal force solely from the War Measures Act.
Reliance was placed on Queen vs Burah(2) and Hodge vs The Queen(3).
One of the learned Judges observed that the maxim delegatus non potest delegare is a rule of the law of agency and has no applica tion to Acts of a legislature, that the power of delegation being absolutely essential in the circumstances for which the War Measures Act has been enacted so as to prove a workable Act, power must be deemed to form part of the powers conferred by Parliament in that Act.
Another learned Judge observed that the maxim was not confined to the law of agency alone but that it had no application to legislation.
A third learned Judge, however, said that the maxim quoted above also had application to grants of legislative power but that the Parliament has not (1) [1943] S.C.R. (Canada) 1 (3) 9 App.
Cas. 117, (2) 5 I.A. 178.
914 effaced itself, in the ultimate analysis it had full power to amend or repeal the War Measures Act.
In my opinion, for the reasons already stated, the observations in this case also go beyond the rule laid down by their Lordships of the Privy Council in Queen vs Burah(1) and Hodge vs The Queen(s), and are not a true guide to the solution of the problem.
Our attention was also drawn to Attorney General of Nova Scotia vs Attorney General of Canada(3).
This case does not lend full support to the view taken in the cases cited above.
Therein it was laid down that neither the Parliament of Canada nor the legislature of any province can delegate one to the other any of the legislative authority respec tively conferred upon them by the British North America Act, especially by sections 91 and 92 thereof.
The legislative authority conferred upon Parliament and upon a provincial legislature is exclusive and in consequence, neither can bestow upon or accept power from the other, ' although each may delegate to subordinate agencies.
On the question of delegation of legislative power, the learned Chief Justice remarked that "delegations such as were dealt with in In re George Edwin Gray(4) and in Ref.
re Regulations (Chemicals)(5) under the War Measures Act were delegations to a body subordinate to Parliament and were of a character different from the delegation meant by the bill now submit ted to the courts." In this case on the general question of delegation the Supreme Court did not proceed beyond the rule enunciated in In re The Initiative and Referendum Act (6), or what was stated in Hodge vs The Queen(7).
Lastly reference may also be made to the case of Oimuit vs Bazi (8).
The learned Attorney General placed reliance on certain obiter dicta of Davies J. to the effect that the Parliament of Canada could delegate its legislative power and such delegation was within its power.
The learned Chief Justice did not express (1) 5 I.A. 178.
(5) (2) 9 App.
(6) (3) (1950)4 D.L.R 369. ' (7) 9 App.
57 S.C.R. 150 (8) 46 S.C.R.L. (Canada)502. 915 any opinion on the point, while Idington J. was not prepared to subscribe to this view.
The other Judges did not consid er the point at all.
In my opinion, these remarks, the soundness of which was doubted by other Judges, are not of much assistance to us in this case.
Having examined the Canadian cases on this subject it seems pertinent at this stage to refer to a passage from Street on the Doctrine of Ultra Vires, which states the true position of colonial legislatures and appositely brings out the meaning of the language used by the Privy Council in the cases that the legislatures are not the agents of the Imperial Parliament : "However true it may be that colonial legislatures are not mere agents of the Imperial Government, it is also true that they are not unfettered principals.
Within the terms of their constitution they are limited at least as to subjects and area, and, to the extent suggested, perhaps also as to power of delegation.
If an ultra vires colonial ' statute may be ratified by the Imperial Parliament, there is an implica tion of agency.
To do anything outside the scope of their constitution as when the Dominion of Canada established the Province of Manitoba(1), an imperial statute is required.
It would appear that a legislature cannot, as an ordinary principal, ratify acts purporting to be done under its authority (2).
Taking a broad view, non sovereign legisla tures are, and so long as they do not repudiate their con stitutions must remain, delegates of the Imperial Parlia ment.
They have been so regarded by the Privy Council(3).
But just as in the case of the prerogative it would be impolitic to apply a formula too strictly, so also the law of agency must be accommodated to meet the solid fact that the colonies, or the most important of them, enjoy real independence.
" The decisions of American courts on the constitutionality of delegation of legislative power are, as in (1) 34 Vict.
c. 28.
(2) Commonwealth vs Colonial Ammunition Co. ; , 221.
(3) [1906] A.C. 542; , 254.
118 916 the case of other countries, by no means uniform.
Judicial opinion has sometimes taken a strict view against the valid ity of such delegation and on other occasions it has liber ally upheld it as constitutional on grounds which again by no means are based on logical deductions from any juristic principle, but generally on grounds of convenience or under the doctrine of "determining conditions" and sometimes on historical considerations.
The Supreme Court of America has, however, never departed from the doctrine that legislative power cannot be delegated to other branches of government or to independent bodies or even back to the people.
The rule against delegation of legislative power is not based merely on the doctrine of separation of powers between the three state departments, legislative, executive and judicial, evolved by the constitution.
This doctrine puts a restraint on delegation to other branches of government.
Prohibition against delegation to independent bodies and commissions rests on Coke 's maxim, delegatus non potest delegare.
The maxim, though usually held applicable to the law of agency embodies a sound juristic principle applicable to the case of persons entrusted with the performance of public duties and the discharge of high trusts.
The restraint on delega tion back to the people is tied up with some notion of representative democracy.
Reference was made to a number of decisions of, the Supreme Court during the arguments and quotations from several books on constitutional law were cited.
It is not useful to refer to all of them in my opinion, but a few important ones may be mentioned.
The first American case that needs mention is Waman vs Southard (1), a decision of Marshall C.J. given in the year 1825.
The question concerned the validity of certain rules framed by the courts.
The learned Chief Justice observed that it could not be contended that Congress could delegate to courts or to any other tribunal powers which are strictly or exclusively legislative.
(1) 6 Law.
Edn. 262.
917 In Killbourn vs Thompson (1), it was held that judicial power could not be exercised by the legislative department.
Field vs Clark C) is one of the leading cases in America on this subject.
In this case power had been delegated to the executive to impose certain duties.
Delegation of power was upheld on the ground that the policy of the law having been determined by the legislature, working out of the details could be left to the President who could not be said to be exercising any legislative will but was merely authorised to execute the law as an agent of the legislature in execut ing its policy.
It was asserted that it was a principle universally recognised as vital to the maintenance of the system of government that Congress could not delegate legislative power to the President.
In Springer vs Phillipine Islands C), the same view was expressed.
On similar lines is the decision in U.S. vs Gravenport etc.
Co. (4).
It was observed that after fixing a primary standard, power to fill up details could be devolved by appropriate legislation.
The provision attacked there was held as not delegation of legislative power but merely giving power to make administrative rules.
O 'Donouhue vs
U.S. (5) concerned the question of compensation payable to Judges of the Supreme Court and it was held that it could not be lawfully diminished.
It was remarked that the object of the creation of the three departments of government was not a mere matter of convenience but was basic to avoid commingling of duties so that acts of each may not be called to have been done under the coercive influence of the other departments.
The decision in Hampton & Co. vs
U.S.(6) is the oft quoted judgment of Taft C.J.
The following extracts from that judgment may be quoted with advantage : "It is a breach of the national fundamental law if Congress gives up its legislative power and transfers it to the President, or to the judicial branch, or, if by ; (4) (2) ; (5) ; (3) (8) ; 918 law it attempts to invest itself or its members with either executive power or judicial power.
This is not to say that the three branches are not co ordinate parts of one govern ment and that each in the field of duties may not invoke the action of the other two branches in so far as the action invoked shall not be an assumption of the constitu tional field of action of another branch.
In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to commonsense and the inherent necessities of governmental co ordination.
The field of Congress involves all and many varieties of legislative action and Congress has found it frequently necessary to use officers of the executive branch, within defined limits, to secure the exact effect intended by its acts of legislation, by vesting direction in such officers to make public regulations inter preting a statute and directing the details of its execu tion, even to the extent of providing for penalizing a breach of such regulations. .
Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an executive, or, as often happens in matters of State legislation, it may be left to a popular vote of the residents of a district to be affected by legislation.
" Panama Refining Co. vs
U.S. (1) is another leading decision of the Supreme Court on this subject.
In Benoari Lal Sarma 's ease (2) considerable reliance was placed by Varadachariar J. on this decision for arriving at his con clusion against non delegation of power in India.
The following observations from the judgment of Hughes C.J. may appositely be cited : The Congress is not permitted to abdicate, or to trans fer to others, the essential legislative functions with which it is vested.
Undoubtedly, legislation must often be adapted to complex conditions involving (1) 293 U.S. a88.
(2) 919 a host of details with which the national legislature cannot deal directly.
The Constitution has never been regarded as denying to the Congress the necessary resources of flexibil ity and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determi nation of facts to which the policy as declared by the legislature is to apply.
" Cardozo J. observed as follows :"An attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to standards is in effect a roving commission.
" In Opp Cotton Mills vs Administrator (1), it was said that essential legislative power could not be delegated but fact finding agencies could be created.
Yakus vs
U.S. C) is to the same effect.
In Lichter vs U.S. (3) it was held that a constitutional power implies a power of delegation of authority under it sufficient to effect its purpose.
This power is especially significant in connection with war powers under which the exercise of discretion as to methods to be employed may be essential to an effective use of its war powers by Congress.
The degree to which Congress must specify its policies and standards in order that the admin istrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise specification.
These decisions seem to indicate that judicial opinion in America is against delegation of essential powers of legislation by the Congress to administrative bodies or even to independent commissions.
It is unnecessary to refer to all the passages that were quoted from the different text books which apart from the opinions of the text book writers merely sum up (1) ; (3) ; (2) ; 920 the result of the decisions given by the various courts on this point.
This result has been, in my opinion, very accurately summarized by Crawford in his book on Construc tion of Statutes at pages 215, 26 in the following words and represents the present state of constitutional law in that country on this subject : "Legislative power has been delegated, as a general rule, not so often as an effort to break down the triparte theory of the separation of powers, but from necessity and for the sake of convenience.
More and more with a social system steadily becoming increasingly complex, the legisla ture has been obliged in order to legislate effectively, efficiently and expeditiously, to delegate some of its functions: not purely legislative in character, to other agencies, particularly to administrative officials and boards.
Most prominent among the powers thus delegated have been the power to ascertain facts, and the power to promul gate rules and regulations.
Many of the other delegated powers, upon analysis, fall within one of these two major or basic classifications.
"So far, however, as the delegation of any power to an executive official or administrative board is concerned, the legislature must declare the policy of the law and fix the legal principles which are to control in given cases and must provide a standard to guide the official or the board empowered to execute the law.
This standard must not be too indefinite or general.
It may be laid down in broad general terms.
It is sufficient if the legislature will lay down an intelligible principle to guide the executive or administra tive official.
From these typical criterions, it is apparent that the courts exercise considerable liberality towards upholding legislative delegations, if a standard is established.
Such delegations are not subject to the objec tion that legislative power has been unlawfully delegated.
The filling in of mere matters of detail within the policy of, and according to, the legal principles and standards established by the legislature is essentially ministerial rather than legislative in character, even if considerable 921 discretion is conferred upon the delegated authority.
In fact, the method and manner of enforcing a law must be left to the reasonable discretion of administrative officers, under legislative standards.
" On one point, however, there is uniformity of judicial decisions in the American courts and even amongst the text book writers.
Delegation of general power to make and repeal laws has uniformly been held as unconstitutional: [vide observations of Dixon J. in Victoria etc.
Co. & Meakes vs Dignam(1)].
It was there pointed out that no instance could be cited of a decision of the Supreme Court of America in which Congress had allowed or empowered the executive to make regulations or ordinances which may overreach existing statutes.
In Moses vs Guaranteed Mortgage Co. of New York(2) a section of the Emergency Banking Law of 1933 was held uncon stitutional delegation of power.
There a banking board was given power to adapt, rescind, alter or amend rules and regulations inconsistent with and in contravention of any law.
In his second edition on Administrative Law, at p. 110, Walter Gellhorn states as follows : "Delegations of power to alter or modify statutes are, in effect, nothing more than delegations of the dispensing, suspending or rule making powers, or a combination thereof.
Yet the mere use of the terms 'alter ' or 'modify ' in the statute, has brought unexpected repercussions from courts and commentators.
" In a number of decisions mentioned in this book the courts have held that delegation of power to alter or modify a statute is unconstitutional delegation of power.
As observed by Prof. Salmond (Jurisprudence 10th Edn.
p. 159), a legislative Act passed by the supreme legislature cannot be amended by any other body than the supreme legislature itself.
In Rowland Burrow 's Words and Phrases, the word "modify" has been defined as meaning "vary, extend or en large, limit or restrict.
" In Oxford Dictionary, one of the (1) ; (2) 239 App.
703, 922 meanings of this word is "the making of partial changes or altering without radical transformation." The same diction ary gives the following meaning to the word "modification": ' 'the result of such alteration, a modified form or varie ty.
" In Stevens vs General Steam Navigation Co. Ltd.(1) it was stated that modification implies an alteration.
It may narrow or enlarge the provisions of a former Act.
In my opinion, the view taken in American decisions that delega tion of authority to modify an Act of the Congress is uncon stitutional is fully borne out by the meaning of the expres sion "modify", though this view is not liked by Walter Gellhorn.
Before concluding, it is apposite to quote a passage from Baker 's Fundamental Law which states the prin ciple on which the American decisions are based and which coincides with my own opinion in respect of those decisions.
The passage runs thus: "The division of our American government into three co ordinate branches necessarily prevents either of the three departments from delegating its authority to the other two or to either of them, but there are other reasons why the legislative power cannot be delegated.
Representative government ' vests in the persons chosen to exercise the power of voting taxes and enacting laws, the most important and sacred trust known to civil government.
The representa tives of the people are required to exercise wise discretion and sound judgment, having due regard for the purposes and needs of the executive and judicial departments, the ability of the tax payers to respond and the general public welfare.
It follows as a self evident proposition that a representa tive legislative assembly must exercise its own judgment; that in giving its consent to a tax levied it must distinct ly and affirmatively determine the amount of the tax by fixing a definite and certain rate or by fixing an aggregate amount on the tax payers and that in enacting a law it must so far express itself that the Act when it leaves the legis lative department is a complete law.
It is therefore a maxim of constitutional law that a legislative body (1) 923 cannot delegate its power.
If it was competent for a repre sentative legislative body to delegate its power it would be open to make the delegation to the executive which would be destructive of representative government and a return to despotism.
Not only the nature of the legislative power but the very existence of representative government depends upon the doctrine that this power cannot be transferred.
" The Australian Constitution follows the American model (63 & 64, Vic., c. 12, passed in July 1900).
The legislative power of the Commonwealth is vested in a Federal Parliament.
The executive power is vested in the Queen, while the judicial power is vested exclusively in the courts.
The extent of the legislative power is stated in sections 51 and 52 of the Constitution Act.
The residuary powers vest in the States.
The first Australian case cited to us is Baxter vs Ah Way(1).
This was decided in the year 1909.
It was held that section 52, sub section (g), of the Customs Act of 1901, which provides that all goods the importation of which shall be prohibited by proclamation shall be prohibited imports, is not a delegation of legislative power but conditional legislation and is within the power conferred on Parliament by section 51 of the Constitution.
It was further held that prohibition of importation is a legislative act of the Parliament itself, the effect of sub section (g) being to confer upon the Governor General in Council the discretion to declare to what class of goods the prohibition will apply.
In the course of his judgment the learned Chief Justice observed as follows : "The foundation of the argument that this power cannot be delegated by the legislature is to be found in the case of. .
It is of course obvious that every legislature does in one sense delegate some of its functions. .
Nor is it to the purpose to say that the legislature could have done the thing itself.
Of course, it could.
In one sense this is delegation of authority because it authorizes another body to do (1) ; 119 924 something which it might have done itself.
It is too late in the day to contend that such a delegation,if it is a delegation is objectionable m any sense.
The objection cannot be supported on the maxim delegatus non potest dele gate or on any other ground. .
There being no objec tion to conditional legislation being passed, this is a case of that sort.
" O 'Connor J. said as follows : "Power is given in section 51 in respect of trade and commerce with other countries on taxation and there is also power to make laws incidental to the exercise of any power vested in Parliament.
It is a fundamental principle of the constitution that everything necessary to the exercise of a power is included in the grant of a power.
Everything necessary to the effective exercise of the power of legisla tion must be taken to be conferred by the constitution with that power. .
Exercise of such discretion cannot be said to be making of the law." Higgins J. said : "According to my view, there is not here in fact any delegation of the law making power." This case rests on the principle that legislative power cannot be delegated and it was for that reason that the impugned statute was justi fied on the ground of conditional legislation.
If delega tion of legislative power was permissible, it was wholly unnecessary to justify the enactment as a form of condition al legislation.
Roche vs Kronheimer(1), decided in the year 1921, was argued by Dixon (as he then was).
The question in that case concerned the validity of the Treaty of Peace Act, 1919, which by section 2 authorized the making of regulations conferring the delegation of powers on certain persons.
The legislation was held constitutional.
In the argument by Mr. Dixon, its validity was attacked on the following grounds: "It is not conditional legislation as in the case of.
Baxter vs Ah Way(2), but it bestows on the executive full ; (2) 925 legislative power upon a particular subject.
Vesting of legislative power to any other hands than Parliament is prohibited.
The making of a law that another body may make laws upon a particular subject matter is not making a law on that subject.
" The decision was given in these terms : It was said that if Parliament had authority to legis late, it had no power to confer that authority on the Gover nor General.
On this topic we were referred to Hodge vs The Queen (1) and Rex vs Halliday(2) and In re The Initiative and Referendum Act(3), and much interesting argument was devoted to the real meaning and effect of the first of those cases.
It is enough to say that the validity of legislation in this form has been upheld in Farey vs Burvett(4); Pank hurst vs Kierman(5); Ferrando vs Pearce(6); and Sickerdick vs Ashton(D, and we do not propose to enter into any inquiry as to the correctness of those decisions.
" This case therefore was decided on the ground of cursus curiae, and the point raised by Mr. Dixon remained unan swered.
In the year 1931 two cases came before the Supreme Court, one of which was decided in February, 1931, and the other in November, 1931.
The first of these is the case of Huddart Parker Ltd. vs The Commonwealth(3), in which Dixon J. was one of the presiding Judges.
The question in that ease concerned the validity of section 33 of the Transport Workers Act which empowered the Governor General to make regulations in respect of transport workers.
The learned Judge observed that Roche vs Kronheimer(9) had decided that a statute conferring on the executive power to legislate upon some matters, is law with respect to that subject.
On this construction of the decision in Roche vs Kronheimer(9) the case was decided.
(1) 9 App.
(6) ; 12} ; (7) ; (3) iI919] A.C. 935. t8) ; (4) ; (9) ; (5) ; 926 So far as I have been able to see, Roche vs Kronhei mer(1) decided nothing and it was based on the rule of stare decisis.
Victorian etc.
Co. & Meakes vs Dignan(2) was decided in November, 1931.
The question in that case was whether section 3 of the Transport Workers Act was intra rites the constitution inasmuch as it delegated power of making regu lations notwithstanding anything else contained in other Acts.
The delegation was under the name and style of confer ring "regulative power.
" The appellants in that case were informed that they were guilty of an offence against the Waterside Employment rights, picking up for work as a water side worker at Melbournea person not a member of the Water side Workers ' Federation, while transport workers who were members of the Federation were available for being picked up for the work at the said port.
The attack on the Act itself was based on the American constitutional doctrine that no legislative body can delegate to another department of government or to any other authority the power, either generally or specially, to enact laws.
The reason, it was said, was to be found in the very existence of its own powers '.
This high prerogative having been entrusted to its own wisdom, judgment and patriotism and not to those of other persons, it will act ultra rites if it undertakes to delegate the trust instead of executing it.
It was, however, said that this principle did not preclude conferring local powers of government upon local authorities.
The defence was that the Act did not impinge upon the doctrine because in it the Parliament confined the regulating power on certain specific matters within the ambit of the trade and commerce power and accordingly merely exercised its own legislative power within that ambit, and did not delegate any part of it.
Reference was made to the decision of Higgins J. in Baxter vs Ah Way(3), in which it was observed that the Federal Parliament had within its ambit full power to frame its own laws in any fashion using any agent, any agency, any machinery that in its wisdom it thinks (1) ; (2) ; (3) 927 fit for the peace, order and good government of the Common wealth.
Rich 3. held that the authority of subordinate law making may be invested in the executive.
Reference was made to Roche vs Kronheimer(1) The learned Attorney General placed considerable reliance on the judgment of Dixon J.
The learned Judge expressed his opinion on the American decisions in these words : "But in what does the distinction lie between the law of Congress requiring compliance with direction upon some specified subject which the administration thinks proper to give and a law investing the administration with authority to legislate upon the same subject? The answer which the decisions of the Supreme Court supply to this question is formulated in the opinion of that Court delivered by Taft C.J. in Hampton & Co: v.U.S.(2).
The courts in America had never had any criterion as to the validity of statutes except that of reasonableness, the common refuge of thought and expression in the face of undeveloped or unascertainable standards.
" The learned Judge then reached the conclusion that no judicial power could be given or delegated, but from that it did not follow that Parliament was restrained from transfer ring any power essentially legislative to another organ or body.
In an earlier decision the learned Judge had ex pressed the opinion that time had passed for assigning to the constitutional distribution of powers among.the separate organs of government, an operation which confined the legis lative power to the Parliament so as to restrain it from reposing in the executive an authority essentially legisla tive in character and he remarked that he was not prepared to change that opinion or his expression to the effect that Roche vs Kronheirner(1) did decide that a statute conferring upon the executive a power to legislate on some matters contained within one of the subjects of the legislative power of Parliament is a law with respect to that subject and the distribution of powers (1) ; (2) ; , 406.
928 does not restrain Parliament to make the law.
The learned Judge then proceeded to say: "This does not mean that a law confiding authority " to the executive will be valid, however extensive or vague the subject matter may be, if it does not fall outside the boundaries of federal power.
Nor does it mean that the distribution of powers can supply no considerations of weight affecting the validity.
It may be acknowledged that the manner in which the constitution accomplished the separation of power does logically or theoretically make the Parliament the exclusive repository of the legislative power of the Commonwealth.
The existence in Parliament of power to authorize subordinate legislation may be ascribed to a conception of that legislative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law.
Such subordinate legislation remains under Parliamen tary control and is lacking in the independent and unquali fied authority which is an attribute to true legislative power.
" It seems to me that in its ultimate analysis the judgment of the learned Judge proceeded, as pointed out by him, upon the history and the usages of British legislation and theories of English law and not on the strict construction of the Australian Constitution with respect to which the learned Judge frankly conceded that logically or theoretically the power of delegation of the quality held valid in that case could not be justified on the framework of the constitution.
I have also not been able precisely to follow the distinction drawn by the learned Judge that delegation held justified by him did not include delegation in the fullest extent of any matter falling within the boundaries of federal power.
After a careful consideration of the observations of this very learned and eminent Judge I venture to think that these are not a safe guide for deci sion of the present reference.
Not only were the constitu tional limitations of the written constitution over reached, but the decision was based on the theories of British legis lation and English law which could 929 hardly be applied to a written constitution with a complete separation of power.
Mr. Justice Evatt in this case stated the rule differ ently.
He observed "every grant by the Parliament of author ity to make regulations is itself a grant of legislative power and the true nature and quality of legislative power of the Commonwealth Parliament involves as part of its contents power to confer law making powers upon author ities other than the Parliament itself." The theory that legislative power has a content of delegation in it, to my mind, is not based on any principles of jurisprudence or of legislation and I venture to think that it is inconsistent with the fundamental principle that when a high trust is confided to the wisdom of a particular body which has to be discharged according to the procedure prescribed, such trust must be discharged by that person in whom it is confided and by no other.
This decision is moreover inconsistent with the decisions of the Privy Council above mentioned.
If the mere existence of power of legislation in a legislature automati cally authorized it to delegate that power, then there was hardly any necessity for their Lordships of the Privy Coun cil to justify delegation in the cases referred to above on the ground of conditional legislation and to state affirma tively that the cases considered by them were not cases of delegation of legislative authority.
This view is certainly in conflict with the observations of the Privy Council in Benoari Lal Sarma 's case (1), given under the Government of India Act, 1935, wherein their Lordships said: "It is true that the Governor General acting under section 72 of Sched ule IX himself must discharge the duty of legislation there cast on him and cannot transfer it to any other authority.
" Evatt J. after enunciating the rule discussed above remarked : "It is true that the extent of the power granted will often be a material circumstance in the examination of the validity of the legislation conferring the grant. .
The nature of the legislative power of the (1) 930 Commonwealth authority is plenary, but it must be possible to predicate of every law passed by the Parliament that it is a law with respect to one or other of the specific subject matters mentioned in sections 51 and 52 of the constitution." After referring to a number of circumstances considered by the learned Judge material in reaching at a result as to the constitutionality of a statute, he observed as follows: "As a final analysis the Parliament of the Commonwealth is not competent to abdicate its powers of legislation.
This is not because Parliament is bound to perform all or any of its legislative functions though it may elect not to do so, or because of the doctrine of sepa ration of powers, but because each and every one of the laws passed by Parliament must answer the description of a law upon one or more of the subject matters stated in the con stitution.
A law by which Parliament gave all its law making authority to another body will be bad because it will fail to pass the test last mentioned.
" Frankly speaking, I have not been able to apprehend on what principles, if any, of construction, the relevancy of the matters considered by the learned Judge as material circumstances in judging the validity of an Act so far as the question of the vires of the Act is concerned could be justified.
Another Australian case cited is Wishart vs Fraser(1).
There the attack was on section 5 of the National Security Act, 1939 40, which empowered the making of regulations for securing public safety and defence of the Commonwealth etc.
It proceeds on the same line as the earlier case discussed above.
In my opinion, the decision in Baxter vs Ah Way(2) is based on a correct construction of the provisions of the Australian Constitution and the later decisions cannot be considered as any guide.
in this country for a decision of the point involved m the reference.
The argument pressed by Mr. Dixon, as he then was, in (1) ; (2) ; 931 Roche vs Kronheirner(1) in my opinion, states the principle correctly.
The decisions of their Lordships of the Privy Council from India are not many.
The first and the earliest of these is in Queen vs Burah(2), which has already been dis cussed at considerable length in the earlier part of this judgment and as stated already, it is no authority for the proposition that the Indian Legislature constituted under the Indian Councils Act, 1861, had power to delegate author ity to the executive authorising them to modify or amend the provisions of an Act passed by the legislature itself.
King Emperor vs Benoari Lal Sarma(3) is the last Indian decision of the Privy Council on this subject.
Conviction of fifteen individuals made by a special magistrate purporting to act under Ordinance II of 1942, promulgated by the Gover nor General on the 2nd January, 1942, was set aside by a special Bench of the High Court at Calcutta and this deci sion was affirmed by the majority of the Federal Court of India.
The ground on which the conviction was set aside was that the Ordinance was ultra vires.
In appeal before their Lordships of the Privy Council it was contended that the Ordinance was valid.
The Ordinance did not itself set up any of the special courts but provided by sub section (3) of section 1 that the Ordinance "shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from any disorder within the Province or from a hostile attack on India or on a country neighbour ing on India or from the imminence of such an attack, by notification in the official gazette, declare it to be in force in the Province and shall cease to be in force when such notification is rescinded." In view of this last provision it was contended that the Ordinance was invalid either because the language showed that the Governor General notwithstanding the preamble did not consider that an emergency existed but was making provi sion in case one should arise in ; (2) 5 I.A. 178, (3) 120 932 future, or else because the section amounted to what was called "delegated legislation" by which the Governor General without legal authority sought to pass the deci sion whether an emergency existed to the Provincial Govern ment instead of deciding it for himself.
On this last point their Lordships observed as follows : "It is undoubtedly true that the Governor General acting under section 72 of Schedule IX, must himself discharge the duty of legislation there cast on him, and cannot trans fer it to other authorities.
But the Governor General has not delegated his legislative powers at all.
His powers in this respect, in cases of emergency, are as wide as the powers of the Indian legislature which, as already pointed out, in view of the proclamation under section 102, had power to make laws for a province even in respect of matters which would otherwise be reserved to the Provincial legislature.
Their Lordships are unable to see that there was any valid objection, in point of legality, to the Governor General 's ordinance taking the form that the actual setting up of a special court under the terms of the ordinance should take place at the time and within the limits judged to be neces sary by the provincial government specially concerned.
This is not delegated legislation at all.
It is merely an exam ple of the not uncommon legislative arrangement by which the local application of the provision of a statute is deter mined by the judgment of a local administrative body as to its necessity.
Their Lordships are in entire agreement with the view of the Chief Justice of Bengal and of Khundkar J. on this part of the case.
The latter Judge appositely quotes a passage from the judgment of the Privy Council in the well known decision in Russell vs The Queen(1).
" This case brings out the extent to which conditional legislation can go, but it is no authority justifying dele gation of legislative power authorising an external authori ty to modify the provisions of a legislative enactment.
It may be pointed out that the opening part of the passage quoted above seems to approve the view (1) 7 App.
933 of the Federal Court expressed by Varadachariar J. in that case when his Lordship relying on a passage from Street on the Doctrine of Ultra Vires observed that a legislature will not ordinarily be permitted to shift the onus of legisla tion though it may legislate as to main principles and leave the details to subordinate agencies.
The decision of the Federal Court in Jatindra Nath Gupta vs The Province of Bihar and Others(1) to which I was a party and wherein I was in respectful agreement with the judgment of the learned Chief Justice and my brother Mukher jea, in my opinion, correctly states the rule on the subject of delegation of legislative power.
The Bihar Maintenance of Public Order Act, 1947, in sub section (3) of section 1 provided as follows : "It shall remain in force for a period of one year from the date of its commencement.
Provided that the Provincial Government may, by notifi cation, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification.
" Acting under the proviso the Provincial Government on the 11th March, 1948, extended by notification the life of the Act by one year.
The validity of the proviso to sub section (3) of section 1 of the Act was attacked on the ground that it amounted to delegation of legislative power by the Provincial Legislature and this it was not competent to do.
On the authority of the decision of the Privy Council in Benoari Lal Sarma 's case (2) I held the proviso void.
The question was posed by me in the following way : "It may be asked what does the proviso purport to do in terms and in substance ? The answer is that it empowers the Provincial Government to issue a notification saying that the Provincial Act shall remain (1) (2) 934 in force for a further period of one year with such modifi cations, if any, as may be specified in the notification.
As stated in the earlier part of this judgment, unless the power of the Provincial Government is co extensive with the power of the Provincial Legislature, it is difficult to see how it can have the power to modify a statute passed by that legislature, Modification of statute amounts to re enacting it partially.
It involves the power to say that certain parts of it are no longer parts of the statute and that a statute with X sections is now enacted with Y sections.
In the act of modification is involved a legislative power as a discretion has to be exercised whether certain parts of the statute are to remain law in future or not or have to be deleted from it.
The power to modify may even involve a power to repeal parts of it.
A modified statute is not the same original statute.
It is a new Act and logically speak ing, it amounts to enacting a new law.
The dictionary mean ing of the word 'modify ' is to make something existing much less severe or to tone it down or to make partial changes in it.
What modifications are to be made in a statute or whether any are necessary is an exercise of law making power and cannot amount merely to an act of execution of a power already conferred by the statute.
The extent of changes is left to external authority, i.e., the Provincial Government.
Nothing is here being done in pursuance of any law.
What is being delegated is the power to determine whether a law shall be in force after its normal life has ended and if so, what that law will be, whether what was originally enacted or something different.
The body appointed as a delegate for declaring whether a penal Act of this character shall have longer life than originally contemplated by the legislature and if so, with what modification, is a new kind of legisla ture than that entrusted with the duty under the Government of India Act, 1935.
" I still maintain the view that the question of the life of an Act is a matter for the judgment of the competent legislature.
It is a matter of policy whether a certain enactment is to be on the statute 935 book permanently or temporarily.
Such a question does not fall within conditional legislation as it concerns the extension of the life of a temporary Act.
Such an Act dies a natural death when the period fixed for its duration ex pires.
It automatically ceases to operate and there is no real analogy between conditional legislation which author izes a known authority to determine the commencement or termination of an Act and an act done in exercise of any power conferred by the Act itself.
It was said by the learned Attorney General that this decision had created considerable difficulties and that the various High Courts in India on its authority had held certain enactments void, the validity of which had never been questioned before this decision was given.
In my humble judgment, there is nothing whatever in that decision which m any way unsettled the law as settled by their Lordships of the Privy Council in Bu rah 's case(1).
This decision did not lay down that the Indian legislature did not possess power of delegation necessary for effectively carrying out its legislative functions.
All that it held was and I think rightly that essential legislative function could not be delegated to an external authority and that the legislature could not shirk its own duty and lay the burden of discharging that duty on others.
If I was convinced that the decision laid down a wrong rule of law, I would have required no sugar coated phrases to own the error.
Our attention is not drawn to a single decision of their Lordships of the Privy Council during the whole administration of this country by the British in which the highest court in the land upheld the contention urged by the learned Attorney General.
On the other hand, learned Judges in this country of the eminence of Markby J. and Varadachariar J. in very clear and unambig uous terms affirmed the rule that delegation of essential legislative power was not within the competence of the Indian legislatures.
Reference may also be made to the case of The State of Bombay vs Narottamdas(2), decided recently and to (1) 5 IA.
(2) ; 936 which I was a party.
Therein it was explained that Jatindra Nath Gupta 's case(1) was no authority prohibiting delegation of legislative power in case where the principle and policy of the law had been declared in the enactment itself and ancillary powers had been delegated to the provincial gov ernment for bringing into operation the provisions of an Act.
To sum up, judicial opinion on this subject is still in a fluid state and it is impossible to reconcile all the judgments cited to us on the basis of any rigid principles of constitutional law.
In England the Parliament is for the time being following the recommendations of the Donough more Committee.
In America the doctrine against delegation of legislative power still holds the field.
In Canada as well as.in India the rule laid down by their Lordships of the Privy Council in Burah 's case(2) has never been departed from in theory.
The same view was maintained in the earlier Australian decisions.
Recently Australian decisions however have gone to the length of holding that even essential legislative power can be delegated so long as the principal does not completely efface itself.
In my opinion, the true solution of the problem of delegation of legislative power is to be found in the oft quoted passage from the judgment of Ranney J. of the Supreme Court of Ohio in Cincinnati W. & Z.R. Co. vs Clinton County Comrs.(3).
This quotation is in these terms: "The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.
The first cannot be done; to the latter no valid objection can be made.
" The decision in Locke 's Appeal(4) is also based on this rule.
There it was said : (1) (3) 5 I,A. 178.
(4) , 937 "To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the legislature of the power to act wisely for the public wel fare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossi ble to fully know.
" The proper distinction the court said was this: "The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. 'To deny this would be to stop the wheels of government.
There are many things upon which wise and useful legislation must depend which cannot be known to the law making power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation.
" The Federal Court of India in its opinion, expressed by Varadachariar J. in Benoari Lal Sarma 's case(1) considered a contention of the Advocate General of India made to it based on the above quotation of Ranney J. and observed as follows: "We are of the opinion that there is nothing in the above decisions of their Lordships that can be said to be inconsistent with the principle laid down in the passage from the American authority which the Advocate General of India proposed to adopt as his own argument.
" The majority of the court approved the rule stated by Chief Justice Hughes in Panama Refining Co. vs U.S.(2), and it was stated that the rule therein held had nothing whatev er to do with maxim delegatus non potest delegate, but was only the amplification of what was referred to by the Judi cial Committee in Burah 's case(3) as "the nature and princi ples of legislation.
" The question can be posed thus: Why is delegation pecul iarly a content of legislative power and not of judicial power ? In my judgment, it is a content of none of the three State powers, legislative, judicial or executive.
It is, on the other hand, incidental to the (1) (2) ; (3) 5 I.A. 178.
938 exercise of all power inasmuch as it is necessary to dele gate for the proper discharge of all these three public duties.
No public functionary can himself perform all the duties he is privileged to perform unaided by agents and delegates, but from this circumstance it does not follow that he can delegate the exercise of his judgment and dis cretion to others.
One may well ask, why is a legislature formed with such meticulous care by all constitution makers ? Why do they take pains to lay down the procedure to be followed by an elected legislature in its function of law making ? Why do they define its different functions and lay down the methods by which it shall act ? The only answer that reasonably can be given to these queries is: "Because the constitution trusts to the judgment of the body consti tuted in the manner indicated in the constitution and to the exercise of its discretion by following the procedure pre scribed therein.
" On the same principle the judges are not allowed to surrender their judgment to others.
It is they and they alone who are trusted with the decision of a case.
They can, however, delegate ancillary powers to others, for instance, in a suit for accounts and in a Suit for dissolu tion of partnership, commissioners can be entrusted with powers authorising them to give decisions on points of difference between parties as to items in the account.
Again it may be enquired why cannot other public functionaries entrusted in the matter of appointment of public servants delegate this particular duty to others.
The answer again is found in the same principle.
I put this query to the learned Attorney General but I could not elicit any very satisfactory answer.
He contented himself by saying that possibly there was something in the nature of the power itself which requires the personal attention of the authori ties concerned and that therefore delegation was there impliedly forbidden.
To my mind, the same principle forbids delegation of essential legislative power.
It is inherent in the nature of the power that has to be exercised by the legislature elected for the purpose subject to the qualifi cations already stated, It would be a breach of 939 the constitutional duty to bestow this power on someone else.
In the words of Sir John Salmond, "In general, in deed, the power of legislation is far too important to be committed to any person or body of persons save the incor porate community itself.
The great bulk of enacted law is promulgated by the state in its own person.
But in excep tional cases it has been found possible and expedient to entrust this power to private hands.
" In the words of Mr. Dixon (as he then was), the making of a law that another body may make laws upon a particular subject matter is not making a law on that subject.
The quotation cited in the earlier part of this judgment from Baker 's book appositely states the rule when it says: "It is an axiom of constitu tional law that representative legislative bodies cannot delegate legislative power because representative government vests in the persons chosen to exercise the power of voting taxes and enacting laws, :the most important and sacred trust known to civil government.
" In the words of another jurist, "Legislation is the formal utterance by the legisla tive organ of the society and by no others.
Its words constitute the law and not the words of the delegate.
" In private law the rule is well settled that an arbitra tor cannot lawfully devolve his duty on another unless so expressly authorized.
The nature of the duty itself is such that it demands exercise of his own judgment and discretion.
It is again well settled that fiduciary duties cannot be made the subject of delegation, though trustees in order to discharge certain functions can use machinery or subordinate agencies for effectively carrying on the duties which attach to their constitution.
Delegation is permissible in cases where there is a legal or physical necessity to do so be cause without trusting some person or persons it would be impossible efficiently to discharge the duties.
It cannot be denied that municipal and other corporations cannot delegate the by law making power to the executive officers.
It is so because power is entrusted to them in their corporate capac ity and has to be exercised in that capacity.
I am not able to apprehend 121 940 why this principle which is well settled in.
private law cannot appositely be applied to the discharge of duties by public functionaries and by a legislature.
It seems to me that the nature of the duty is such that it is implicit within it that it should be discharged by the person en trusted with it and by no others.
In other words, the nature of the public duty itself demands it and the principles of legislation require it.
For the reasons given above I cannot accept the proposi tion contended for by the learned Attorney General that in the absence of an express or implied provision in the con stitution legislative authority can be bestowed on other persons.
In my opinion, the correct proposition, on the other hand, is that unless expressly or impliedly author ized, such delegation is not permissible.
The exceptions to this rule fall in two classes which have been stated in the quotation from Crawford 's book earlier cited in this judg ment.
It is now convenient to examine the provisions of our Constitution in order to appreciate the contention of the learned Attorney General that it has been modelled on the British system and that the Parliament of India is as omnip otent as in England and that in the matter of delegation of legislative power it is in an analogous situation.
In my opinion, our Constitution is a judicious combination of the American model with the British Parliamentary system.
In its main scheme it follows the Government of India Act, 1935, which provides for a federation of States and provides for an executive responsible to the legislature.
As a matter of fact, the framers of the constitution, though they have borrowed ideas from other constitutions, have not rigidly adhered to any particular model.
Certain provisions in our constitution are such for which there is no precedent in the constitution of any other country.
It seems to ,me that they were as much alive to the doctrine of administrative convenience as to the dangers of a system which permits delegation of unfettered legislative power to the execu tive.
The country had recently emerged from the bonds of a bureaucratic system which had killed 941 its very soul and they.
apparently did not wish it to get engulfed again m the rigours of that system.
Bureaucratic rule is a necessary corollary to the existence of unfettered delegation of legislative power.
To avoid this, the consti tution makers made detailed provision in the Constitution on all matters.
It has to be emphasized that no country in the world has such an elaborate and comprehensive constitution as we have in this country and it would not be proper to construe such a constitution with the help of decisions given elsewhere on the construction of constitutions shaped differently.
It is only after a consideration of all the provisions of the Constitution and its whole scheme that it has to be decided whether delegation of power legislative, executive or judicial is implict in the grant of any of these powers or has been expressly provided for, to the extent it was considered necessary on grounds of administra tive convenience in peace or war time and therefore confer ment of this power by implication cannot be upheld on its true construction.
It has also to be borne in mind that our Constitution is fundamentally different from the British system inasmuch as the doctrine of supremacy of Parliament has its limitations here.
The courts are empowered to declare Acts of Parliament unconstitutional if they are inconsistent with Part III of the Constitu tion or when they trespass on fields demarcated for State legislatures.
Obviously, it is implict in the demarcation of legislative fields that one legislature cannot by delega tion of subjects that are exclusively within its field clothe the other with legislative capacity to make laws on that subject as it will amount to an infringement of the Constitution itself.
It seems clear, therefore, that dele gation of legislative power to that extent is prohibited by the Constitution.
Illustratively, defence is a Union sub ject, while law and order is a State subject.
Can it be argued with any reason that by delegation Parliament can arm a State legislature with the law making power on the subject of defence and that a State legislature can arm Parliament with 942 power to make law on the subject of law and order ? In my opinion, any argument on those lines has to be negatived on the ground that the delegation of such power would be contrary to the Constitution itself and that this kind of transfer of power is outside its contemplation.
For a simi lar reason if such transfer of power is not possible in the case of one legislature to the other, it is difficult to justify it if the transfer is made in favour of the execu tive except to the extent allowed by the Constitution or to the extent that it had already been recognised under the designation "conditional legislation" or "rule making power", of which presumably the constitution makers were fully aware.
I have again no hesitation in holding that our constitution makers accepted the American doctrine against delegation of legislative power, and on grounds of adminis trative convenience and to meet particular circumstances they carefully made express provisions within the Constitu tion for devolution of power in those eventualities.
Article 53 of the Constitution concerns the executive power of the Union.
It is vested in the President and in express terms it is stated in that article that it shall be exercised by him either directly or through officers subor dinate to him in accordance with this Constitution.
The Parliament is authorized by law to confer functions on authorities other than the President.
A careful reading of this article shows that an elaborate provision has been made in the Constitution for employing agencies and machinery for the exercise of the executive power of the Union.
The President is vested with the supreme command of the Defence Forces and in addition to this power, power of delegation has been conferred on Parliament even in its executive field in article 53 (3) (b).
Similar provision has been made in regard to the executive power of each State:(vide article 154).
In article 77 provision has been made as to how the business of the Government of India has to be conducted.
The President has been conferred the power of making rules for the more convenient transaction of the business 943 of the Government of India and for the allocation among Ministers of the said business.
Such a detailed provision regarding the exercise of executive power does not exist in the other constitutions to which our attention was drawn.
Article 79 provides that there shall be a Parliament for the Union.
Provision has then been made in the various articles how the Parliament has to be constituted and how it has to conduct its business, what officers and secretariat it can employ and with what powers.
Articles 107 to 119 relate to legislative procedure.
It is implicit in these elaborate provisions that the Constitution bestowed the lawmaking powers on the body thus constituted by it, and it was this body in its corporate capacity that had to exercise its judgment and discretion in enacting laws and voting taxes and that judgment had to be arrived at by following the rules of procedure expressly laid down therein.
Article 123 confers legislative power on the President when Parlia ment is not in session and this power is co extensive with the legislative power of the Parliament itself.
Article 124 deals with the Union judiciary.
It prescribes the number of Judges and the method of their appointment and it lays down the procedure that the President has the power in making the appointments.
In article 140 provision has been made under which Parliament can confer on the Supreme Court such sup plemental powers as may appear to be necessary for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it by or under this Consti tution.
An express provision of this kind, in my opinion, very clearly negatives the proposition which the learned Attorney General has been contending for.
If the power of delegation of legislative powers is implict in the power of legislation itself, the constitution makers would not have made an express provision in article 140 bestowing authority on Parliament for conferment of ancillary powers on the Supreme Court.
Parliament obviously had authority to legis late on "Supreme Court" as it is one of the subjects in the Union List.
Article 145 (1) (a)again very strongly 944 negatives the proposition of the learned Attorney General.
The constitution has authorized the Supreme Court to make rules as to the persons practising before the court.
This is one of the subjects in the Union List and this conferment of power by the Constitution on the Supreme Court is subject to the provision of any law made by the Parliament.
In other words, Parliament has been given express power to take away this power or supplement it by making a law.
In my judgment, such a provision is quite foreign to a constitution in which delegation of law making powers is implicit.
Detailed provi sion has been made for the appointment of High Court Judges in article 217, and rule making powers have been given to the High Courts under article 227.
In article 243 the Presi dent has been given the power to make regulations for the peace and good government of territories enumerated in Part D of the First Schedule and in exercise of that power he can repeal or amend any law made by Parliament or an existing law.
The Constitution itself has delegated the powers of the Parliament to the President wherever it thought that such delegation was necessary.
Articles 245 and 246 demarcate the field of legislation between the Parliament and the State legislature and in article 248 provision has been made that residuary powers of legislation remain in the Parliament.
Article 250 makes provision for cases of emergency.
Parlia ment in that event has power to make laws for the whole or any part of the territory of India with respect to any matters enumerated in the State lists.
Article 252 is a somewhat peculiar provision.
Under it Parliament can legis late for two or more States with their consent.
This is a form of exercise of legislative power by Parliament as a delegate of the State as by its consent alone Parliament gets the power of legislation.
By article 258 the President has been authorized with the consent of the Government of a State to entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union ex tends.
In that article provision has also been made.
for 945 delegation of powers by a law made by Parliament.
By article 349 the power of the Parliament to enact laws in respect of language has been restricted.
Article 353 states the effect of a proclamation of emergency and provides that the execu tive power of the Union in such a case shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised.
Clause (2) of this article requires emphasis.
It provides that the power of Parliament to make laws with respect to any matters shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers and he imposition of duties, upon the Union, or officers and authorities of the Union, as respects that matter, notwith standing that it is one which is not enumerated in the Union List.
Parliament in an emergency under article 250 has full power to make laws on subjects within the State List and is certainly entitled to delegate that power if that power is a content of legislative power but the constitution makers thought otherwise and made an express provision for delega tion of power in such a situation.
Article 357 provides that where by proclamation issued under clause (1) of article 356, it has been declared that the powers of the legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent for Parliament to confer on the President the power of the legislature of the State to make laws, and to authorize the President to dele gate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf.
This is the only article by which the Constitution has authorized the delegation of essential legislative power.
Possibly it was thought that in that contingency it was necessary that Parliament should have power to confer legislative power on the executive and to clothe it with its own legislative capacity in the State field and further to authorize the President to delegate that legislative power to any other authority specified by him.
A reference to the entries in the three Lists of the Seventh Schedule further 946 illustrates this point.
Entry 93 of List I is Offences against laws with respect to any of the matters in this List.
" Entry 94 is "Inquiries, surveys and statistics for the purpose of any of the matters in this List. ' ' Entry 96 is "Fees in respect of any of the matters in this List, but not including fees taken in any court.
" Entry 95 is "Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.
" All these entries are instances of subjects incidental and ancillary to the main subjects of legislation contained in the List.
Similar entries are to be found in Lists II and III as well.
The Constitution seems to have taken care to confer legislative power in express terms even regarding incidental matters and it is therefore unnecessary to read by implication and introduce by this process within such a constitution any matter not expressly provided therein.
I am satisfied that the constitution makers considered all aspects of the question of delegation of power, whether executive, legislative or judicial, and expressly provided for it whenever it was thought necessary to do so in great detail.
In this situation there is no scope for the applica tion of the doctrine contended for by the learned Attorney General and it must be held that in the absence of express powers of delegation allowed by the Constitution, the Par liament has no power to delegate its essential legislative functions to others, whether State legislatures or executive authorities, except, of course, functions which really in their true nature are ministerial, The scheme of the Consti tution and of the Government of India Act, 1935, is that it expressly entrusted with legislative capacity certain bodies and persons and it also authorised the creation of law making bodies wherever it thought necessary but gave no authority to create a new law making body not created by itself.
It even created the executive as a legislature in certain contingencies.
In these circumstances it is not possible to add to the list of legislative authorities by a process of delegation.
As pointed out by Crawford on Statu tory 947 Construction, at page 333.
"If a statute enumerates the things upon which it is to operate, everything else must necessarily and by implication be excluded from its opera tion and effect.
So if a statute directs certain acts to be done in a specified manner by certain persons, their per formance in any other manner than{ that specified, or by any other person than is there named, is impliedly prohibited.
" The ordinary rule is that if authority is given expressly by affirmative words upon a defined condition, the expression of that condition excludes the doing of the act authorised under other circumstances than those as defined.
Under the Government of India Act, 1935, the executive enjoyed a larger power of legislation than is contained in the new constitution.
It seems to have been cut down to a certain extent.
The new constitution confers authority on Parliament to make laws for the State of Delhi.
It also authorizes it to create a legislature for that State.
The Constitution therefore has made ample provision indicating bodies who would be competent to make laws for the State of Delhi.
In my opinion, therefore, delegation of legislative power to the executive in matters essential is unconstitutional.
Any legislative practice adopted during the pre constitution period for undeveloped and excluded areas can have no rele vancy in the determination of this point.
Having examined the provisions of the new constitution, the constitutional position of the Indian legislature under the Indian Councils Act of 1861 and of the Government of India Act, 1935, as subsequently adapted by the Indian Independence Act, 1947, may now be examined.
As already stated, the Government of India Act, 1935, envisaged a federal constitution for India with a demarca tion of the legislative field between the Federation and the States and it is the scheme of this Act which has been adopted in the new constitution.
I have already expressed my respectful agreement with the view expressed by Varadachari ar J. in Benoari Lal Sarrna 's case(1) that the constitution al (1) 122 948 position in India under this Act approximates more closely to the American model than to the English model and it seems to me that delegation of legislative power in its essenti ality is not allowed by its provisions.
During a period of emergency the Governor General could himself under his own proclamation become the executive as well as the legislature and the necessities of administrative convenience were not a compelling circumstance for introducing into the scheme of the Act by implication, authority in Parliament for the delegation of legislative power.
This Act also contains detailed provisions authorizing delegation of power both in the executive and legislative field wherever it was consid ered necessary to confer such power.
The Indian Independence Act by section 6 conferred the power of legislation on the Dominion Parliament within the ambit of the Act of 1935.
By other provisions of the Indian Independence Act it made the Dominion Parliament a Constituent Assembly for the purpose of making the new constitution for India and it also gave it authority to repeal Acts of Parliament.
For the purpose of ordinary law making it had the same powers as the legisla tures in India enjoyed under the Government of India Act, 1935, and the question referred to us in regard to the Ajmer Merwara Act, 1947, has to be answered on the provi sions of the constitution contained in the Constitution Act of 1935.
The constitutional position in India prior to the Act of 1935 may now be briefly stated.
Before the Charter Act of 1833 there was a division of legislative power between the Governor General and the Presidencies.
By that Act the power of the Presidencies as legislatures was terminated and the whole law making power was vested in the Governor General in Council.
Mr. Macaulay was added as a legislative member to the executive council without a right to vote.
In sub stance the executive and the legislative functions were performed by the same body, of course, with the help and advice of Mr. Macaulay.
With slight modifications the situation remained the same till the Indian Councils Act, 1861.
Under this Act the 949 Governor General in Council in legislative meetings could legislate for the whole of India and local legislatures could also legislate for the provinces.
By section 10 of the Act the legislative power was vested in the Governor General in Council.
In section 15 it was laid down how that power was to be exercised.
For conduct of the legislative business power was given to the Governor General to make rules in section 18.
Section 22 laid down the ambit of the legislative power.
Section 23 bestowed power on the Gover nor General in emergencies to make ordinances.
Section 44 empowered the Governor General to create local legislatures and confer on them legislative power.
It appears that the scheme of the Councils Act was that whenever Parliament wanted the Governor General in Council to have power to create legislatures or to make rules or regulations, that power was conferred in express terms.
By another statute in the year 1870 summary power to make law was conferred on the Governor General in his executive capacity in respect to less advanced areas, i.e., non regulation provinces.
Another charter would not have been necessary if the Governor Gener al could arm himself with legislative power by a process of delegation from his own Council.
In my opinion, the consti tution as envisaged by the Indian Councils Act, 1861, does not authorize the delegation of essential legislative power by any of the legislative authorities brought into existence by that Act to the executive and it was for this reason that their Lordships of the Privy Council in Burgh 's case(1) did not base their decision on this ground but merely upheld the enactment as intra vires on the ground of conditional legis lation.
I am in respectful agreement with the opinion of Markby J. expressed in the year 1877 in these terms:" that any substantial delegation of legislative authority by the legislature of this country is void.
" The Privy Council on appeal did not dissent from this view.
It was argued that legislative practice in India since a long time has been such as would validate statutes (1) 5 I.A. 178.
950 designed on the model of the three statutes under reference to us.
Reference was made to the following observations in U.S.v.
Curriss Wright(1) : "Uniform, long continued and undisputed legislative practice resting on an admissible view of the constitution goes a long way to the direction of proving the presence of unas sailable grounds for the constitutionality of the prac tice.
" In my opinion, there is no evidence in this case of any uniform, long continued and undisputed legislative practice for validating statutes which have been drafted on lines similar to the statutes in question.
The material on which this argument was based is of a most meagre character and does not warrant the conclusion contended for.
Annexure (A) annexed to the case stated on behalf of the President mentions two instances only before the year 1912 of this alleged long continued legislative practice, but even these instances are not analogous to the statutes which have been given in the reference, The scheme of those enact ments in vital matters is different from the enactments in question.
The first instance of this legislative practice is said to be furnished by section 5(a) which was added to the Scheduled Districts Act, 1874, by Act XII of 1891.
It pro vided that with the previous sanction of the Governor Gener al in Council in declaring an enactment in force in the scheduled districts or in extending an enactment to a sched uled district the Local Government may declare the applica tion of the Act subject to such restriction and modification as the Government may think fit.
It is noticeable that,section 7 of the has not been drafted in the same terms as section 5(a) of the Scheduled Districts Act.
Though constitutionally speaking, the Governor General discharged the executive and legislative functions in meet ings held separately for the two purposes and with the help of some additional members, for all practical purposes the Governor General was truly ; 951 speaking in both executive and legislative matters the real authority in this country, and if previous sanction of this authority was necessary before declaring the law even with modifications, this instance cannot be such as would constitute legislative practice for what has been enacted in section 7 of the .
The second instance cited is of the Burma Laws Act, 1898.
In section 10 of this Act it was provided that the Local Government may, with the previous sanction of the Governor General in Council by notification, with such restrictions and modifications as he thinks fit, extend certain Acts in force in any part of Upper Burma at the date of the extension to certain areas.
In section 4 a schedule was given of all the Acts that were in force in Upper Burma at the time of the enactment.
This instance also does not furnish evidence of legislative practice for the validation of section 7 of the in which there is no provision like the one contained in section 4 of the Burma Laws Act, 1898, and which also contains a provision similar to section 5(a) of the Scheduled Districts Act requiring the previous sanction of the Governor General in Council.
Both these important things are lacking in the .
Between 1861 and 1912, a period of over fifty years, two instances of this kind which occurred within seven years of each other cannot fail within the criterion laid down in the case cited above.
After the year 1912 three other illustrations were men tioned.
The first of these is in sections 68 and 73 of the Inland Steam Vessels Act, 1917.
Section authorised modifica tion of an enactment for the purpose of adaptation.
This certainly is no instance of the kind of legislation.
con tained in the , section 7, or in the Ajmer Merwara Act, 1947.
Section 68 authorized the extension of certain chapters to certain areas with modifications.
The next instance mentioned was the .
By section 9 of this Act it was provided that the Central Government may by notification exclude from the operation of any part of this Act the 952 whole or any part of a cantonment or direct that any provi sions of this Act shall in the case of any cantonment apply with such modifications as may be so specified.
The third instance mentioned was in section 30 of the .
Here it was provided that the Central Government may by notification apply all or any of the provisions of this Act with such modifications as it may think fit to any other dangerous inflammable substance.
This is an instance of adding certain items to the schedule annexed to an Act.
These three instances show that between the year 1917 and 1934, a period of seventeen years, three instances occurred of legislation, though not of the same kind as contained in the , but bearing some similarity to that kind of legislation.
No conclusion from those instances of any uniform legislative practice can be drawn.
The learned counsel appearing for the Government of Uttar Pradesh submitted a note in which an instance is mentioned of the Uttar Pradesh Land Revenue Act, III of 1901, which in section 1 of subsection (2) provided that the State Government may by notification extend the whole or any part of this Act to all or any of the areas so excepted subject to such exceptions or modifications as it thinks fit.
This instance does not materially affect the situation.
After the research of a fortnight the learned Attorney General gave us a supplementary list of instances in support of his contention.
Two instances contained in this list are from sections 8 and 9 of Act XXII of 1869 discussed in Burah 's case(1).
The third instance is from section 39 of Act XXIII of 1861, again considered in that case, and these have already been discussed in an earlier part of this judgment.
The only new instance cited is from the Aircraft Act of 1934, which authorized modification in the specification of an aircraft.
It confers no authority to modify any law.
Two instances in ' this list are from the Airforce Act 1950, which was enacted subsequent to (1) 5 I.A. 178.
953 the enactment under reference to us and cannot be considered relevant on this subject.
The last instance cited is from the Madras Local Boards Act, 1920, which authorizes the Governor to extend the Act with certain modifications to areas to which it originally had not been made applica ble.
This instance of 1920 bears no relevancy for deter mining the validity of section 7 of the Act of 1912, enacted eight years before this instance came into existence.
A seemingly similar instance to the enactment contained in section 7 of the is in section 8 of Act XXII of 1869, considered by the Privy Council in Burah 's case(1).
That instance, however, when closely examined, has no real resemblance to section 7 of the .
Act XXII of 1869 was enacted to remove the Garo Hills from the jurisdiction of tribunals established under the General Regulations.
That was its limited purpose.
By section 5 the administration of this part was vested in the officers appointed by the Lieutenant Governor of Bengal and those officers had to be under his control and were to work under his instructions.
The executive administration of this territory was, therefore, vested in the Lieutenant Governor of Bengal.
By section 8 of the Act, already cited, the Lieutenant Governor was authorized by notification in the Calcutta Gazette to extend to the excluded territories laws in force in the other territories subject to his government or laws which might thereafter be enacted by the Council of the Governor General or the Lieutenant Governor in respect of those territories.
Both these authorities were competent to make laws for the province of Bengal.
The validity of section 8 was not questioned in Burah 's case(1) and no argument was addressed about it.
Regarding this section, however, the following observations occur in the judgment of their Lordships which were emphasized before us: "The Governor General in Council has determined, in the due and ordinary course of legislation, to remove (1) 5 t.
A. 178 954 a particular district from the jurisdiction of the ordinary courts and offices, and to place it under new courts and offices, to be appointed by and responsible to the Lieu tenant Governor of Bengal; leaving it to the Lieutenant Governor to say at what time that change shall take place; and also enabling him, not to make what laws he pleases for that or any other district but to apply by public notifica tion to that district any law, or part of a law, which either already was, or from time to time might be, in force, by proper legislative authority, in the other territories subject to his government. ' The legislature determined that, so far, a certain change should take place; but that it was expedient to leave the time, and the manner, of carrying it into effect to the discretion of the Lieutenant Governor; and also, that the laws which were or might be in force in the other territories subject to the same Govern ment were such as it might be fit and proper to apply to this district also.
" All that these observations mean is that a law 'having been made by a competent legislature for the territory under his jurisdiction could be made applicable to a district excluded for certain purposes by a notification of the LieutenantGovernor.
As already pointed out, the Lieutenant Governor could make laws for the whole province of Bengal and similarly, the Governor General in Council could do so.
The law having been made by a competent legislature for the territory for which it had power to legislate, the only power left in the Governor General was to extend that legis lation to an excluded area; but this is not what 'the had done.
As will be shown later, the in section 7 has authorized the Governor General in his executive capacity to extend to Delhi laws made by legisla tures which had no jurisdiction or competence to make laws for Delhi.
Having stated the principles on which answer has to be given to the questions referred to us, I now proceed to give my opinion on each of the three questions.
955 The first question relates to section 7 of the , and concerns its validity in whole or in part.
The section as enacted in 1912 was in these terms : "The Governor General in Council may by notification in the official gazette extend with such restrictions and modifications as he thinks fit to the Province of Delhi or any part thereof any enactment which is in force in any part of British India at the date of such notification.
" The section gives a carte blanche to the GovernorGeneral to extend to the newly formed province any enactment in force in any part of British India at the date of the noti fication and not necessarily any enactment in force in British India at the date of the passing of the .
No schedule was annexed to the Act of the enactments that were in force in any part in British India at the date of the passing of the Act.
As regards the enactments that may be in force in any part of British India at the date of any notification, there was no knowing what those laws would be.
Laws that were to be made after 1912, their principle and policy could not be known to the legislature that enact ed section 7 of the .
It seems obvious that the legislature could not have exercised its judgment, nor its discretion in respect of those laws.
It also conferred on the Governor General power of modifying existing and future enactments passed by different legislatures in the country.
The power of modification implies within it the power of amending those statutes.
To use the words of a learned Judge, the section conferred a kind of a vague, wide, vagrant and uncanalised authority on the Governor General.
There is no provision within the section by virtue of which the mind of the legislature could ever be applied to the amendments maple by the Governor General in the different statutes passed by different legislatures in India and extended to Delhi.
123 956 Illustratively, it may be pointed out that numerous rent control Acts have been passed by different legislatures in India, laying down basically different policies and princi ples.
The Provincial Government under the is authorised to apply the policy of any one of these Acts to Delhi or the policy which it might evolve by combining different such statutes passed by different State legisla tures.
Legislative policy in the matter of rent control had not been evolved by the year 1912.
Another illustration may be taken from the law of prohibition.
Different State gov ernments have adopted a policy of either complete prohibi tion or of local option.
What policy is to be applied to Delhi and who is to decide that policy ? Obviously, under section 7 the Provincial Government can without going to the legislature adopt any policy it likes whether of partial or of complete prohibition and may apply to Delhi any law it thinks fit.
It is obvious therefore that within the wide charter of delegated power given to the executive by section 7 of the it could exercise essential legisla tive functions and in effect it became the legislature for Delhi.
It seems to me that by enacting section 7 the legis lature virtually abdicated its legislative power in favour of the executive.
That, in my judgment, was not warranted by the Indian Councils Act, 1861, or by any decision of the Privy Council or on the basis of any legislative practice.
The section therefore, in my opinion, is ultra vires the Indian Councils Act, 1861, in the following particulars: (i)inasmuch as it permits the executive to apply to Delhi laws enacted by legislatures not competent to make laws for Delhi and which these legislatures may make within their own legislative field, and (ii) inasmuch as it clothes the executive with co extensive legislative authority in the matter of modification of laws made by legislative bodies in India.
If any list of the existing laws passed by the Governor General in Council in his legislative capacity and of laws adopted by it though passed by other legislatures was annexed to the Act, to that extent the delegation of power, but 957 without any power of modifications in favour of the execu tive, might have been valid, but that is not what was enact ed in section 7 of the .
Power to extend laws made in the future by the GovernorGeneral in Council for the whole of India or adopted by it though passed later by other legislatures would also be intra vires, but farther than that the legislature could not go.
If one may say so, sec tion 7 declares that the legislature has no policy of its own and that the Governor General in Council can declare it and can determine what laws would be in force in Delhi.
The second question concerns section 2 of the Ajmer Mer wara (Extension of Laws) Act, 1947, which provides for extension of enactments to Ajmer Merwara.
It says: "The Central Government may by notification in the official gazette extend to the province of AjmerMet warn with such restrictions and modifications as it thinks fit any enactment which is in force in any other province at the date of such notification.
" For the reasons given for holding that section 7 of the is ultra vires the constitution in two par ticulars, this section also is ultra vires the Government of India Act, 193s, in those particulars.
The section does not declare any law but gives the Central Government power to declare what the law shall be.
The choice to select any enactment in force in any province at the date of such notification clearly shows that the legislature declared no principles or policies as regards the law to be made on any subject.
It may be pointed out that under the Act of 1935 different provinces had the exclusive power of laying down their policies in respect to subjects within their own legiSlative field.
What policy was to be adopted for Delhi, whether that adopted in the province of Punjab or of Bombay, was left to the Central Government.
Illustratively, the mischief of such law making may be pointed out with refer ence to what happened in pursuance of this section in Ajmer Merwara.
The Bombay Agricultural Debtors ' Relief Acco, 1947, has been 958 extended under cover of this section to Ajmer Merwara and under the power of modification by amending the definition of the word 'debtor ' the whole policy of the Bombay Act has been altered.
Under the Bombay Act a person is a debtor who is indebted and whose annual income from sources other than agricultural and manly labour does not exceed 33 per cent of his total annual income or does not exceed Rs. 500, whichev er is greater.
In the modified statute "debtor" means an agriculturist who owes a debt, and "agriculturist" means a person who earns his livelihood by agriculture and whose income from such source exceeds 66 per cent of his total income.
The outside limit of Rs. 500 is removed.
The exer cise of this power amounts to making a new law by a body which was not in the contemplation of the Constitution and was not authorized to enact any laws.
Shortly stated, the question is, could the Indian legislature under the Act of 1935 enact that the executive could extend to Delhi laws that may be made hereinafter by a legislature in Timbuctoo or Soviet Russia with modifications.
The answer would be in the negative because the policy of those laws could never be determined by the law making body entrusted with making laws for Delhi.
The Provincial legislatures in India under the Constitution Act of 1935 qua Delhi constitutionally stood on no better footing than the legislatures of Timbuctoo and Soviet Russia though geographically and politically they were in a different situation.
The third question concerns section 2 of the Part C States (Laws) Act, 1950, which provides that " The Central Government may by notification in the official gazette extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions or modifications as it thinks fit any enactment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State." 959 For reasons given for answering questions 1 and 2 that the enactments mentioned therein are ultra rites the consti tution in the particulars stated, this question is also answered similarly.
It might, however, be observed that in this case express power to repeal or amend laws already applicable in Part C States has been conferred on the Cen tral Government.
Power to repeal or amend laws is a power which can only be exercised by an authority that has the power to enact laws.
It is a power co ordinate and co exten sive with the power of the legislature itself.
In bestowing on the Central Government and clothing it with the same capacity as is possessed by the legislature itself the Parliament has acted unconstitutionally.
In offering my opinion on the questions mentioned in the reference I have approached this matter with great caution and patient attention and having in mind the rule that the benefit of reasonable doubt on questions on the constitu tional validity of a statute has to be resolved in favour of legislative action.
The legislative action, however, in the enactments which are the subject matter of the reference has been of such a drastic and wide and indefinite nature con sidered in its full amplitude that it is not possible to hold that in every particular these enactments are constitu tional.
MUKHERJEA J. This is a reference made by the President of India, under article 143 (1) of the Constitution, invit ing this Court to consider and report to him its opinion on the three following questions : (1) Was section 7 of the , or any of the provisions thereof, and in what particular or particu lars or to what extent ultra vires the Legislature which passed the said Act ? (2) Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof, and in what particular or particulars or to what extent ultra vires the Legislature which passed the said Act ? (3) Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof, and in what 960 particular or particulars or to what extent ultra vires the Parliament ? The necessity of seeking the advisory opinion of this Court is stated to have arisen from the fact that because of the decision of the Federal Court in Jatindra Nath Gupta vs The Province of Bihar(1), which held the proviso to sub section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1947, ultra vires the Bihar Provincial Legisla ture, by reason of its amounting to a delegation of its legislative powers to an extraneous authority, doubts have arisen regarding the validity of the three legislative provisions mentioned above, the legality of the first and the second being actually called in question in certain judicial proceedings which are pending before some of the High Courts in India.
The , which is the earliest of the enactments referred to above, was passed in 1912 by the Governor General in Council at its legislative meeting, that being the legislature constituted for British India at that time, under the provisions of the group of statutes known as Indian Councils Acts (1861 1909).
Delhi, which up till the 17th of September, 1912, was a part of the province of the Punjab, was created a Chief Commissioner 's Province on that date and on the following date the Governor General 's Legis lative Council enacted the (Act XIII) 1912 which came into force on and from the 1st of October, 1912.
Section 7 of the Act, in regard to which the controversy has arisen, provides as follows : "The Provincial Government may, by notification in the official gazette, extend with such restrictions and modifi cations as it thinks fit, to the province of Delhi or any part thereof any enactment which is in force in any part of British India at the date of such notification.
" The Ajmer Merwara (Extension of Laws) Act was enacted on the 31st December, 1947, by the Dominion (1) 961 Legislature of India under the provisions of the Government of India Act, 1935 (as adapted under the Indian Independence Act of 1947).
Section 2 of the Act is in the following terms : "2. 'Extension of enactments to Ajmer Merwara.
The Central Government may be notification in the official gazette extend to the province of Ajmer Merwara with such restrictions and modifications as it thinks fit any enact ment which is in force in any other province at the date of such notification.
" Part C States (Laws) Act, 1950, has been enacted by the Indian Parliament after the new Constitution came into force and the provision of section 2 of the Act to which the dispute relates is worded thus: "2.
Power to extend enactments to certain Part C States.
The Central Government may, by notification in the official gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State with such ' restrictions and modifications as it thinks fit any enactment which is in force in a Part A State at the date of the notification; and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State.
" It will be noticed that in all the three items of legis lation, mentioned above, there has been, what may be de scribed, as conferment by the legislatures, which passed the respective enactments, to an outside authority, of some of the powers which the legislative bodies themselves could exercise; and the authority in whose favour the delegation has been made has not only been empowered to extend to particular areas the laws which are in force in other parts of India but has also been given a right to introduce into such laws, any restrictions or modifications as it thinks fit.
The controversy centres round the point as to whether such delegation was or is within the competency of the particular legislature which passed these enactments, 962 The contention of the learned Attorney General, who represents the President of, India, in substance is that a legislature which is competent to legislate on a particular subject has the competence also to delegate its legislative powers in respect of that subject to any agent or external authority as it thinks proper.
The extent to which such delegation should be made is entirely a matter for consider ation by the legislature itself and a court of law has no say in the matter.
There could be according to the learned Attorney General, only two possible limitations upon the exercise of such right of delegation by a competent legis lative body.
One is that the legislature cannot abdicate or surrender its powers altogether or bring into existence a new legislative power not authorised by the constitutional instrument.
The second is that if the constitutional docu ment has provided for distribution of powers amongst differ ent legislative bodies, one legislature cannot delegate to another, powers, which are vested in it, exclusively under the Constitution.
It is argued that, save and except these two limitations, the doctrine of inhibition of delegation by legislative authority has no place in a Constitution mo delled on the English system which does not recognise the principle of separation of powers as obtains in the American system.
These questions are of great constitutional impor tance and require careful consideration.
In America the rule of inhibition against delegation of legislative powers is based primarily upon the traditional American doctrine of "separation of powers".
Another principle is also called in to aid in support of the rule, which is expressed in the wellknown maxim of Private Law, "delegatus non potest delegare", the authority for the same, being based on one of the dieta of Sir Edward Coke.
The modern doctrine of , 'separation of powers" was a leading tenet in the political philosophy of the 18th century.
It was elaborated by Montesquieu in his "Lesprit des lois" in explanation of the English political doctrine and was adopt ed, in theory at least, in all its fulness and 963 rigidity by the constitution makers of America.
The consti tution of America provides for the separation of the govern mental powers into three basic divisions the executive, the legislative, and the judicial and the powers appertaining to each department have been vested in a separate body of public servants.
It is considered to be an essential princi ple(1) underlying the constitution that powers entrusted to one department should be exercised exclusively by that department without encroaching upon the powers confided to others.
As is said by Cooley,(2) "The different classes of power have been apportioned to different departments; and as all derive their authority from the same instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others.
" The other doctrine that is invoked in support of the anti delegation rule is the well accepted principle of municipal law, which prevents a person upon whom a power has been conferred, or to whom a mandate has been given, from delegating his powers to other people.
The legislature is supposed to be a delegate deriving its powers from the 'people ' who are the ultimate repository of all powers, and hence it is considered incapable of transferring such powers to any other authority.
These doctrines, though well recognised in theory, have a restricted and limited application in actual practice.
Mr. Justice Story said(3) "But when we speak of a separation of the three great departments of Government and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense.
It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or depend ence, the one upon (1) See Kilbourn vs Thomson, ; at p. 190.
i2) See Cooley 's "Constitutional Limitations", 7th Edition, page 126.
(3) Story 's Constitution, section 525, 124 964 the other, in the slightest degree.
The true meaning is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments: and that such exercise of the whole would subvert the principles of free constitu tion.
" As regards the maxim delegatus non potest delegare, its origin and theoretical basis are undoubtedly different from those of the doctrine of separation of powers.
But, for practical purposes, both these doctrines are linked together and are used as arguments against the Congress attempting to invest any other authority with legislative powers.
Accord ing to Willis, the disability of the Congress to delegate its legislative powers to the executive, purports to be based upon the doctrine of separation of powers; while its incapacity to bestow its authority upon an independent body like a Board or Commission is said to rest on the maxim delegatus non potest delegare(1).
As said above, a considerable amount of flexibility was allowed in the practical application of these theories even from early times.
The vast complexities of social and eco nomic conditions of the modern age, and the ever growing amount of complicated legislation that is called for by the progressive social necessities, have made it practically impossible for the legislature to provide rules of law which are complete in all their details.
Delegation of some sort, therefore, has become indispensable for making the law more effective and adaptable to the varying needs of society.
Thus in America, despite the theory which prohibits delegation of legislative power, one comes across numerous rules and regulations passed by non legislative bodies in exercise of authority bestowed on them by the legislature in some shape or other.
The legislature has always been deemed competent to create a municipal authority and empower it to make by laws.
In fact, such legislation is based upon the immemorial (1) Willis on Constitutional Law, p. 965 Anglo Saxon practice of leaving to each local community the management and control of local affairs.
The Congress can authorise a public officer to make regulations, or the Judges of the Court to frame rules of procedure which are binding in the same way as laws proper.
It can authorise some other body to determine the conditions or contingencies under which a statute shall become operative and can empower administrative functionaries to determine facts and apply standards.
"The separation of powers between the Congress and the Executive", thus observed Cardozo, J. in his dis senting judgment in Panama Refining Company vs Ryan(1), "is not a doctrinaire concept to be made use of with pedantic rigour.
There must be sensible approximation, there must be elasticity of adjustment in response to the practical neces sities of Government which cannot foresee today the develop ments of tomorrow in their nearly infinite variety".
In fact, the rule of non delegation has so many exceptions engrafted upon it that a well known writer(2) of constitu tional law has tersely expressed that it is difficult to decide whether the dogma or the exceptions state the rule correctly.
It does not admit of any serious dispute that the doc trine of separation of powers has, strictly speaking, no place in the system of government that India has at the present day under her own Constitution or which she had during the British rule.
Unlike the American and Australian Constitutions, the Indian Constitution does not expressly vest the different sets of powers in the different organs of the State.
Under article 53(1), the executive power is indeed vested in the President, but there is no similar vesting provision regarding the legislative and the judicial powers.
Our Constitution, though federal in its structure, is modelled on the British Parliamentary system, the essen tial feature of which is the responsibility of the executive to the legislature.
The President, as the head of the executive, is to act on the advice of the Council of (1) ; at 440.
(2) See Willis on Constitutional Law, p. 137, 966 Ministers, and this Council of Ministers, like the British Cabinet, is a "hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part.
" There could undoubtedly be no question of 'the executive being responsible to the legislature in the year 1912, when the Delhi Act X111 of 1912 was passed, but at that time it was the executive which really dominated the legislature, and the idea of a responsible government was altogether absent.
It was the Executive Council of the GovernorGeneral which together with sixty additional members, of whom 33 were nominated, constituted the GovernorGeneral 's Legisla tive Council and had powers to legislate for the whole of British India.
The local legislatures in the provinces were constituted in a similar manner.
The first advance in the direction of responsible government was made by the Govern ment of India Act, 1919, which introduced dyarchy in the provinces.
The Government of India Act, 1935, brought in Provincial autonomy, and ministerial responsibility was established in the provinces subject to certain reserved powers of the Governor.
In the Centre the responsibility was still limited and apart from the discretionary powers of the Governor General the Defence and External Affairs were kept outside the purview of ministerial and legislative control.
Thus whatever might have been the relation between the legislature and the executive in the different constitu tional set ups that existed at different periods of Indian history since the advent of British rule in this country, there has never been a rigid or institutional separation of powers in the form that exists in America.
The maxim delegatus non potest delegare is sometimes spoken of as laying down a rule of the law of agency; its ambit is certainly wider than that and it is made use of in various fields of law as a doctrine which prohibits a person upon whom a duty or office has devolved or a trust has been imposed from delegating his duties or powers to other per sons.
The 967 introduction of this maxim into the constitutional field cannot be said to be altogether unwarranted, though its basis rests upon a doubtful political doctrine.
To attract the application of this maxim, it is essential that the authority attempting to delegate its powers must itself be a delegate of some other authority.
The legislature, as it exists in India at the present day, undoubtedly is the creature of the Indian Constitution, which defines its powers and lays down its duties; and the Constitution itself is a gift of the people of India to themselves.
But it is not a sound political theory, that the legislature acts merely as a delegate of the people.
This theory once popula rised by Locke and eulogized by early American writers is not much in favour in modern times.
With regard to the Indian Legislature as it existed in British days constitut ed under the Indian Councils Act, it was definitely held by the Judicial Committee in the well known case of Queen vs Burah (1) that it was in no sense a delegate of the British Parliament.
In that case the question arose as to the validity of section 9 of Act XXII of 1869 passed by the Governor General 's Legislative Council.
The Act provided that certain special laws, which had the effect of excluding the jurisdiction of the High Court, should apply to a cer tain district.
known as Garo Hills, and section 9 empowered the Lieutenant Governor of Bengal to extend the operation of these laws to certain other areas if and when the Lieuten ant Governor, by notification in the Calcutta Gazette, would declare that they should be so applied.
The majority of the Judges of the Calcutta High Court upheld the contention of the respondent, Burah, that the authority conferred on the Lieutenant Governor to extend the Act in this way was in excess of the powers of the Governor General in Council, and in support of this view, one of the learned Judges relied inter alia upon the principles of the law of agency.
This view was negatived by the Judicial Committee, and Lord Selborne, in delivering the judgment, observed as follows: (1) 5 I.A. 178.
968 "The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which cir cumscribe these powers.
But when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation as large and of the same nature as those of parliament itself." Practically the same observations were reiterated by the Judicial Committee in the case of Hodge vs The Queen(1) while describing the position of the Provincial Legislature under the Canadian Constitution and stress was laid upon the plenitude of power which such Legislature could exercise when acting within the limits prescribed for it by the Imperial Parliament.
I am quite willing to concede that the doctrine of separation of powers cannot be of any assistance to us in the solution of the problems that require consideration in the present case.
In my opinion, too much importance need not also be attached to the maxim delegatus non potest delegare, although as an epigrammatic saying it embodies a general principle that it is not irrelevant for our present purpose.
But even then I am unable to agree with the broad proposition enunciated by the learned Attorney General that a legislative power per se includes within its ambit a right for the legislative body to delegate the exercise of that power in any manner it likes to another person or authority.
I am unable also to accept his contention that in this respect the authority of the Indian Legislature is as ple nary as that of the British Parliament, and, provided the subject matter of legislation is not one outside the field of its legislative competence, the legislature in India is able to do through an agent anything which it could do itself.
It is to be noted that so far as the British Parliament is concerned, there is no constitutional limitation upon its authority or power.
In the words of Sir 9 App.
969 Edward Coke (1), "the power and jurisdiction of Parliament is so transcendent and absolute that it cannot be confined, either for causes or persons, within any bounds. . . .
It hath sovereign and uncon trollable authority in the making, confirming, enlarging, abrogating, repealing, reviving and expounding of laws. . . . this being the place where that absolute despotic power which must in all governments reside somewhere is entrusted by the constitution of these king doms.
" The British Parliament can not only legislate on any subject it likes and alter or repeal any law it likes, but being both "a legislative and a constituent assembly", it can change and modify the so called constitutional laws and they can be changed by the same body and in the same manner as ordinary laws; and no act of the Parliament can be held to be unconstitutional in a British Court of Law.
(2) This sovereign character was not, and could not be, predicated of the Legislative Council of British India as it was constituted under the Indian Councils Act, even though it had very wide powers of legislation and within the scope of its authority could pass laws as important as those passed by the British Parliament (3).
It is not present also in the Indian Parliament of the present day which is a creature of the Indian Constitution and has got to exercise its legislative powers within the limits laid down by the Constitution itself.
Acting in its ordinary capacity as a legislative body, the Indian Parliament cannot go beyond the Constitution or touch any of the Constitutional or fundamen tal laws, and its acts can always be questioned in a court of law.
Consequences of great constitutional importance flow from this difference and they have a material bearing on the question before us.
The contention of the learned Attorney General in substance is that the power of delegation of legislative authority without any limitation as to its extent is (1) See Coke 's Fourth Institute, p. 36.
(2) See Dicey 's Law of the Constitution, p. 88 (9th Edi tion.) (3) See Dicey 's Law of the Constitution, p. 99 (9th Edition).
970 implicit in the exercise of the power itself, and in support of his contention he refers to the unrestricted rights of delegation which are exercised by the British Parliament.
But the validity or invalidity of a delegation of legisla tive power by the British Parliament is not and cannot be a constitutional question at all in the United Kingdom, for the Parliament being the omnipotent sovereign is legally competent to do anything it likes arid no objection to the constitutionality of its acts can be raised in a court of law.
Therefore, from the mere fact that the British Parlia ment exercises unfettered rights of delegation in respect of its legislative powers, the conclusion does not follow that such right of delegation is an inseparable adjunct of the legislative power itself.
The position simply is this that in England, no matter, to whichever department of the powers exercisable by the British Parliament the right of delega tion of legislative authority may be attributed and there is no dispute that all the sovereign powers are vested in the Parliament no objection can be taken to the legality of the exercise of such right.
But in India the position even at the present day is different.
There being a written constitution which defines and limits the rights of the legislature, the question whether the right of delegation, either limited or unlimited, is included within, and forms an integral part of, the right of legislation is a question which must be answered on a proper interpretation of the terms of the Constitution itself.
We need not for this purpose pay any attention to the American doctrine of sepa ration of powers; we must look to the express language of our own Constitution and our approach should be to the essential principles underlying the process of law making which our Constitution envisages.
According to the Indian Constitution, the power of law making can be exercised by the Union Parliament or a State Legislature which is to be constituted in a particular manner and the process of legis lation has been described in detail in various articles(1).
Powers have been given to the President (1) Vide Articles 107 and 111; 196 to 200, 971 in article 123 and to the Governor of a State under article 213 to promulgate Ordinances during recess of the respective legislatures.
Specific provisions have also been made for exercise of the legislative powers by the President on proclamation of emergency and in respect of Part D territo ries.
Law making undoubtedly is a task of the highest impor tance and responsibility, and, as our Constitution has entrusted this task to particular bodies of persons chosen in particular ways, and not only does it set up a machinery for law making but regulates the methods by which it is to be exercised and makes specific provisions for cases where departure from the normal procedure has been sanctioned, the prima facie presumption must be that the intention of the Constitution is that the duty of law making is to be per formed primarily by the legislative body itself.
The power of the Parliament to confer on the President legislative authority to make laws and also to authorise the President to delegate the power so conferred to any other authority has been recognised only as an emergency provision in arti cle 357 of ' the Constitution.
Save and except this, there is no other provision in the Constitution under which the legislature has been expressly authorised to delegate its legislative powers.
"It is a well known rule of construction that if a statute directs that certain acts shall be done in a specified manner or by certain persons, then performance in any other manner than that specified or by any other persons than those named is impliedly prohibited(1).
" It has been observed by Baker in his treatise on "Fundamental Laws" that quite apart from the doctrine of separation of powers, there are other cogent reasons why legislative power cannot be delegated.
"Representative government," thus observes the ]earned author,(2) "vests in the persons chosen to exercise the power of voting taxes and enacting laws, the most important and sacred trust known to civil government.
The representatives of the people are (1) Vide Crawford 's Statutory Construction, p. 334.
(2) Baker 's Fundamental Laws, Vol.
I, p. 287.
125 972 required to exercise wise discretion and a sound judgment, having due regard for the purposes and the needs of the executive and judicial department, the ability of the tax payer to respond and the general public welfare.
It follows as a self evident proposition that a responsible legis lative assembly must exercise its own judgment.
" In the same strain are the observations made by Cooley in his "Constitutional Law ,,(1) that the reason against delegation of power by the legislature is found in the very existence of its own powers. "This high prerogative has been entrusted to its own wisdom, judgment and patriotism, and not to those of other persons, and it will act ultra vires if it under takes to delegate the trust instead of executing it.
" The same considerations are applicable with regard to the legislative bodies which exercised the powers of law making at the relevant periods when the of 1912 and the Ajmer Merwara Act of 1947 were enacted.
Under the Indian Councils Act, 1861, the power of making laws and regulations was expressly vested in a distinct body consist ing of the members of the Governor General 's Council and certain additional members who were nominated by the Governor General for a period of two years.
The number of such additional members which was originally from 6 to 12 was increased by the subsequent amending Acts and under the Indian Councils Act 'of 1909, it was fixed at 60, of which 27 were elected and the rest nominated by the Governor General.
It was this legislative body that was empowered by the Indian Councils Act to legislate for the whole of Brit ish India and there were certain local legislatures in addition to this in some of the provinces.
Section 18 of the Indian Councils Act of 1861 empowered the Governor General to make rules for the conduct of busi ness at meetings of the Council for the purpose of making laws; section 15 prescribed the quorum necessary for such.
meetings and further provided that the seniormost ordinary member could preside in the absence of the Governor General.
This was (1) Vide Fourth Edition, p. 138, 973 the normal process of law making as laid down by the Indian Councils Act.
Special provisions were made for exceptional cases when the normal procedure could be departed from.
Thus section 23 of the Act of 1861 empowered the Governor General to make ordinances having the force of law in case of urgent necessity; and later on under section 1 of the Indian Councils Act of 1870 the executive government was given the power to make regulations for certain parts of India to which the provisions of the section were declared to be applicable by the Secretary of State.
Besides these exceptions for which specific provisions were made, there is nothing in the parliamentary Acts passed during this period to suggest that legislative powers could be exercised by any other person or authority except the Legislative Councils mentioned above.
The Ajmer Merwara Act was passed by the Dominion Legis lature constituted under the Government of India Act, 1935, as adapted under the Indian Independence Act of 1937.
The provisions of the Constitution Act of 1945 in regard to the powers and functions of the legislative bodies were similar to those that exist under the present Constitution and no detailed reference to them is necessary.
The point for consideration now is that if this is the correct position with regard to exercise of powers by the legislature, then no delegation of legislative function, however small it might be, would be permissible at all.
The answer is that delegation of legislative authority could be permissible but only as ancillary to, or in aid of, the exercise of law making powers by the proper legislature, and not as a means to be used by the latter to relieve itself of its own responsibility or essential duties by devolving the same on some other agent or machinery.
A constitutional power may be held to imply a power of delegation of authori ty which is necessary to effect its purpose; and to this extent delegation of a power may be taken to be implicit in the exercise of that power.
This is on the principle "that everything necessary to the exercise of a power 974 is implied in the grant of the power.
Everything necessary to the effective exercise of legislation must, therefore be taken to be conferred by the Constitution within that power.
But it is not open to the legislature to strip itself of its essential legislative function and vest the same on an extraneous authority.
The primary or essential duty of law making has got to be discharged by the legisla ture itself; delegation may be resorted to only as a second ary or ancillary measure.
Quite apart from the decisions of American courts, to some of which I will refer presently, the soundness of the doctrine rests, as I have said already, upon the essential principles involved in our written Constitution.
The work of law making should be done primarily by the authority to which that duty is entrusted, although such authority can employ an outside agency or machinery for the purpose of enabling it to discharge its duties properly and effectively; but it can on no account throw the responsibility which the Constitution imposes upon it on the shoulders of an agent or delegate and thereby practically abdicate its own powers.
The learned Attorney General in support of the position he took up placed considerable reliance on the observations of the Judicial Committee in the case of Queen vs Burah(2), which I have referred to already and which have been repeat ed almost in identical language in more than one subse quent pronouncement of the Judicial Committee.
The Privy Council made those observations for the purpose of clearing up a misconception which prevailed for a time in certain quarters that the Indian or the Colonial Legislatures were mere agents or delegates of the Imperial Parliament, and being in a sense holders of mandates from the latter, were bound to execute these mandates personally.
This concep tion, the Privy Council pointed out, was wrong.
The Indian Legislature, or for the matter of that the Colonial Parlia ment could, of course, do nothing beyond the limits (1) Per O 'Connor J. in Baxter vs Ah Way, ; at 637.
(2) 5 IA.
975 prescribed for them by the British Parliament.
But acting within these limits they were in no sense agents of another body and had plenary powers of legislation as large and of the same nature as those of the Parliament itself.
It should be noted that the majority of the Judges of the Calcutta High Court in Queen vs Burgh(1) proceeded on the view that the impugned provision of Act XXII of 1869 was not a legislation but amounted to delegation of legislative power and Mr. Justice Markby in his judgment relied express ly upon the doctrine of agency.
This view of Mr. Justice Markby was held to be wrong by the Privy Council in the observations mentioned above and as regards the first and the main point the Judicial Committee pointed out that the majority of the Judges of the High Court laboured under a mistaken view of the nature and principles of legislation, for as a matter of fact nothing like delegation of legisla tion was attempted in the case at all.
It seems to me that the observations relied on by the Attorney General do not show that in the opinion of the Privy Council the Indian, Legislative Council had the same unrestricted rights of delegation of legislative powers as are possessed by the British Parliament.
If that were so there was no necessity of proceeding any further and the case could have been disposed of on the simple point that even if there was any delegation of legislative powers made by the Indian Legisla tive Council it was quite within the ambit of its authority.
In my opinion, the object of making the observations was to elucidate the character in which the Indian Legislative Council exercised its legislative powers.
It exercised the powers in its own right and not as an agent or delegate of the British Parliament.
If the doctrine of agency is to be imported, the act of the agent would be regarded as the act of the principal, but the legislation passed by the Indian Legislature was the act of the Legislature itself acting within the ambit of its authority and not of the British Parliament, although it derived its authority from the latter.
This view has been clearly 5 I.A.78.
976 expressed by Rand J. of the Supreme Court of Canada while the learned Judge was speaking about the essential character of the legislation passed by the legislative bodies in Canada (1).
The observations of the learned Judge are as follows : "The essential quality of legislation enacted by these bodies is that it is deemed to be the law of legislatures of Canada as a self governing political organization and not law of Imperial Parliament.
It was law within the Empire and law within the Commonwealth, but it is not law as if enacted at Westminster, though its source or authority is derived from that Parliament.
" It should be noted further that in their judgment in Burah 's case(2) the Privy Council while dealing with the matter of delegated authority was fully alive to the implications of a written constitution entrusting the exercise of legislative powers to a legisla ture constituted and defined in a particular manner and imposing a disability on such legislature to go beyond the specific constitutional provisions.
Just after stating that the Indian Legislature was in no sense a delegate of the Imperial Parliament the Privy Council observed: "The Gover nor General in Council could not by any form of an enactment create in India and arm with legislative authority a new legislative power not created and authorised by the Coun cils Act." Almost in the same strain were the observations of the Judicial Committee in In re The Initiative and Referendum Act, 1919 (3); and while speaking about the powers of the Provincial Legislature under the Canadian Act of 1867 Lord Haldane said : "Section 92 of the Act of 1867 entrusts the legislative power in a province to its legislature and to that legisla ture only.
No doubt a body with a power of legislation on the subjects entrusted to it so ample as that enjoyed by the provincial legislature in Canada could, while preserving its own capacity intact, seek (1) See Attorney General of Nova Scotia vs Attorney General of Canada, at p. 383.
(2) 5 I.A. 178.
(3) at p. 945.
977 the assistance of subordinate agencies as had been done when in Hodge vs Queen(1) the legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence.
" It is not correct to say that what these observations contemplate is a total effacement of the legislative body on surrender of all its powers in favour of another authority not recognised by the constitution.
Such a thing is almost outside the range of practical consideration.
The observa tions of Lord Haldane quoted above make it quite clear that his Lordship had in mind the distinction between "seeking the assistance of a subordinate agency in the framing of rules and regulations which are to become a part of the law," and "conferring on another body the essential legisla tive function which under the constitution should be exer cised by the legislature itself.
" The word "abdication" is somewhat misleading, but if the word is to be used at all, it is not necessary in my opinion to constitute legal abdi cation that the legislature should extinguish itself com pletely and efface itself out of the pages of the constitu tion bequeathing all its rights to another authority which is to step into its shoes and succeed to its rights.
The abdication contemplated here is the surrender of essential legislative authority even in respect of a particular sub ject matter of legislation in favour of another person or authority which is not empowered by the constitution to exercise this function.
I will now attempt to set out in some detail the limits of permissible delegation, in the matter of making laws, with reference to decided authorities.
For this purpose it will be necessary to advert to some of the more important cases on the, subject decided by the highest courts of America, Canada and Australia.
We have also a number of pronouncements of the Judicial Committee in appeals from India and the Colonies.
I confess that no uniform view can be gathered from (1) 9 App.
978 these decisions and none could possibly be expected in view of the fact that the pronouncements emanate from Judges in different countries acting under the influence of their respective traditional theories and the weight of opinion of their own courts on the subject.
None of these authorities, however, are binding on this court and it is not necessary for us to make any attempt at reconciliation.
We are free to accept the view which appears to us to be well founded on principle and based on sound juridical reasoning.
Broadly speaking, the question of delegated legislation has come up for consideration before courts of law in two distinct classes of cases.
One of these classes comprises what is known as cases of "conditional legislation," where according to the generally accepted view, the element of delegation that is present relates not to any legislative function at all, but to the determination of a contingency or event, upon the happening of which the legislative provi sions are made to operate.
The other class comprises cases of delegation proper, where admittedly some portion of the legislative power has been conferred by the legislative body upon what is described as a subordinate agent or authority.
I will take up for consideration these two types of cases one after the other.
In a conditional legislation, the law is full and com plete when it leaves the legislative chamber, but the opera tion of the law is made dependent upon the fulfilment of a condition, and what is delegated to an outside body is the authority to determine, by the exercise of its own judgment, whether or not the condition has been fulfilled.
"The aim of all legislation", said O 'Connor J. in Baxter vs Ah Way (1) "is to project their minds as far as possible into the future and to provide in terms as general as possible for all contingencies likely to arise in the application of the law.
But it is not possible to provide specifically for all cases and therefore legislation from the very earnest times, and particularly in more (1) ; at 637, 979 modern times, has taken the form of conditional legis lation, leaving it to some specified authority to deter mine the circumstances in which the law shall be applied or to what its operation shall be extended, or the particular class of persons or goods or things to which it shall be applied.
" In spite of the doctrine of separation of powers, this form of legislation is well recognised in the legisla tive practice of America, and is not considered as an en croachment upon the anti delegation rule at all.
As stated in a leading Pennsylvania case (1), "the legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend.
To deny this would be to stop the wheels of Govern ment.
There are many things upon which wise and useful legislation must depend, which cannot be known to the law making power and must, therefore, be a subject of inquiry and determination outside the halls of legislation.
" One of the earliest pronouncements of the Judicial Committee on the subject of conditional legislation is to be found in Queen vs Burah(2).
In that case, as said already, the Lieutenant Governor of Bengal was given the authority to extend all or any of the provisions contained in a statute to certain districts at such time he considered proper by notification in the official gazette.
There was no legisla tive act to be performed by the Lieutenant Governor himself.
The Judicial Committee observed in their judgment : "The proper legislature has exercised its judgment as to place, persons, laws, powers, and the result of that judg ment has been to legislate conditionally as to those things.
The conditions being fulfilled, the legislation is now absolute." Just four years after this decision was given, the case of Russell vs The Queen(3) came up before the (1) Locke 's Appeal, (8) 7 App.
829 (2) 5 I.A. 178.
126 980 Judicial Committee.
The subject matter of dispute in that case was the Canadian Temperance Act of 1878, the prohibito ry and penal provisions of which were to be operative in any county or city, only if upon a vote of the majority of the electors of that county or city favouring such a course the Governor General by Order in Council declared the relative part of the Act to be in force.
One of the contentions raised before the Judicial Committee was that the provision was void as amounting to a delegation of legislative author ity to a majority of voters in the city or county.
This contention was negatived by the Privy Council, and the decision in Queen vs Burah(1) was expressly relied upon. ', The short answer to this question," thus observed the Judi cial Committee, "is that the Act does not delegate any legislative powers whatsoever.
It contains within itself the whole legislation on the matter with which it deals.
The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer authority or power to legislate.
Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled.
Conditional legislation of this kind is in many cases convenient and is certainly not unusual and the power so to legislate cannot be denied to the Parliament of Canada when the subject of legislation is within its competency.
" The same principle was applied by the Judicial Commit tee in King vs Benoari Lal Sarma(2).
In that case, the validity of an emergency ordinance by the Governor General of India was challenged inter alia on the ground that it provided for setting up of special criminal courts for particular kinds of offences, but the actual setting up of the courts was left to the Provincial Governments which were authorised to set them up at such time and place as they considered proper.
The Judicial Committee held that "this is not delegated legislation at all.
It is merely an example of the not uncommon legislative power by which the local appli cation of the provisions of a statute is determined (1) 5 I.A. 178.
(2) 72 I.A. 57.
981 by the judgment of a local administrative body as to its necessity.
" Thus, conditional legislation has all along been treated in judicial pronouncements not to be a species of delegated legislation at all.
It comes under a separate category, and, if in a particular case all the elements of a conditional legislation exist, the question does not arise as to whether in leaving the task of determining the condition to an outside authority, the legislature acted beyond the scope of its powers.
I now come to the other and more important group of cases where admittedly a. portion of the law making power of the legislature is conferred or bestowed upon a subordinate authority and the rules and regulations which are to be framed by the latter constitute an integral portion of the statute itself.
As said already, it is within powers of Parliament or any competent legislative body when legislat ing within its legislative field, to confer subordinate administrative and legislative powers upon some other au thority.
The question is what are the limits within which such conferment or bestowing of powers could be properly made? It is conceded by the learned Attorney General that the legislature cannot totally abdicate its functions and invest another authority with all the powers of legislation which it possesses.
Subordinate legislation, it is not disputed, must operate under the control of the legislature from which it derives its authority, and on the continuing operation of which, its capacity to function rests.
As was said by Dixon J. (1) "a subordinate legislation cannot have the independent and unqualified authority which is an attribute of true legislative power.
" It is pointed out by this learned Judge that several legal consequences flow from this doctrine of subordinate legislation.
An offence against subordinate legislation is regarded as an offence against the statute and on the repeal of the statute the regulations automatically collapse.
So far, the propositions cannot, and need not, be disputed.
But, (1) Vide Victoria Stevedoring and General Contracting Company vs Dignan, ; at 102.
982 according to the learned Attorney General all that is neces sary in subordinate legislation is that the legislature should not totally abdicate its powers and that it should retain its control over the subordinate agency which it can destroy later at any time it likes.
If this is proved to exist in a particular case, then the character or extent of the powers delegated to or conferred upon such subordinate agent is quite immaterial and into that question the courts have no jurisdiction to enter.
This argument seems plausible at first sight, but on closer examination, I find myself unable to accept it as sound.
In my opinion, it is not enough that the legislature retains control over the subor dinate agent and could recall him at any time it likes, to justify its arming the delegate with all the legislative powers in regard to a particular subject.
Subordinate legis lation not only connotes the subordinate or dependent char acter of the agency which is entrusted with the power to legislate, but also implies the subordinate or ancillary character of the legislation itself, the making of which such agent is entrusted with.
If the legislature hands over its essential legislative powers to an outside authority, that would, in my opinion, amount to a virtual abdication of its powers and such an act would be in excess of the limits of permissible delegation.
The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct.
It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legis lative work to a subordinate authority who will work out the details within the framework of that policy. "So long as a policy is laid down and a standard established by statute no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determi nation of facts to which the legislation is to apply"(1).
(1) Vide Schechter Poultry Corp. vs United States, 295 U.S. 495 983 The Supreme Court of America has held in more cases than one that the policy of the law making body and the standards to guide the administrative agency may be laid down in very broad and general terms.
It is enough if the legislature lays down an intelligible principle which can be implemented by the subordinate authorities for specific cases or classes of cases(1).
The Court has been exceedingly loath to find violation of this principle and in fact there are, only two cases, viz., Panama Refining Co. vs Ryan(2) and Schechter Poultry Corp. vs
U.S.(3) where the federal legislation was held invalid on the ground that the standard laid down by the Congress for guiding administrative discretion was not sufficiently definite.
In Panama Refining Co. vs Ryan(2) Chief Justice Hughes very clearly stated "that the Congress manifestly is not permitted to abdicate or transfer to others the essential legislative functions with which it is invested." "In every case" the learned Chief Justice contin ued," in which the question has been raised the court has recognised that there are limits of delegation which there is no constitutional authority to transcend.
We think that section 9(c) goes beyond those limits; as to transpor tation of oil production in excess of state permission the Congress has declared no policy, has established no stand ard, has laid down no rule.
There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited." Mr. Justice Cardozo differed from the majority view m this case and held that a reference express or implied to the policy of Con gress as declared in section 1 was a sufficient definition of a standard to make the statute valid.
"Discretion is not unconfined and vagrant" thus observed the learned Judge.
"It is confined within banks that keep it from overflowing.
" It is interesting to note that in the later case of Schechter Poultry Corporation(3), where the legislative power was held to be unconstitutionally delegated by the provision of section 3 of the National Industrial (1) Vdie J. IV.
Hampton vs
U.S.; , (2) ; (3) ; 184 Recovery Act of 1933 as no definite standard was set up or indicated by the legislature, Cardozo J. agreed with the opinion of the Court and held that the delegated power of legislation which had found expression in that Code was not canalised within banks but was unconfined and vagrant. "Here in the case before us" thus observed the learned Judge, "is an attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard.
This is delegation running riot.
No such plenitude of powers is capable of transfer.
" As said above, these are the only two cases up till now in which the statutes of Congress have been de clared invalid because of delegation of essential legis lative powers.
In the later cases the court has invari bly found the standard established by the Congress suffi ciently definite to satisfy the prohibition against delega tion of legislative powers, and in all such cases a most liberal construction has been put upon the enactment of the legislature(1).
We are not concerned with the actual decisions in these cases.
The decisions are to be valued in so far as they lay down any principles.
The manner of applying the principles to the facts of a particular case is not at all material.
The decisions referred to above clearly lay down that the legislature cannot part with its essential legislative function which consists in declaring its policy and making it a binding rule of ' conduct.
A surrender of this essen tial function would amount to abdication of legislative powers in the eye of law. 'the policy may be particularised in as few or as many words as the legislature thinks proper and it is enough if an intelligent guidance is given to the subordinate authority.
The Court can interfere if no policy is discernible at all or the delegation is of such an indef inite character as to amount to abdication, but as the discretion vests with the legislature in determining wheth er there is necessity (1) See Opp Cotton Mills vs Administrator of Wages, ; ; Yakus vs United States, ; ; American Pt.
& Lt. Co. vs Securities and Exchange Commission, ; 985 for delegation or not, the exercise of such discretion is not to be disturbed by the court except in clear cases of abuse.
These I consider to be the fundamental principles and in respect to the powers of the legislature the constitu tional position in India approximates more to the American than to the English pattern.
There is a basic difference between the Indian and the British Parliament in this re spect.
There is no constitutional limitation to restrain the British Parliament from assigning its powers where it will, but the Indian Parliament qua legislative body is lettered by a written constitution and it does not possess the sover eign powers of the British Parliament.
The limits of the powers of delegation in India would therefore have to be ascertained as a matter of construction from the provisions of the Constitution itself and as I have said the right of delegation may be implied in the exercise of legislative power only to the extent that it is necessary to make the exercise of the power effective and complete.
It is said by Schwartz in his work on American Administrative Law "that these doctrines enable the American courts to ensure that the growth of executive power necessitated by the rise of the administrative process will not be an uncontrollable one.
Delegation of powers must be limited ones limited either by legislative prescription of ends and means, or even of details or by limitations upon the area of the power delegated.
The enabling legislation must, in other words, contain a framework within which the executive action must operate"(1).
It would be worth while mentioning in this connection that the report of the Committee on Ministers ' Power recom mended something very much similar to this American doctrine as a proper check on delegated legislation.
The report says that "the precise limits of a law making power which Parlia ment intends to confer on a Minister should always be ex pressly defined in clear language by the statute which confers it, when discretion is conferred its limits should be defined with (1) Schwartz 's American Administrative Law, p. 22.
986 equal clearness"(1).
It is true that what in America is a question of vires and is subject to scrutiny by courts, in the United Kingdom it is a question of policy having a purely political significance.
But the recommendation of the Committee would clearly indicate that the rules laid down and acted upon by the American Judges particularly in later years can be supported on perfectly clear and sound democratic principles.
I will now advert to the leading Canadian and Australi an cases on the subject and see how far these decisions lend support to the principles set out above.
Many of these Canadian cases, it may be noted, went up on appeal to the Judicial Committee.
I will start with the case of Hodge vs The Queen(2) which came up before the Judicial Committee on appeal from the decision of the Court of Appeal for Ontario in the year 1883.
The facts of the case are quite simple.
The appellant was convicted for permitting and suffering a billiard table to be used and a game of billiard to be played thereon in violation of a resolution of the License Commissioners who were authorised by the Liquor License Act of 1877 to enact regulations regulating the use of taverns, with power to create offences and annex penalties there to.
One of the questions raised was whether the Ontario Legisla ture could delegate powers to the License Commissioners to frame regulations by which new offences could be created.
The Privy Council agreed with the High Court in holding that the legislature for Ontario was not in any sense exercising delegated authority from the Imperial Parliament and it had full authority to confide to a municipal institution or body of its own creation authority to make by laws or resolutions as to subjects specified in the enactment and with the object of carrying the enactment into operation and effect.
It was observed : "Such an authority is ancillary to legislation;. the very full and very elaborate judgment of the (1) Vide Report, page 65.
(2) 9 App, Cas, 117.
987 Court of Appeal contains abundance of precedents for the legislature entrusting a limited discretionary authority to others and as many illustrations of its necessity and con venience.
" It will be seen that what was delegated by the Ontario Legislature to the License Commissioners was simply the power to regulate tavern licenses.
There was no question of parting with substantial legislative powers in this case.
But although the Privy Council stated clearly that the Ontario legislature was quite supreme within its own sphere and enjoyed the same authority as the Imperial or the Dominion Parliament, they described the power delegated as authority ancillary to legislation and expressly referred to the "abundance of precedents for the legislature entrusting a limited discretionary authority to others.
" There was no necessity for the Privy Council to use the guarded language it used if in fact the Ontario legislature had the same right of delegating its powers as the British Parliament.
It would be pertinent to note that Davey, Q.C., who appeared for the Crown in support of the judgment appealed against.
did not contend before the Privy Council that the Ontario legislature had full rights of delegation like the British Parliament and consequently its acts could not be challenged as unconstitutional.
His argument was that in this ease there was no delegation of legislative authority and what was delegated was only the power to make by laws.
By legis lative authority the learned Counsel apparently meant the essential legislative function as distinguished from the power to make rules and regulations and the argument implied that the essential legislative powers could not be delegated at all.
The case of Powell vs Appollo Candle Co. (1) is the next case in point of time which has a bearing on the question before us.
That case came up on appeal from a decision of the Supreme Court of New South Wales, and the question arose whether section 133 of (1) 10 App.
127 988 the Customs Regulation Act of 1879of the Colony, was or was not ultra vires the Colonial legislature.
The attack on the validity of the legislation was inter alia on the ground that it conferred upon the Government power to levy duty on certain articles which in the opinion of the Collector were substituted for other dutiable articles.
The question was whether such power could be validly conferred.
The Privy Council had no difficulty in holding that the provision was perfectly valid and it was quite within the competence of the Colonial legislature which was in no sense a delegate of the Imperial Parliament, to confer a discretion of this character on the executive for the purpose of making the statute properly effective.
The policy of the law as well as the main principles were laid down in the Act itself.
What was left to the executive was a power to enforce the provisions of the Act more properly and effectively by levying duties on articles which could be used for similar purposes as the dutiable articles mentioned in the statute.
The legislature itself laid down the standard and it was sufficiently definite to guide the executive officers.
I now come to the decision of the Supreme Court of Canada in In re Gray (1), which was decided during the first world war.
The Dominion War Measures Act, 1914, passed by the Dominion Parliament of Canada empowered the Governor General to make "such regulations as he may, by reason of the existence of real or apprehended war. . deem necessary or advisable for the security, defence, peace, order and welfare of Canada"; and the question arose whether such transfer of power was permitted by the British North America Act.
The Supreme Court decided by a majority of four to two that the Act was valid, though the Judges who adopted the majority view were not unanimous regarding the reasons upon which they purported to base their decision.
The Chief Justice was of the opinion that there was nothing in the Constitutional Act which so far as material to the question (1) 57 S.C.R. 150. 989 under consideration would impose any limitation on the authority of the Parliament of Canada to which the Imperial Parliament was not subject.
Anglin J. referred to the deci sion in Hodge vs The Queen(1) (supra) in the course of his judgment.
He seemed to think that the British North America Act did not contemplate complete abdication of its legisla tive powers by the Dominion Parliament, but considered such abdication to be something so inconceivable that the consti tutionality of an attempt to do anything of that kind was outside the range of practical consideration.
Apparently the learned Judge gave the expression "abdication" a very narrow meaning.
The opinion of Duff J. was much the same, and he considered that there was no abandonment of legislative powers in this case, as the powers granted could at any time be revoked and anything done thereunder nullified by the Parliament.
Idington and Brodeur JJ.
dissented from this majority view.
This decision was followed in the "Reference in the Matter of the Validity of the Regulations in Relation to Chemicals Enacted by the Governor General of Canada under the War Measures Act ", which is to be found reported in In this case the question raised related to the validi ty of certain regulations made by an Order in Council in terms of the powers conferred upon the Governor in Council by the War Measures Act and the Department of Munitions and Supply Act.
It was held that with the, exception of para graph 4 of the Order in Council the rest of the Order was not ultra vires.
It appears from the report that in this case it was not disputed before the court that powers could be delegated by the legislature to the Governor in Council under the War Measures Act.
The question raised was whether the Governor in Council could further delegate his powers to subordinate agencies.
The question was answered in the affirmative, the reason given being that the power of dele gation being absolutely essential in the circumstances for which the War Measures Act has been designed so as to have a workable Act, the power (1) 9 App.
990 delegated must be deemed to form part of the powers con ferred by Parliament in the Act.
These are war time decisions and it is apparent that the doctrine of delegation has been pushed too far in the Chemical Reference case.
In In re Gray (1) the learned Chief Justice at the conclusion of his judgment expressly stated that the security of the country was the supreme law against which no other law could prevail.
I agree with the Attorney General that the competency of the Parliament to legislate could not be made dependent upon the fact as to whether the law was a war time or a peace time measure.
But on the other hand, it is possible to argue that in a legis lation passed by a Parliament in times of war when the liberty and security of the country are in jeopardy, the only policy which the legislature can possibly formulate is the policy of effectively carrying on the war and this necessarily implies vesting of all war operations in the hands of the executive.
There appears to be considerable substance in the observations made by Dixon J.(2) that "it may be considered that the exigencies which must be dealt with under the defence powers are so many, so great and so urgent and so much the proper concern of the executive that from its very nature the power appears by necessary intend ment to authorise delegation otherwise generally forbidden by the legislature.
" It may be mentioned here that the decision in In re Gray(1) was sought t6 be distinguished in a subsequent Canadian case on the ground that in case of emergency it was possible to pass legislation of this sort by taking recourse to the residuary powers conferred on the Dominion Parliament by section 91 of the North America Act (3).
In point of time, the case of In re The Initiative and Referendum Act(4) comes immediately after that of In re Gray(1).
The dispute in this case related to an Act (1) 57 S.C.R. 150.
(2) Vide Victoria Stevedoring and General Contracting Co. vs Dignan; , at p. 99.
| Section 7 of the , provided that "The Provincial Government may by notification in the official gazette extend, with such restrictions and modifications as it thinks fit, to the Province of Delhi, or any part there of, any enactment which is in force in any part of British India at the date of such notification".
Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, provided that "The Central Government may, by notification in the official gazette, extend to the Province of Ajmer Merwara, with such restrictions and modifications as it thinks fit, any enact ment which is in force in any other Province at the date of such notification.
Section 2 of the Part C States (Laws) Act, 1950, provided that "The Central Government may, by notification in the official gazette extend to any Part C State . . or to any part of such State, with such restrictions and modifications as it thinks fit, any enact ment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law . which is for the time being applicable to that Part C State.
As a result of a decision of the Federal Court, doubts were entertained with regard to the validity of laws delegating legislative powers to the executive Government and the President of India made a reference to the Supreme Court under article 143 (1) of the Constitution for considering the question whether the above mentioned sec tions or any provisions thereof were to any extent, and if so to what extent 748 and in what particulars, ultra vires the legislatures that respectively passed these laws, and for reporting to him the opinion of the Court thereon: Held, (1)per FAzL ALl, PATANJALI SASTRI, MUKHERJEA, DAS and Bose JJ., (KANIA C.J., and MAHAJAN J., dissenting).
Section 7 of the , and section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, are wholly intra vires.
KANIA C.J. Section 7 of the , and section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, are ultra vires to the extent power is given to the Government to extend Acts other than Acts of the Central Legislature to the Provinces of Delhi and Ajmer Merwara respectively inasmuch as to that extent the Central Legisla ture has abdicated its functions and delegated them to the executive government.
MAHAJAN J.
The above said sections are ultra vires in the following particulars: (i) inasmuch as they permit the executive to apply to Delhi and Ajmer Merwara, laws enacted by legislatures not competent to make laws for those territories and which these legislatures may make within their own legislative field, and (ii) inasmuch as they clothe the executive with co extensive legislative authority in the matter of modification of laws made by legislative bodies in India.
(2) Per FAZL ALI, PATANJALI SASTRI, MUKHERJEA, DAS and BOSE JJ.
The first portion of section 2 of the Part C States (Laws) Act, ;950, which empowers the Central Government to extend to any Part C State or to any part of such State with such modifications and restrictions as it thinks fit any enactment which is in force in a Part A State, is intra vires.
Per KANIA C.J., MAHAJAN, MUKHERJEA and Boss JJ.
The latter portion of the said section which empowers the Cen tral Government to make provision in any enactment extended to a Part C State, for repeal or amendment of any law (other than a Central Act) which is for the time being applicable to that Part C State, is ultra vires.
Per FAzL ALI, PATAN JALI SASTRI and DAS JJ.
The latter portion of section 2 of the Part C States (Laws) Act, 1950, is also intra vires.
KANIA C.J.
To the extent that section 2 of the Part C States (Laws) Act, 1950, empowers the Central Government to extend laws passed by any Legislature of a Part A Slate to a Part C State it is ultra vires.
MAHAJAN J. Section 2 of the Part C States (Laws) Act, 1950, is ultra vires in so far as it empowers the Central Government (i) to extend to a Part C State laws passed by a legislature which is not competent to make laws for that Part C State and (ii) to make modifications of laws made by the legislatures of India and (iii) to repeal or amend laws already applicable to that Part C State.
749 KANIA C.J. (i) The essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct and these essentials are the characteristics of a legislature by itself.
Those essentials arc preserved when the legislature specifies the basic conclusions of fact upon the ascertainment of which from relevant data by a designated administrative agency it ordains that its statutory command is to be effective.
The legislature having thus made its laws, every detail for working it out and for carrying the enactment into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer.
While this is also sometimes described as delegation of legislative powers, in essence it is different from delega tion of legislative power as this does not involve the delegation of the power to determine the legislative policy and formulation of the same as a rule of conduct.
While the so called delegation which empowers the making of rules and regulations has been recognised as ancillary to legislative power, the Indian Legislature had no power prior to 1935 to delegate legislative power in its true sense.
Apart from the sovereign character of the British Parliament whose powers are absolute and unlimited, a general power in the legislature to delegate legislative powers is not recognised in any state.
The powers of the Indian Legislature under the Constitution Acts of 1935 and 1950 are not different in this respect.
(ii)An "abdication" of its powers by a legis lature need not necessarily amount to complete effacement of itself.
It may be partial.
If full powers to do everything that the legislature can do are conferred on a subordinate authority, although the legislature retains the power to control the action of the subordinate authority by recalling such power or repealing the Acts passed by the subordinate authority, there is an abdication or effacement of the legislature conferring such power.
FAzL ALl J. (i) The legislature must formally dis charge its primary legislative function itself and not through others.
(ii) Once it has been established that it has sovereign powers within a certain sphere, it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law and it may.utilise any outside agency to any extent it finds necessary for doing things, which it is unable to do itself or finds it incon venient to (iii) It cannot, however abdicate its legislative functions and therefore, while entrusting power to an out side agency, it must see that such agency acts as a subordi nate authority and does not become a parallel legislature.
(iv) As the courts of India are not committed to the doc trine of separation of powers and the judicial interpreta tion it has received in America, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to 750 'abdication and self effacement. ' (v) The power to intro duce necessary restrictions and modifications is incidental to the power to adapt or apply the law.
The modifications contemplated are such as can be made within the framework of the Act and not such as to affect its identity or structure or the essential purpose to be served by it.
PATANJALI SASTRI J. (i) It is now established beyond doubt that the Indian Legislature, when acting within the limits circumscribing its legislative power, has and was intended to have plenary powers of legislation as large and of the same nature as those of the British Parliament itself and no constitutional limitation on the delegation of legislative power to a subordinate unit is to be found in the Indian Councils Act, 1861, Or the Government of India Act, 1935, or the Constitution of 1950.
It is therefore as competent for the Indian Legislature to make a law delegating legislative power, both quantitatively and qualitatively.
as it is for the British Parliament to do so, provided it acts within the circumscribed limits.
(ii) Delegation of legislative au thority is different from the creation of a new legislative power.
III the former, the delegating body does not efface itself but retains its legislative power intact and merely elects to exercise such power through an agency or instru mentality of its choice.
In the latter, there is no delega tion of power to subordinate units but a grant Of power to an independent and co ordinate body to make laws operative of their own force.
For the first, no express provision authorising delegation is required.
In the absence of a constitutional inhibition, delegation of legislative power, however extensive, could be made so long as the delegating body retains its own legislative power intact.
For the second, however, a positive enabling provision in the con stitutional document is required.
(iii) The maxim delegates non potest delegare is not part of the constitutional law of India and has no more force than a political precept to be acted upon by legislatures in the discharge of their func tion of making laws, and the courts cannot strike down an Act of parliament as unconstitutional merely because Parlia ment decides in a particular instance to entrust its legis lative power to another in whom it has confidence or, in other words, to exercise such power through its appointed instrumentality, however repugnant such entrustment may be to the democratic process.
What may be regarded as politi cally undesirable is constitutionally competent.
(iv) Howev er wide a meaning may be attributed to the expression "restrictions and modifications," it would not affect the constitutionality of the delegating statute. 'MAHAJAN J. (i) It is a settled maxim of constitu tional law that a legislative body cannot delegate its power.
Not only the nature of legislative power but the very existence of representative government depends on the doc trine that legislative powers cannot be transferred.
The legislature cannot substitute the 751 judgment, wisdom, and patriotism of any other body, for those to which alone the people have seen fit to confide this sovereign trust.
The view that unless expressly prohib ited a legislature has a general power to delegate its legislative functions to a subordinate authority is not supported by authority or principle.
The correct view is that unless the power to delegate is expressly given by the constitution, a legislature cannot delegate its essential legislative functions.
As the Indian Constitution does not give such power to the legislature, it has no power to delegate essential legislative functions to any other body.
(ii) Abdication by a legislative body need not necessarily amount to complete effacement.
There is an abdication when in respect of a subject in the Legislative List that body says in effect that it will not legislate but would leave it to another to legislate on it.
MUKHERJEA J.
As regards constitutionality of the delegation legislative powers, the Indian Legislature cannot be in the same position as the omnipotent British Parliament and how far delegation is permissible has to be ascertained in India as a matter of construction from the express provisions of the Indian Constitution.
It cannot be said that an unlimit ed right of delegation is inherent in the legislative power itself.
This is not warranted by the provisions of the constitution and the legitimacy of delegation depends en tirely upon its being used as an ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and complete ly.
The legislature must retain in its own hands the essen tial.
legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law and what can be delegeted is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it.
Provided the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case.
Das J. (i) The principle of non delegation of legisla tive powers founded either on the doctrine of separation of powers or the theory of agency has no application to the British Parliament or the legislature constituted by an Act of the British Parliament;(ii) in the ever present complex ity of conditions with which governments have to deal, the.power of delegation is necessary for, and ancillary to, the exercise of.
legislative power and is a component part of it; (iii) the operation of the act performed under dele gated power is directly and immediately under and by virtue of the law by which the power was delegated and its efficacy is referable to that antecedent law; (iv) if what the legis lature does is legislation within the general scope of the affirmative words which give the power and if it violates no express 752 Condition or restriction by which that power is limited, then it is not for the court to inquire further or enlarge constructively those conditions or restrictions; (v) while the legislature is acting within its prescribed sphere there is, except as herein after stated, no degree of, or limit to, its power of delegation of its legislative power, it being for the legislature to determine how far it should seek the aid of subordinate agencies and how long it shall continue them, and it is not for the court to prescribe any limit to the legislature 's power of delegation; (vi) the power of delegation is however subject to the qualification that the legislature may not abdicate or efface itself, that is, it may not, without preserving its own capacity intact, create and endow with its own capacity a new legislative power not created or authorised by the Act to which it owes its own existence.
(vii) The impugned laws may also be supported as instances of conditional legislation within the meaning of the decision in Queen vs Burah.
Bose J.
The Indian Parliament can legislate along the lines of Queen vs Burgh, that is to say, it can leave to another person or body the introduction or application of laws which are, or may be, in existence at that time in any part of India which is subject to the legislative control of Parliament, whether those laws are enacted by Parliament or by a State Legislature set up by the constitution.
But delegation of this kind cannot proceed beyond that; it cannot extend to the repealing or altering in essential particulars laws which are already in force in the area in question.
|
Civil Appeal No. 140 of 1951.
Appeal from a Judgment and Decree dated 22nd Septem ber, 1947, of the High Court of Judicature at Bombay (Sen and Bavdekar JJ.) in Appeal No. 41 of 1943 arising out of decree dated 4th September, 1942, of the Court of the First Class Subordinate Judge at Poona in Civil Suit No. 808 of 1941.
Roshan Lal and B.S. Shastri for the appellant.
Hardyal Hardy for the respondent.
February 22.
The Judgment of the Court was deliv ered by BOSE J.
This is a defendant 's appeal in a suit on two mortgages.
The first was executed on the 7th of April, 1931, by the defendant and his father.
The second was dated the 17th of December, 1935, and was executed by the defend ant alone.
The first was for a sum of Rs, 9,500, the second for Rs. 3,500.
The same property was mortgaged each time.
The claim on the two deeds together was for Rs. 20,774 3 0.
These mortgages were in favour of one Narayan Gopal Sathe.
On the 28th of March, 1940, the mortgagee assigned them both to the plaintiff who now sues on them.
The defence was that both mortgages were satisfied.
The main evidence on which the defendant relied to prove satisfaction was an agreement dated the 17th of October, 1937, executed by the mortgagee Narayan Gopal Sathe in favour of the defendant.
The document has been excluded from evidence by the trial Court as well as by the High Court on appeal on the ground that it required registration.
If this document is excluded, then there is a concurrent finding of fact by both the Courts that the rest of the evidence is not good enough to prove satisfaction.
They have disbelieved it and decreed the plaintiff 's claim in full.
The only ques tions before us are (1) whether this document required registration and (2) whether, if it did, it 493 cannot still be used for what the defendant claims is a collateral purpose, namely proving full payment of the mortgage amount.
The agreement came about in this fashion.
The mortga gee, Narayan Sathe, was appointed Receiver of two Cinemas in Poona.
The Court appointing him required him to produce a surety in the sum of Rs. 10,000.
The defendant agreed to undertake this responsibility and as a consideration for that the mortgagee executed the agreement in question.
The portions of the document relevant for the present purpose are as follows.
The mortgages are there described as the "transactions of give and take." "(3) It is extremely necessary to explain beforehand the transaction of give and take outstanding between both of us. (4) Whereas two transactions have been done between you and me.
Therefore you have agreed to stand surety.
And only for that reason I am executing this agreement and giving it to you in writing and thereunder I am settling and formulating some new terms and I am confirming some very terms which were declared before.
(5) Although in the matter of the transaction relating to the aforesaid mortgage deeds the rate of interest men tioned in the documents purporting to be the mortgage deeds is 14 annas per mensem per centum, still the actual interest is to be received only at the rate of 8 annas per mensem per centum; so it is settled between you and me and I have also agreed to the same.
And even at that rate I have also been receiving the interest and I shall also receive hereafter. (6) As regards the transaction of the second mortgage deed. if as agreed at that time between you and me you pay me Rs. 1,800 in the lump then it will be understood that the transaction of give and take subsisting between you and me has been wholly completed and fully paid up.
As you have no sufficiency of funds to make up and pay in full the above sum at once it is settled that you are to pay to me Rs. 80 per 64 494 month and thus you are to make payment in full.
In accord ance with the agreement arrived at between us both subse quent to the document purporting to be the second mortgage deed the said documents and papers and the written receipts in respect of interest given to you by me relating to the payment in full made by you in respect of interest and principal on account of the first transaction dated 7 4 31 have been kept with me.
* * (8) As mentioned above (vide paras 5 and 6) no interest of any nature whatever has remained claimable by me from you in accordance with the agreement arrived at between us both from the date of your suretyship onward and prior to it and in like manner I understand that the whole of the principal has been fully paid.
(10) If you so wish or if necessity may arise then at any time you may ask for it and I shall give you this agree ment on being written out on stamped paper and on being registered.
" In our opinion, this is a document which limits and extinguishes interests in immoveable property in the present within the meaning of section 17(1) (b) of the Indian Regis tration Act.
Clause (4) of the agreement expressly says so.
Referring to the two mortgages it says "I am settling and formulating some new terms.
" This speaks from the present.
It does not say that this was some past agreement, and that fact is underlined in the next sentence which reads "and I am confirming some very terms which were declared before.
" Among the new terms is the following.
The rate of inter est agreed upon in the two mortgage deeds was 14 annas per cent per month.
Clause (5) reduces this to 8 annas.
It is true that according to clause (5) only 8 annas had actually been paid all along but that hardly 495 matters because the question is not what was paid but what was due and what the mortgagee could have enforced under his bond.
It is evident from clause (4) that it was the agree ment embodied in the document which effected the change and therefore it was the document itself which brought the altered terms into being.
The next question is whether this limits an interest in immoveable property.
We are of opinion it does.
We agree with the learned Rangoon Judges in U. Po Thin vs Official Assignee(1) that one part of the "interest" which a mortga gee has in mortgaged property is the right to receive inter est at a certain rate when the document provides for inter est.
If that rate is varied, whether to his advantage or otherwise, then, in our judgment, his "interest" in the property is affected.
If the subsequent agreement substi tutes a higher rate, then to the extent of the difference it "creates" a fresh "interest" which was not there before.
If the rate is lowered, then his original "interest" is limited.
The question of a higher rate was considered by their Lordships of the Privy Council in Tika Ram vs Deputy Commis sioner of Bara Banki(2).
There, the mortgagors gave the mortgagees an unregistered rukka or written promise simulta neously with the registered mortgage stipulating that they would pay an extra 6 per cent per annum over and above the 15 per cent entered in the mortgage.
their Lordships held that these rukkas could not be used to fetter the equity of redemption.
They did not decide whether the personal cove nant in the rukkas could be enforced because that point had not been raised in the plaint and pleadings, nor did they refer to the Registration Act, but we think the words "an unregistered instrument which the statute declares is not to affect the mortgaged property" can only have reference to that Act.
(1) (1938) R.L.R. 293: A.I.R. 1938 R. 285.
(2) (1899) 26 I.A. 97 at 100.
496 It was argued, on the strength of Mahim Chandra Dey vs Ram Dayal Dutta,(1) Ram Ranjan vs Jayanti lal(2) and Collec tor of Etah vs Kishori Lal(3), that it is always open to a mortgagee to release or remit a part of the debt, and when he does so he does not limit or extinguish an interest in immovable property any more than when he passes a receipt acknowledging payment of the whole or part of the money.
The effect of the payment, or of the release, may be to extin guish the mortgage but in themselves they do not limit the interest.
Extending this, the learned counsel for the defendant contended that when a mortgagee agrees to accept a lower rate of interest he does no more than release that part of the debt which would be covered by the difference in rate.
We do not agree.
There is a difference between a re ceipt and a remission or a release.
A receipt is not the payment, nor does the document in such a case serve to extinguish the mortgage or limit the liability.
It is the payment of the money which does that and the receipt does no more than evidence the fact.
Not so a release.
The extin guishment or diminution of liability is in that event ef fected by the agreement itself and not by something external to it.
If the agreement is oral, it is hit by proviso 4 to section 92 of the Evidence Act, for it "rescinds" or "modi fies" the contract of mortgage.
If it is in writing, it is hit by section 17 (1) (b) of the Registration Act, for in that case the writing itself "limits" or "extinguishes" the liability under the mortgage.
It is to be observed that when the mortgagor pays money due on the mortgage, in whole or in part, he is carrying out the terms of the bond and is not making any alteration in it, and even though the fact of payment may limit or extin guish the mortgagee 's interest that is only because the bond is working itself out by the force of its own terms and not by reason of some new agreement which seeks to modify it or limit or extinguish the interest which it creates.
A simple test (1)A.I.R. (3) A.I.R. 1930 All. 721 at 725 F.B. (2) A.I.R. 1926 Cal. 906.
497 is this: see whether the mortgagee can, in the face of the subsequent agreement, enforce the terms of his bond.
If he cannot, then it is plain that the subsequent undertaking has effected a modification, and if that has the effect of limiting or extinguishing the mortgagee 's interest, it is at once hit either by section 17 (1) (b) or section 92 proviso 4.
But when there is a mere payment of money, that is done under the terms of the bond, for the contract of mortgage postulates that the mortgagor should repay the money bor rowed and that when he does so the mortgagee 's interest in the property shall be "limited" to the extent of the repay ment or, when all is repaid, be wholly extinguished; nor, of course, does a payment have to be made by a written or registered instrument, or even evidenced by one.
Clause (xi) to section 17 (2) of the Registration Act is based on this principle.
It draws a distinction between a document which, by the force of its terms.
effects the extinguishment, or purports to do so, and one which merely evidences an exter nal fact which brings about that result.
Now apply the test just given to the present case.
Under the mortgages the mortgagee is entitled to interest at 14 annas per cent.
per month but the mortgagor says he cannot claim that.
Why ? Because, according to him, the subsequent agreement altered the terms of the bond and reduced his liability to only 8 annas.
It hardly matters what the agreement is called, whether a release or a remission, nor is it germane to the question that the mortgagee is enti tled to remit or release the whole or a part of the debt; the fact remains that his agreement to do so effects an alteration in the original contract and by the force of its terms or extinguishes his interest, Assume that the mortga gor repaid the whole of the interest at the altered rate and the whole of the principaL, would those repayments by them selves effect an extinguishment of the mortgage ? Clearly not, because unless the subsequent agreement is called in aid, more would be due under the terms of the bond on ac count of the higher rate of interest.
It is evident then that it is the 498 agreement which limits the mortgagee 's interest ' and serves to extinguish the mortgage and not mere payment at the reduced rate.
Similar observations apply to clause (6) of the agree ment.
It begins by reciting a past agreement in which the mortgagor had promised to pay Rs. 1,800 in a lump sum.
We are left to infer that this was to extinguish the mortgage.
If it was, then it would be hit by either section 92, provi so 4, of the Evidence Act or section 17(1)(b) of the Regis tration Act, but that does not matter because the present document varies even that agreement and substitutes a third agreement in its place, namely that payment of Rs. 1,800 by instalments at the rate of Rs 80 a month will effect "pay ment in full", that is to say, will extinguish the mortgage.
This speaks from the date of the document, for it says, referring to this agreement, that ' it is settled" etc.
Next we come to clause (8).
That refers us back to clauses (5) and (6) and says that "as mentioned there no interest of any nature whatever has remained claimable by me" and speaking of the principal says "and in like manner I understand the whole of the prin cipal has been fully paid".
We have already dealt with clauses (5) and (6).
Clause (8) carries us no further and merely states that because of clauses (5) and (6) neither interest nor principal is now claimable; and of course if neither interest nor principal is claimable that extinguish es the mortgage, and in this case the extinguishment is brought about, not by mere payment in accordance with the terms of the bond, but because of the fresh agreement.
Clause (10) remains for consideration.
It was argued that this brings the matter within section 17(2) (v) of the Registration Act because it gives the defendant the right to obtain another document which will effect the extinguish ment.
We do not agree because clause (v) of sub section (2) of section 17 of the Act postulates that the document shall not of itself create, declare, 499 assign, limit, extinguish any right etc., and that it shall merely create a right to obtain another document etc.
(The stress is on the words "itself" and "merely ". ) We agree with Sir Dinsha Mulla at page 86 of the 5th edition of his Indian Registration Act that "If the document itself creates an interest in immove able property, the fact that it contemplates the execution of another document will not exempt it from registration under this clause.
" As we have seen, this document of itself limits or extinguishes certain interests in the mortgaged property),.
The operative words are reasonably clear.
Consequently, the document is not one which merely confers a right to obtain another document.
It confers the right only in certain contingencies, namely, "if you so wish" or "if necessity may arise.
" Its purport is to effect an immediate alteration in the terms of the two bonds and because of that alteration to effect an immediate extinguishment and limitation.
Clause (10) merely confers an additional right, namely the right to obtain another document "if you so wish" or "if necessity may arise." Therefore, the document in question is not one which merely creates a right to obtain another.
An agreement to sell, or an agreement to transfer at some future date, is to be distinguished because that sort of document does not of itself purport to effect the trans fer.
It merely embodies a present agreement to execute another document in the future which will, when executed, have that effect.
The document in hand is not of that type.
It does not postpone the effect of extinguishment or limita tion of the mortgages to a future date.
It does not say that the agreement it embodies shall take effect in the future.
It purports to limit and extinguish the liabilities on the two mortgages at once by virtue of the document itself and merely adds that "if it is necessary or should you want another document, I will repeat the present 500 agreement in a registered agreement.
" By implication it means that if it is not necessary, or if the mortgagor does not want a registered instrument, the document itself will have effect.
Incidentally, one effect of holding that this document does not limit or extinguish the mortgagor 's li ability would be that there is no agreement to that effect yet in force, This may or may not give the mortgagor a right to obtain specific performance of his right to obtain such an agreement but until he does that there would be no bar to the mortgagee 's claim in this suit.
However, it is not necessary to go as far as that because we are of opinion that this document is not exempt from registration under section 17(2) (v), and we so hold.
The next question is whether the document can be used in evidence under the proviso to section 49 of the Registration Act.
We are clear it cannot.
This is not a suit for specif ic performance nor does any question of part performance under section 53A of the Transfer of Property Act arise.
It remains then to be seen whether the use now sought to be made of the document is to evidence a collateral transaction not required to be evidenced by a registered instrument.
But what is the 'transaction sought to be proved but the very agreement which the document not merely evidences but, by reason of its own force, creates ? That is not a collat eral transaction and even if it were a transaction of that type, it would require a registered instrument for the reasons we have already given.
Section 53A of the Transfer of Property Act was re ferred to but it has no application, for the agreement we are concerned with is not a transfer.
There are no words of conveyance in it; also the mortgagor is not continuing in possession in part performance of the contract.
Both mort gages were simple and the right to possession never resided in the mortgagee.
He might in due course have acquired it by process of law if he obtained a decree and purchased at the sale; on the other hand, a stranger might have purchased and the right to possession would 'in that event have passed elsewhere, But he had no right to possession at the 501 date of the agreement and having none he could not have transferred it.
The mortgagor 's possession was consequently not referable to the agreement.
The appeal fails and is dismissed with costs.
Appeal dismissed.
| A suit to recover money based on two mortgages was resist ed by the defendant on the plea that the mortgages were satisfied as the assignor of the mortgages to the plaintiff had executed an agreement in favour of the defendant which proved satisfaction.
This agreement was not registered and the question for determination was whether it required registration and whether if it did, it could not be used for the collateral purpose of proving full payment of the mort gage amount.
The agreement contained, inter alia, the following terms: "(i) I am settling and formulating new terms and I am confirming some very terms which were de clared before; (iii Although the rate of interest mentioned in the mortgage deeds is 14 annas still the actual rate is to be received at the rate of 8 annas and so it is settled between the original parties; (iii) It was agreed that if you pay me Rs. 1,800 in a lump it will be understood that the transaction has been wholly completed and paid up.
As you have no sufficiency of funds. . . it is settled that you are to pay me Rs. 80 per month; (iv) As mentioned above no interest of any nature whatever has remained claimable by me. . and in like manner I understand whole of the principal has been fully paid; (v) If you so wish or if necessity may arise then at any time you may ask for it I shall give you this agreement written out on stamp paper and on being registered.
" Held, that the agreement was not exempt from registra tion because the document itself limited and extinguished an "interest ' ' in immoveable property in the present within the meaning of section 17 (1)(b) of the Indian Registration Act, and it was not exempt under section 17 (2) (v).
Held, also that the document could not be used under the proviso to section 49 of the Registration Act as the suit was not for specific performance and no question of part performance arose in the case and also no question of using the document for a collateral transaction arose because the document was to be used to prove the very agreement which it created itself.
U. Po Thin vs Official Assignee (A.I.R. 1938 Rang. 285) and Tikaram vs Deputy Commissioner of Bara Banki (26 I.A 97), Mahim Chandra Dey vs Ram Dayal Dutta (A.I,R. 1926 Cal. 170).
492 Ram Ranjan vs Jayantilal (A.I.R. and Collec tor of Etah vs Kishori Lal (A.I.R. 1930 All.
721) referred to.
|
ivil Appeal No. 11 of 1950.
Appeal from the judgment and decree of the High Court of Bombay (Bhagwati and Dixit JJ.) dated 16th December, 1948, in Second Appeal No. 1226 of 1945 confirming a judg ment and decree of the District Judge of Dharwar in Appeal No. 123 of 1943.
The facts of 404 the case and the arguments of the counsel appear in the judgment.
B. Somayya and Sanjiva Rao Naidu (N. C. Shaw, with them) for the appellant.
M.C. Setalvad, Attorney General for India, (V. N. Lokur, with him) for the respondents Nos. 1 and 2.
M.C. Setalvad, Attorney General for India, (G. N. Joshi, with him) for respondent No. 3 (the State of Bombay.) 1952.
January 30.
Judgment was delivered by BOSE J. PATANJALI SASTRI C.J. and DAS J. agreed with Bose J. Bose J.
The plaintiff appeals.
The suit relates to a Saranjam estate in the State of Bombay.
The plaintiff claims to be the sole Saranjamdar and seeks certain declarations and other reliefs appropriate to such a claim.
The first and second defendants are members of the plaintiff 's family while the third defendant is the State of Bombay (Province of Bombay at the date of the suit).
The only question is whether the suit is barred by section 4 (a) of Bombay Act X of 1876 (Bombay Revenue Juris diction Act).
The following genealogical tree will show the relation ship between the parties: Bhujangrao Appasaheb (British grantee) Daulatrao I (died 24 7 1864) Bhujangrao I Malojirao Yeshwantrao alias (died 1881 ) : Annasaheb : : : (widow) Krishnabai Daulatrao III Bhujangrao II Daulatrao II (Del. 1) (Def. 2) (died 8 5 1931) : Bhujangrao III (Plaintiff) 405 The facts are as follows.
A common ancestor of the present parties was given the Gajendragad estate as a Saran jam some time before the advent of the British.
When they arrived on the scene they decided, as far as possible, to continue such Saranjams, jagirs and inams as had been grant ed by the earlier rulers, and accordingly they framed rules under Schedule B, Rule 10 of Bombay Act XI of 1852 (The Bombay Rent Free Estates Act of 1852) to regulate the mode of recognition and the succession and conditions of tenure to Saranjams, which are analogous to jagirs.
In compliance with this, the common ancestor shown at the head of the genealogical tree set out above was recognised by the Brit ish Government as the Saranjamdar of the Gajendragad estate.
He may for convenience be termed the British Grantee.
The Register exhibit P 53 shows that the estate consisted of 26 villages.
We do not know the date of the British recognition but the nature of the tenure is described as follows : "Continuable to all male legitimate descendants of the holder at the time of British conquest, viz., Bhujangrao Appasaheb, the first British Grantee, son of Bahirojirao Ghorpade.
" On the death of the British Grantee (Bhujangrao Appa saheb) he was succeeded by his son Daulatrao I who died on the 24th of July, 1864.
This Daulatrao I left three sons, Bhujangrao I, Yeshwantrao and Malojirao.
In the year 1866 Bhujangrao I and his brother Yesh wantrao alias Annasaheb sued Malojirao for possession of this Saranjam.
A question of impartibility was raised but the Bombay High Court declared that the property in British India was partible.
They further declared that Bhujangrao I was the head of the family and as such was entitled to a special assignment which was not to exceed a quarter share, for the expenses and duties which might devolve on him by virtue of his position, and that after this had been set aside each of the three brothers was entitled to an equal one third Share in the landed property in India.
This judgment 406 is reported in The duties enumerated at page 170 included the "keeping up of armed retainers for the fort of Gajendragad, and for the improvement of that vil lage, which was the chief seat of this branch of the Ghor pade family, and also to enable him to distribute on ceremo nial occasions the customary presents to the junior members of the family.
" The judgment is dated the 12th of October, 1868.
As a consequence a division of the property was ef fected.
Malojirao separated himself from his brothers and was allotted seven villages.
The other two brothers continued joint and took the remainder.
But this was only with respect to property situate in British India.
The parties also had property in the State of Kolhapur.
That was left undivided.
Bhujangrao I died in 1881 and his younger brother Yesh wantrao (alias Annasaheb) claimed to succeed as the sole heir.
The Political Department of the Government of India refused to recognise this claim and permitted Bhujangrao I 's widow Krishnabai to adopt a a boy from the family and recog nised him as the heir in respect of that portion of the estate which lay within the Principality of Kolhapur.
This was on the 3rd of February, 1882.
The Bombay Government followed a similar course regarding the property in British India.
On the 26th of April, 1882, they passed a Resolution embodying the follow ing decision: (1) The adoption was to be recognised and the adopted son was to occupy the same position as his adoptive father, that is to say, he was to get one third of the property plus the assignment given to him as head of the family.
(2) Malojirao who had already taken his share of the estate was to continue in possession.
(3) Yeshwantrao (alias Annasaheb) was given the option of remaining joint with the adopted boy or separating.
Finally, the Resolution Concluded 407 ``The two brothers will hold their respective shares as their private property in virtue of the decree of the High Court and the Jahagir will henceforth be restricted to the portion awarded by the High Court to Bhujangrao which the adopted son will now inherit.
It should however be clearly understood that the decision of the High Court is not to be held as a precedent and that no partition of the Jahagir Estate to be continued to the adopted son will ever be allowed.
" This position was emphasised by Government in the same year on the 22nd August, 1882.
Krishnabai, who had been allowed by Government to adopt Daulatrao II, asked that her husband 's one third share in the estate be also treated as private property in the same way as the shares of the other two brothers.
This prayer was refused and Government stat ed: "It should be plainly understood that Government allow the adoption to be made by her only in consideration of Bhujangrao 's one third share as well as the portion assigned to him as head of the family being continued to the adopted son as indivisible Jahagir Estate descending in the line of male heirs in the order of primogeniture and subject to no terms whatsoever as to the enjoyment of the same by Krishna bai during her lifetime.
" The position was re examined by Government in 1891 and its decision was embodied in the following resolution dated the 17th of March, 1891: "It appears to Government that the whole Gajendragad Estate is a Saranjam continuable as hereditary in the full est sense of the word as interpreted by the Court of Direc tors in paragraph 9 of their Despatch No. 27 dated 12th December, 1855.
It is continuable to all male legitimate descendants of the holder at the time of the British con quest; and should Government ever sanction an adoption the terms of sanction would be those applicable to Saranjamdars.
The property should be dealt with like Other Saranjams in the Political Department.
" 53 408 In the year 1901 the adopted son Daulatrao II sued Yeshwantrao 's son Bhujangrao II for partition.
It will be remembered that in the litigation of 1866, which ended in the Bombay High Court 's judgment reported in 5 Bom.
H.C.R. 161, Malojirao alone separated and the other two brothers continued joint.
The litigation of 1901 put an end to that position.
High Court 's judgment dated the 12th of March, 1908, makes it clear that as Government was not a party to that litigation its rights against either or both of the parties were not affected.
But as between the parties inter se they were bound by the previous decision and so the adopted son was entitled to partition and separate posses sion of such properties as might fall to his share.
After this decision was given the two partitioned the property between themselves amicably.
In or about the year 1930 a Record of Rights was intro duced in fourteen of the villages in the Gajendragad Jaha gir and a dispute arose again between the three branches of the family.
The District Deputy Collector, after inspecting the records, found that "the name of the Khatedar Saran jamdar alone has found place in the village Inam register, in the Saranjam list and the land alienation register," while in the other village records the various members of the family were entered according to the "actual wahivat or enjoyment." After due consideration he thought that the interest of Government and the Saranjamdar would be sufficiently safeguarded by allowing the same position to continue.
He ordered the entries to be made accordingly.
The order also discloses that the matter had been referred to the Legal Remembrancer to the Bombay Government.
In the meanwhile, on the 5th of May, 1898, a set of Rules framed under Schedule B, Rule 10, of the Bombay Rent Free Estates Act of 1852 were drawn up and published in the Bombay Gazette.
These Rules were republished, probably with some modification, in the Gazette of 8th July, 1901.
The portions applicable here were as follows: 409 "I. Saranjams shall ordinarily be continued in accordance with the decision already passed by Government in each case.
A Saranjam which has been decided to be hereditarily continuable shall ordinarily descend to the eldest male representative, in the order of primogeniture, of the senior branch of the family descended from the first British Gran tee or any of his brothers who were undivided in interest.
But Government reserve to themselves their rights for suffi cient reason to direct the continuance of the Saranjam to any other member of the said family, or as an act of grace, to a person adopted into the same family with the sanction of Government.
V. Every Saranjam shall be held as a life estate.
It shall be formally resumed on the death of the holder and in cases in which it is capable of further continuance it shall be made over to the next holder as a fresh grant from Gov ernment, unencumbered by any debts, or charges, save such as may be specially imposed by Government itself.
No Saranjam shall be capable of sub division.
Every Saranjamdar shall be responsible for making a suitable provision for the maintenance of. "(certain members of the family enumerated in the Rule).
If an order passed by Government under Rule VII is not carried out, Government may, whatever the reason may be, direct the Saranjam, or a portion of it, to be resumed. .
Provision for the members of the Saranjam dar 's family entitled to maintenance shall then be made by Government out of the revenues of the Saranjam so resumed.
" After the District Deputy Collector 's orders were passed on the 20th of May, 1930, Daulatrao II died on the 8th of May, 1931, and the matter was again taken up by Government.
This time it passed the following 410 Resolution on the 7th of June, 1932.
The Resolution was headed, "Resumption and regrant of the Gajendragad Saranjam standing at No. 91 of the Saranjam List.
" It reads "Resolution : The Governor in Council is pleased to direct that the Gajendragad Saranjam should be formally resumed and regranted to Bhujangrao Daulatrao Ghorpade eldest son of the deceased Saranjamdar Sardar Daulatrao Bhujangrao Ghorpade and that it should be entered in his sole name in the accounts of the Collector of Dharwar with effect from the date of the death of the last holder.
The Collector should take steps to place the Saranjamdar in possession of the villages of the Saranjam estate which were in possession of the deceased Saranjamdar.
The Governor in Council agrees with the Commis sioner, Southern Division, that the assignments held by the Bhaubands as potgi holders should be continued to them as at present.
" The Bhujangrao mentioned in the Resolution is the plain tiff who is shown as Bhujangrao III in the genealogical tree.
The defendants were evidently aggrieved by this, for they filed Suit No. 23 of 1934 against the present plaintiff and the Secretary of State/or India in Council praying inter alia "that the properties in that suit, viz., the villages allotted to their shares, were their independent and private properties and in case they were held to be Saranjam proper ties, they be declared as independent Saranjams, separate and distinct from the one held by the present plaintiff.
" This suit was withdrawn with liberty to bring a fresh suit on the same cause of action against the present plain tiff but not against the Secretary of State for India in Council.
According to defendants 1 and 2, this was pursuant to an arrangement between the Government and themselves that Government would issue a fresh Resolution in terms of the earlier Resolution dated the 17th of March, 1891.
411 This was done.
On the 25th of February, 1936, Government passed the following Resolution : "Resolution : After careful consideration the Governor in Council is pleased to confirm the decision in Government Resolution (Political Department) No. 1769 dated the 17th of March, 1891,and to declare that the whole of the Gajendragad Estate shall be continuable as an inalienable and impartible Saranjam on the conditions stated in the said Resolution.
Having regard, however, to the manner in which different portions of the estate have been held by different branches of the family, the Governor in Council, in modification of the orders contained in Government Resolution No. 8969 dated the 7th June, 1932, is pleased to direct that the portions of the said estate held by Sardar Bhujangrao Daulatrao Ghorpade, Daulatrao Malojirao Ghorpade and Bhujangrao Yeshwantrao Ghorpade, respectively, shall henceforth be entered in the Revenue Records as de facto shares in the said estate held by the said persons as representatives, respectively, of three branches of the Ghorpade family.
Each of the said de facto shares shall be continuable hereditarily as such as ii it were a separate Saranjam estate in accordance with the rules made for the continuance of Saranjams by the Governor in Council in exercise of the powers referred to in the rules framed under the Bombay Rent Free Estates Act, 1852, and section 2 (3) of the Bombay Summary Settlement Act (VII of 1863) and such special orders as the Governor in Council may make in regard to the Gajendragad Estate as a whole or in regard to the said share.
The recognition of the aforesaid shares and their entry in the Revenue Records as separate shares shall not be deemed to amount to a recognition of the estate of Gajendragad as in any manner partible or alienable and shall not in any way affect the right of Government to treat the said estate as an entire impartible and inalien able Saranjam estate.
The Governor in Council further directs that the aforesaid shares shall in no case be capable of 412 sub division and shall not in any way be alienated or encum bered except in accordance with the rules and orders re ferred to above. " The present suit is an attack on the action of Govern ment in passing this Resolution.
The first and second defendants are the present representatives of the other branches of the family and the third defendant is the Prov ince of Bombay (now the State of Bombay).
The plaint states "9.
Government can have no jurisdiction to deprive the plaintiff at any rate during his lifetime of the full bene fit of all the rights and privileges appertaining to the holder of a Saranjam.
The Order of Government of the 8th February, 1936 is, therefore, ultra vires and in no way binding on the present plaintiff. 10.
Defendants 1 and 2, therefore, are not entitled to any rights or privileges claimable by the holder of a Saran jam which according to the G.R. is continuable 'as an inali enable and impartible Saranjam ', such as for example in the matter of appointment of the village officers in any of the 27 villages appertaining to the Gajendragad Saranjam.
The cause of action arose in April 1938 and the resolution and the entry being ultra vires is not binding. 12.
As this is a suit claiming for relief primarily against defendants 1 and 2, defendant 3 is made a party to the suit in order to enable Government (defendant 3) to give proper effect to the decision of Government of the 17th March, 1891, and of 7th June, 1932, as against defendants 1 and 2 who have no right to the position which they claim. " The reliefs prayed for are "(a) That it be declared that defendants 1 and 2 have no right to go behind the order of the Government as per Reso lution No. 8969 of 7th June, 1932, under which plaintiff is entitled to be recognised as the sole Saranjamdar in the Revenue Records, and that the assignments held by defendants 1 and 2 are held by them as mere potgi holders.
413 (b) That in consequence of his position of a sole Saran jamdar the plaintiff alone at any rate during his lifetime has the sole right to the rights and privileges appertaining to the post of a sole Saranjamdar, to wit, to be consulted in the appointment of the village officers in all the villages appertaining to the Saranjam estate, but assigned to defendants 1 and 2 for potgi. (c) Defendants 1 and 2 be restrained from doing any acts or taking any steps in contravention of the aforesaid right of the plaintiff.
(d) That it be declared that defendant 3 (Government) have no right to change the Resolution No. 8969 of 7th June, 1932, and at any rate during the lifetime of the plaintiff.
" The first Court dismissed the plaintiff 's claim on the merits holding that Government had the right to amend its Resolution in the way it did.
The lower appellate Court also dismissed the suit on three grounds: (1) that the two previous decisions of 1868 and 1908 operate as res judicata, (2) that the impugned Resolution is intra vires and (3) that section 4 (a) and (d) of the Revenue Jurisdiction Act bars the jurisdiction of the Court.
In second appeal the High Court only considered the question of jurisdiction and, agreeing with the lower appel late Court on the point, dismissed the appeal but it granted the plaintiff leave to appeal to this Court.
The only question we have to consider is the one of jurisdiction.
Section 4 of the Bombay Revenue Jurisdiction Act, 1876 (Bombay Act X of 1876), runs Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to (a). claims against the Crown relating to lands. held as Saranjam. " It was strenuously contended that this is not a claim against the Crown but one against the first and second defendants.
That, in my opinion, is an idle contention in view of paragraphs 9 and 12 of the plaint and reliefs (a)and (d).
In any event, Mr. Somayya was asked whether he would strike out the third defendant 414 and those portions of the plaint which sought relief against it.
He said he was not prepared to do so.
I cannot see how a plaintiff can insist on retaining a person against whom he claims no relief as a party.
I am clear that this is a suit against the "Crown" within the meaning of section 4(a).
The next question is whether, assuming that to be the case, it is also one "relating to lands held as Saranjam.
" So far as the reliefs sought against Government are concerned, that is clearly the case.
Paragraph 9 of the plaint challenges Government 's jurisdiction to deprive the plaintiff of the full benefit of all rights and privileges appertaining to the holder of a Saranjam.
These rights cannot exist apart from the lands which form part of the Saranjam estate and the implication of the prayer is that Government has, for example, no right to resume the Saranjam either under Rule V on the death of the last Saran jamdar or under Rule IX during his lifetime.
It is to be observed that a resumption under Rule IX can only be of the land because the rule directs that when the Saranjam is resumed Government itself shall make provisions for the maintenance of those entitled to it "out of the revenues of the Saranjam so resumed.
" These revenues can only come out of the land.
Relief (d) in the prayer clause seeks a declaration that Government has no right to change Resolution No. 8969 dated the 7th of June, 1932.
That Resolution directly relates to the land because it directs that the Gajendragad Saranjam be resumed and the Collector is directed to take steps to place the Saranjamdar in possession of the villages of the Saran jam estate etc.
It is impossible to contend that this is not a claim relating to lands held as Saranjam.
It was next argued that if that be the case the claim against Government can be dismissed and the plaintiff can at least be given the reliefs claimed against the other two defendants.
These, it was contended, do not relate to land and in any event are not claims against the "Crown".
415 In my opinion, this is not a suit in which the rights claimed against the other defendants can be divorced from the claim against Government and considered separately.
That is evident enough from paragraph 10 of the plaint.
In para graph 9 the power of Government to deprive the plaintiff of the rights he claims is challenged and in paragraph 10 the plaintiff explains that "therefore" the first and second defendants are not entitled to any of the rights and privileges of the Saranjamdar.
One of those rights, as we have seen from Rules VII and IX, is to take the revenues of the entire estate in order that he might fulfil his obligation regarding the payment of maintenance to certain members of the family; and if the defendants claim to hold their lands under the orders of Government and the plaintiff insists on retaining Government as a party in order that it may be bound by the decree he wants against the other defendants it is obvious that his claim against these defendants cannot be separated from his claim against the Government.
In any event, if the claim against Government is to be ignored it can only be on the basis that its orders cannot be challenged and if the orders stand it is evident that the plaintiff can have no hope of success because both sides hold their respective properties on the basis of those orders.
There are two decisions of the Bombay High Court which have taken this view.
Basalingappagouda vs The Secretary of State for India(1) was a Watan case.
Government had recog nised the second defendant as the Watandar.
Plaintiff sued Government and the second defendant and sought a declaration and injunction.
On being faced with the dilemma that the suit against Government did not lie because of section 4 (a) (3) of the Bombay Revenue Jurisdiction Act of 1876, he asked the Court, as here, to leave the Government out of consider ation and decree his claim against the second defendant alone.
The learned Judges held that that would amount to striking out the main relief sought against both the defend ants and would entirely (1) 28 Born.
L.R. 651.
54 416 change the character of the suit and added that "as long as the Secretary of State is a party to the suit, such a decla ration could not be granted.
" In the other case, Basangauda vs The Secretary State(1), Beaumont C.J. and Baker J. took the same view.
They said "Mr. Gumaste, who appears for the appellant, says that his claim is not a claim against the Government but in that case he ought to strike out the Government.
He is not pre pared to strike out the Government, because if he does they will not be bound by these proceedings and will follow the decision of their revenue tribunals.
Therefore, he wants to make the Government a party in order that they may be bound.
But, if they remain a party, it seems to me that there is a claim against them relating to property appertaining to the office of an hereditary officer, although no doubt it is quite true that the appellant does not desire to get any order against the Government as to the way in which the property should be dealt ' with or anything of the sort, and he only wants a declaration as to his title which will bind Government." They held that the jurisdiction of the courts was oust ed.
It was next contended, on the strength of a decision of the Judicial Committee of the Privy Council reported in Province of Bombay vs Horrnusji Manekji(2).
that the courts have jurisdiction to decide whether Government acted in excess of its powers and that that question must be decided first.
In my opinion, this decision does not apply here.
Their Lordships were dealing with a case falling under section 4 (b) of the Bombay Revenue Jurisdiction Act of 1876.
That provides that ". no Civil Court shall exercise jurisdiction as to. . (b) objections to the amount or incidence of any assess ment of land revenue authorised by the Provincial Govern ment.
" (1) (2) 74 I A. 103 417 As pointed out by Strangman K.C., on behalf of the plaintiff respondent, "authorised" must mean "duly autho rised," and in that particular case the impugned assessment would not be duly authorised if the Government Resolution of 11 4 1990 purporting to treat the agreement relied on by the respondent as cancelled and authorising the levy of the full assessment was ultra vires under section 211 of the Land Revenue Code.
Thus, before the exclusion of the Civil Court 's jurisdiction under section 4 (b) could come into play, the Court had to determine the issue of ultra vires.
Consequently, their Lordships held that that question was outside the scope of the bar.
But the position here is different.
We are concerned here with section 4 (a) and under that no question about an authorised act of Government arises.
The section is general and bars all "claims against the Crown relating to lands. held as Saranjam.
" That is to say, even if the Government 's act in relation to such lands was ultra vires, a claim impugning the validity of such an act would fall within the scope of the exclusion in clause (a) provided it relates to such land.
There is a difference of opinion in the Bombay High Court as to whether section 4 is attracted if the only relief sought against Government is a declaration.
One set of decisions holds that that does not amount to a "claim against Government.
" Dattatraya Vishwanath vs The Secretary of State for India(1) is typical of that view.
On the other hand, Daulatrao vs Government of bombay(2), a case relating to the Gajendragad estate, took the other view.
In my opin ion, the latter view is correct.
In my opinion, the decision of the High Court was right and I would dismiss the appeal with costs.
PATANJALI SASTRI C.J. I agree.
S.R. DAS J. I agree.
Appeal dismissed.
Agent for respondents Nos. 1 & 2: M.S.K. Sastri.
Agent for respondent No. 3; P.A. Mehta.
(1)I.L.R. 1948 Born.
809 at 820.
| The position of the Gajendragad estate which had been recognised by the British Government as a saranjam and which had been declared by the Bombay High Court in 1868 to be partible, was re examined in 1891 and Government passed a Resolution in 1891 that "the whole of the Gajendragad estate was a saranjam continuable as hereditary in the fullest sense of the word.
It is continuable to all male legitimate descendants of the holder at the time of the British con quest." In 1932 by another Resolution Government formally resumed the grant and re granted it to the plaintiff who belonged to the first branch of the family of the original grantee with a direction that it should be entered in his sole name in the accounts of the Collector.
The other two branches felt aggrieved and in 1936 Government passed anoth er Resolution which confirmed the Resolution of 1891 and modified the Resolution of 1932, by declaring that the portions of the 403 estate held by the branches shall be entered as de facto shares and that each share shall be continuable hereditarily as if it were a separate saranjam estate.
The plaintiff instituted a suit impleading the representatives of the other two branches as defendants 1 and 2, and the Province of Bombay as the 3rd defendant, alleging that the Resolution of 1936 was ultra vires and praying (A) for a declaration (i) that the defendants 1 and 2 had no right to go behind the Resolution of 1932 under which the plaintiff was recog nised as the sole saranjamdar and that the assignments held by defendants were held by them as mere potgi holders, (ii) that the plaintiff had the sole right to all privileges appertaining to the post of saranjamdar, and (iii) that the Government had no right to change the Resolution of 1932, and (B) for restraining the defendants 1 and 2 from doing any acts in contravention of the aforesaid right of the plaintiff.
Held, (i) that the suit was a suit "against the Crown" and also a suit "relating to lands held as saranjam" within the meaning of sec.
4 of the Bombay Revenue Jurisdiction Act, 1876, and the Civil Courts had no jurisdiction to entertain the suit; (ii) that the plaintiff could not be given even the reliefs claimed against defendants 1 and 2 alone, as the rights claimed against these defendants could not be di vorced from the claim against the Government and considered separately; (iii) in any event if the claim against the Government was to be ignored it can only be on the basis that its orders could not be challenged and if the orders stood, the plaintiff could not succeed because both sides held their respective properties on the basis of those orders.
Basalingappagowda vs Secretary of State (28 Born.
L.R. 651) and Basangauda vs Secretary of State (32 Bom.
L.R. 1370) approved.
Province of Bombay vs Hormusji Maneklal (74 I.A. 03) distinguished.
Held also, that see.
4 of the said Act would apply even if the only relief claimed in the suit against the Govern ment was a declaration.
Dattatreya Viswanath vs Secretary of State for India (I.L.R. disapproved.
Daulatrao vs Government of Bombay approved.
|
No. 132 of 1951.
Peti tion under article 32 of the Constitution for a writ in the nature of mandamus.
The material facts are set out in the judgment.
Nuruddin Abroad for the petitioner.
K.N. Aggarwal for the respondents.
February 27.
The Judgment of the Court was delivered by DAs J.
This is an application under article 32 of the Constitution made by Mohammad Yasin for the protection of his fundamental right of carrying on his business which, according to him, is being infringed by the respondent.
The case sought to be made out in the petition may be shortly stated as follows: The petitioner is a wholesale dealer in fresh vegetables and fruits at Jalalabad in the district of Muzaffarnagar in the State of Uttar Pradesh and claims to have been carrying on such business for the last 7 years or so at his shop situated in the town of Jalalabad.
The vegetable and fruit growers used to bring their goods to the town and get them auctioned through any of the vegetable dealers of their choice who used to charge one anna in the rupee as and by way of commission.
The respondent Committee which is a Town Area Committee has framed certain bye laws under which all right and power to levy or collect commission on sale or purchase of vegetables and fruits within the limits of the town vest in the respondent Committee or any other agency appointed by the Committee and no one except the respondent Committee is authorised to deal in wholesale vegetables and fruits and collect the commission thereof in any place and in any event.
The respondent Committee has by auction given the contract for sale of 575 vegetables and fruits and for collecting the commission for the current year to the respondent Bishamber who, it is alleged, has never dealt in vegetables and fruits The respondent Committee has not set up any market nor has it framed any bye laws for issue of licences to the vegetable and fruit merchants.
The bye laws also provide for prosecu tion for the breach of any of the provisions of these bye laws.
Although, in terms, there is no absolute prohibition against carrying on business as wholesale dealer in vegeta bles and fruits, the result of the bye laws requiring the wholesale dealers to pay the prescribed fee of one anna in the rupee to the contractor who holds the monopoly is, in effect, to bring about a total prohibition of the business of the wholesale dealers in vegetables and fruits.
The petitioner contends that by granting a monopoly of the right to do wholesale business in vegetables and fruits to the respondent Bishamber the respondent Committee has in effect totally prevented the petitioner from carrying on his busi ness and has thereby infringed his fundamental right under article 19(1)(g) of the Constitution.
In the alterna tive, the petitioner contends that the respondent Committee has no legal authority to impose a tax of the kind it has sought to do, that the imposition of a tax calculated at one anna in the rupee is in the nature of a sale tax and cannot be regarded as a licence fee and such unauthorised impost constitutes an illegal restraint on his fundamental right under article 19 (1) (g).
The notice of motion has been served on the respondent Committee as well as on respondent Bishamber.
The respond ents have entered appearance and filed an affidavit in opposition to the present application affirmed by their agent on record Paragraph 4 of that affidavit is as follows : "4.
Paragraphs 4, 5, 6 and 7 of the petition are wrong and misleading and do not convey the correct idea.
If the bye laws are read from beginning to end, the correct posi tion is that the Town Area Committee has lawfully imposed certain taxes on the purchase 576 and sale of fruits and vegetables within the ambit of the Town Area; and instead of collecting the aforesaid taxes departmentally the Committee finds it more convenient and less expensive to auction the 'right to collect the taxes ' and give the contract to the highest bidder or whomsoever it thinks fit and proper.
There is absolutely no restriction on anybody who wants to purchase or anybody who wants to sell; only he must pay the prescribed tax to the Town Area Commit tee through the Contractor.
The market is open, and writ large throughout the territory of the Town Area Committee and anybody can purchase from anybody and anybody can sell to anybody, without any control or intervention by the Contractor, whose position is simply that of a taxcollector on behalf of the Town Area Committee.
Instead of getting the pay, he gets the profits, if any, and runs the risk of incurring losses if his gross realisations are less than what he paid.
This is clearly the position, and it is submitted, there is nothing wrong with it legally and no interference of the petitioner 's rights.
" The petitioner has to his petition annexed copies of a set of bye laws dated June 24, 1942, and a copy of a resolu tion of the respondent Committee dated March 16, 1950, recommending the addition of several bye laws to the previ ous bye laws.
At the hearing of the petition before us it was agreed by and between counsel on both sides that the petition has to be disposed of on the basis of the bye laws of 1942 only and learned counsel for the respondent Commit tee has produced the original bye laws of 1942 before us.
Bye law 1 only provides that no person shall sell or pur chase any vegetable or fruit within the prescribed limits of the Town Area Committee, Jalalabad by wholesale or auction,without paying the fee fixed under these bye laws to the licensee appointed by the Town Magistrate.
Bye law 4 (b) expressly provides that any person can sell in wholesale at any place in the Town Area provided he pays the pre scribed fees to the licensee.
It is, therefore, clear that these byelaws do not in terms, prohibit anybody from dealing in vegetables and fruits as alleged by the petitioner 577 and in this respect they materially differ from the bye laws which this Court had to consider in the Kairana case(1) which consequently does not govern this case.
Learned counsel, however, contends and we think with considerable force and cogency that although, in form, there is no prohibition against carrying on any wholesale business by anybody, in effect and in substance the bye laws have brought about a total stoppage of the wholesale deal ers ' business in a commercial sense.
The wholesale dealers, who will have to pay the prescribed fee to the contractor appointed by auction, will necessarily have to charge the growers of vegetables and fruits something over and above the prescribed lee so as to keep a margin of profit for themselves but in such circumstances no grower of vegetables and fruits will have his produce sold to or auctioned by the wholesale dealers at a higher rate of commission but all of them will flock to the contractor who will only charge them the prescribed commission.
On the other hand, if the wholesale dealers charge the growers of vegetables and fruits only the commission prescribed by the bye laws they will have to make over the whole of it to the contractor without keeping any profit themselves.
In other words, the wholesale dealers will be converted into mere tax col lectors for the contractor or the respondent Committee without any remuneration from either of them In effect, therefore, the bye laws, it is said, have brought about a total prohibition of the business of the wholesale dealers in a commercial sense and from a practical point of view.
We are not of opinion that this contention is unsound or untenable.
Learned counsel for the petitioner, however, does not leave the matter there.
He goes further and urges that the respondent Committee has no legal authority to impose this fee of one anna in the rupee on the value of goods sold or auctioned and that such imposition is in the nature of a sale tax rather than a licence fee.
(1) ; 578 Learned counsel for the respondent in reply takes a preliminary objection to this line of argument.
He points out that as the levying of a tax without authority of law is specifically prohibited under article 265 of the Constitu tion, article 81(1) must be construed as referring to depri vation of property otherwise than by levying of a tax and that levying of a tax in contravention of article 265 does not amount to a breach of a fundamental right.
He contends, on the authority of the decision of this Court in Ramjilal vs Income tax Officer, Mohindargarh(1), that while an ille gal imposition of tax may be challenged in a properly con stituted suit, it cannot be questioned by an application under article 32.
This argument overlooks the difference between a tax like the income tax and a licence fee for carrying on a business.
A licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his right to carry on his business, for without payment of such fee the business cannot be carried on at all.
This aspect of the matter was not raised or considered in the case relied on by the learned counsel, and that case, therefore, has no application to the facts of this case.
Under article 19(1) (g) the citizen has the right to carry on any occupation, trade or business which right under that clause is apparently to be unfettered.
The only restriction to this unfettered right is the authority of the State to make a law relating to the carrying on of such occupation, trade or business as mentioned in clause (6) of that article as amended by the Constitution (First Amend ment) Act, 1951.
If therefore, the licence fee cannot be justified on the basis of any valid law no question of its reasonableness can arise, for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupa tion, trade or business under article 19 (1) (g) and such infringement can properly be made the subject matter of a challenge under article 32 of the Constitution.
(1) [1951] S.C.R.127.
579 Learned counsel for the respondents then refers us to the U.P. Town Areas Act (No. 11 of 1914) which governs the respondent Committee.
Section 14 of this Act requires the Committee to annually determine and report to the District Magistrate the amount required to be raised in any town area for the purposes of this Act and provides that the amount so determined shall be raised by the imposition of a tax to be assessed on the occupiers of houses or lands within the limits of the town area according either to their general circumstances or to the annual rental value of the houses or lands so occupied by them as the Committee may determine.
There were, at the time when the bye laws of the respond ent Committee were framed, five provisos to this section none of which authorised the imposition of any tax on any business and, therefore, they have no bearing on the ques tion now under consideration.
Learned counsel for the respondents, however, draws our attention to section 38 of the Act which authorises the Provincial Government by noti fication in the Official Gazette to extend to all or any or any part of any town area any enactment for the time being in force in any municipality in the United Provinces and to declare its extension to be subject to such restrictions and modifications, if any, as it thinks fit.
Then he proceeds to draw our attention to Notification No. 397/XI 871 E, dated the 6th February, 1929, whereby, in supersession of all previous notifications, the Provincial Government, in exer cise of the powers conferred by section 38(1) of the United Provinces Town Areas Act, 1914, extended the provisions of sections 293(1) and 298(2) (J) (d) of the United Provinces Municipalities Act (11 of 1916) to all the town area in the United Provinces in the modified form set forth therein.
The original bye laws produced by learned counsel purport, however, to have been framed by the respondent Committee under sections 298 (2)(F)(a)and 294 of the United Provinces Municipalities Act (11 of 1916).
We have not been referred to any notification whereby section '294 580 of the United Provinces Municipalities Act was extended to the respondent Committee.
It appears, however, that the bye laws of the respondent Committee were revised in Septem ber 1942 and were then said to have been made under section 298 (2) (J) (d).
It will have, therefore, to be seen wheth er these bye laws come within The purview of section 298 (2) (J) (d) as modified in their application to the respondent Committee.
It will be noticed that under section 298 (2) (J) (d) as modified as aforesaid the respondent Committee is authorised only to make bye laws fixing any charges or fees or any scale of charges or fees to be paid under section 9.93(1) and prescribing the times at which such charges or fees shall be payable and designating the persons authorised to receive payment thereof.
Section 293(1), as modified, authorises the respondent Committee to charge fees to be fixed by bye laws or by public auction or by agreement for the use or occupation (otherwise than under a lease) of any immovable property vested in, or entrusted to the management of the Town Area Committee, including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise.
Bye law 1 of the respondent Committee to which a reference has already been made forbids a person from using any land within the limits of the town area for the sale or purchase of fruits and vegetables without paying the prescribed fee.
Bye law 4 (b), however, allows any person to sell in wholesale at any place in the town area, provided he pays the prescribed fees to the licensee.
These bye laws do not purport to fix a fee for the use or occupation of any immovable property vested in or entrusted to the management of the Town Area Committee including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise.
Sections 293(1) and 298(2) (J) (d) of the United Province Municipalities Act, 1916, as amended at the time they were extended to the town areas in the United Provinces do not empower the Town Area Committee to make any bye law authorising it to 581 charge any fees otherwise than for the use or occupation of any property vested in or entrusted to the management of the Town Area Committee including any public street.
Therefore, the bye laws prima facie go much beyond the powers con ferred on the respondent Committee by the sections men tioned above and the petitioner complains against the en forcement of these bye laws against him as he carries on business in his own shop and not in or on any immoveable property vested in the Town Area Committee or entrusted to their management.
Learned counsel for the respondent Commit tee, however, urges that the growers of vegetables and fruits come on foot or in carts or on horses along the public street and stand outside the petitioner 's shop and for such use of the public street the respondent Committee is well within its powers to charge the fees.
From the way the case was formulated by the learned counsel, it is quite clear that if anybody uses the public street it is the growers of vegetables and fruits who come to the petition er 's shop to get their produce auctioned by the petitioner and the petitioner cannot be charged with fees for use of the public street by those persons.
In our opinion, the bye laws which impose a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immoveable property vested in or en trusted to the management of the Town Area Committee includ ing any public street, are obviously ultra vires the powers of the respondent Committee and, therefore, the bye laws cannot be said to constitute a valid law which alone may, under article 19(16) of the Constitution,ofimpose a restric tion on the right conferred by article 19(1) (g).
In the absence of any valid law authorising it, such illegal impo sition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation, trade or business which is guaranteed to him by article 19(1) (g) of our Constitution 75 582 In this view of the matter the petitioner is entitled to a suitable order for protection of his fundamental right.
The prayer in the petition, however, has been expressed in language much too wide and cannot be granted in that form.
The proper order would be to direct the respondent Committee not to prohibit the petitioner from carrying on the busi ness of a wholesale dealer in vegetables and fruits within the limits of the Jalalabad Town Area Committee until proper and valid bye laws are framed and thereafter except in accordance with a licence to be obtained by the petitioner under the bye laws to be so framed.
The respondent Commit tee will pay the costs of this application to the petition er.
Agent for the petitioner: Naunit Lal.
| There is a difference between a tax like the income tax and a licence fee for carrying on an occupation, trade or business.
A licence lee on a business not only takes away the property of the licensee but also operates as a restric tion on his fundamental 573 right to carry on his business.
Therefore if the imposition of a licence fee is without authority of law it can be challenged by way of an application under article 32.
Under article 19(1) (g) of the Constitution a citizen has the right to carry on any occupation, trade or business and the only restriction on this unfettered right is the author ity of the State to make a law relating to the carrying on of such occupation, trade or business as mentioned in cl.
(6) of that article as amended by the Constitution (First Amendment) Act, 1951.
If therefore a licence fee imposed for carrying on an occupation, trade or business cannot be justified on the basis of any valid law, no question of its reasonableness can arise, for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupa tion, trade or business under article 19(1) (g), and such infringement can properly be made the subject matter of a challenge under article 32 of the Constitution.
Bye law No. 1 of the Bye laws of the Town Area Committee of Jalalabad (in the United Provinces) provided that no person shall sell or purchase any vegetables or fruit within the prescribed limits of the Town Area Committee by whole sale or auction, without paying the fees fixed by these bye laws to the licensee appointed by the Town Magistrate.
Bye law No. 4 (b) provided that any person can sell in wholesale at any place in the town area provided he pays the prescribed fees to the licensee.
A person who had been carrying on the business of wholesale dealer in vegetables and fruits in his own shop at Jalalabad for a period of seven years applied for protection under article 32 contending that these bye laws infringed his fundamental right to carry on his trade guaranteed by article 19 (1) (g) and were there fore void.
Held, that section 293 (1) and section 298 (2) (J) (d) of the U.P. Municipalities Act, 1916, as amended at the time they were extended to the town areas in the United Provinces did not empower the Town Area Committee to make any bye law autho rising it to charge any fees otherwise than for the use and occupation of any property vested in or entrusted to the management of the Town Area Committee including any public street.
The bye laws in question which imposed a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immovable property vested in or entrusted to the management of the Town Area Committee including any public street, are obvi ously ultra vires the powers of the Committee and, there fore, the bye laws cannot be said to constitute a valid law which alone may, under article 19 (6) of the Constitution, impose a restriction on the right conferred by article 19(1) (g).
In the absence of any valid law authorising it, such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on 74 574 his occupation, trade or business which is guaranteed to him by article 19 (1) (g) of our Constitution.
Kairana case ; and Ramji Lal vs Income tax Officer, Mohindargarh ; distinguished.
|
Appeal No. 159 of 1951.
Appeal by special leave from the judgment and order dated 13th of April, 1951, of the High Court of Judicature at Madras (Rajamannar C.J. and Somasundaram J.) in C.M.P. No. 122/15 of 1950.
M.C. Setalvad (C. R. Pattabhi Raman, with him) for the appellant.
C.K. Daphtary (M. Natesan, with him) for the respondent No.1 V.K.T. Chari, Advocate General of Madras (R. Ganapathi lyer, with him) for respondent No. 4. 1952.
March 17.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
This appeal arises as the result of special leave to appeal granted by this Court on the 1st of May, 1951, against an order of the Madras High Court dated 13th April, 1951, quashing certain proceedings of the Regional Transport Authority, Tanjore, and the Cen tral Traffic Board, Madras, dated 19th January, 1950, and 3rd March, 585 1950, respectively, and an order of the first respondent (the State of Madras) dated 7th November, 1950, and direct ing the issue to Messrs. Raman and Raman Ltd., (Petitioners before the High Court) of permits for the five buses in respect of which a joint application had been made original ly by them and one T.D. Balasubramania Pillai.
The present appellant, G. Veerappa Pillai, was the fourth respondent in the High Court.
The present first respondents (Messrs. Raman and Raman Ltd.) were the peti tioners before the High Court Present respondents Nos. 2, 3 and 4 were respectively respondents Nos. 1, 2 and 3 before the High Court.
The dispute is between the appellant and Messrs. Raman and Raman Ltd., who were competing bus proprietors in the Tanjore District; and it is over the issues of five perma nent permits for buses Nos.
M.D.O. 81, M.D.O. 230, M.D.O. 6, M.D.O. 7 and M. D.O. 759 on the route between Kumbakonam and Karaikal.
It has been a long drawn game with many moves, counter moves, advances and checkmates, both sides display ing unusual assiduity and skill in their manoeuvres for position.
But it is unnecessary to set out in great detail all the steps taken, as they have been narrated in the order of High Court and many of them are of insignificant rele vance for disposal of this appeal.
I shall state here only what is material.
The 'C ' permits for the five buses stood originally in the name of Balasubramania Pillai.
The buses were agreed to be purchased from him by Messrs. Raman and Raman Ltd., and there was a joint application by the transferor and trans feree on 10th March, 1944, for transfer of the ownership and of the 'C ' permits in the name of the purchasers.
Two days later, Veerappa Pillai, proprietor of the Sri Sathi Viias Bus Service, who is the appellant before us, applied for temporary permits to ply two of his own vehicles over the same route, stating that the vehicles of the two agencies which held the permits were mostly out of action.
It was a fact that out of the five buses sold 586 by Balasubramania Pillai, only two were then running; the other three were under repairs.
The permanent permits for the sold buses were suspended by order of the Secretary dated 28th March, 1944.
Temporary permits for buses M.D.O. 920, 894, 918, M.S.C. 7632 and 7482 had been issued to Veerappa Pillai during the same month.
Now we come to another chapter in the story.
Balasubra mania Pillai resiled from the joint application and repudi ated it as having been got from him by fraud.
The Secre tary, Road Traffic Board, thereupon refused to transfer the ownership on the 19th March, 1944, and this order was con firmed by the Board on 29th May, 1944, Balasubramania Pillai and Veerappa Pillai made a joint application on 10th April, 1944, for transfer of the buses and the original permits in favour of Veerappa Pillai who had on the same date agreed to purchase the vehicles.
The Secretary granted this applica tion on the same date Messrs. Raman and Raman Ltd., took the matter before the Central Road Traffic Board and they made an order on 16th August, 1944, upholding the issue of tempo rary permits to Veerappa Pillai for his buses M.D.O. 920, 894,918, M.S.C. 7632 and 7482, but setting aside the trans fer of registry of the original buses and the transfer of the permits relating to the same.
On an application by Veerappa Pillai to review its order dated 16th August, 1944, the Central Road Traffic Board allowed on 27th November, 1944, only the transfer of the ownership of the buses but not a transfer of the permits.
Yet another move in the game was this Veerappa Pillai filed a suit in the court of the Subordinate Judge, Kumbako nam, on 3rd October, 1944, for recovery of possession of the original five buses from Messrs. Raman and Raman Ltd., on the strength of his purchase from Balasubramania Pillai.
The Subordinate Judge appointed Veerappa Pillai as Receiver on 17th March, 1945, and the five disputed buses were deliv ered to him on 26th April, 1945.
Two of the buses M.D.O. 6 and 7 were repaired by him and put on the route under his temporary permits.
The suit was decreed in 587 his favour on 2nd May, 1946.
Later, he repaired the other three buses M.D.O. 759, 230 and 81 and began to run them on the same route under the temporary permits he held.
Veerappa Pillai was discharged from receivership on 18th September, 1946.
On the strength of the Sub Court decree, Veerappa Pillai again applied for a permanent transfer of the permits, and on 22nd July, 1946, the Central Road Traffic Board trans ferred the petition to the Regional Transport Authority with an intimation that it saw no objection to the issue of regular permits to Veerappa Pillai for the disputed buses or to their transfer in his name, provided there were valid permits in existence.
This view appears to have been modi fied later and on 2nd September, 1946, the Regional Trans port Officer directed the issue of temporary permits to the buses for the period from 3rd September, 1946, to 31st October, 1946, subject to the condition that the issue of the permits did not affect the rights of either party in the matter under dispute.
Thereupon, the Government was moved by Veerappa Pillai and also by Messrs. Raman and Raman Ltd., but the Government declined to interfere and the result was an order on 30th June, 1947, by the Regional Transport Authority to the following effect: " Since the subject matter is on appeal before the High Court, the matter will lie over pending the decision of the High Court.
The temporary permits are continued as is being done." A fresh petition by Veerappa Pillai to the Central Road Traffic Board, Madras, was unsuccessful, but a further appeal to the Government of Madras ended in his favour in an order dated 29th March, 1949.
The order is in these terms : "Shri Sathi Viias Bus Service, Porayar, Tanjore dis trict, have been permitted by the Regional Transport Author ity, Tanjore, to run their buses M.D.O. 6, 7, 81, 230 and 750 on the Kumbakonam Karaikal route on temporary permits from 1944 pending 588 the High Court 's decision on the question of permanent ownership of the buses.
Government consider it undesirable to keep these buses running on temporary permits for a long and indefinite period.
Further Sri Sathi Vilas Bus Service have secured the decision of the Sub Court, Kumbako nam, in their favour about the permanent ownership of the buses.
In the circumstances the Regional Transport Authori ty, Tanjore, is directed to grant permanent permits for the buses of Sri Sathi Vilas Bus Service, Porayar, referred to above in lieu of the existing temporary permits.
" On the basis of this Government order, permanent permits were issued in favour of Veerappa Pillai on 18th April, 1949.
Getting to know of this last order, Messrs. Raman and Raman Ltd.,approached the Government Madras with a petition praying for clarification of the order by making it expressly subject to the decision of the High Court regarding the title to the said five buses and that in the event of the High Court deciding the appeal in favour of Messrs. Raman and Raman Ltd. "the above said five permanent permits will be taken away from Veerappa Pillai and given to them." The Minister of Transport, who dealt with the matter, stated on the petition "that was my inten tion also.
" The High Court reversed the decree of the Sub Court on 2nd September, 1949, and came to the conclusion that the title of Messrs. Raman and Raman Ltd., to the five buses prevailed over that of Veerappa Pillai.
On 19th September, 1949, they applied to the Government for cancellation of the five permits issued to Veerappa Pillai and for grant of the same to them.
The Government declined to interfere as the Regional Transport Authority was the competent authority, vide order dated 16th November, 1949.
In their application to the Regional 'Fransport Authority dated 28th November, 1949, Messrs. Raman and Raman Ltd., asked for withdrawal of the permits.
In the meantime, that is on 14th October, 1949, Veerappa Pillai applied for renewal of his permanent permits held for his own 589 buses Nos.
M.D.O. 1357, 20, 1366, 1110, 1077, M.D.O. 1368 and M.S.C.7632, which had been substituted for the disputed buses as they had become unroadworthy and useless.
The application for renewal has under section 58, sub clause (2), of the Act to be treated as a fresh application for new permits.
This procedure was followed and on 22nd October, 1949, a notification was issued inviting objections against the renewal and giving 30th November, 1949, as the date of hearing.
No objections were received and the Secretary renewed the permits for two years from 1st January, 1950.
This order was dated 3rd January, 1950.
The Regional Trans port Authority dealing with the application of Messrs. Raman and Raman Ltd., dated 28th November, 1949, resolved on 19th January, 1950, that the permanent permits issued to Veerap pa Pillai should be cancelled, that the route should be declared vacant in respect of the five buses and fresh applications should be invited and dealt with on the merits.
The order further stated that "in the meanwhile Sri G. Veerappa Pillai and Raman and Raman will be given temporary permits for running two and three buses respectively on the route.
The permanent permits will be cancelled with imme diate effect.
Raman and Raman should put in the buses as quickly as possible.
Till then Sri Veerappa Pillai will be given temporary permits so as not to dislocate public traf fic.
" Both the parties were dissatisfied with this order and preferred appeals to the Central Road Traffic Board, Madras, which dismissed the appeal of Messrs. Raman and Raman Ltd., and restored the permanent permits of Veerappa Pillai by order dated the 3rd March, 1950.
Messrs Raman and Raman Ltd., moved the Government, but it declined to interfere by G.O., dated 7th November, 1950.
Thereupon, Messrs. Raman and Raman Ltd., moved the High Court on 4th December, 1950, under article 226 of the Constitution in Civil Miscellaneous Petition No. 12215 of 1950 for a writ of certiorari for quashing the orders and the proceedings of the 590 Regional Transport Authority, the Central Road Traffic Board, Madras, and the State of Madras dated 19th January, 1950, 3rd March, 1950, and 7th November, 1950, respectively, and for the issue of a writ of mandamus or other such appro priate directions to the first respondent to transfer, issue or grant "the five pucca permits in respect of the route Kumbakonam to Karaikkal to the petitioner herein" (Messrs. Raman and Raman Ltd.) It is on this petition that 'the order challenged in this appeal was made by the High Court.
The High Court took the view that throughout all the stages prior to the High Court 's decree, the parties, the transport authorities vested with the power to issue per mits, and the Government also proceeded upon the footing that the transfer of the permits was dependent on the title to the buses and that Veerappa Pillai obtained the temporary and permanent permits only in his capacity as transferee and not in his individual right.
To quote the learned Chief Justice:"the conduct of the parties, the attitude of the transport authorities including the Government are all explicable only on the assumption that the rights of parties were consequent on the ownership of the five vehicles in question.
The fourth respondent having obtained the benefit of temporary and permanent permits as a transferee from Balasubramania Pillai all this time cannot be heard now to say after the decision of this Court which has negatived his claim and upheld the claim of the applicant that the appli cant should not enjoy the fruits of his success.
" He further points out that the procedure laid down by the Motor Vehi cles Act and the rules for grant of fresh permits was not followed and that long before the application for renewal was allowed, the Regional Transport Authority had been informed of the decision of the High Court.
The order of the Central Road Traffic Board was in his opinion most unsatis factory, as it was based on a quibbling distinction between "withdrawal" and "cancellation" of the permits.
In his view, the orders complained against deprived Messrs. Raman and Raman Ltd., of the fruits of the 591 decree obtained by them at the hands of the High Court after much expenditure of time and money.
An examination of the relevant sections of the Motor Vehicles Act does not support the view that the issue of a permit for a bus which falls within the definition of a "stage carriage " is necessarily dependent on the ownership of vehicle.
All that is required for obtaining a permit is possession of the bus.
As ownership is not a condition precedent for the grant of permits and as a person can get a permit provided he is in possession of a vehicle which satisfies the requirements of the statute or the rules framed thereunder, we have to hold that the parties and the authorities were labouring under a misconception if they entertained a contrary view.
But the assumption on which they proceeded may perhaps be explained, if not justified, on the ground that it was supposed that the question of ownership of the vehicles had an important or material bearing on the question as to which of them had a preferen tialclaim for the permits.
It may well be it Was one of the factors to be taken into account and it seems to us that this was apparently the reason why the question of issue of permanent permits was postponed from time to time till we come to the order of the Government dated 29th March, on petitions presented by both the contestants.
If matters had stood as they were till the Government had made this order, something could have been said in favour of Messrs. Raman and Raman Ltd., in the event of their ultimate success in the High Court as regards the title to the five buses.
But the said order altered the situation.
In the order, the direction for the grant of permanent permits is not rested solely on the decision of the Sub Court in favour of Veerappa Pillai but another reason was also given, namely, that Government considered it undesirable to keep the buses running on temporary permits for a long and indefinite period.
In giving this reason, they were stating a policy.
77 592 As observed already, the High Court by their judg ment dated 2nd September, 1949, reversed the decree of the Subordinate Judge and dismissed Veerappa Pillai 's suit for possession of the buses based on his title.
If it were the law that the question of possession based on ownership was decisive as regards the grant of permits, and if no other circumstances were available to be taken into account when the question of the issue of permanent permits again came up for consideration, it would have been easy to hold that Messrs. Raman and Raman Ltd., had at least a preferential claim.
But unfortunately for them, both these requisites are not satisfied.
It has been point ed out already that nowhere do we find in the Act anything to indicate that the issue of permits depends on ownership.
Other circumstances which had a material bear ing as to which of them was entitled to the permits had come into existence since the date of the original joint application and were taken into account by the transport authorities and by the Government.
The order of 19th January, 1950, of the Regional Transport Authority sought to render rough and ready justice between the par ties by the adoption of what may be called a middle course.
The terms of the order have already been set out.
Before disposing of the appeals of both the parties, the Central Traffic Board appears to have called for a report from the Regional Transport Officer.
In this report, attention was drawn to the fact that all the five buses had been replaced by new vehicles and that the registration certificates had been cancelled as a result of the replacement.
After Balasubramania Pillai, it was Veerappa Pillai who was running the buses continuously on this route for nearly 5 years and he also obtained the privilege of securing the permanent permits.
The Central Traffic Board 's order of 3rd March, 1950, restoring the permanent permits of Veerappa Pillai was based on the fact that Messrs. Raman and Raman Ltd. asked for withdrawal of the permits and not their cancellation and that no opportunity had been given to Veerappa Pillai to show cause why his permits should not be cancelled; and 593 the procedure prescribed for cancellation was not followed.
When the Government was moved by Messrs. Raman and Raman Ltd., under section 64 (a) of the Motor Vehicles Act, they had before them a petition for withdrawal of the perma nent permits issued to Veerappa Pillai and for transfer or grant of five 'pucca permits ' relating to the five buses.
The Government granted stay of the appellate order of the Central Road Traffic Board pending disposal of the revision petition 'and called for a report from the subordinate trans port authorities.
Two important facts were brought to the notice of the Government in the report Messrs. Raman and Raman Ltd. did not file any objections to the renewal of the permits sought by Veerappa Pillai.
What is more important, they had no permits from the French authorities enabling them to run any buses on the portion of the route which lay in French territory.
It was further pointed out that there was no subsisting joint application to support the request for transfer and that the original permits in the name of Bala. subramanian had ceased to exist after 31st December 1944.
The Government had also before them two petitions dated 8th March, 1950, and 25th October, 1950, from Messrs Raman and Raman Ltd. and two petitions dated 29th March, 1950, and 8th June, 1950, from Veerappa Pillai.
It is on the basis of all these materials that the Government de clined to interfere with the decision of the Central Road Traffic Board.
It is contended for the appellant that in this state of affairs the High Court acting under Article 226 of the Constitution had no right to interfere with the orders of the transport authorities.
It is unnecessary for the disposal of this appeal to consider and decide on the exact scope and extent of the jurisdiction of the High Court under Article 226.
Whether the writs it can issue must be analogous to the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari specified therein and the power is subject to all the limitations, or restrictions 594 imposed on the exercise of this jurisdiction, or whether the High Court is at liberty to issue any "suitable directions or orders or writs untramelled ,by any condi tions, whenever the interests of justice so require, is a large and somewhat difficult problem which does not arise for solution now.
Mr. Setalvad appearing for the appellant urged two narrower grounds as sufficient for his purposes.
Firstly, he urged that however wide the jurisdiction of the High Court might be under Article 226, it could never exer cise its powers under the article in such a manner as to convert itself into a court of appeal sitting in judgment over every tribunal or authority in the State discharging administrative or quasi judicial functions.
Secondly, he maintained that the Motor Vehicles Act with the rules framed thereunder dealing with the grant of permits is a self contained code and that in respect of the rights and liabil ities created by such a statute the manner of enforcement must be sought within the statute itself.
It was further urged by him that in any event, the High Court could not substitute its own view or discretion for the view taken or discretion exercised by the specified authorities, even if it was erroneous or unsound.
Such writs as are referred to in Article 226 are obvi ously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice.
However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made Mr. Daphtary, who appeared for the respondent, said nothing to controvert this position.
His argument 595 was that if all along the authorities and the Government had proceeded upon a particular footing and dealt with the rights of the parties on that basis, it was not open to them afterwards to change front and give the go by altogether to the conception of the rights of parties entertained by them till then.
According to him, there was manifest injustice to his client in allowing them to do so and this was the reason which impelled the High Court to make the order which is the subject matter of challenge in this appeal.
The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribes an elaborate procedure for their regulation.
No one is entitled to a permit as of right even if he satisfies all the prescribed conditions.
The grant of a permit is entirely within the discretion of the transport authorities and naturally depends on several circumstances which have to be taken into account.
The Regional Transport Authority and the Provincial Transport Authority are entrusted under section 42 with this power.
They may be described as administrative bodies exercising quasijudicial functions in the matter of the grant of per mits.
Under rule 8 of the Madras Motor Vehicles Rules the Regional Transport Authority is called the Road Traffic Board and the Provincial Transport Authority is called the Central Road Traffic Board.
These bodies or authorities are constituted by the Provincial ' Government.
The matters which are to be taken into account in granting or refusing a stage carriage permit are specified in section 47.
By delegation under rule 134 A, the Secretary of the Road Traf fic Board may exercise certain powers as regards the grant or refusal of stage carriage permits and under rule 136 there is an appeal to the Board from these orders.
Similar powers of delegation are vested in the Secretary to the Central Board and an appeal lies to the Central Board under rule 148(1).
From an original order of the Road Traffic Board there is an appeal to the Central Board and from the original orders of the Central Board to the Government, vide rules 147 and 148 An amendment introduced by the Madras Act XX of 1948 596 and found as section 64 A in the Act vests a power of revi sion in the Provincial Government.
Besides this specific provision, there is a general provision in section 43 A that the Provincial Government may issue such orders and direc tions of a general character as it may consider necessary to the Provincial Transport Authority or a Regional Transport Authority in respect of any matter relating to road trans port; and such transport authority shall give effect to all such orders and directions.
There is, therefore, a regular hierarchy of administrative bodies established to deal with the regulation of transport by means of motor vehicles.
Thus we have before us a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities.
The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had.
As observed already, the issue or refusal of permits is solely within the discretion of the transport authorities and it is not a matter of right.
We are accordingly of opinion that this was not a case for interference with the discretion that was exercised by the Transport Authorities paying regard to all the facts and the surrounding circumstances.
Further, it will be noticed that the High Court here did not content itself with merely quashing the proceedings, it went further and directed the Regional Transport Authority, Tanjore, "to grant to the petitioner permits in respect of the five buses in respect of which a joint application was made originally by the petitioner and Balasubramania Pillai and that in case the above buses have been condemned, the petitioner shall be at liberty to provide substitutes within such time as may be prescribed by the authorities.
" Such a direction was clearly in excess of its powers and jurisdic tion.
597 For the reasons given above, the appeal is allowed and the order of the High Court set aside.
Each party will bear their own costs of these proceedings throughout.
Appeal allowed.
Agent for respondent No. 1: M.S.K. Sastri.
Agent for respondent No. 4: P.A. Mehta.
| The writs referred to in article 226 are intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission or error or excess has resulted in manifest injustice.
However exten sive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the, deci sions impugned and decide what is the proper view to be taken or the order to be made.
The Motor Vehicles Act contains a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant and prescribing appeals and revisions from subordinate bodies to higher authorities, and the issue or refusal of permits is solely within the discretion of the transport authorities; it is not a matter of right.
Where, in a dispute between two rival claimants for running through a particular route five buses, which each of them alleged he had purchased from a third person, the Central Road Traffic Board, Madras, after calling for a report from the Regional Transport Officer and considering several circumstances that had a material bearing on the case, restored the permanent permits which had been granted to one of the claimants, but on an application by the other claimant under article 226 of the Constitution to the High Court of Madras for a writ of certiorari quashing the orders of the Regional Transport Authority, the Central Road Traffic Board and the State of Madras, and for a writ of mandamus to the respondents to transfer, issue or grant 584 permanent permits to the petitioner, the High Court set aside the order of the Central Traffic Board, relying mainly on the fact that the petitioner 's title to the five buses had been established and directed the Regional Traffic Authority to grant to the petitioner permits in respect of the five buses: Held, that under the Motor Vehicles Act, the issue of a permit for a bus was not dependent on the ownership of the bus but on other considerations also, and as the Central Traffic Board had issued an order granting permits to one of the claimants after considering all circumstances the High Court acted erroneously in interfering with the Order of Traffic Board on an application under article 226 and in any event the order of the High Court issuing a direction to the Regional Transport Authority to grant permits to the other party was clearly in excess of its powers and jurisdiction.
The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribes an elaborate procedure for their regulation.
No one is entitled to a permit as of right even if he satisfies all the prescribed conditions.
The grant of a permit is entirely within the discretion of the transport authorities and naturally depends on several circumstances which have to be taken into account.
|
N: Criminal Appeal No. 13 of 1951.
Appeal by special leave from the judgment and order of the High Court of Madras (Rajamannar C.J. and Balakrishna Ayyar J.) dated 10 th April, 1950, in Contempt Application No. 10 of 1949.
426 S.P. Sinha (S.S. Prakasam, with him), for the appellant.
R. Ganapathy Iyer, for the respondent.
February 14.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal has come up before us on special leave granted by this court on May 23, 1950, and it is directed against a judgment of a Division Bench of the Madras High Court dated April 10, 1950, by which the learned Judges found the appellant guilty of contempt of court and sentenced him to serve simple imprisonment for three months.
The appellant is the publisher and managing editor of a Telugu Weekly known as "Praja Rajyam" which is edited and published at Nellore in the State of Madras.
In the issue of the said paper dated 10th February, 1949, an article appeared under the caption "Is the Sub Magistrate, Kovvur, corrupt?" The purport of the article was that Surya Narayan Murthi, the stationary Sub Magistrate of Kovvur, was known to the people of the locality to be a bribe taker and to be in the habit of harassing litigants in various ways.
He was said to have a broker, through whom negotiations in connec tion with these corrupt practices were carried on.
Several specific instances were cited of cases tried by that offi cer, where it was rumoured that he had either taken bribes or had put the parties to undue harassment, because they were obdurate enough to refuse the demands of his broker.
The article, which is a short one, concludes with the fol lowing paragraph: "There are party factions in many villages in Kovvur Taluk.
Taking advantage of those parties many wealthy persons make attempt to get the opposite party punished either by giving bribes or making recommendations.
To appoint Magistrates who run after parties for a Taluk like this. . is to betray the public.
It is tantamount to failure of justice.
Will the Collector enquire into the matter and allay the public of their fears?" 427 The attention of the State Government being drawn to this article, an application was filed by the AdvocateGener al of Madras before the High Court on November 14, 1949, under section 2 of the Contempt of Courts Act (Act XII of 1926) praying that suitable action might be taken against the appellant as well as three other persons, of whom two were respectively the editor and sub editor of the paper, while the third was the owner of the Press where the paper was printed.
On receiving notice, the appellant appeared before the High Court and filed an affidavit taking sole responsibility for the article objected to and asserting that the article was published because of his anxiety to uphold the highest traditions of the judiciary in the land and to create popular confidence in courts, the duty of which was to dispense justice without fear or favour and without any discrimination of caste, creed or community.
It was said that before the article was published, numerous complaints had reached him from various quarters imputing corruption and disreputable conduct to this Magistrate and the only desire of the appellant was to draw the attention of the higher authorities to the state of public opinion in the matter and to invite an enquiry into the truth or otherwise of the allegations which were not asserted as facts but were based only on hearsay.
The High Court after hearing the parties came to the conclusion that the publication in question did amount to contempt of court, as it was calculated to lower the pres tige and dignity of courts and bring into disrepute the administration of justice.
As the appellant was not prepared to substantiate the allegations which he made and which he admitted to be based on hearsay and did not think it proper even to express any regret for what he had done, the court sentenced him to simple imprisonment for three months.
The other three respondents, through their counsel, tendered unqualified apology to the court and the learned Judges considered that no further action against them was necessary.
428 The propriety of the decision of the High Court so far as it relates to the appellant has been challenged before us in this appeal and Mr. Sinha, who appeared in support of the same, raised before us a two fold contention; his first and main contention is that as the contempt in this case was said to have been committed in respect of a court subordi nate to the High Court and the allegations made in the article in question constitute an offence under section 499 of the Indian Penal Code, the jurisdiction of the High Court to take cognizance of such a case is expressly barred under section 2 (3) of the Contempt of Courts Act.
The other contention advanced by the learned counsel relates to the merits of the case and it is urged that in publishing the article objected to, the appellant acted in perfect good faith, and as the article amounted to nothing else but a demand for enquiry into the conduct of a particular person who was believed to be guilty of corrupt practices in the discharge of his judicial duties, there was no contempt of court either intended or committed by the appellant.
So far as the first point is concerned, the determina tion of the question raised by the appellant would depend upon the proper interpretation to be put upon section 2(3) of the Contempt of Courts Act which runs as follows : "No High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subor dinate to it where such contempt is an offence punishable under the Indian Penal Code.
" According to Mr. Sinha, what the sub section means is that if the act by which a party is alleged to have commit ted contempt of a subordinate court constitutes offence of any description whatsoever punishable under the Indian Penal Code, the High Court is precluded from taking cognizance of it.
It is said that in the present case the allegations made in the article in question amount to an offence of defama tion as defined by section 499 of the Indian Penal Code and consequently the jurisdiction of the High Court is barred.
Reliance 429 is placed in support of this proposition upon the decision of the Nagpur High Court in Kisan Krishna Ji vs Nagpur Conference of Society of St. Vincent de Paul(1).
This con tention, though somewhat plausible at first sight, does not appear to us to be sound.
In our opinion, the sub section referred to above excludes the jurisdiction of High Court only.
in cases where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code.
This would be clear from the language of the sub section which uses the words "where such contempt is an offence" and does not say "where the act alleged to consti tute such contempt is an offence".
It is argued that if such was the intention of the Legislature, it could have express ly said that the High Court 's jurisdiction will be ousted only when the contempt is punishable as such under the Indian Penal Code.
It seems to us that the reason for not using such language in the sub section may be that the expression "contempt of court" has not been used as descrip tion of any offence in the Indian Penal Code, though certain acts, which would be punishable as contempt of court in England, are made offences under it.
It may be pointed out in this connection that al though the powers of the High Courts in India established under the Letters Patent to exercise jurisdiction as Superi or Courts of Record in punishing contempt of their authority or processes have never been doubted, it was a controversial point prior to the passing of the Contempt of Courts Act, 1926, as to whether the High Court could, like the Court of King 's Bench in England, punish contempt of courts subordi nate to it in exercise of its inherent jurisdiction.
The doubt has been removed by Act XII of 1926 which expressly declares the right of the High Court to protect subordinate courts against contempt, but (1) (1943) A.I.R. 1943 Nag.
430 subject to this restriction, that cases of contempt which have already been provided for in the Indian Penal Code should not be taken cognizance of by the High Court.
This seems to be the principle underlying section 2(3)of the Contempt of Courts Act.
What these cases are need not be exhaustively determined for purposes of the present case, but some light is undoubtedly thrown upon this matter by the provision of section 480 of the Criminal Procedure Code, which empowers any civil, criminal or revenue court to punish summarily a person who is found guilty of committing any offence under sections 176, 178, 179, 180 or section 228 of the Indian Penal Code in the view or presence of the court.
We are not prepared to say, as has been said by the Patna High Court in Jnanendra prasad vs Gopal(1), that the only section of the Indian Penal Code which deals with contempt committed against a court of justice or judicial officer is section 228.
Offences under sections 175, 178, 179 and 180 may also, as section 480 of the Criminal Proce dure Code shows, amount to contempt of court if the "public servant" referred to in these sections happens to be a judicial officer in a particular case.
It is well known that the aim of the contempt proceeding is "to deter men from offering any indignities to a court of justice" and an essential feature of the proceeding is the exercise of a summary power by the court itself in regard to the delin quent.
In the cases mentioned in section 480 of the Indian Penal Code, the court has been expressly given summary powers to punish a person who is guilty of offending its dignity in the manner indicated in the section.
The court is competent also under section 482 of the Criminal Proce dure Code to forward any case of this description to a Magistrate having jurisdiction to try it, if it considers that the offender deserves a higher punishment than what can be inflicted under section 480.
Again, the court is enti tled under section 484 to discharge the offender on his submitting an apology, although it has already adjudged him to punishment under section Pat.
172. 431 or forwarded his case for trial under section 482.
The mode of purging contempt by tendering apology is a further char acteristic of a contempt proceeding.
It seems, therefore, that there are offences which are punishable as contempt under the Indian Penal Code and as subordinate courts can sufficiently vindicate their dignity under the provisions of criminal law in such cases the legislature deemed it proper to exclude them from the jurisdiction of the High Court under section 2(3) of the Contempt of Courts Act;but it would not be correct to ' say that the High Court 's juris diction is excluded even in cases where the act complained of, which is alleged to constitute contempt, is otherwise an offence under the Indian Penal Code.
This view has been taken and, in our opinion quite rightly, in a number of decisions by the Calcutta,(1) Patna,(2) Allahabad(3) and Lahore(4) High Courts.
The only authority which Mr. Sinha could cite in support of his contention is the decision of the Nagpur High Court in Kisan Krishna Ji vs Nagpur Conference of Society of St. Vincent de Paul(").
The authority is undoubtedly in his favour as it proceeds upon the assumption that the idea underlying the provision of section 2(3) of the Contempt of Courts Act is that if a person can be punished by some other tribunal, then the High Court should not entertain any proceeding for contempt.
It is to be noticed that the learned Judge, who decided this case, himself took the opposite view in the case of Subordinate Judge, First Class, Hoshangabad vs Jawaharlal(6) and definitely held that the prohibition contained in section 2(3) of the Contempt of Courts Act refers to offences punishable as contempt of court by the Indian Penal Code and not to offences punishable otherwise than as contempt.
This decision was neither noticed nor dissented from in the subsequent case, and it is quite possible that (1) Narayan Chandra vs Panehu Pramanik (A.I.R. ; Naresh Kumar.v.
Umaromar (A.I.R. 1951 Cal.
(2)Kaulashia vs Emperor (12 Pat. 1).
(3) State vs Brahma Prakash (A.I.R. 1950 All. 556); Emperor vs Jagannath (A.I.R. 1938 All. 358).
(4) Bennett Coleman vs G. section Monga (I.L.R. (5) A.I.R. 1943 Nag.
(6) A.I.R. 1940 Nag.
56 432 the attention of the learned judge was not drawn to this earlier pronouncement of his, in which case the matter would certainly have been more fully discussed.
We think further that the decision of the Calcutta High Court in V.M. Bason vs A. H. Skone(1) which was the basis of the decision of the learned Judge in the subsequent case does not really support the view taken in it.
In the Calcutta case what happened was, that a clerk of the Attorney, who appeared for the respondent decreeholder, went to serve a notice under Order 21, Rule 37(1), of the Civil Procedure Code upon the appellant judgment debtor.
The judgmentdebtor refused to take the notice and abused and assaulted the Attorney 's clerk.
Upon that, contempt proceedings were started against him and Mr. Justice C.C. Ghosh, sitting on the Original Side of the High Court of Calcutta, held the appellant guilty of contempt and fined him Rs. 200.
On appeal, this judgment was affirmed by the appellate Bench and there was a general observation made by Chief Justice Sanderson at the close of his judgment that it is not desirable to invoke the special inherent jurisdiction of the High Court by way of proceeding for contempt if ordinary proceedings in a Magistrate 's court are sufficient to meet the requirements of a case.
This was not a case under section 2(3) of the Contempt of Courts Act at all and no question either arose or was decided as to whether if an act is otherwise punishable as an offence under the Indian Penal Code the jurisdiction of the High Court under that section would be ousted.
Undoubtedly the High Court had jurisdiction in that case and whether such jurisdiction, which is certainly of a special character and is exercised summarily, should be called in to aid in the circumstances of a particular case would depend upon the discretion of the court.
This has, however, no bearing on the point that has arisen for consideration before us.
We would hold, therefore, that the right view was taken by the learned Judge of the Nagpur High Court in the earlier case and not in the later one, (1) I.L R. 433 It is next urged by Mr. Sinha that even assuming that this view is correct, the language of section 499 of the Indian Penal Code is wide enough to cover a case of contempt of court.
What is said is, that if a libel is published against a judge in respect of his judicial functions, that also is defamation within the meaning of section 499 of the Indian Penal Code and as such libel constitutes a contempt of court, it may be said with perfect propriety that libel on a judge is punishable as contempt under the Indian Penal Code.
We do not think that this contention can be accepted as sound.
A libellous reflection upon the conduct of a judge in respect of his judicial duties may certainly come under section 499 of the Indian Penal Code and it may be open to the judge to take steps against the libeller in the ordinary way for vindication of his character and personal dignity as a judge; but such libel may or may not amount to contempt of court.
As the Privy Council observed in Surendra Nath Banerjee vs The Chief Justice and Judges of the High Court,(1) "although contempt may include defamation, yet an offence of contempt is something more than mere defamation and is of a different character.
" When the act of defaming a judge is calculated to obstruct or interfere with the due course of justice or proper administration of law, it would certainly amount to contempt.
TIle offence of con tempt is really a wrong done to the public by weakening the authority and influence of courts of law which exist for their good.
As was said by Willmot, C.J.(2) "attacks upon the judges excite in the minds of the people a general dissatisfaction with all judicial determi nations. and whenever man 's allegiance to the laws is so fundamentally shaken it is the most fatal and dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges as private indi viduals but because they are the channels by which the King 's justice is conveyed to the people".
(1) I.L.R. at 131.
(2) Willmot 's Opinions page 256; Rex vs Davies 30 at p. 40 41. 434 What is made punishable in the Indian Penal Code is the offence of defamation as defamation and not as.
contempt of court.
If the defamation of a subordinate court amounts to contempt of court, proceedings can certainly be taken under section 2 of the Contempt of Courts Act, quite apart from the fact that other remedy may be open to the aggrieved officer under section 499 of the Indian Penal Code.
But a libel attacking the integrity of a judge may not in the circumstances of a particular case amount to a contempt at all, although it may be the subject matter of a libel pro ceeding.
This is clear from the observation of the Judicial Committee in the case of The Matter of a Special Reference from the Bahama Islands(1).
The first contention of Mr. Sinha, therefore, fails.
The second point raised by the learned counsel does not appear to us to have any real substance.
The article in question is a scurrilous attack on the integrity and honesty of a judicial officer.
Specific instances have been given where the officer is alleged to have taken bribes or behaved with impropriety to the litigants who did not satisfy his dishonest demands.
If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light.
But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute.
The appel lant, though he took sole responsibility regarding the publication of the article, was not in a position to sub stantiate by evidence any of the allegations made therein.
He admitted that the statement was based on hearsay.
Ru mours may have reached him from various sources, but before he published the article it was incumbent upon him as a reasonable man to attempt to verify the informations he received and ascertain, as far as he could.
whether the facts were true or mere concocted lies.
He does not appear to have made any endeavour in this direction.
As the appel lant did not act with reasonable care and caution, he cannot be said to have acted (1) 435 bona fide, even if good faith can be held to be a defence at all in a proceeding for contempt.
What is more, he did not express any regret for what he had done either in the High Court or before us and his behaviour does not show the least trace of contrition.
In these circumstances, we think that the appeal cannot succeed and must be dismissed.
Appeal dismissed.
| Sub sec.
(3) of section 2 of the Contempt of Courts Act, 1926, excludes the jurisdiction of the High Court to take cognisance of a contempt alleged to have been committed in respect of a Court subordinate to it only in cases where the acts alleged to constitute contempt are punishable as con tempt under specific provisions of the Indian Penal Code, but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code.
The fact that defamation of a judge of a subordinate Court constitutes an offence under sec.
499 of the Indian Penal Code does not, therefore, oust the jurisdiction of the High Court to take cognisance of the act as a contempt of court.
Defamatory statements about the conduct of a judge even in respect of his judicial duties do not necessarily consti tute contempt of Court.
It is only when the defamation is calculated to obstruct or interfere with the due course of justice or proper administration of justice that it amounts to contempt.
Kisan Krishna Ji vs Nagpur Conference of Society of St. Vincent de Paul (A.I.R. 1943 Nag.
334) disapproved.
V.M. Bason vs A.H. Skone ([.L.R. explained.
Subordi nate Judge.
First Class Hoshangabad vs Jawaharlal (A.I.R. , Narayan Chandra vs Panchu Pramanick (A. L R. , Naresh Kumar vs Umaromal (A.I.R. 1951 Cal. 489), Kaulashia vs Emperor (I.L.R. 12 Pat. 1), State vs Brahma Prakash (A.I.R. 1950 All. 556), Emperor vs Jagannath (A.I.R. 1938 All.
358), Bennet Colman vs C.S. Monga (I.L.R. approved.
|
Civil Appeal No. 99 of 1951.
Appeal from a Judgment and Decree of the High Court of Judicature at Bombay (Stone C.J. and Dixit 3.) dated 14th July, 1947, in First Appeal No. 128 of 1943 affirming a decree dated 14th October, 1942, of the Court of the Dis trict Judge of Kaira at Nadiad in Civil Suit No. 15 of 1928.
514 C.K. Daphtary (N. C. Shah, with him) for the appellant.
Rajani Patel for the respondent.
March 7.
The judgment of the Court was delivered by MUKHERJEA J.
This appeal is on behalf of the defendant and it arises out of a suit, under section 92 of the Civil Procedure Code, commenced by the plaintiffs who were origi nally nine in number in the court of the District Judge of Kaira at Nadiad.
Out of the nine plaintiffs, only one is surviving, and he is now the sole respondent in this appeal, all the rest having died pending this protracted litigation, which began as early as the year 1928.
The case of the plaintiffs, in substance, was that one Kuberdas, who was a religious teacher and a holy man rounded a cult known as Kaivalya or Karunasagar Panth, the principal tenet of which is that the realization of the Infinite is possible only through the medium of a Guru or spiritual preceptor.
Kuberdas received money and lands from his followers and disciples and with this fund he built a temple at Sarsa.
Kuberdas by will appointed his principal disciple Narayandas to succeed him on the Gadi and Narayandas built another and a bigger temple wherein he installed an image of Kuberdas, with the images of two staff bearers on two sides.
The Mahants after Narayandas were Baldevdas, Bhagwandas and Pragdasji, who is the defendant in the suit and each one of them was appointed by a will executed by his predecessor.
The defendant, it is alleged, had been acting in a manner contrary to the usages of the institution and was guilty of incontinence, mismanagement and improper alienation of trust properties.
On these allegations the plaintiffs prayed that: (1) the properties described in the schedule to the plaint as well as other properties under the management of the defendant be declared to be religious and charitable trust properties of the Kaivalya or Karuna sagar Panth; 515 (2) the defendant be removed from the Gadi and posses sion of the properties and a suitable successor appointed in his place; (3) the defendant be called upon to render accounts for the period of his management; and (4) a scheme might be framed for proper management of the institution.
The defendant in his written statement traversed all the material allegations in the plaint and contended infer alia that the suit was not maintainable inasmuch as no public trust of a religious and charitable character existed in respect to the suit properties which were the private properties of the defendant himself.
On these pleadings, a number of issues were framed by the District Judge, of which the two following were tried as preliminary issues, viz., (1) Whether the temple and the properties in suit are public charitable properties ? and (2) if not, whether this court has jurisdiction to try the suit ? By his judgment dated the 18th of July, 1935, the Dis trict Judge decided both these issues against the plaintiffs and dismissed the suit.
Against this decision the plain tiffs took an appeal to the High Court of Bombay.
The learned Judges of the High Court, who heard the appeal, took the view that the ownership of.
the suit properties was so restricted by the obligation to maintain the institu tion for purposes which only could be described as public charitable purposes, that the suit must be regarded as one coming within section 92, Civil Procedure Code.
The result was that the judgment of the trial court was reversed and the case was remanded to that court in order that it might be heard and disposed of on its merits.
The judgment of the High Court is dated 24th of January, 1938.
Being aggrieved by this order, the defendant prayed leave to appeal to the Judicial Committee, but this application was refused.
He thereupon filed a petition before the privy Council praying for special leave.
516 The Privy Council also refused to grant leave on the ground that the matter was still then in an interlocutory stage.
They, however, said specifically that the order of refusal was without prejudice to the presentation of a fresh peti tion after all the issues were determined.
The case then went back to the trial court and on the evidence adduced by the parties, the District Judge came to the conclusion that the allegations of misconduct and breach of trust made by the plaintiffs were not proved and in this view he dismissed the suit, subject to the declaration already given by the High Court that the temple and the properties in possession of the defendant were public, religious and charitable properties.
The plaintiffs filed an appeal against this decision to the High Court of Bombay and the High Court by its judgment dated 14th of July, 1947, affirmed the decision of the District Judge and dismissed the appeal.
The defendant has now come up to this court on the strength of a certificate granted by the High Court; and though formally it is an appeal against the final decree made by the High Court on 14th of July, 1947, in substance it challenges the propriety of the order of remand passed on 24th January, 1938, by which the High Court reversed the decree of dismissal made by the District Judge and remanded the case, being of opinion that the properties in dispute did appertain to a public trust of a religious and charita ble character.
Mr. Daphtary appearing in support of the appeal has contended before us that on the question as to whether or not a public trust existed in respect of the properties in suit, the view taken by the trial judge was right and that the decision of the High Court is based upon a misapprecia tion of the evidence on the record.
We have been taken through the entire evidence by the learned counsel on both sides; but having regard to the view which we propose to take in this case we deem it unnecessary to record any finding as to whether the properties in suit do or do not appertain to a public charitable trust.
In our opinion, after the 517 decision arrived at concurrently, by both the courts below on the merits of the case, it was beyond the scope of a suit framed under section 92, Civil Procedure Code, to give the plaintiffs a bare declaration of this character and make it a part of the decree, although the suit itself was dis missed.
A suit under section 92, Civil Procedure Code, is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character.
Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically men tioned in the section.
It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provision of section 92, Civil Procedure Code.
As was observed by the Privy Council in Abdur Rahim vs Barkat Ali(1), a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of section 92, Civil Procedure Code.
In the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of section 92 and the suit proceeded on the footing that the defendant, who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust.
The defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust.
The denial could not certainly oust the jurisdiction of the court, but when the courts found concurrently, on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of the plaintiffs, that any direction of the court was necessary for proper adminis tration of the trust, the very foundation of a suit under section 92, Civil Procedure Code, became wanting and the plaintiffs had absolutely no cause of action for the suit they instituted.
In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was (1) (1928) 55 I.A. 96, 67 518 unconnected with the grounds upon which the case was actual ly disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiffs.
It has been argued by the learned counsel for the respondents that even if the plaintiffs failed to prove the other allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties a fact which the defendant denied.
In these circumstances, there was nothing wrong for the court to give the plaintiffs a lesser relief than what they actually claimed.
The reply to this is, that in a suit framed under section 92 of the Civil Procedure Code the only reliefs which the plaintiff can Claim and the court can grant are those enumerated specifically in the different clauses of t, he section.
A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses.
When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it; but when the case of the plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of section 92, Civil Procedure Code.
The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit.
The result is that in our ' opinion the decision of the High Court should stand, but the decree and the concluding por tion, of the judgment passed by the trial court and affirmed by the High Court on appeal shall direct a ' dismissal of the plaintiff 's suit merely without its being made subject to any declaration as to the character of the properties.
To this extent the appeal is allowed and the final decree modified.
The order for costs made by the courts below will stand.
Each party will bear his own costs in this appeal.
| In a suit under sec.
92 of the Civil Procedure Code alleging that the defendant had been guilty of misconduct and breach of trust as Mahant and praying, inter alia, that the temple and properties in suit be declared as a religious and charitable trust and the defendant be removed from the Gadi and a suitable successor appointed in his place, the District Judge and the High Court held concurrently that the defendant was not guilty of misconduct or breach of trust and dismissed the suit, but made a declaration to the effect that the temple and properties in the possession of defend ant belonged to a public trust of a religious and charitable character: Held, that a suit under sec.
92, Civil Procedure Code, is a suit of a special character which presupposes the existence of a public trust of a religious or charitable character and it can proceed only when there is a breach of such trust or directions from the Court are necessary for the administration thereof and it must pray for one or other of the reliefs that are specifically mentioned in the sec tion; and therefore as the Courts found concurrently that the allegations of breach of trust were not made out and no direction of the Court for proper administration of trust was sought, the very foundation of a suit under sec.
92, Civil Procedure Code, became wanting and the plaintiffs had no cause of action for their suit; and in the circumstances the declaration of the High Court about the existence of a public trust was inconsequential and was no more than an obiter dictum and such declaration must be deleted from the decree dismissing the suit.
|
Criminal Appeal No. 50 of 1951.
Appeal by SpeciaI Leave from the Judgment and Order dated the 26th September, 1950, of the High Court of Judicature of Nagpur (Herneon Acting C.J. and Hidayat Ullah J.) in Criminal Appeal No. 251 of 1950 arising out of Judg ment dated the 2nd August, 1950, of the Court of Sessions Judge, Jabalpur, in Sessions Trial No. 32 of 1950.
568 S.P. Sinha and M.Y. Sharif, Nuruddin Ahmad and (Shaukat Hussain, with them) for the appellant.
Gopal Singh for the respondent.
March 20.
The Judgment of the court was delivered by BOSE J.
The main question in this case is whether there is a right of private defence.
Most of the facts are not in dispute.
A communal ' riot broke out at Katni on the 5th of March, 1950, between some Sindhi refugees resident in the town and the local Muslims.
The trouble started in the locality known as Zanda Bazar or Zanda Chowk.
Police Constable Bharat Singh, P.W. 17, who made the First Information Re port, said that most of the shopkeepers in Zanda Bazar are Sindhis.
He stated that when he was to1d that trouble had broken out there he proceeded to the spot and found that the goods in the Muslim shops in that locality were scattered.
It is also in evidence that some Muslims lost their lives.
From this place he went on to Subash Chowk, the locality in which the appellant 's shop is situate.
It lies to the West of Zanda Bazar.
He states that when he got there he found a "crowd" there but not a "mob".
He admitted that he had said in the First Information Report that a gun was fired a minute after he had reached the spot and he said that what he had stated in the First Information Report was true.
It is not disputed that this shot was fired by the appellant, as also a second shot, and that that caused the death of one man (a Sindhi) and injured three others, also Sindhis.
The map, exhibit D 4, shows that the shops of the appellant and his brother Zahid Khan run into each other and form two sides of a rectangle, the appellant 's house facing north and the brother 's house facing east.
Each shop opens out on to a road.
569 It is proved that when the rioting broke out in the Zanda Chowk the alarm spread to the appellant 's locality and the people there, including the appellant, started closing their shops.
The appellant 's version is that the mob approached his locality and broke into the portion of the building facing east in which his brother 's shop is situate and looted it.
The High Court holds that this is proved and holds further that this preceded the firing by the appellant.
There is a hole in the wall between the two portions of the building in which these two shops are situate and the High Court holds that Zahid 's family got into the appel lant 's portion of the building through this hole and took refuge there.
The High Court also holds that the appel lant 's mother then told the appellant that the crowd had burst into his (appellant 's) shop and was looting it.
The learned Judges state that what he said was not quite true because all that the crowd did was to beat the door of the appellant 's shop with lathis as they were passing but had not broken into the shop.
But they accept the fact that the crowd was beating the doors of the appellant 's shop with their lathis.
In our opinion, the facts found by the High Court are sufficient to afford a right of private defence.
Under section 97 of the indian Penal Code the right extends not only to the defence of one 's own body against any offence affecting the human body but also to defending the body of any other person.
The right also embraces the protection of property, whether one 's own or another person 's, against certain specified offences, namely theft, robbery, mischief and criminal trespass.
The limitations on this right and its scope are set out in the sections which follow.
For one thing, the right does not arise if there is time to have recourse to the protection of the public authorities, and for another, it does not extend to the infliction of more harm than is necessary for the purpose of defence.
Another limitation is that when death is 570 caused the person exercising the right must be under reason able apprehension of death, or grievous hurt, to himself or to those whom he is protecting; and in the case of property, the danger to it must be of the kinds specified in section 103.
The scope of the right is further explained in sec tions 102 and 105 of the Indian Penal Code.
Neither the learned High Court Judges nor the Sessions Judge has analysed these provisions.
Both Courts appear to be under the impression that actual looting of the appel lant 's shop was necessary before the right could arise.
In that they are wrong.
Under section 102 the right of private defence of the body commences "As soon as a reasonable apprehension of the danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed.
" Examining the provisions we have set out above, it is evident that the appellant had no time to have recourse to the authorities.
The mob or crowd had already broken into one part of the building and was actually beating on the doors of the other part.
It is also evident that the appel lant had reasonable grounds for apprehending that either death or grievous hurt would be caused either to himself or his family learned Sessions Judge has eloquently drawn attention to the lamentable consequences of communal frenzy in India and in Katni in particular, and he refers to the indiscriminate looting of Muslim shops in that town.
So also the High Court holds that " Looking to the circumstances which had existed in the country before and the fact that the trouble was between the refugees and the local Muslims it cannot be said that there would be no danger to the life of the appellant or at least of grievous hurt if the mob had entered his shop and he prevented it.
The apprehension would undoubtedly be reason able.
" And we know that Muslim shops had already been broken into and looted and Muslims killed in the 571 rioting at Zanda Chowk which preceded this, in our opinion, the High Court was wrong in thinking that the appellant had to wait until the mob actually broke into his shop and entered it.
They have emphasised this in another part of their judgment also where they say that the shot was fired " when there was no looting at the shop and thus no right of private defence.
" It was enough that the mob had actually broken into another part of the house and looted it, that the woman and children of his family fled to the appellant for protection in terror of their lives and that the mob was actually beating at his own doors with their lathis and that Muslim shops had already been looted and Muslims killed in the adjoining locality.
It was impossible for him to know whether his shop would or would not suffer the same fate if he waited, and on the findings it was reasonable for him to apprehend death or grievous hurt to himself and his family once they broke in, for he would then have had the right to protest and indeed would have been bound to do what he could to protect his family.
The threat to break in was implicit in the conduct of the mob and with it the threat to kill or cause grievous hurt to the inmates; indeed the High Court Judges themselves hold that his own shop was menaced.
The circumstances in which he was placed were amply sufficient to give him a right of private defence of the body even to the extent of causing death.
These things cannot be weighed in too fine a set of scales or, as some learned Judges have expressed it, in golden scales.
We have next to see whether the appellant used more force than was necessary, and here also we cannot use golden scales.
He was entitled to cause death and he did not kill more than one man.
He fired only two shots and, as the learned High Court Judges observe, he obviously aimed low.
The High Court holds the mob had moved up to his locality When he fired the shots, so the looting and the beating 572 on the doors were not the isolated acts of a few scattered individuals.
It was the mob that was doing it and in the High Court 's words, "The very fact that in the town of Katni two shots should have struck four Sindhis and none else shows that the rival community was on the move in that area.
" In our opinion, the appellant did not use more force than was necessary.
Indeed, the firing, far from acting as a deterrent, spurred them on and they ransacked and looted the place.
We have confined our attention to the right of private defence of the person though in this case the question about the defence of property happens to be bound up with it.
The appeal is allowed.
The convictions and sentences are set aside and the appellant will be released.
| A communal riot broke out in a town between some Sindhi refugees and the local Muslims.
The trouble started in a locality where most of the shopkeepers were Sindhis.
The goods in the Muslim shops there were scattered and some Muslims lost their lives.
Alarm spread to another locality where the shops of appellant and his brother (both Muslims) were situated and the people there, including the appellant, started closing their shops.
The family of the appellant 's brother had taken shelter in the appellant 's portion of the building through a hole in the wall between the two portions of the building in which the two shops were situated.
A mob collected there and approached the appellant 's locality and looted his brother 's shop and began to beat the doors of his shop with lathis.
The appellant fired two shots from his gun which caused the death of one Sindhi and injured three other Sindhis.
The question for determination was whether the appellant acted in his right of private defence: Held, that the facts of the case afforded a right of private defence to the appellant under the provisions of the Indian Penal Code.
The circumstances in which he was placed were amply sufficient to give him a right of private defence of the body even to the extent of causing death as the appellant had no time to have recourse to the authorities and has reasonable grounds for apprehending that either death or grievous hurt would be caused either to himself or to his family.
These things could not be weighed in too fine a set of scales or "in golden scales."
|
peals from the judgments and decrees dated the 23rd February, 1945, of the High Court of Judicature at Calcutta (Akram and Blank JJ.) in Second Appeals Nos. 861 to 885 of 1939 from the judgments and decrees dated the 16th December, 1938, of the Court of the District Judge, Birbhum, in Title Appeals Nos. 23 to 47 of 1938.
Sitaram Bannerjee (Arun Kumar Dutta and Amiya Kumar Mukherjee, with him) for the appellant in Civil Appeals Nos.
68 to 74 of 1951.
Urukramdas Chakravarthy (section N. Mukherjee, with him) for the respondent No. 1 in Civil Appeals Nos.
68 to 74 of 1951.
Sitaram Bannerjee (Arun Kumar Dutta and Amiya Kurnar Mukherjea, with him) for the appellant in Civil Appeals Nos.
75 to 92 of 1951.
Panchanan Ghose (Chadra Nath Mukherji, with him) for the respondents Nos. 1 to 3 in Civil Appeals No. 75 to 92 of 1951.
April 2.
The Judgment of the Court was delivered by MAHAJAN J.
These appeals are directed against the judgment and decrees of the High Court of Judicature at Calcutta, dated 23rd February, 1945, reversing the judgment and decrees passed by the District Judge of Birbhum dated 16th December, 1938.
The principal questions for determina tion are the same in 102 784 all of them and can be conveniently disposed of by one judgment.
It is necessary to set out briefly the history of this half a century old litigation I The seven suits out of which arise Appeals Nos.
68 to 74 were filed in September, 1904, by Maharaja Bahadur Singh in the court of the differ ent Munsifs at Rampurhat, against Raja Ranjit Singh Bahadur, deceased, and others, for a declaration of his title to the lands mentioned in the different suits and for mesne profits from the year 1899 till recovery of possession.
It was alleged that the lands in the several suits were chowkidari chakran lands within the plaintiff 's patnidari, granted to his predecessors in interest on 14th November, 1853, by the ancestors of the defendant, that as the lands were in the possession of village watchmen on service tenures, they were excluded from assessment of land revenue and no rent was paid on them, that in the year 1899 under the provisions of sections 50 and 51 of Bengal Act VI of 1870 Government resumed the lands, terminated the service tenures and settled them with the zamindar, that in this situation the plaintiff as patnidar became entitled to their actual physi cal possession, that the zamindar wrongfully took physical possession of them and denied the right of the plaintiff and hence he was entitled to the reliefs claimed.
The suits were decreed on 17th August, 1905, and 19th August, 1905, by the two courts respectively and the decisions were affirmed on appeal by the District Judge.
On special appeal to the High Court, the suits were remanded for trial on the ques tion of limitation, and after remand they were dismissed by the trial court and the Court of appeal as barred by limita tion.
On second appeal, it was held that the suits were within limitation and were then decreed for the second time.
This decision was affirmed on appeal to His Majesty in Council.
The plaintiff actually obtained possession of the lands involved in these suits in August, 1913.
An applica tion was made for ascertainment of mesne profits on 785 6th November, 1918.
This was resisted by the defendant and it was pleaded that the plaintiff was not entitled to inter est on mesne profits, that the zamindar was entitled to receive the profits of the disputed lands and that deduc tion should be made out of the amount of the mesne profits on account of munafa and the amount of chowkidari dues as well as cesses due to him or paid by him.
Five years later, on 24th June, 1927, another set of objections was filed by the zamindar claiming deduction out of mesne profits by way of equitable set off of the payments made by him subsequent to the date of delivery possession as well as for the amount of munafa that became payable to him after that date.
After a prolonged enquiry the trial court on 18th December, 1937, decreed the plaintiff 's claim for mesne profits after allow ing the zamindar the deductions claimed by him up to the date of assessment of mesne profits but disallowed the amount claimed by way of equitable set off for the subse quent period.
The learned District Judge on appeal reversed this decision and allowed the defendant the amount claimed by him by way of equitable set off, subject, however, to the condition that the dues of the defendant should be deducted from the dues of the plaintiff till the defendant 's dues were wiped off.
The relevant part of his judgment runs thus : "The broad fact is that they (plaintiffs) have been in possession of the lands since 1910 and have been in enjoy ment of rent from the tenants from that date and according to law they are not entitled to possess the land uncondi tionally.
Now that all the facts are before the court and the time has come for final adjustment of accounts between the parties the court should try to do substantial justice between the parties.
It is not sufficient answer to say that the plea of equitable set off was not raised in the beginning.
The circumstances in all these cases are pecul iar and it could hardly be expected that such plea would have been taken in the very beginning.
The course of liti gation in these cases has not run along 786 easy and smooth channels: on the contrary its course has been extremely tortuous and disturbed frequently by con flicting decisions.
No one could have reason ably antici pated in the beginning that the litigation would be pro tracted in this extraordinary way.
It is the duty of the court to take notice of the subsequent events in order to do justice between the parties .
As we are dealing with the question of equitable set off, no question of time barred debts or unascertained sum can arise .
The plea of equitable set off in respect of time barred debts can be set up as a shield by way of defence nor can any question of payment of court fees arise.
There is, in my opinion, no substantial difference in the character of the respective parties during the entire period and it would be futile to make an attempt at distinction by oversubtle argument where there is really no difference in substance.
There is considerable force in the argument advanced on the side of the appellant, namely, the appellant 's claim to the equitable set off is really in the nature of cross demand arising out of the same transaction and connected in its nature and circumstances .
From whatever standpoint the matter may be looked at I am of the opinion that the claim of the appellant for equitable set off for the subsequent period by way of deduction of the chowkidari revenue and cess paid by him as well as on account of munafa should be allowed.
This amount will also carry interest at 6 per cent per annum up to date.
The subsequent period means the period since the date of delivery of possession up to 1927 28.
" Against the judgment and decrees of the District Judge the plaintiff preferred appeals to the High Court at Calcut ta.
The High Court by the judgment under appeal modified the decrees of the District Judge and disallowed the claim for equitable set off in its entirety for the subsequent period and restored the decree of the trial court.
The zamindar filed applications for leave to appeal to His Majesty in Council.
These applications were consolidated with similar applications filed in the second batch of suits.
A certifi cate 787 was granted for leave to appeal to His Majesty in Council.
By an order dated 9th June, 1947, all the appeals were admitted and it was directed that the proceedings be printed and.
transmitted to England.
During the pendency of the proceedings in the High Court, Raja Bhupendra Narayan Singh died and the present appellant was impleaded as his heir and representative.
An application was also made in the High Court for permission to urge additional grounds not already taken.
After the abolition of the jurisdiction of the Privy Council these appeals were transmitted to this Court.
An application under Order XIX, rule 4, of the Supreme Court Rules was presented at the hearing of the appeals that the appellant be allowed to urge the following additional grounds in support of the appeals, viz. : (1) That the munafa (rent) should not be calculated on the basis of the principles laid down in Radhacharan vs Maharaja Ranjit Singh(1).
(2) That the said munafa should have been assessed on a fair share of the profits from the land.
The second batch of appeals (Nos. 75 to 92 of 1951) arises out of 18 suits instituted in the court of the Munsif of Rampurhat on 22nd December, 1909, by Ganpat Singh and Narpat Singh, predecessors in interest of respondents 1 to 3 against the predecessor in interest of the appellant, late Raja Ranjit Singh Bahadur, and also some other persons who were tenants under him, for a declaration of the plaintiffs ' title to the resumed chowkidari chakran lands and for khas possession of the same and for mesne profits.
The allega tions in these suits were the same as in the first set of suits.
The defence to the suits was also the same.
The suits were decreed by the trial Judge on 30th September, 1910, in the following terms : "The plaintiffs ' title is declared to the lands in suit and they will get khas possession of the same by ejecting the tenant defendants; on condition of paying (1) 788 to the defendant No. 1 an additional rent, to be deter mined on the principle that the original patni rent should bear the same ratio to the patni rent now payable by the plaintiffs as the original Hustbood at the time of the creation of the patni should bear to the present increased Hustbood, or any other fair and equitable rent which may be determined at the time of assessing the mesne profits.
The plaintiffs will get Wasilat from defendant No. 1 up to the date of delivery of possession of the land in suit to them.
The amount will be determined in a separate enquiry." The District Judge on appeal remanded the cases for determination of the conditions and terms under which the patnidar was to hold the lands under the zamindar and directed ascertainment of profits.
The plaintiffs ob tained delivery of possession of the lands in the mean while on 23rd November, 1910.
Against the remand order appeals were preferred to the High Court and the High Court decreed the appeals in these terms : "We set aside the portion of the decision of the Dis trict Judge which remands the cases to the original court to determine the conditions under which the patnidar is to hold the lands under the zamindar.
Rest of the remand order will stand.
That portion of the Munsif 's decree, which imposes on the appellant, as a condition of obtain ing khas possession, the payment of additional rent to the zamindar will be set aside.
" Against these decrees appeals were preferred to His Majesty in Council by special leave.
The Privy Council set aside the decrees of the High Court and observed as follows : "Their Lordships, therefore, see no reason for inter fering with the long series of authorities commencing as far back as the year 1900, which have established the right of the zamindar to have an additional rent fixed for such lands nor can their Lordships overlook the fact that in the cases already referred before this Board no exception was taken by the patnidar to the 789 fixing of such rents as a condition of being put into pos session.
" On 8th December, 1922, the plaintiffs filed applications in these suits for ascertainment of mesne profits for the years 1906 to 1910.
Objections were taken on behalf of the defendant on the 17th April, 1923, and it was contended that the plaintiffs may be allowed mesne profits to the extent of the amount that would be found due after deduction of the amount of rent to which the defendant was entitled in re spect of the lands in suit according to the judgment of the munsif.
On the 28th May, 1927, another application was filed by the zamindar claiming deduction by way of equitable set off of the amounts due to him for rent from 1910 onwards and on account of subsequent payment made by him towards revenue and cesses.
After a prolonged enquiry the munsif ultimately on the 18th December, 1937, decreed the plaintiff 's claim for mesne profits after allowing deduc tions for the amounts claimed by the defendant up to the date of delivery of possession.
He held that the appellant was not entitled to get any amount by way of equitable set off in respect of sums of money spent by him in payment of revenue and cesses or for the amount of munafa or profits for the period subsequent to the date of delivery of posses sion.
The District Judge on appeal by his judgment dated the 16th December, 1938, allowed the claim of equitable set off for the period subsequent to delivery of possession and directed that "from the plaintiffs dues, the dues of the defendant are to be deducted and if after these deduc tions any sum is due to the plaintiffs they will get a decree for that sum.
If it is found on calculations in some cases that the dues of the defendant exceed the dues of the plaintiffs, in such cases the prayer of the plaintiffs for mesne profits must be dismissed.
" Against this decision special appeals were preferred to the High Court and by the judgment under appeal the decision of the trial court was restored.
Applications were then made for leave to appeal to His Majesty in Council and 790 those were allowed and a certificate was granted for pre ferring those appeals.
Because of the abolition of the jurisdiction of the Privy Council those appeals are now before us for decision.
The points for decision in all these appeals are the following : 1.
Whether the appellant is entitled to deduct by way of equitable set off from the amount of mesne profits the amounts due to him on account of rent, revenue and cesses for the period subsequent to the dates of delivery of pos session.
Whether interest should be allowed on the amount of mesne profits found due, and if so, at what rate.
Whether the rent due to the appellant from the patnidar on those funds should be calculated on the basis of annual assets of the land (as in Radhacharan vs Maharaja Ranjit Singh (1), or on a fair and equitable basis.
The claim for set off for the period for which mesne profits were claimed has been allowed and is not in these appeals.
As regards the amounts due to the appellant by way of rent subsequent to the date of transfer of possession, the claim is unconnected with the subjectmatter of the different suits.
It seems clear that a plea in the nature of equita ble set off is not available when the cross demands do not arise out of the same transaction.
Mesne profits due to the plaintiff relate to the period during which the appellant was in wrongful possession of the lands and the amounts claimed by the defendant relate tO a period when he was no longer in possession and had ceased to be a trespasser.
No mesne profits are claimable for that period.
The right of the appellant to recover additional rents from the plaintiff arises out of a different cause of action and independently of the claim for mesne profits.
If the patnidar after having entered into possession had defaulted in the payment of the (1) (1918)27 C.L J. 532, 791 additional rents due for any period, nothing stood in the way of the appellant from recovering the.
in by appropriate legal proceedings.
The prolongation of the enquiry for ascertainment of the mesne profits cannot support a claim for equitable set off for the period subsequent to the delivery of possession to the plaintiff.
It is obvious that no claim for equitable set off against mesne profits during the pendency of the suits could be made for the sums deduction of which is now sought, as the amounts had not then accrued due and his right to them had not yet arisen.
The learned District Judge was in error in holding that the appellant 's claim for equitable set off was in the nature of a cross demand arising out of the same transaction and connected in its nature and circumstances.
He failed to appreciate that the transaction which led to plaintiff 's demand resulted from the defendant 's wrongful act as a trespasser, while the transaction giving rise to the appellant 's demand arises out of the relationship of landlord and tenant and the obligations resulting therefrom.
A wrongdoer who has wrongfully withheld moneys belonging to another cannot invoke any principles of equity in his favour and seek to deduct therefrom the amounts that during this period have fallen due to him.
There is nothing improper or unjust in telling the wrongdoer to undo his wrong, and not to take advantage of it.
Such a person cannot be helped on any principles of equity to recover amounts for the recovery of which he could have taken action in due course of law and which for some unexplained reason he failed to take and which claim may have by now become barred by limitation.
It was contended that it was only after the decree of the Privy Council that the appellant 's rights to the addi tional rent was finally established and till then no legal steps could be taken to enforce this demand.
The contention is without force.
The appellant 's right to additional rent had been established by the decree of the trial court in execution of which possession passed from him to the patni dar.
The Privy 103 792 Council only affirmed this.decision.
The patnidars under the decree were entitled to possession of the lands conditional on payment of the additional rent due for the period they had been out of possession.
That condition having been fulfilled (by adjustment of the appellant 's claim against the mesne profits), the decree must be held to have been satisfied, thus completely settling the cross demands.
The landlord 's demand for subsequent rents has to be enforced in the ordinary way in the civil court if any default has been committed in the payment of these rents.
This claim cannot for ever remain linked with the demand for mesne profits for any anterior period.
The result is that the decision of the High Court on this point is maintained.
On the question of future interest payable on the decretal amount, the learned District Judge observed as follows : "I may state, however, at this stage that if I were to rule out the fact that I am allowing the claim of the appel lant for equitable set off, I would have allowed interest to the plaintiffs at the uniform rate of 4 per cent.
per annum throughout, i.e., from the beginning of the Washilat period up to date.
As I am allowing the prayer for equitable set off, I am of opinion, however, that interest at the usual rate at 6 per cent.
per annum should be granted for the whole of this period.
" The High Court disallowed equitable set off but yet maintained this decision.
When the claim for equitable set off is being disallowed, there is no justification for allowing future interest at the rate of more than four per cent.
for such a long period, particularly in a case where the plaintiff himself has not been prompt in getting, the amount of mesne profits ascertained.
The plaintiff did not even ask for an enquiry into this question for a period of about twelve years.
Taking into consideration all the circumstances of the case we think that future interest should not have been allowed to the plaintiff in the several suits at a higher rate than four per cent.
on the amount decreed in the various Suits by way of mesne profits.
793 The appellant 's last contention that the munafa (rent) should not be calculated on the principle laid down in Radhacharan vs Maharaja Ranjit Singh (1) but should have been assessed on a fair share of the profits of the land has no substance because the claim was not made in the grounds of appeal to the Privy Council and was not even mentioned in the additional grounds of appeal.
It was for the first time made before us at the hearing and we see no valid grounds for entertaining it at this late stage.
Moreover, it seems to us that the claim has no substance in the absence of any evidence about the proportion the original patni rent bore to the revenue and cesses.
For the reasons given above all these appeals fail except to the extent that the decree of the High Court is modified in that the amounts decreed by way of mesne profits in the various suits will bear interest at the rate of four per cent.
instead of six per cent.
The parties will bear their own costs in all these appeals.
Appeals dismissed.
Agent for the appellant in Civil Appeals No. 62 to 74 and 75 to 92: P.K. Bose.
Agent for respondent No. 1 in Civil Appeals Nos.
68 to 74: Ganpat Rai.
Agent for the respondents Nos.
1 to 3 in Civil Appeals Nos.
75 to 92: Sukumar Ghose.
| Where a patnidar has obtained a decree against his zemindar for possession of resumed chaukidari chakran lands with mesne profits from the date on which the zemindar wrongfully took 783 possession of them, the zemindar is not entitled to deduct by way of equitable set off from the amount of mesne profits payable by him under the decree, the amounts due to him on account of rent, revenue and cesses for a period subsequent to the date of delivery of possession of the lands inasmuch as the two cross demands do not arise out of the same trans action.
The transaction which led to the plaintiff 's demand for mesne profits resulted from the defendant 's wrongful act as trespasser, while the transaction which gave rise to the zemindar 's demand arose out of the relationship of landlord and tenant and the obligations resulting therefrom.
|
Civil Appeal No. 57 of 1951.
Appeal from a judgment dated 18th May, 1948, of the High Court of East Punjab at Simla (Khosla and Teja Singh JJ.) in Letters Patent Appeal No. 189 of 1946 arising out of the judgment dated 11 th February, 1946, of the Senior Subordinate Judge, Ambala.
The facts are set out in the judgment.
Gopinath Kunzru (B.C. Misra, with him) for the appel lants.
Rang Behari Lal (N.C. Sen, with him) for the respond ents.
March 7.
The judgment of the Court was delivered by MUKHERJEA J.
This appeal is on behalf of the judgment debtor in a proceeding for execution of a money decree and it is directed against the judgment of a Letters Patent Bench of the Punjab High Court dated 18th of May, 1949.
by which the learned Judges 546 affirmed, in appeal, a decision of a single Judge of that court dated 29th October, 1946.
The original order against which the appeal was taken to the High Court was made by the Senior Subordinate Judge, Ambala, in Execution Case No. 18 of 1945 dismissing the objections preferred by the appel lants under section 47 of the Civil Procedure Code.
To appreciate the contentions that have been raised in this appeal, it would be necessary to give a short narrative of the material events in their chronological order.
On September 30, 1925, Baldev Das, the father of the appel lants, who was, at that time the manager of a joint Hindu family, consisting of himself and his sons, executed a mortgage bond in favour of Mst.
Naraini, the original re spondent No. 1, and another person named Talok Chand, by which certain movable properties belonging to the joint family were hypothecated to secure a loan of Rs 16,000.
On April 16, 1928, the appellants along with a minor brother of theirs named Sumer Chand filed a suit: being Suit No. 23 of 1928 in the Court of the Subordinate Judge of Shahjahanpur against their father Baldev Das for partition of the joint family properties.
The suit culminated in a final decree for partition on 20th July, 1928, and the joint family properties were divided by metes and bounds and separate possession was taken by the father and the sons.
On 29th September, 1934, Mst.
Naraini filed a suit in the Court of the Senior Subordinate Judge, Ambala, against Baldev Das for recovery of a sum of Rs. 12;500 only on the basis of the mortgage bond referred to above.
It was stated in the plaint that the money was borrowed by the defendant as manager of a joint Hindu family and the plaintiff prayed for a decree against the mortgaged property as well as against the joint family.
On 18th December, 1934, the appellants made an application before the Subordinate Judge under Order I, Rule 10, and Order XXXIV, Rule 1, Civil Procedure Code, praying that they might be added as parties defendants to the suit and the points in issue arising therein might be decided in their presence.
It was asserted in the 547 petition that Baldev Das was not the manager of a joint family and that the family properties had been partitioned by a decree of the court, as a result of which the proper ties alleged to be the subject matter of the mortgage were allotted to the share of the petitioners.
In reply to this petition, the plaintiff 's counsel stated in court on 7th February, 1935, that his client would give up the claim for a mortgage decree against the properties in suit and would be satisfied only with a money decree against Baldev Das personally.
The plaint was amended accordingly, deleting all reference to the joint family and abandoning the claim against the mortgaged property.
Upon this the appellants withdrew their application for being made parties to the suit and reserved their right to take proper legal action if and when necessary.
On April 17, 1935, Baldev Das died and on 2nd September following the appellants as well as their mother, who figures as respondent No. 5 in this appeal, were brought on the record as legal representatives of Baldev Das.
On October 9, 1935, the appellants filed a written statement in which a number of pleas were taken in answer to the plaintiff 's claim and it was asserted in paragraph 10 of the written statement that Baldev Das dealt Badri or specu lative transactions, and if any money was due to the plain tiff at all in connection with such transactions the debt was illegal and immoral and not binding on the family property.
On the same day the court recorded an order to the effect that as the plaintiff had given up her claim for a mortgage decree, the legal representatives of the deceased could not be allowed to raise pleas relating to the validity or otherwise of the mortgage.
On 20th November, 1935, the parties arrived at a compromise and on the basis of the same, a simple money decree was passed in favour of the plaintiff for the full amount claimed in the suit together with half costs amounting to Rs. 425 annas odd against the estates of Baldev Das in the hands of his legal representa tives.
After certain attempts at execution of this decree which did not prove successful, 548 the present application for execution was flied by the decree holder on March 13, 1945, in the court of the Senior Subordinate Judge, Ambala, and in accordance with the prayer contained therein, the court directed the attachment of certain immovable properties consisting of a number of shops in possession of the appellants and situated at a place called Abdullaput.
On April 23, 1945, the appellants filed objections under section 47, Civil Procedure Code, and they opposed the attachment of the properties substantially on the ground that those properties did not belong to Baldev Das but were the separate and exclusive properties of the objectors which they obtained on partition with their father long before the decree was passed.
It was asserted that these properties could not be made liable for the satisfac tion of the decretal dues which had to be realised under the terms of the decree itself from the estate left by Baldev Das.
After hearing the parties and the evidence adduced by them the Subordinate Judge came to the conclusion that there was in fact a partition between Baldev Das and his sons in the year 1928 and as a result of the same, the properties, which were attached at the instance of the decree holder, were allotted to the share of the sons.
The decree sought to be executed was obtained after the partition, but it was in respect of a debt which was contracted by the father prior to it.
It was held in these circumstances that the separate share of the sons which they obtained on partition was liable under the Hindu law for the pre partition debt of their father if it was not immoral and under section 53 of the Civil Procedure Code the decreeholder was entitled to execute the decree against such properties.
As no point was raised by the objectors in their petition alleging that the debt covered by the decree was tainted with immorality, the objections under section 47, Civil Procedure Code, were dismissed.
The objectors thereupon took an appeal to the High Court of East Punjab which was heard by Rahman J. sitting singly.
The learned judge dismissed the appeal and affirmed the decision of the Subordinate 549 Judge.
A further appeal taken to a Division Bench under the Letters Patent was also dismissed and it is the propriety of the judgment of the Letters Patent Bench that has been challenged before us in this appeal.
Mr. Kunzru appearing for the appellants put forward a three fold contention in support of the appeal.
He contended in the first place that under the terms of the compromise decree the decreeholder could proceed only against the properties of Baldev Das in the hands of his legal represen tatives and no property belonging to the appellants could be made liable for the satisfaction of the decree.
The second contention put forward is that as the decree in the present case was obtained after partition of the joint family property between the father and his sons, the separate property of the sons obtained on partition was not liable under Hindu law for the debt of the father.
It is urged last of all that in any event if there was any pious obligation on the part of the sons to pay the father 's debt incurred before partition, such obligation could be enforced against the sons, only in a properly constituted suit and not by way of execution of a decree obtained in a suit which was brought against the father alone during his lifetime and to which the sons were made parties only as legal representa tives after the father 's death.
As regards the first point, the determination of the question raised by Mr. Kunzru depends upon the construction to be put upon the terms of the compromise decree.
The operative portion of the decree as drawn up by the court stands as follows: "It is ordered that the parties having compromised, a decree in accordance with the terms of the compromise be and the same is hereby passed in favour of the plaintiff against the estate of Baldev Das deceased in possession of his legal representatives.
It is also ordered that the defendants do also pay Rs. 425 7 0, half costs of the suit.
" 71 550 There was no petition of compromise filed by the parties and made part of the decree, but there are on the record two statements, one made by Pannalal, the appellant No. 1, on behalf of himself and his mother, and the other by Lala Haraprasad, the special agent of the plaintiff, setting out terms of the compromise.
The terms are worded much in the same manner as in the decree itself and are to the effect that a decree for the amount in suit together with half costs would be awarded against the property of Baldev Das deceased.
It is argued by Mr. Kunzru that the expression "estate of Baldev Das deceased" occurring in the decree must mean and refer to the property belonging to Baldev Das at the date of his death and could not include any property which the sons obtained on partition with their father during the father 's lifetime and in respect of which the latter possessed no interest at the time of his death.
Stress is laid by the learned counsel in this connection on the fact that when the appellants were brought on the record as legal representatives of their deceased father in the mortgage suit, they specifically asserted in their written statement that there was a partition between them and their father long before the date of the suit as a result of which the hypothecated properties were allotted to them.
Upon that the plaintiff definitely abandoned her claim to a mortgage decree or to any relief against the joint family and agreed finally to have a money decree executable against the personal assets of Baldev Das in the hands of his heirs.
In these circumstances, it is urged that if it was the intention of the parties that the decreeholder would be entitled to proceed against the separate property of the sons nothing could have been easier than to insert a provi sion to that effect in the compromise decree.
There is undoubtedly apparent force in this contention but there is another aspect of the question which requires consideration.
The terms of the decree that was passed in this suit, though based on the consent of the parties, are precisely the same as are contemplated by section 52 (1) of the Civil procedure Code.
It was a decree for money 551 passed against the legal representatives of a deceased debtor and it provided expressly that the decretal amount was to be realised out of the estate of the deceased in the hands of the legal representatives.
It is argued on behalf of the respondent, and we think rightly, that as the decree fulfils the conditions of section 52 (1) of the Civil Proce dure Code, it would attract all the incidents which attach by law to a decree of that character.
Consequently the decreeholder would be entitled to call in aid the provision of section 53 of the Code; and if any property in the hands of the sons, other than what they received by inheritance from their father, is liable under the Hindu law to pay the father 's debts, such property could be reached by the de creeholder in execution of the decree by virtue of the provision of section 53 of the Civil Procedure Code.
Wheth er the property which the sons obtained on partition during the lifetime of the father is liable for a debt covered by a decree passed after partition and whether section 53 has at all any application to a case of this character are ques tions which we have to determine in connection with the second and the third points raised by appellants.
Section 53, Civil Procedure Code, it is admitted, being only a rule of procedure, cannot create or take away any substantive right.
It is only when the liability of the sons to pay the debts of their father in certain circumstances exists under the Hindu law, is the operation of the section attracted and not otherwise.
The only other question that can possibly arise by reason of the decree being a compromise decree is, whether the parties themselves have, by agreement, excluded the operation of section 53, Civil Procedure Code.
It is certainly possible for the parties to agree among themselves that the decree should be executed only against a particular property and no other, but when any statutory right is sought to be contracted out, it is necessary that express words of exclusion must be usedl.
Exclusion cannot be in ferred merely from the fact that the compromise made no reference to such right.
As nothing was said in the compro mise decree in the present case about the 552 right of the decreeholder to avail herself of other provi sions of the Code which might be available to her in law, we cannot say that the plaintiff has by agreement expressly given up those rights.
The first point, therefore, by itself is of no assistance to the appellants.
We now come to the other two points raised by Mr. Kunzru and as they are inter connected they can conveniently be taken up together.
These points involve consideration of the somewhat vexed question relating to the liability of a son under the Hindu law other than that of the Daybhag school to pay the debts of his father, provided they are not tainted with immorality.
In the opinion of the Hindu Smriti writers, debt is not merely a legal obligation, but non payment of debt is a sin, the consequences of which follow the debtor even after his death.
A text (1), which is attributed to Brihaspathi, lays down: "He who having received a sum lent or the like does not repay it to the owner, will be born hereafter in the credi tor 's house a slave, a servant, a woman or a quadruped.
" There are other texts which say that a person m debt goes to hell.
Hindu law givers therefore imposed a pious duty on the descendants of a man including his son, grandson and great grandson to pay off the debts of their ancestor and relieve him of the after death torments consequent on non payment.
In the original texts a difference has been made in regard to the obligation resting upon sons, grand sons and great grandsons in this respect.
The son is bound to discharge the ancestral debt as if it was his own, to gether with interest and irrespective of any assets that he might have received.
The liability of the grandson is much the same except that he has not to pay any interest; but in regard to the great grandson the liability arises only if he received assets from his ancestor.
It is now settled by judicial decisions that there is no difference as between son, grandson and great grandson so far as the obligation to pay the debts of the ancestor is concerned; but none of them has any personal (1) Vide Colebrooke 's Digest I, 228, 553 liability in the matter irrespective of receiving any assets (1).
The position, therefore, is that the son is not person ally liable for the debt of his father even if the debt was not incurred for an immoral purpose and the obligation is limited to the assets received by him in his share of the joint family property or to his interest in such property and it does not attach to his self acquisitions.
The duty being religious or moral, it ceases to exist if the debt is tainted with immorality or vice.
According to the text writers, this obligation arises normally on the death of the father; but even during the father 's lifetime the son is obliged to pay his father 's debts in certain exceptional circumstances, e.g., when the father is afflicted with disease or has become insane or too old or has been away from his country for a long time or has suffered civil death by becoming an anchorite (2).
It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father 1s alive or dead (3).
Thus it is open to the father during his lifetime, to effect a transfer of any joint family property including the interests of his sons m the same to pay off an antecedent debt not incurred for family necessity or bene fit, provided it is not tainted with immorality.
It is equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the father 's but also the son 's interest in the joint estate.
The creditor can make the sons parties to such suit and obtain an adjudication from the court that the debt was a proper debt payable by the sons.
But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes.
These propositions can be said to be well recognised and reasonably beyond the region of controversy(4).
All of them, however, (1) Vide Masitullah vs Damodar Prasad, 53 I.A. 204.
(2) Vide Mayne 's Hindu Law, 11th edition, p. 408.
(3) Vide Brij Narain vs Mangla Prasad, 51 I.A. 129.
(4) Vide Girdharee Lall vs Kantoo Lall, 1 I.A. 321; Maddan Thakoor vs Kantoo Lall, 1 I.A, 333; Suraj Bunsi vs Sheo Prasad, 6 I.A.88; Brij Narain vs Mangla Prosad, 51 I.A. 129.
554 have reference to the period when the estate remains joint and there is existence of coparcenership between the father and the son.
There is no question that so long as the family remains undivided the father is entitled to alienate, for satisfying his own personal debts not tainted with immorality, the whole of the ancestral estate.
A creditor is also entitled to proceed against the entire estate for recovery of a debt taken by the father.
The position is somewhat altered when there is a disruption of the joint family by a partition between the father and the sons.
The question then arises, whether the sons remain liable for the debt of the father even after the family is divided; and can the creditor proceed against the shares that the sons obtain on partition for realization of his dues either by way of a suit or in execution of a decree obtained against the father alone ? It must be admitted that the law on the subject as developed by judicial decisions has not been always consist ent or uniform and the pronouncements of some of the Judges betray a lack of agreement in their approach to the various questions involved in working out the law.
As regards debts contracted by the father after parti tion, there is no dispute that the sons are not liable for such debts.
The share which the father receives on partition and which after his death comes to his sons, may certainly, at the hands of the latter, be available to the creditors of the father, but the shares allotted on partition to the sons can never be made liable for the post partition debts of the father (1).
The question that is material for our present purpose is, whether the sons can be made liable for an unsecured debt of the father incurred before partition, in respect to which the creditor filed his suit and obtained decree after the partition took place.
On this point admit tedly there is divergence of judicial opinion, though the majority of decided cases are in favour of the view that the separated share of a son remains liable even after partition for the pre partition debts of the father which (1) Vide Mayne 's Hindu Law, 11th Edition, 430.
555 are not illegal or immoral (1).
The reasons given in support of this view by different Judges are not the same and on the other side there are pronouncements of certain learned Judges, though few in number, expressing the view that once a partition takes place, the obligation of the sons to discharge the debts of their father comes to an end(2).
The minority view proceeds upon the footing that the pious obligation of the son is only to his father and corre sponding to this obligation of the son the father has a right to alienate the entire joint property including the son 's interest therein for satisfaction of an antecedent debt not contracted for immoral purposes.
What the creditor can do is to avail himself of this right of the father and work it out either by suit or execution proceedings; in other words, the remedy of a father 's simple contract credi tor during the father 's lifetime rests entirely on the right of the father himself to alienate the entire family property for satisfaction of his personal debts.
The father loses this right as soon as partition takes place and after that, the creditor cannot occupy a better position or be allowed to assert rights which the father himself could not possess.
The reasoning in support of the other view which has been accepted in the majority of the decided cases is thus expressed by Waller J. in his judgment in the Madras Full Bench case(3): "On principle, I can see no reason why a partition should exempt a son 's share from liability for a pre parti tion debt for which it was liable before partition.
The creditor advances money to the father on the credit of the joint family property.
Why should he be deprived of all but a fraction of his security by a transaction to which he was not a party and of which he (1) Vide Subramanya vs Sabapathi, ; Anna bat vs Shivappa, ; Jawahar Singh vs parduman, 14 Lab. 399; Atul Krishna vs Lala Nandanji.
14 Pat. 732 (F.B.); Bankey Lal vs Durga All 868 (F.B.); Raghunandan vs Matiram, 6 Luck.
497 (F.B.).
(2) Vide Krishnaswami, vs Ramaswami, ; V.P. Venkanna vs
V.S. Deekshatulu, ; Vide also the dissentient judgment of Ayyangar J. in Subramanya vs Sabapa thi, (3)Vide Subramanya vs Sabapathi, at 369 (F.B.).
556 was not aware ? and what becomes of the son 's pious obliga tion ? It was binding as regards the particular debt before partition; does it cease to apply to that debt simply be cause there has been a partition ?" The first part of the observation of the learned Judge does not impress us very much.
An unsecured creditor, who has lent money to the father, does not acquire any lien or charge over the family property, and no question of his security being diminished, at all arises.
In spite of his having borrowed money the father remains entitled to alien ate the property and a mere expectation of the creditor however reasonable it may be, cannot be guaranteed by law so long as he does not take steps necessary in law to give him adequate protection.
The extent of the pious obligation referred to in the latter part of the observation of the learned Judge certainly requires careful consideration.
We do not think that it is quite correct to say that the credi tor 's claim is based entirely upon the father 's power of dealing with the son 's interest in the joint estate.
The father 's right of alienating the family property for payment of his just debts may be one of the consequences of the pious obligation which the Hindu law imposes upon the sons or one of the means of enforcing it, but it is certainly not the measure of the entire obligation.
As we have said already, according to the strict Hindu theory, the obliga tion of the sons to pay the father 's debts normally arises when the father is dead, disabled or unheard of for a long time.
No question of alienation of the family property by the father arises in these events, although it is precisely under these circumstances that the son is obliged to dis charge the debts of his father.
As was said by Sulaiman A.C.J. in the case of Bankey Lal vs Durga Prasad(1): "The Hindu law texts based the liability on the pious obligation itself and not on the father 's power to sell the son 's share.
" It is thus necessary to see what exactly is the extent of the obligation which is recognised by the Hindu (1) (9931) 53 All. 868 at 876 (F.B.).
557 texts writers in regard to the payment by the son c the pre partition debts of his father.
Almost all the relevant texts on this point are to be found collected in the judg ments of Sulaiman A.C.J. and Mukherji J in the Allahabad Full Bench case referred to above A text of Narada recites(1): "What is left after the discharge of the father obliga tion and after the payment of the father 's debts shall be divided by the brothers so that the father, may not remain a debtor.
" Katyan also says(2): "The sons shall pay off the debts and the gift,, prom ised by the father and divide the remaining among them selves.
" There is a further passage in Manu(3): "After due division of the paternal estate if any debt or estate of the father be found out let the brother equally divide the same among themselves." According to Yagnavalka(4): "The sons should divide the wealth and the debts equal lyl.
" It is true that the partition contemplated in these passages is one after the death of the father.
but when ever the partition might take place, the view of the Hindu law givers undoubtedly is that the binding debts on the family property would have to be satisfied or provided for before the coparceners can divide the property.
In Sat Narain vs Das (5), the Judicial Committee pointed out that when the family estate is divided, it is necessary to take account of both the assets and the debts for which the undivided estate is liable.
It was argued in that case on behalf of the appellants that the pious obligation of the sons was an obligation not to object to the alienation of the joint estate by the (1) Narada., 13, 32.
(2)Hindu Law in its Sources by Dr. Ganga Nath Jha, Vol.
I. p quotation No. 211.
(3)Chap.
vs 218.
(4) J.C.Ghosh 's Hindu Law, Vol.
H, page 342.
(5) (1936) 63 I.A. 384 72 558 father for his antecedent debt unless they were immoral or illegal, but these debts were not a liability on the joint estate for which provision was required to be made before partition.
This contention did not find favour with the Judicial Committee and in their opinion, as they expressed in the judgment, the right thing to do was to make provision for discharge of such liability when there was partition of the joint estate.
If there is no such provision, "the debts are to be paid severally by all the sons according to their shares of inheritance," as enjoined by Vishnu(1).
In our opinion, this is the proper view to take regarding the liability of the sons under Hindu law for the pre partition debts of the father.
The sons are liable to pay these debts even after partition unless there was an arrangement for payment of these debts at the time when the partition took place.
This is substantially the view taken by the Allahabad High Court in the Full Bench case referred to above and it seems to us to be perfectly in accord with the princi ples of equity and justice.
The question now comes as to what is meant by an ar rangement for payment of debts.
The expressions "bona fide" and "mala fide" partition seem to have been frequently used in this connection in various decided cases.
The use of such expressions far from being useful does not unoften lead to error and confusion.
If by mala fide partition is meant a partition the object of which is to delay and defeat the creditors who have claims upon the joint family property, obviously this would be a fraudulent transaction not binding in law and it would be open to the creditors to avoid it by appropriate means.
So also a mere colourable partition not meant to operate between the parties can be ignored and the creditor can enforce his remedies as if the parties still continued to be joint.
But a partition need not be mala fide in the sense that the dominant intention of the parties was to defeat the claims of the creditors; if it makes no ar rangement or provision for the payment of the just debts payable (1) Vishnu, Chap.
6, verse 36.
559 out of the joint family property, the liability of the sons for payment of the pre partition debts of the father will still remain.
We desire only to point out that an arrange ment for payment of debts does not necessarily imply that a separate fund should be set apart for payment of these debts before the net assets are divided, or that some additional property must be given to the father over and above his legitimate share sufficient to meet the demands of his creditors.
Whether there is a proper arrangement for payment of the debts or not, would have to be decided on the facts and circumstances of each individual case.
We can conceive of cases where the property allotted to the father in his own legitimate share was considered more than enough for his own necessities and he undertook to pay off all his personal debts and release the sons from their obligation in respect thereof.
That may also be considered to be a proper ar rangement for payment of the creditor in the circumstances of a particular case.
After all the primary liability to pay his debts is upon the father himself and the sons should not be made liable if the property in the hands of the father is more than adequate for the purpose.
If the arrangement made at the time of partition is reasonable and proper, an unse cured creditor cannot have any reason to complain.
The fact that he is no party to such arrangement is, in our opinion, immaterial.
Of course, if the transaction is fraudulent or is not meant to be operative, it could be ignored or set aside; but otherwise it is the duty of unsecured creditor to be on his guard lest any family property over which he has no charge or lien is diminished for purposes of realization of his dues.
Thus, in our opinion, a son is liable, even after partition for the pre partition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition.
The question now is, how is this liability to be enforced by the creditor, either during the lifetime of the lather or after his death ? It has been held 560 in a large number of cases(1) all of which recognise the liability of the son to pay the pre partition debts of the father that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the son on partition.
They concur in holding that a separate and independent suit must be instituted against the sons before their shares can be reached.
The principles underlying these decisions seems to us to be quite sound.
After a partition takes place, the father can no longer represent the family and a decree obtained against him alone, cannot be binding on the sepa rated sons.
In the second place, the power exercisable by the father of selling the interests of the sons for satis faction of his personal debts comes to an end with parti tion.
As the separated share of the sons cannot be said to belong to the father nor has he any disposing power over it or its profits which he can exercise for his benefit, the provision of section 60 of the Civil Procedure Code would operate as a bar to the attachment and sale of any such property in execution of a decree against the father.
The position has been correctly stated by the Nagpur High Court(2) in the following passages: "To say a son is under a pious obligation to pay cer tain debts is one thing; to say his property can be taken in execution is another.
In our view, property can only be attached and sold in execution if it falls within the kind of property that can be attached and sold.
What that is, is found by looking at section 60.
When one looks at section 60 one finds that the property in question should either belong to the judgment debtor or he should have a disposing power over it.
After partition, the share that goes to the son does not belong to the father and the father has no dispos ing power over it.
Therefore such property does not fall within section. . .
It by no means follows that a son cannot (1) Vide Kameswaramma vs Venkatasubba, 20; Subramanya vs Sabapathi, ; Thirumala Muthu vs Subramania, A.I.R. 1937 Mad. 458; Surajmal vs Motiram ; Atul Krishna vs Lala Nandanji, 14 Pat. 732; Govin dram vs Nathulal, I.L.R,.
(2) Jainarayan v, Sonaji, A.I.R. 1938 Nag.
24 at 29 561 be made liable.
He could be made liable for his father 's debts if he had become a surety; he can be made liable under the pious obligation rule.
In neither of the cases put, could his liability take the form of having his property seized in execution and sold without any prior proceedings brought against him, leaving him to raise the question whether his liability as surety or under the pious obliga tion rule precluded him from claiming in execution.
" It is not disputed that the provision of section 53 of the Civil Procedure Code cannot be extended to a case when the lather is still alive.
We now come to the last and the most controversial point in the case, namely, whether a decree passed against the separated sons as legal representatives of a deceased debtor in respect of a debt incurred before partition can be exe cuted against the shares obtained by such sons at the parti tion ? As has been said already, the shares of the separated sons in the family property may be made liable for pre partition debts, provided they are not tainted with immoral ity and no arrangement for payment of such debts was made at the time the partition.
The question, however, is whether this can be done in execution proceedings or a separate suit has to be brought for this purpose.
Mr. Kunzru argues that what could not be done during the lifetime of the lather in execution of a decree against him cannot possibly be done alter his death simply because the lather died during the pendency of the suit and the sons were made parties defend ants not in their own right but as representatives of their deceased lather.
It is pointed out that the appellants in the present case were not allowed to raise any plea which could not have been raised by their father and they never had any opportunity to show that they were under Hindu law not liable for these debts.
It is undoubtedly true that no liability can be enforced against the sons unless they are given an opportunity to show that they are not liable for debts under Hindu law; but this opportunity can certainly be given to 562 them in execution proceedings as well.
A decree against a father alone during his lifetime cannot possibly be executed against his sons as his legal representatives.
As we have said already, the decree against the father after the parti tion could not be taken to be a decree against the sons and no attachment and sale of the sons ' separated shares would be permissible under section 60, Civil Procedure Code.
The position, however, would be materially different if the sons are made parties to the suit as legal representatives of their father and a decree is passed against them limited to the assets of the deceased defendant in their hands.
A proceeding for execution of such a decree would attract the operation of section 47 of the Civil Procedure Code under which all questions relating to execution, discharge and satisfaction of the decree between the parties to the suit in which the decree was passed or their representatives would have to be decided in execution proceedings and not by a separate suit.
Section 52 (1), Civil Procedure Code, provides that when a decree is against the legal representa tives of a dead person and is one for recovery of money out of the properties of the deceased, it may be executed by attachment, and sale of any such property.
Then comes sec tion 53 which lays down that "for purposes of section 50 and section 52 property in the hands of a son or other descend ants which is liable under Hindu law for payment of the debt of a deceased ancestor in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.
" It is to be noted that before the Civil Procedure Code of 1908 came into force, there was a conflict of opinion as to whether the liability of a Hindu son to pay his father 's debts could or could not be enforced in execution proceedings.
Under the Hindu law an undivided son or other descendant who succeeds to the joint property on the death of his father or other ancestor does so by right of survivorship and not as heir.
In the old Code the term "legal representative" was not defined and 563 the question arose as to whether the son could be regarded as the legal representative of his father in regard to properties which he got by survivorship on the father 's death and whether a decree against the father could be enforced in execution against the son or a separate suit would have to be instituted for that purpose.
It was held by the Madras and the Allahabad High Courts that the liabil ity could not be enforced in execution proceedings, whereas the Calcutta and the Bombay High Courts held otherwise.
Section 53 in a sense gives legislative sanction to the view taken by the Calcutta and the Bombay High Courts.
One reason for introducing this section may have been or undoubtedly ,was to enable the decreeholder to proceed in execution against the property that vested in the son by survivorship after the death of the father against whom the decree was obtained; but the section has been worded in such a compre hensive manner that it is wide enough to include all cases where a son is in possession of ancestral property which is liable under the Hindu law to pay the debts of his father; and either the decree has been made against the son as legal representative of the father or the original decree being against the father, it is put into execution against the son as his legal representative under section 50 of the Civil Procedure Code.
In both these sets of circumstances the son is deemed by a fiction of law to be the legal representative of the deceased debtor in respect of the property which is in his hands and which is liable under the Hindu law to pay the debts of the father, although as a matter of fact he obtained the property not as a legal representative of the father at all.
As we said have already, section 53 of the Civil Procedure Code being a rule of procedure does not and cannot alter any principle of substantive law and it does not enlarge or curtail in any manner the obligation which exists under Hindu law regarding the liability of the son to pay his father 's debts.
It however lays down the procedure to be followed in cases coming under this SectiOn and if the son is bound under Hindu law to 564 pay the father 's debts from any ancestral property in his hands and the section is not limited to property obtained by survivorship a1one the remedy of the decreeholder against such property lies in the execution proceedings and not by way of a separate suit the son would certainty be at liberty to show that the property in his hands is for cer tain reasons not liable to pay the debts of his father and all these questions would have to be decided by the execut ing court under section 47, Civil Procedure Code.
This seems to us to be the true scope and the meaning of section 53, Civil Procedure Code.
In our opinion the correct view on this point was taken by Wort J. in his dissenting judgment in the Full Bench case of Atul Krishna vs Lala Nandanji (1) decided by the Patna High Court.
The majority decision in that case upon which stress is laid by Mr. Kunzru overlooks the point that section 47, Civil Procedure Code, could have no application when the decree against the father is sought to be executed against the sons during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding.
In cases coming under sections 50 and 52 of the Civil Procedure Code on the other hand the decree would be capable of being executed against the sons as legal representatives of their father and it would only be a matter of procedure whether or not these questions should be allowed to be raised by the sons in execution proceedings under section 47, Civil Procedure Code.
It remains only to consider what order should be passed in this case having regard to the principles of law dis cussed above.
The High Court, in our opinion, was quite right in holding that the question of liability of the property obtained by the appellants in their share on parti tion with their father, for the decretal dues is to be determined in the execution proceeding itself and not by a separate suit.
It is not disputed before us that the debt which is covered by the decree in the present case is a pre partition debt.
The sons, (1) (1935) 14 Pat.
565 therefore, would be liable to pay the decretal amount, provided the debt was not immoral or illegal and no arrange ment was made for payment of this debt at the time when the partition took place.
Neither of these questions has been investigated by the courts below.
As regards the immorality of the debts, it is observed by the High Court that the point was not specifically taken in the objections of the appellants under section 47, Civil Procedure Code.
The validity of the partition again was challenged in a way by the decreeholder in his reply to the objections of the appellants, but the courts below did not advert to the real point that requires consideration in such cases.
The parti tion was not held to be invalid as being a fraud on the debtor but the question was not adverted to or considered whether it made any proper arrangement for payment of the just debts of the father.
In our opinion, the case should be reheard by the trial judge and both the points referred to above should be properly investigated.
The appellants did raise a point regarding their non liability for the decretal debt, in the suit itself when they were brought on the record as legal representatives after the death of their father.
The court, however, did not allow them to raise or substantiate this plea inasmuch as they were held incompe tent to put forward any defence which the father himself could not have taken.
Having regard to the conflicting judicial decisions on the subject, the appellants cannot properly be blamed for not raising this point again in the execution proceedings.
We think that they should now be given an opportunity to do so.
The result is that we set aside the judgments of the courts below and direct that the case should be heard de novo by the Subordinate Judge and that the appellants should be given an opportunity to put in a fresh petition of objection under section 47 of the Civil Procedure Code raising such points as they are competent to raise.
The decreeholder would have the right to reply to the same.
The court shall, after hearing such evidence as the parties might choose to adduce, decide 73 566 first of all whether the property attached is the ancestral property of the appellants and is liable to pay the just debts of their father.
It will consider in this connection whether the debts are illegal or immoral and as such not payable by the sons.
If this question is answered in favour of the appellants, obviously the execution petition will have to be dismissed.
If on the other hand it is found that the sons are liable for this debt, the other question for consideration would be whether there was any proper arrange ment made at the time of the partition for payment of the debts of the father.
The court below will decide these ques tions in the light of the principles which we have indicated above and will dispose of the case in accordance with law.
In the event of the appellants being held liable for payment of the decretal debt, it would be open to the executing court to make an order that the decreeholder should in the first instance proceed against the separate property of the father which was allotted to him on partition and which after his death devolved upon the sons; and only if such property is not sufficient for satisfaction of the decree, then the decree could be executed for the balance against the ancestral property in the hands of the appellants.
There will be no order for costs up to this stage.
Further costs will follow the result.
| B, acting as manager of a joint Hindu family, consisting of himself and his sons executed a mortgage deed in favour of the plaintiff, hypothecating certain movables to secure a loan.
Subsequently the sons obtained a partition decree against their father and the joint family properties were divided by metes and bounds and separate possession was taken by the father and the sons.
Later on, the plaintiff filed a suit against 'B praying for a decree against the mortgaged property as well as against the joint family.
The sons applied for being impleaded as defend ants stating that the mortgaged properties were allotted to them by the parti tion decree and B was not the manager of a joint Hindu family.
In reply the plaintiff gave up the claim for a mortgage decree stating that she would be statisfied with a money decree against B and the plaint was amended according ly B died and his sons were brought on the record as his legal representatives.
The sons pleaded, inter alia, that the debt was illegal and immoral as it related to specula tive transactions by the father.
The parties arrived at a compromise and on the basis thereof a simple money decree was passed in favour of the plaintiff against the estate of B in the hands of his legal representatives.
The judgment debtors (sons) disputed their liability on three grounds, viz., (i) that under the terms of the compromise decree, the decree holder could proceed only against the properties of B in the hands of his legal representatives and no property belonging to the sons could be made liable for the decree;(ii) that, as the decree was obtained after partition of the joint family properties between the father and his sons, the properties of the sons obtained in partition were not liable under Hindu law for the debt of the father, (iii) that in any event if there was any pious obligation on the part of the sons to pay the father 's debt incurred before partition such obligation could be enforced against the sons only in a properly constituted suit and not by way of execu tion of a decree obtained in a suit which was brought against the father alone during his lifetime and to which the sons were made parties as legal representatives after the father 's death: 545 Held, (repelling the contentions), (1) that as the decree fulfilled the conditions of sec.
52 (1) of the Civil Procedure Code it attracted all the incidents which attach by law to a decree of that character 'and therefore the decree holder was entitled to call in aid the provisions of sec.
53 of the Code and if any property in the hands of the sons was liable under the Hindu law to pay the father 's debt, such property would be liable in execution of the decree by virtue of the provision of sec.
53 of the Civil Procedure Code; (2) that a son is liable even after parti tion for the pre partition debts of his father, which are not immoral or illegal and for the payment of which no arrangement was made at the time of the partition; (3) that a decree passed against the separated sons as legal repre sentatives of the deceased father in respect of a debt incurred before partition can be executed against the shares obtained by such sons at the partition and this can be done in execution proceedings and it is not necessary to bring a separate suit for the purpose.
[Case was remanded to the execution court to determine the question whether the debt was immoral or illegal and whether any arrangement was made at the time of partition for the payment of the debt.] Bankey Lal vs Durga Prosad (I.L.R. 53 All. 868 F.B.) approved.
The view of the majority in AtuI Krishna vs Lala Nandanji (I.L.R. 14 Pat. 732) disapproved.
(Case law dis cussed).
|
Civil Appeal No. 154 of 1951.
Appeal from a judgment and order of the 1st April, 1949, of the High Court of Judicature, Madras (Rajamannar C.J. and Balakrishna Aiyar J.) in Civil Miscellaneous Peti tion No. 1317 of 1949 arising out of Order dated 29th Janu ary, 1949, of the Commissioner of Labour, Madras.
S.C. Isaacs (section N. Mukherjee, with him), for the appel lant.
The respondent was not represented.
April 10.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal is directed against a judgment of a Division Bench of the Madras High Court dated 1st April, 1949, passed in a certiorari proceeding, by which the learned Judges directed the issue of a writ of certiorari for quashing a portion of an order made by the Labour Com missioner, Madras, in any enquiry under section 51 of the Madras Shops and Establishments Act.
520 The facts material for our present purpose lie within a narrow compass and to appreciate the point that requires consideration in this appeal it will be convenient first of all to advert to a few relevant provisions of the Madras Act referred to above.
The Act was passed in 1947 and its ob ject, as stated in the preamble, is to provide for the regulation of conditions of work in shops and other estab lishments.
Section 14(1) of the Act sets a statutory limi tation upon the working hours and lays down: "Subject to the other provisions of the Act, no person employed in any establishment shall be required or allowed to work for more than 8 hours in any day and 48 hours in any week.
" A proviso attached to the sub section which by way of exception to the rule enunciated therein, allows employment of a person in any establishment for any period in excess of this statutory limit subject to payment of overtime wages, provided the period of work including overtime work does not exceed 10 hours any day, and in the aggregate 54 hours in any week.
Section 31 provides: "Where any person employed in any establishment is re quired to work overtime, he shall be entitled, in respect of such overtime work, to wages at twice the rate of ordinary rate of wages.
" Section 50 preserves the existing rights and privileges of an employee in any establishment if these rights and privileges are more favourable to him than those created by the Act.
The section runs as follows : "Nothing contained in this Act shall affect any rights or privileges which any person employed in any establishment is entitled to on the date on which this Act comes into operation in respect of such establishment under any other law, contract, custom.
Or Usage applicable to such estab lishment if such rights and privileges are more favourable to him than those to which he would be entitled under this Act.
" 521 The only other relevant section is section 51 which says : "If any question arises whether all or any of the provi sions of this Act apply to an establishment or to a person employed thereto or whether section 50 applies to any case or not, it shall be decided by the Commissioner of Labour and his decision thereon shall be final and shall not be liable to be questioned in a court of law".
The appellant is a limited company carrying on business in Madras, while the respondent is an association of cleri cal employees including those working under the appellant.
On November 10, 1948, the respondent presented an applica tion before the Labour Commissioner, Madras, under section 51 of the Shops and Establishments Act for decision of certain questions referred to in the petition which related to the rights and privileges of the employees of the appel lant.
The Commissioner issued a notice calling upon the appellant to appear and answer the contentions raised on behalf of the employees.
The parties appeared before the Commissioner on 26th November, 1948, and again on 16th December following when they were represented by lawyers.
After hearing the parties and on a consideration of the evidence adduced by them, the Labour Commissioner made his decision on 29th January, 1949.
The questions raised by the employees were classified by the Commissioner under six separate issues and two of them, which are material for our present purpose, are worded as follows : Issue No. 5.
Whether there has been an increase in working hours from 6 to 61/2 on week days from 12th October, 1948, and the increase is permissible ? Issue No. 6.
Whether overtime wages at twice the ordi nary rates should not be paid for work done by the employees after the normal working hours ? On Issue No. 5.
the 'decision of the Commissioner was that the 'business hours of the company were six and half prior to 1st April, 1948 ', when the Act came into force and they continue to be so even now.
It is 522 true that a circular ' was issued which was to take effect from 12th October, 1948, under which the lunch interval was reduced by half an hour, but at the same time it was direct ed that the office would close for business with the general public at 5 P.M. instead of 5 30 P.M.
On all working days so far as business hours are concerned.
As regards Issue No. 6 the Labour Commissioner observes first of all that although it is customary in many estab lishments to fix certain hours of business during which business is transacted with the outside public, yet they are not the 'real hours of employment and as a matter of fact the employees do work outside these business hours, for which they are not entitled to any extra remuneration pro vided.
the statutory limit of 8 hours a day is not exceeded.
In the opinion of the Commissioner if the normal hours of work were previously fixed and strictly adhered to, the employees could have acquired a right or privilege to work only for such hours and they would be entitled to seek protection under section 50 of the Act against the imposi tion of longer hours without a corresponding increase in emoluments.
The Commissioner goes on to say that in such cases it would be sufficient if compensatory wages are paid at the ordinary rate calculated according to rule 10 of the Madras Shops and Establishments Rules for work in excess of the normal hours but less than the statutory hours.
But for work of more than 8 hours a day or 48 hours a week, wages at twice the ordinary rates should be paid as required by the proviso to section 14 (1) and section 31 of the Act.
The conclusion reached by the Commissioner with regard to this issue is expressed by him in the following words: "I hold that the case of Messrs. Parry and Company 's employees falls under the former category and that the employees in this company will be entitled to overtime wages only when the statutory hours are exceeded.
" This order, as said above, was made on 29th January, 1949, and on 16th of February following the 523 respondent association filed a petition before the High Court at Madras, praying for a writ of certiorari to quash the same.
This application was heard by a Bench of two Judges and by the judgment dated 1st of April, 1949, the learned Judges allowed the petition in part and quashed the order of the Labour Commissioner in so far as it decided that the employees of the appellant will be entitled to overtime wages only when the statutory hours were exceeded.
It is the/propriety of this decision that has been chal lenged before us in this appeal.
It is somewhat unfortunate that the respondent remained unrepresented before us and the appeal had to be heard ex parte.
Mr. Isaacs, who appeared on behalf of the appellant, has, however, rendered every assistance that he possibly could and has placed before us all the material facts and relevant provisions of law.
Having given the matter our best consideration, we are of the opinion that the order of the High Court cannot be supported and that this appeal should be allowed.
The High Court seems to have based its decision on the ground that the Commissioner of Labour ' failed to answer the question raised by the association as to whether the company was entitled to require the employees to work more than six and half hours a day.
According to the learned Judge, the Labour Commissioner was not right in holding that even if the working hours were fixed at six and half hours a day, the employees would be entitled to overtime wages only when the statutory hours are exceeded.
As has been pointed out already, the Labour Commission er did decide that if the normal hours of work were previ ously fixed and rigidly adhered to, the employees would be entitled to seek protection under Section 50 of the Act against imposition of longer hours of ,work without a corre sponding increase in their emoluments.
The increase in such cases, according to the Labour Commissioner, should be on the scale of compensatory wages allowed under rule 10 of 524 the Madras Shops and Establishments Rules.
If, however, the increase is more than the statutory period, "the employees will be entitled to wages at double rate under Section 31 of,the Act.
This decision may or may not be right, but it has not been and cannot be suggested that the Labour Commis sioner acted without jurisdiction or in excess of his pow ers.
Under Section 51 of the Madras Shops and Establish ments Act, the Labour Commissioner is the only proper and competent authority to determine the questions referred to it in that section; and there is an express provision in it that the decision of the Labour Commissioner shall be final and not liable to be challenged in any court of/law.
It was the respondent who took the matter before the Labour Commis sioner in the present case and invited his decision upon the questions raised in the petition.
The Commissioner was certainly bound to decide the questions and he did decide them.
At the worst, he may have come to an erroneous conclu sion, but the conclusion is in respect of a matter which lies entirely within the jurisdiction of the Labour Commis sioner to decide and it does not relate to anything collat eral, an erroneous decision upon which might affect his jurisdiction.
The records of the case do not disclose any error apparent on the face of the proceeding or any irregu larity in the procedure adopted by the Labour Commissioner which goes contrary to the principles of natural justice.
Thus there was absolutely no grounds here which would justi fy a superior court in issuing a writ of certiorari for removal of an order or proceeding of an inferior tribunal vested with powers to exercise judicial or quasi judicial functions.
What the High Court has done really is to exer cise the powers of an appellate court and correct what it considered to be an error in the decision of the Labour Commissioner.
This obviously it cannot do.
The position might have been different if the Labour Commissioner had omitted to decide a matter which he was bound to decide and in such cases a mandamus might legitimately issue commanding the authority to determine questions which it left 525 undecided(1); but no certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous.
The judg ment of the High Court, therefore, in our opinion, is plain ly unsustainable.
In the view which we have taken, it is unnecessary to express any opinion as to whether certiorari has been taken away if it can be taken away at all under our Constitution by the provision of section 51 of the Madras Shops and Establishments Act which lays down that the decision of the Labour Commissioner would be final and incapable of being challenged in any court of law.
It was conceded by Mr. Isaacs that in spite of such statutory provisions the superior court is not absolutely deprived of the power to issue a writ, although it can do so only on the ground of either a manifest defect of jurisdiction in the tribunal that made the order or of a manifest fraud in the party procuring it(2).
The result is, that in our opinion the appeal succeeds and the judgment of the High Court is set aside and the order of the Labour Commissioner affirmed.
As the respondent was absent, we do not think it proper, in the circumstances of this case, to make any order for costs.
(1) Vide Board of Education vs Rice and others, [1911] A.C. 179.
(2) Vide Colonial Bank of Australasia vs Robert Willan, 5P.C. Ap, peals 417.
| The High Court cannot issue a writ of certiorari to quash a decision passed with jurisdiction by a Labour Com missioner under the Madras Shops and Establishments Act, 1947, an the mere ground that such decision is erroneous.
Under section 51 of the Madras Shops and Establishments Act, 1947, the Labour Commissioner is the only proper and compe tent authority to.determine the questions referred to him under that section and the decision of the Labour Commis sioner is final and not liable to be challenged in a Court of law.
|
N: Criminal Appeal No. 15 of 1951.
Appeal under articles 132(1) and 134(1)(c) of the Constitu tion of India against the Judgment and Order dated 28th February, 1951, of the High Court of Saurashtra at Rajkot (Shah C.J. and Chhatpar J.) in Criminal Appeal No. 162 of 1950, The material facts appear in the Judgment.
S.L. Chibber (amicus curia ), for the appellant, B. Sen, for the respondent.
439 1952.
February 27.
The following Judgments were delivered.
PATANJALI SASTRI C.J.
This appeal raises questions under article 14 of the Constitution more or less similar to those dealt with by this Court in Criminal Appeal No. 297 of 1951, The State of West Bengal vs Anwar Ali Sarkar(1), and it was heard in part along with that appeal but was adjourned to enable the respondent State to file an affidavit explaining the circumstances which led to the enactment of the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949 (No. XLVI of 1949), hereinafter referred to as the impugned Ordinance.
As in the West Bengal case, the jurisdiction of the Special Court of Criminal Jurisdiction, which tried and convicted the appellant, was challenged on the ground that the impugned Ordinance, under which the Court was constitut ed, was discriminatory and void.
The Objection was overruled by the Special Judge as well as by the High Court of Sau rashtra on appeal and the appellant now seeks a decision of this Court on the point.
The impugned Ordinance purports to amend the Saurashtra State Public Safety Measures Ordinance (No. IX of 1948) which had been passed "to provide for public safety, mainte nance of public order and preservation of peace and tran quillity in the State of Saurashtra", by the insertion of sections 7 to 18 which deal with the establishment of Spe cial Courts of criminal jurisdiction in certain areas to try certain classes of offences in accordance with a simplified and shortened procedure.
Section 9 empowers the State by notification to constitute Special Courts for such 'areas as may be specified in the notification and section 10 provides for appointment of Special Judges to preside over such courts.
Section 11 enacts that the Special Judge shall try "such offences or classes of offences or such cases or classes of cases as the Government may, by general or special order in writing; direct", (1) Since reported as ; 57 57 440 Then follow provisions prescribing the procedure applicable to the trial of such offences.
The only variations in such procedure from the normal procedure in criminal trials in the State consist of the abolition of trial by jury or with the aid of assessors and the elimination of the inquiry before commitment in sessions cases.
Even under the normal procedure trial by jury is not compulsory unless the Govern ment so directs (sections 268 and 269 (1)).
while assessors are not really members of the court and their opinion is not binding on the judge with whom the responsibility for the decision rests.
Nor can the commitment proceeding in a sessions case be said to be an essential requirement of a fair and impartial, trial, though its dispensation may involve the deprivation of certain advantages which an accused person may otherwise enjoy.
Thus the variations from the normal procedure are by no means calculated to imperil the chances of a fair and impartial trial.
In exercise of the power conferred by sections 9, 10 and 11, the Government issued the notification No. H/35 5 C dated 9/11 February, 1950, directing that a Special Court shall be constituted for certain special areas and that it shall try certain specified offences which included offences under sections 302, 307 and 392 read with section 34 of the Indian Penal Code (as adapted and applied to the State of Saurashtra) for which the appellant was convicted and sen tenced.
It is contended on behalf of the appellant that section 11 and the notification referred to above are discriminatory in that the offences alleged to have been committed by the appellant within the specified areas are required to be tried by the Special Judge under the special procedure, while any person committing the same offences outside those areas would be tried by the ordinary courts under the ordi nary procedure.
It is also urged that sections 9 and 11 by empowering the State Government to establish a Special Court and to direct it to try under a special procedure such offences as may be notified by the Government, in effect, authorise the Government to 441 amend section 5 of the Criminal Procedure Code read with the Second Schedule (as adapted and applied to the State of Saurashtra), which provides that "all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions hereinafter contained", and that delegation of such power to the executive Government was beyond the competence of a legislature and was, therefore, void.
On the first point, many of the considerations which weighed with me in upholding the constitutionality of sec tion 5 (1) of the West Bengal Special Courts Act, which is in identical terms with section 11 of the impugned Act, apply a fortiori to the present case.
The West Bengal case (1) arose out of a reference by the State Government of certain individual cases to the Special Court for trial and 1 there expressed the view that it was wrong to think that classification was something that must somehow be discovera ble in every piece of legislation or it would not be legis lation.
That way of regarding classification, I pointed out, tended only to obscure the real nature of the problems for which we have to find solution.
In the present case, howev er, the State Government referred not certain individual cases but offences of certain kinds committed in certain areas and so the objection as to discriminatory treatment is more easily answered on the line of reasoning indicated in my judgment in the West Bengal case (1).
Again, the varia tions from the normal procedure authorised by the impugned Ordinance are less disadvantageous to the persons tried before the Special Court than under the West Bengal Act.
It was, however, said that any variation in procedure which operates materially to the disadvantage of such persons was discriminatory and violative of article 14.
On the other hand, it was contended on behalf of the respondent State that, in the field of personal liberty, the only constitu tional safeguards were those specifically.
provided in articles 20 to 22, and 'this Court having held in (1) [1952] S.C.R.284.
442 Gopalan 's case (1) that any procedure prescribed by law satisfies the requirements of article 21 (the only article relevant here) the impugned Ordinance which prescribes a special procedure for trial of offences falling within its ambit could not be held to be unconstitutional.
Reliance was placed on a decision of a Full Bench of the Hyderabad High Court (Abdur Rahim and others vs Joseph A. 'Pinto and others (2) which seems to lend some support to this view.
I am, however, of opinion that neither of these extreme con tentions is sound.
All legislative differentiation is not necessarily dis criminatory.
In fact, the word "discrimination" does not occur in article 14.
The expression "discriminate against" is used in article 15 (1) and article.
16(2), and it means, according to the Oxford Dictionary, "to make an adverse distinction with regard to; to distinguish unfavourably from others".
Discrimination thus involves an element of unfa vourable bias and it is in that sense that the expression has to be understood in this context.
If such bias is disclosed and is based on any of the grounds mentioned in articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles.
But the position under article 14 is different.
Equal protection claims under that article are examined with the presumption that the State action is reasonable and justified.
This pre sumption of constitutionality stems from the wide power of classification which the legislature must, of necessity, possess in making laws operating differently as regards different groups of persons in order to give effect to its policies.
The power of the State to regulate criminal trials by constituting different courts with different procedures according to the needs of different parts of its territory is an essential part of its police power (cf.
Missouri vs Lewis)(3).
Though the differing (1) ; (3) 101 U.S.22 (2) A.I.R. 1951 Hyderabad ll. 443 procedures might involve disparity in the treatment of the persons tried under them, such disparity is not by itself sufficient, in my opinion, to outweigh the presumption and establish discrimination unless the degree of disparity goes beyond what the reason for its existence demands as, for instance, when it amounts to a denial of a fair and impar tial trial.
It is, therefore, not correct to say that arti cle 14 provides no further constitutional protection to personal liberty than what is afforded by article 21.
Notwithstanding that its wide general language is greatly qualified in its practical application by a due recognition of the State 's necessarily wide powers of legislative clas sification, article 14 remains an important bulwark against discriminatory procedural laws.
In the present case, the affidavit filed on behalf of the respondent State by one of its responsible officers states facts and figures relating to an increasing number of incidents of looting, robbery, dacoity, nosecutting and murder by marauding gangs of dacoits in certain areas of the State, and these details support the claim that "the securi ty of the State and public peace were jeopardised and that it became impossible to deal with the offences that were committed in different places in separate courts of law expeditiously.
" The statement concludes by pointing out that the areas specified in the notification were the "main zones of the activities of the dacoits as mentioned above.
" The impugned Ordinance having thus been passed to combat the increasing tempo of certain types of regional crime, the two fold classification on the lines of type and territory adopted in the impugned Ordinance, read with the notifi cation issued thereunder, is, in my view, reasonable and valid, and the degree of disparity of treatment involved is in no way in excess of what the situation demanded.
On the second point, the appellant 's learned counsel claimed that the majority view in In re The , etc.(1) supported his contention.
He attempted to make this out by piecing together certain dicta (1) ; 444 found in the several judgments delivered in that case.
While undoubtedly certain definite conclusions were reached by the majority of the Judges who took part in the decision in regard to the constitutionality of certain specified enact ments, the reasoning in each case was different and it is difficult to say that any particular principle has been laid down by the majority which can be of assistance in the determination of other cases.
I have there expressed my view that legislatures in this country have plenary authori ty to delegate their power to make laws to subordinate agencies of their choice and such delegation, however inex pedient or undesirable politically, is constitutionally competent.
I accordingly reject this contention.
It follows that the Special Judge had jurisdiction to try the appellant and the persons accused along with him.
As the majority concur in overruling the preliminary objection the appeal will be heard on the merits.
FAZL ALI J.
This is an appeal by one Kathi Raning Rawat, who has been convicted under sections 302, 307 and 392.
read with section 34 of the Indian Penal Code and sentenced to death and to seven years ' rigorous imprison ment.
The appellant was tried by a Special Court constitut ed under the Saurashtra State Public Safety Measures(Third Amendment) Ordinance, 1949 (Ordinance No. LXVI of 1949), which was issued by the Rajpramukh of Saurashtra on the 2nd November, 1949, and his conviction and sentence were upheld on appeal by the State High Court.
He has preferred an appeal to this Court against the decision of the High Court.
The principal question which arises in this appeal is whether the Ordinance to which reference has been made is void under article 13(1) of the Constitution on the ground that it violates the provisions of article 14.
It appears that on the 5th April, 1948, the Rajpramukh of Saurashtra State promulgated an Ordinance called the Criminal Proce dure Code, 1898 (Adaptation) Ordinance, 1948 (Ordinance No. XII of 445 1948), by which "the Criminal Procedure Code of the Dominion of India as in force in that Dominion on the 1st day of April, 1948" was made applicable to the State of Saurashtra with certain modifications.
In the same month, another Ordinance called the Saurashtra State Public Safety Measures Ordinance (Ordinance No. IX of 1948) was promulgated, which provided among other things for the detention of persons acting in a manner prejudicial to public safety, maintenance of public order and peace and tranquillity in the State.
Subsequently, on the 5th November, 1949, the Ordinance with which we are concerned, namely, the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, was promulgated, which purported to amend the previous Ordinance by inserting in it certain provisions which may be summa rised as follows : Section 9 of the Ordinance empowers the State Government by notification in the Official Gazette to constitute Spe cial Courts of criminal jurisdiction for such area as may be specified in the notification.
Section 11 provides that a Special Judge shall try such offences or classes of offences or such cases or classes of cases as the State Government may, by general or special order in writing, direct.
Sec tions 12 to 18 lay down the procedure for the trial of cases by the Special Judge, the special features of which are as follows : (1) The Special Judge may take cognizance offences without the accused being committed to his court for trial; (2) There is to be no trial by jury or with the aid of assessors; (3) The Special Judge should 'ordinarily record a memo randum only of the substance of the evidence of each wit ness; and (4) The person convicted has to appeal to the High Court within 15 days from the date of the sentence.
446 The Ordinance further provides that the provisions of sections 491 and 526 of the Code of Criminal Procedure shall not apply to any person or case triable by the Special Judge, and the High Court may call for the record of the proceedings of any case tried by a Special Judge and may exercise any of the powers conferred on an appellate court by sections 423, 426, 427 and 428 of the Code.
From the foregoing summary of the provisions of the Ordinance, it will appear that the difference between the procedure laid down in the Criminal Procedure Code and the procedure to be followed by the Special Judge consists mainly in the following matters: (1) Where a case is triable by a court of session, no commitment proceeding is necessary, and the Special Judge may take cognizance without any commitment; (2) The trial shall not be by jury or with the aid of assessors; (3) Only a memorandum of the substance of the evidence of.
each witness is ordinarily to be recorded; (4) The period of limitation for appeal to the High Court is curtailed; and (5) No court has jurisdiction to transfer any case from any Special Judge, or to make an order under section 491 of the Criminal Procedure Code.
It appears that pursuant to the provisions contained in sections 9, 10 and 11 of the Ordinance, the State Government issued a Notification No. H/35 5 C, dated the 9/11th Febru ary, 1951, directing the constitution of a Special Court for certain areas mentioned in a schedule attached to the Noti fication and empowering such court to try the following offences, namely, offences under sections 183, 189, 190, 212, 216, 224, 302, 304, 307, 323 335, 341 344, 379 382, 384 389 and 392 402 of the Indian Penal Code, 1860, as adapted and applied to the State of Saurashtra, and most of t, be offences under the.
Ordinance of 1948.
447 In the course of the hearing, an affidavit was filed by the Assistant Secretary in the Home Department of the Sau rashtra Government, stating that since the integration of different States in Kathiawar in the beginning of 1948 there had been a series of crimes against public peace and that had led to the promulgation of Ordinance No. IX of 1948, which provided among other things for detention of persons acting in a manner prejudicial to public safety and mainte nance of public order in the State.
Notwithstanding this Ordinance, the crimes went on increasing and there occurred numerous cases of dacoity, murder, nosecutting, ear cutting, etc.
for some of which certain notorious gangs were respon sible, and hence Ordinance No. LXVI of 1949 was promulgated to amend the earlier Ordinance and to constitute Special Courts for the speedy trial of cases arising out of the activities of the dacoits and other criminals guilty of violent crimes.
As has been already indicated, the main contention advanced before us on behalf of the appellant is that the Ordinance of 1949 violates the provisions of article 14 of the Constitution, by laying down a procedure which is dif ferent from and less advantageous to the accused than the ordinary procedure laid down in the Criminal Procedure Code, and thereby discriminating between persons who are to be tried under the special procedure and those tried under the normal procedure.
In support of this argument, reliance is placed on the decision of this court in The Slate of West Bengal vs Anwar Ali Sarkar and Gajen Mali (Cases Nos. 297 and 298 of 1951) (1), in which certain provisions of the West Bengal Special Courts Act, 1949, have been held to be unconstitutional on grounds similar to those urged on behalf of the appellant in the present ease.
A comparison of the provisions of the Ordinance in question with those of the West Bengal Act will show that several of the objectionable features in the latter enactment do not appear in the Ordi nance, (1) ; 58 448 but, on the whole, I am inclined to think that that circum stance by itself will not afford justification for upholding the Ordinance.
There is however one very important differ ence between the West Bengal Act and the present Ordinance which, in my opinion, does afford such justification, and I shall try to refer to it as briefly as possible.
I think that a distinction should be drawn between"dis crimination without reason" and ' 'discrimination with rea son".
The whole doctrine of classification is based on this distinction and on the well known fact that the circum stances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects, so that the question of unequal treat ment does not really arise as between persons governed by different conditions and different sets of circum stances.
The main objection to the West Bengal Act was that it permitted discrimination "without reason" or with out any rational basis.
Having laid down a procedure which was materially different from and less advantageous to the accused than the ordinary procedure, that Act gave uncon trolled and unguided authority to the State Government to put that procedure into operation in the trial of any case or class of cases or any offence or class of offences.
There was no principle to be found in that Act to control the application of the discriminatory provisions or to correlate those provisions to some tangible and rational objective, in such a way as to enable anyone reading the Act to say : If that is the objective, the provisions as to special treatment of the offences seem to be quite suitable and there can be no objection to dealing with a particular type of offences on a special footing.
The mere mention of speedier trial as the object of the Act did not cure the defect, because the expression "speedier trial" standing by itself provided no rational basis of classification.
It was merely a description of the result sought to be achieved by the application of the special procedure laid down in the Act ' and afforded no help in determining what cases required speedier trial.
449 As regards the present Ordinance, we can discover a guiding principle within its four corners, which cannot but have the effect of limiting the application of the special procedure to a particular category of offences only and establish such a nexus (which was missing in the West Bengal Act) between offences of a particular category and the object with which the Ordinance was promulgated, as should suffice to repel the charge of discrimination and furnish some justification for the special treatment of those of fences.
The Ordinance, as I have already stated, purported to amend another Ordinance, the object of which was to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State.
It was not disputed before us that the preamble of the original Ordinance would govern the amending Ordinance also, and the object of promulgating the subsequent Ordinance was the same as the object of promulgating the original Ordinance.
Once this is appreciated, It is easy to see that there is something in the Ordinance itself to guide the State Govern ment to apply the special procedure not to any and every case but only to those cases or offences which have a ra tional relation to, or connection with, the main object and purpose of the Ordinance and which for that reason become a class by themselves requiring to be dealt with on a special footing.
The clear recital of a definite objective furnishes a tangible and rational basis of classification to the State Government for the purpose of applying the provi sions of the Ordinance and for choosing only such offences or cases as affect public safety, maintenance of public order and preservation of peace and tranquillity.
Thus, under section 11, the State Government is expected to select only such offences or class of offences or class of cases for being tried by the special court in accordance with the special procedure, as are calculated to affect public safety, maintenance of public order, etc., and under section 9, the use of the special procedure must necessarily be confined to only disturbed areas or those areas where adoption of 450 public safety measures is necessary.
That this is how the Ordinance was intended to be understood and was in fact understood, is confirmed by the Notification issued on the 9/11th February by the State Government in pursuance of the Ordinance.
That Notification sets out 49 offences under the Indian Penal Code as adapted and applied to the State and certain other offences punishable under the Ordinance, and one can see at once that all these offences directly affect the maintenance of public order and peace and tran quillity.
The Notification also specifies certain areas in the State over which only the special court is to exercise jurisdiction.
There can be no dispute that if the State Legislature finds that lawlessness and crime are rampant and there is a direct threat to peace and tranquil lity in certain areas within the State, it is competent to deal with offences which affect the maintenance of public order and preservation of peace and tranquillity in those areas as a class by themselves and to provide that such offences shall be tried as expeditiously as possible in accordance with a special procedure devised for the purpose.
This, in my opinion, is in plain language the rationale of the Ordinance, and it will be going too far to say that in no case and under no circumstances can a legislature lay down a special procedure for the trial of a particular class of offences, and that recourse to a simplified and less cumbrous procedure for the trial of those offences, even when abnormal conditions prevail, will amount to a violation of article 14 of the Constitution.
I am satisfied that this case is distinguishable from the case relating to the West Bengal Act, but I also feel that the legislatures should have recourse to legislation such as the present only in very special circumstances.
The question of referring individual cases to the special court does not arise in this appeal, and I do not wish to express any opinion on it.
Certain other points were urged on behalf of the appel lant, namely, that the Ordinance suffers from excessive delegation of legislative authority, and that 451 the Rajpramukh had exceeded his powers in amending the provisions of the Criminal Procedure Code.
These contentions were found to be devoid of all force and have to be reject ed.
In the result, I would hold that the Saurashtra State Public Safety Measures (Third Amendment) Ordinance is not unconstitutional, and accordingly overrule the objection as to the jurisdiction of the special court to try the appel lant.
MAHAJAN J.
The principal point for decision in the appeal is whether section 11 of the Saurashtra State Public Safety Measures (Third Amendment) Ordinance (No. LXVI), 1949.
which came into force on 2nd November, 1949, is hit by article 14 of the Constitution inasmuch as it mentions no basis for the differential treatment prescribed in the Ordinance for trial of criminals in certain cases and for certain offences.
Section 11 of the Ordinance is in these terms : "A Special Judge shall try such offences or classes of offences or such cases or classes of cases as the Government of the United State of Saurashtra may, by general or special order in writing, direct.
" This section is in identical terms with section 5(1) of the West Bengal Special Courts Act (Act X of 1950).
Section 5(1) of that Act provided as follows : "A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Govern ment may, by general or special order in writing, direct.
" The question whether section 5(1) of the Bengal Act (X of 1950) was hit by article 14 of the Constitution was an swered in the affirmative by this court in The State of West Bengal vs Anwar Ali Sarkar etc.(1) In that case I was of the opinion that even if the statute on the face of it was not discriminatory, it was so in its effect and opera tion inasmuch as it vested in the executive government unregulated official discretion and therefore had to be adjudged unconstitutional.
Section 11 of the Ordinance, like section 5(1) (1) ; 452 of the West Bengal Act, suggests no reasonable basis or classification either in respect of offences or in respect of cases.
It has laid down no measure for the grouping either of persons or of cases or of offences by which meas ure these groups could be distinguished from those outside the purview of the special Act.
The State Government can choose a case of a person similarly situate and hand it over to the special tribunal and leave the case of another person in the same circumstances to be tried by the procedure laid down in the Criminal Procedure Code.
It can direct that the offence of simple hurt be tried by the special tribunal while a more serious offence be tried in the ordinary way.
The notification in this case fully illustrates the point.
Offence of simple hurt punishable with two years ' rigorous imprisonment is included in the list of offences to be tried by the Special Judge, while a more serious offence of the same kind punishable with heavier punishment under section 308 is excluded from the list.
It is the mischief of section 11 of the Ordinance that makes such discrimination possible.
To my mind, offences falling in the group of sections 302 to 308, Indian Penal Code.
possess common characteristics and the appellant can reasonably complain of hostile dis crimination.
I am therefore of the opinion that section 11 of the Ordinance is unconstitutional and the conviction of the appellant under the Ordinance by the special judge is bad and must be quashed.
There will be a retrial of the appellant under the procedure prescribed by the Code of Criminal Procedure.
The contention of the learned counsel for the State that the provisions of the Ordinance are in some respects distinguishable from the provisions of the West Bengal Special Courts Act cannot be sustained.
Reference was made to section 9 of the Ordinance which is in these terms : "The Government of the United State of Saurashtra may by notification in the official gazette constitute Special Courts of criminal jurisdiction for such area as may be specified in the notification.
" 453 This section is in the same terms as section 3 of the West Bengal Special Courts Act.
It only empowers the State Government to constitute Special Courts for any area or for the whole of the State of Saurashtra in the like manner in which section 3 empowered the West Bengal Government to constitute special courts for the whole of the State or any particular area, It does not in any way limit or curtail the power conferred on the State Government by the provi sions of section 11.
Reference was also made to the pream ble of the original Ordinance which uses the familiar con ventional phraseology: "An Ordinance to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra.
" These words cannot limit the plain and unambiguous language of section 11 of the Ordinance which authorises the State Government to send any case or commit persons guilty of any offence to the special judge for trial by the procedure prescribed in the Ordinance.
MUKHERJEA J.
The appellant before us was tried,along with two other persons, by the Special Judge, Court of Criminal Jurisdiction, Saurashtra State, on charges of murder, at tempted murder and robbery under sections 302, 307 and 392 of the Indian Penal Code read with section 34.
By his judgment dated 20th December, 1950, the Special Judge con victed the appellant on all the three charges and sentenced him to death under section 302 and to seven years ' rigorous imprisonment both under sections 307 and 392 of the Indian Penal Code.
The conviction and sentences were upheld by the High Court of Saurashtra on appeal.
The appellant has now come to this court on the strength of a certificate granted by the High Court under articles 132(1) and 134(1)(c) of the Constitution.
The appeal has not been heard on its merits as yet.
It was set down for hearing on certain preliminary points of law raised by the learned counsel for the appellant attacking the legality of the entire trial on the ground that section 11 of the Saurashtra Public 454 Safety Measures Ordinance No. XLVI of 1949 passed by the Rajpramukh of Saurashtra as well as the Notification issued by the State Government on 9/11th February, 1951, under which the Special Court was constituted and the trial held, were void and inoperative.
The first and the main ground upon which the constitutional validity of the section and the notification has been assailed is that they are in conflict with the provision of article 14 of the Constitu tion.
The other point raised is that the provision of section 11 the Ordinance is illegal as it amounts to delegation of essential legislative powers by the State Legislature to the Executive.
So far as the first point is concerned, the learned counsel for the appellant has placed great reliance upon the majority decision of this court in two analogous appeals from the Calcutta High Court (being cases Nos. 297 and 298 of 1951)(1), where a similar question arose in regard to the validity of section 5 (1) of the West Bengal Special Courts Act, 1950.
In fact, it was because of our pronouncement in the Calcutta appeals that it was considered desirable to have the present case heard on the preliminary points of law.
It is not disputed that the language of section 11 of the Saurashtra Ordinance, with which we are now concerned, is identically the same as that of section 5 (1) of the West Bengal Special Courts Act.
The wording of the section is as follows: "11.
Jurisdiction of Special Judges A Special Judge shall try such offences or classes of offences or such cases or classes of cases as the Government of the United State of Saurashtra may, by general or special order in writing, direct.
" In the West Bengal Act there is a further provision em bodied in clause (2) of section 5 which lays down that no such direction as is contemplated by clause (1) could be given in respect of cases pending before ordinary criminal courts at the date when the Act came into force.
No such exception has been made in the Saurashtra Ordinance.
In the Calcutta cases referred (1) Since reported as ; 455 to above, the notification under section 5(1) of the West Bengal Act directed certain individual cases in which speci fied persons were involved to be tried by the Special Court and it was held by the High Court of Calcutta that section 5 (1) of the West Bengal Special Courts Act to the extent that it empowers the State Government to direct any case to be tried by Special Courts was void as offending against the provision of the equal protection clause in article 14 of the Constitution; and this view was affirmed in appeal by a majority of this court, With regard to the remaining part of section 5(1), which authorises the State Government to direct, "offences, classes of offences. or classes of cases" for trial by Special Courts, the majority of the Judges of the Calcutta High Court were of opinion that it was not obnoxious to article 14 of the Constitution.
In the present case the notification, that was issued by the Sau rashtra State Government on 9/11th February, 1951, did not relate to individual cases.
The notification constituted in the first place a Special Court in the areas specified in the schedule.
It appointed in the next place a judge to preside over the Special Court and finally gave a list of offences with reference to appropriate sections of the Indian Penal Code which were to be tried by the Special Judge.
If the view taken by the Chief Justice of the Cal cutta High Court and the majority of his colleagues is right, such notification and that part of section 11 of the Ordinance, under which it was issued, could not be chal lenged as being in conflict with article 14 of the Constitu tion.
This point did come up for consideration before us in the appeals against the Calcutta decision with reference to the corresponding part of section 5 (1) of the West Bengal Act, but although a majority of this court concurred in dismissing the appeals, there was no such majority in the pronouncement of any final opinion on this particular point.
In my judgment in the Calcutta appeals I was sceptical about the correctness of the view taken upon this point by the learned Chief Justice of the Calcutta High Court and the majority of his colleagues.
The 59 456 consideration that weighed with me was that as the learned Judges were definitely of opinion that the necessity of speedier trial.
, as set out in the preamble, was too elusive and uncertain a criterion to form the basis of a proper classification, the authority given by section 5 (1) of the Special Courts Act to the State Government to direct any class of cases or offences ' to be tried by the Special Court would be an unguided authority and the propriety of the classification made by the State Government that is said to be implied in the direction could not be tested with refer ence to any definite legislative policy or standard.
Mr. Sen appearing for the State of Saurashtra, has argued be: fore us that in this respect the Saurashtra Ordinance stands on a different footing and he has referred in this connec tion to the preamble to the original ordinance as well as the circumstances which necessitated the present one.
As the question is an important one and is not concluded by our previous decision, it merits, in my opinion, a careful consideration.
It may be stated at the outset that the Criminal Procedure Code of India as such has no application to the State of Saurashtra.
After the State acceded to the Indian Union, there was an Ordinance promulgated by the Rajpramukh on 5th of April, 1948, which introduced the provisions of the Criminal Procedure Code of India (Act V of 1898) with certain modifications into the Saurashtra State.
Another ordinance, known as the Public Safety Measures Ordinance, was passed on the 2nd of April, 1948, and this ordinance, like similar other public safety measures obtaining in other States, provided for preventive detention, imposition of collective fines, control of essential supplies and similar other matters.
On 11th of November, 1949, the present ordinance was passed by way of amendment of the Public Safety Measures Ordinance and inter alia it made provisions for the establishment of special courts.
Section 9 of this Ordinance empowers the State Government to constitute spe cial courts of criminal.jurisdiction for such areas as may be specified in the notification.
Section 10 relates to appointment.
457 of Special Judges who are to preside over such courts and section 11 lays down that the Special Judge shall try "such offences or classes of offences. . or classes of cases as the Government of United State of Saurashtra may, by general or special order in writing, direct.
" The proce dure to be followed by the Special Judges is set out in sections 12 to 18 of the Ordinance.
In substance the Spe cial Court is given the status of a sessions court, although committal proceeding is eliminated and so also is trial by jury or with the aid of assessors.
The Special Judge has only to make a memorandum of the evidence and he can refuse to summon any witness if he is satisfied after examination of the accused that the evidence of such witness would not be material.
Section 16 (1) curtails the period of limita tion within which an accused convicted by the Special Judge has to file his appeal before the High Court and clause (3) of the section provides that no court shall have jurisdic tion to transfer any case from any Special Judge or make any order under section 491 of the Criminal Procedure Code.
The ordinance certainly lacks some of the most objectionable features of the West Bengal Act.
Thus it has not taken away the High Court 's power of revision, nor does it expose the accused to the chance of being convicted of a major offence though he stood charged with a minor one.
There is also no provision in the ordinance similar to that in the West Bengal Act which enables the court to proceed with the trial in the absence of the accused.
But although the ordinance in certain respects compares favourably with the West Bengal Act, the procedure which it lays down for the Special Judge to follow does differ on material points from the normal procedure prescribed in the Criminal Procedure Code; and as these differences abridge the rights of the accused who are to be tried by the Special Court, and deprive them of cer tain benefits to which they would otherwise have been enti tled under the general law, the ordinance prima facie makes discrimination and the question has got to be answered whether such discrimination brings it in conflict with article 14 of the Constitution.
458 The nature and scope of the guarantee that is implied in the equal protection clause of our Constitution have been explained and discussed in more than one decision of this court and do not require repetition.
It is well settled that a legislature for the purpose of dealing with the complex problems that arise out of an infinite variety of human relations, cannot but proceed upon some sort of selection or classification of persons upon whom the legislation is to operate.
The consequence of such classification would un doubtedly be to differentiate the persons belonging to that class from others, but that by itself would not make the legislation obnoxious to the equal protection clause.
Equal ity prescribed by the Constitution would not be violated if the statute operates equally on all persons who are included in the group, and the classification is not arbitrary or capricious, but bears a reasonable relation to the objective which the legislation has in view.
The legislature is given the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differ ences made have no rational relation to the objectives of the legislation, that necessity of judicial interference arises.
Section 11 of the Saurashtra Ordinance so far as it is material for our present purpose lays down that a Special Court shall try such offences or classes of offences. or classes of cases as the State Government may. direct".
This part of the section undoubtedly contemplates a classi fication to be made of offences and cases but no classifica tion appears on the terms of the statute itself which merely gives an authority to the State Government to determine what classes of cases or offences are to be tried by the special tribunal.
The question arises at the outset as to whether such statute is not on the face of it discriminatory as it commits to the discretion of an administrative body or officials the duty of making selection or classification for purposes of the legislation; and there is a still further question, namely, by what tests, if any, is the propriety of the administrative action to be adjudged and what would be the remedy of the aggrieved person if the 459 classification made by the administrative body is arbitrary or capricious ? It is a doctrine of the American courts which seems to me to be well founded on principle that the equal protection clause can be invoked not merely where discrimination ap pears on the express terms of the statute itself, but also when it is the result of improper or prejudiced execution of the law (1).
But a statute will not necessarily be condem ned as discriminatory, because it does not make the classi fication itself but, as an effective way of carrying out its policy, vests the authority to do it in certain officers or administrative bodies.
Illustrations of one class of such cases are to be found in various regulations in the U.S.A. which are passed by States in exercise of police powers for the purposes of protecting public health or welfare or to regulate trades, business and occupations which may become unsafe or dangerous when unrestrained.
Thus there are regu lations where discretion is lodged by law in public officers or boards to grant or withhold licence to keep taverns or sell spirituous liquors(2), or other commodities like milk(3) or cigarettes(4).
Similarly, there are regulations relating to appointment of river pilots(5) and other trained men necessary for particularly difficult jobs and in such cases, ordinarily, conditions are laid down by the statute, on compliance with which a candidate is consid ered qualified.
But even then the appointment board has got a discretion to exercise and the fact of the candidate for a particular post is submitted to the judgment of the officer or the board as the case may be.
It is true that these cases are of a somewhat different nature than the one we are dealing with; but it seems to me that the principle underly ing all these cases is the same.
The whole problem is one of choosing the method by which the legislative policy is to be effectuated.
As has been observed by Frankfurter J. in (1) Vide Weaver on Constitutional Law, p. 404.
(2)Crowley vs Uhristensen; , (3) People of the State of New York vs Job.
E, Van De Carr, 199 U.S.552.
(4) Gundling vs Chicago, ; (5) Kotch vs Board of River Port Pilot Commissioners, 330 U.S.552.
460 Tinger vs Texas(1), "laws are not abstract propositions. but are expressions of policy arising out of specific difficulties addressed to the attainment of specif ic ends by the use of specific remedies.
" In my opinion, if the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation.
After all "the law does all that is needed when it does all that it can, indicates a policy. and seeks to bring within the lines all similarly situated so far as its means allow(2) ' '.
In such eases, the power given to the executive body would import a duty on it to classify the subject matter of legislation in accordance with the objective indicated in the statute.
The discretion that is conferred on official agencies in such circumstances is not an un guided discretion; it has to be exercised in conformity with the policy to effectuate which the direction is given and it is in relation to that objective that the propriety of the classification would have to be tested.
If the administra tive body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can certainly be annulled as offend ing against the equal protection clause.
On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selec tion at its pleasure, the statute would be held on the face of it to be discriminatory irrespective of the way in which it is applied.
This, it seems to me, is the true principle underlying the decision of the Supreme Court of America in Yick Wo vs Hopkins(3).
The object of the ordinance of the City and County of San Francisco, which came up for consid eration in that case, was, as found by the court, not to regulate laundry business in that locality in the interests of the general public(4).
The business was (1) ; at 147.
(2) Vide Buck vs Belt, ; , 208.
(3) (4) Vide the observations of Field J. in Crowley vs Chris tensen; , ,94.
461 harmless in itself and useful to the community.
No policy was indicated or object declared by the legislature, but an uncontrolled discretion was given to the Board of Supervi sors who could refuse license at their pleasure to anybody carrying on laundry business in wooden buildings.
The classification contemplated by the statute was an arbitrary classification depending on the caprice of the Board, and consequently it was condemned as discriminatory on the face of it;its application against the Chinese was a confirmation of the discriminatory character and the really hostile intention of the legislation.
I would be inclined to think that the West Bengal case, which we have decided already, comes within the purview of this principle, as the desira bility of "speedier trial", which is hinted at in the pream ble to the West Bengal Act, is too vague, elusive and uncer tain a thing to amount to an enunciation of a definite policy or objective on the basis of which any proper classi fication could be made.
the matter has been left to the unfettered discretion of the State Government which can classify offences or cases in any way they like without regard to any objective and as such the statute is open to the challenge of making arbitrary discrimination.
The point that requires consideration is, whether the Saurashtra Ordinance presents any distinguishing features or occupies the same position as the West Bengal Act ? As has been stated already, section 11 of the Saurash tra Ordinance is worded in exactly the same manner as sec tion 5(1) of the West Bengal Special Courts Act; and that part of it, with which we are here concerned, authorises the State Government to direct any classes of offences or cases to be tried by the special tribunal.
The State Government, therefore, has got to make a classification of cases or offences before it issues its directions to the Special Court.
The question is, on what basis is the classification to be made ? If it depends entirely upon the pleasure of the State Government to make any classification it likes, with out any guiding principle at all.
it cannot certainly be a proper classification, Which requires that a reasonable relation must exist 462 between the classification and the objective that the legis lation has in view.
On the other hand, if the legislature indicates a definite objective and the discretion has been vested in the State Government as a means of achieving that object, the law itself, as I have said above, cannot be held to be discriminatory, though the action of the State Govern ment may be condemned if it offends against the equal pro tection clause, by making an arbitrary selection.
Now, the earlier ordinance, to which the present one is a subsequent addition by way of amendment, was passed by the Rajpramukh of Saurashtra on 2nd April, 1948.
It is described as an ordinance to provide for the security of the State, mainte nance of public order and maintenance of supplies and serv ices essential to the community in the State of Saurashtra.
The preamble to the ordinance sets out the objective of the ordinance in identical terms.
It is to be noted that the integration of several States in Kathiawar which now form the State of Saurashtra, was completed some time in Febru ary, 1948.
It appears from the affidavit of an officer of the Home Government of the Saurashtra State that soon after the integration took place, an alarming state of lawlessness prevailed in some of the districts within the State.
There were gangs of dacoits operating at different places and their number began to increase gradually.
As ordinary law was deemed insufficient to cope with the nefarious activi ties of those criminal gangs, the Saurashtra Public Safety Measures Ordinance was promulgated by the Rajpramukh on 2nd April, 1948.
The ordinance, as stated already, provided principally for preventive detention and imposition of collective fines '; and it was hoped that armed with these extraordinary powers the State Government would be able to bring the situation under control.
These hopes, however, were belied, and the affidavit gives a long list of offences in which murder and nose cutting figure conspicuously in addition to looting and dacoity, which were committed by the dacoits during the years 1948 and 1949.
In view of this ugly situation in the Star, the new Ordinance was 463 passed on 11th of November, 1949, and this ordinance pro vides inter alia for the establishment of Special Courts which are to try offenders under a special procedure.
Acting under section 11 of the Ordinance, the Government issued a notification on 9/11th February, 1950, which Con stituted a Special Court for areas specified in the sched ule.
and here again the affidavit shows that all these areas are included in the districts of Gohilwad, Madhya Saurashtra and Sorath, where the tribe of marauders principally flour ished.
The object of passing this new ordinance is identi cally the same for which the earlier ordinance was passed, and the preamble to the latter, taken along with the sur rounding circumstances.
discloses a definite legislative policy which has been sought to be effectuated by the dif ferent provisions contained in the enactment.
If Special Courts were considered necessary to cope with an abnormal situation.
it cannot be said that the vesting of authority in the State Government to select offences for trial by such courts is in any way unreasonable.
In the light of the principles stated already, I am unable to hold that section 11 of the Ordinance in so far as it authorises the State Government to direct classes of offences or cases to be tried by the Special Court offends against the provision of the equal protection clause in our Constitution.
If the notification that has been issued by the State Government proceeds on any arbitrary or unreasona ble basis, obviously that could be challenged as unconstitu tional.
It is necessary, therefore, to examine the terms of the notification and the list of offences it has prescribed.
The notification, as said above, constitutes a Special Court for the areas mentioned in the Schedule and appoints Mr. P.P. Anand as a Special Judge to preside over the Spe cial Court.
The offences triable by the Special Court are then set out with reference to the specific sections of the Indian Penal Code.
Mr. Chibber attacks the classification of offences made in this list primarily on the ground that while it mentions offences of a particular character, it excludes at the same time other offences of a cognate char acter in reference to 60 464 which no difference in treatment is justifiable.
It is pointed out that while section 183 of the Indian Penal Code is mentioned in the list, sections 184, 186 and 188 which deal with similar offences are excluded.
Similarly the list does not mention section 308, Indian Penal Code, though it mentions section 307.
The learned counsel relies in this connection upon the decision of the Supreme Court of America in Skinner vs Oklahoma(1).
In that case the question for consideration related to the constitutionality of a certain statute of Oklahoma which provided for sterilization of certain habitual criminals who were convicted two or more times in any State of felony involving moral turpitude.
The statute applied to persons guilty of larceny, which was a felony, but not to embezzlement, and it was held that the legislation violated the equal protection clause.
It is undoubtedly a sound and reasonable proposition that when the nature of two offences is intrinsically the same and they are punishable in the same manner, a person accused of one should not be treated differently from a person accused of the other, because it is an essential principle underlying the equal protection clause that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
At the same time it is to be noted as Douglas J. observed in the very case that in determining the reach and scope of particular legislation it is not necessary for the legislature to provide abstract symmetry.
"It may mark and set apart the classes and types of problems according to the needs and as dictated or sug gested by experience.
" A too rigid insistance therefore on a thing like scientific classification is neither practica ble nor desirable.
It is true that the notification men tions section 183 of the Indian Penal Code, though it omits section 184; but I am unable to hold that the two are iden tically of the same nature.
Section 183 deals with resist ance to the taking of property by the lawful authority of public servant; while section 184 relates to obstructing sale of property offered for sale (1) ; 465 by authority of public servant.
Section 186 on the other hand does not relate to the taking of property at all, but is concerned with obstructing a public servant in the dis charge of his public duties.
Then again I am not sure that it was incumbent upon the State Government to include section 308, Indian Penal Code, in the list simply because they included section 307.
It is true that culpable homicide as well as attempt to murder are specified in the list; but an attempt to commit culpable homicide is certain ly a less heinous offence and the State Government might think it proper, having regard to all the facts known to them, that an offence of attempt to commit culpable homicide does not require a special treatment.
Be that as it may, I do not think that a meticulous examination of the various offences specified in the list with regard to their nature and punishment is necessary for purposes of this case.
The appellant before us was accused of murder punishable under section 302 of the Indian Penal Code.
There is no other offence, I believe, described in the Indian Penal Code, which can be placed on an identical footing as murder.
Even culpable homicide not amounting to murder is something less heinous than murder, although it finds a place in the list.
In my opinion, the appellant can have no right to complain if he has not been aggrieved in any way by any unjust or arbitrary classification.
As he is accused of murder and dacoity and no offences of a similar nature are excluded from the list, I do not think that it is open to him to complain of any violation of equal protection clause in the notification.
There are quite a number of offences specified in the notification and they are capable of being grouped under various heads.
Simply because cer tain offences which could have been mentioned along with similar others in a particular group have been omitted therefrom, it cannot be said that the whole list is bad.
The question of inequality on the ground of such omission can be raised only by the person who is directed to be tried under the special 466 procedure for a certain offence, whereas for commission of a similar offence not mentioned in the list another person has still the advantages of the ordinary procedure open to him.
In my opinion, therefore, the first point raised on behalf of the appellant cannot succeed.
The other point urged by the learned counsel for the appellant which relates to the question of delegation of legislative authority by the Rajpramukh to the State Govern ment admits, I think, of a short answer.
It is conceded by the learned counsel that the facts of this case are identi cal with those of King Emperor vs Benoarilal Sarma (1) which was decided by the Privy Council.
In fact, the language of section 5 of the Special Criminal Courts Ordinance (No. II of 1942) which came up for consideration in that case is almost the same as that of section 11 of the Saurashtra Ordinance.
It was held by the Privy Council that it was not a ease of delegated legislation at all, but merely an exam ple of the not uncommon legislative arrangement by which the local application of the provision of a statute is deter mined by the judgment of a local administrative body as to its necessity.
In other words, it was a case of conditional legislation coming within the rule of Queen vs Burah (2).
The pronouncement of the Judicial Committee in Benoarilal 's case (2) has been accepted and acted upon by this court in more than one case and it is too late now to question its correctness.
My conclusion, therefore, is that both the preliminary points must be disallowed and the appeal should be heard on its merits.
DAS J.
The appellant before us was tried by a Special Court constituted under the Saurashtra Public Safety Meas ures (Third Amendment) Ordinance No. LXVI of 1949 for of fences alleged to have been committed by him under sections 302, 307 and 392 of the Indian Penal Code.
On December 20, 1950, he was found guilty of the offences charged against him and was convicted and sentenced to death under section 302, (1) 72 I.A. 57.
(2) 3 App.
889. 467 Indian Penal Code, and to seven years rigorous imprisonment under each of the charges under sections 307 and 392, Indian Penal Code, the sentences of imprisonment running concur rently He appealed to the High Court of Saurashtra but the High Court, by its judgment pronounced on February 28, 1951, rejected his appeal and confirmed his conviction and the sentences passed by the Special Court.
By its order made on March 21, 1951, however, the High Court granted him a cer tificate for appeal to this Court both under article 132 and article 134 (1) (c) of the Constitution.
This appeal has accordingly been filed in this Court.
A preliminary point has been raised by learned counsel for the appellant, namely, that the Special Court had no jurisdiction to try this case and the whole trial and con viction have been illegal and void ab initio and should be quashed in limine.
It is necessary, for the disposal of the preliminary objection, to refer to the provisions of the Ordinance and the circumstances in which the Special Court came to be constituted.
In the beginning of 1948 the different States in Kathia war were integrated into what is now the State of Saurash tra.
About that time different dacoits indulged in lawless activities in Kathiawar and in particular in the area now known as the districts of Gohilwad and Madhya Saurashtra and on the outskirts of Sorath that was formerly a district in Junagadh State.
Their activities gathered such strength and virulence that the security of the State and the maintenance of public peace became seriously endangered.
In order to check their nefarious activities the Rajpramukh of the State of Saurashtra on April 2, 1948, promulgated Ordinance No. IX of 1948.
The preamble of the Ordinance recited that 'it was "expedient to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra.
" that Ordinance gave power to the State Government to make orders, amongst other things, for detaining or restricting the movements or 468 actions of persons and impose collective fines.
The Rajpra mukh on April 5, 1948, promulgated another Ordinance No. XII of 1948 which extended to the State of Saurashtra the provi sions of the Code of Criminal Procedure (Act V of 1898) subject to certain adaptations and modifications mentioned in the Schedule thereto.
It appears from the affidavit of Ramnikrai Bhagwandas Vesavada, Assistant Secretary in the Home Department, Government of Saurashtra, that the Ordi nance was not sufficient to cope with the activities of the gangs of dacoits and that cases of looting, dacoity, rob bery, nose cutting and murder continued as before and indeed increased in number, frequency and vehemence and it became impossible to deal with the offences at different places in separate Courts of law expeditiously.
In view of the seri ous situation prevailing in those districts the State of Saurashtra considered it necessary to constitute Special Courts and to provide for a special procedure of trials so as to expedite the disposal of cases in which offences of certain specified kinds had been committed.
The Rajpramukh of Saurashtra accordingly, on November 2, 1949, promulgat ed Ordinance No. LXVI of 1949 called "The Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949", whereby it amended the Saurashtra State Public Safety Meas ures Ordinance (No. IX of 1948).
By section 4 of the Ordi nance No. LXVI of 1949 several sections were added to Ordi nance No. IX of 1948.
Three of the sections thus added, which are material for our present purposes, were sections 9, 10 and 11 which run as follows : "9.
Special Courts.
The Government of the United State of the Saurashtra may by notification in the Official Ga zette constitute Special Courts of Criminal Jurisdiction for such area as may be specified in the notification.
Special Judges.
The Government of the United State of Saurashtra may appoint a Special Judge to preside over a Special Court constituted under section 9 for any area any person who has been 469 a Sessions Judge for a period of not less than 2 years under the Code of Criminal Procedure, 1898, as applied to the United State of Saurashtra.
Jurisdiction of Special Judges.
A Special Judge shall try such offences or classes of offences or such cases or classes of cases as the Government of the United State of Saurashtra may, by general or special order in writing, direct.
" Pursuant to the provisions of the Ordinance as amended the State of Saurashtra issued a notification, the material part of which is as follows : "No. H/35 5 C In exercise of the powers conferred by sections 9, 10 and 11 of the Saurashtra State Public Safety Measures Ordinance, 1948, (Ordinance No. IX of 1948), here inafter referred to as the said Ordinance), Government is pleased to direct (i) that a Special Court of a Criminal Jurisdiction, (hereinafter referred to as the said Court) shall be consti tuted for the areas, mentioned in the schedule hereto an nexed, and that the headquarters of the said Court shall be at Rajkot, (ii) that Mr. P.P. Anand shall be appointed as a Spe cial Judge to preside over the said Court and (iii) that the Special Judge hereby appointed shall try the following offences, viz. . (a) offences under sections 183, 189, 190, 212, 216 224, 302, 304.
307,323 to 335, 341 to 344, 379 to 382 384 to 389 and 392 to 402 of the Indian Penal Code 1860 (XLV of 1860), as adapted and applied to the United State of Saurashtra, and (b) all offences under the said Ordinance, except an offence punishable under sub section (6) of section 2 of the said Ordinance, in so far as it relates to the contravention of an order made under clause (a) of subsection (1) of the said section.
" The appellant having been charged with offences included in the Notification he was tried by the Special Court with the result I have mentioned.
The preliminary objection raised on his behalf is that section 470 11 of the Ordinance is invalid in that (a) it offends against article 14 of our Constitution, and (b) it autho rises illegal delegation of legislative power to the State Government.
In support of the first ground on which the preliminary objection is rounded reliance is placed by learned coun sel for the appellant on the judgment of this Court in Case No. 297 of 1951 (The State of West Bengal vs Anwar Ali Sarkar).
That case was concerned with the validity of the trial of the respondent therein by a Special Court consti tuted under the provisions of the West Bengal Special Courts Act, 1950 (West Bengal Act X of 1950).
The preamble to that Act recited that it was "expedient to provide for the speedier trial of certain offences".
Sections 3, 4 and 5 (1) of the West Bengal Special Courts Act, 1950, reproduced substantially, if not verbatim, the provisions of sections 9, 10 and 11 of the Saurashtra Ordinance of 1948 as subse quently amended.
The notification issued by the State of West Bengal under that Act was, however, different from the notification issued by the State of Saurashtra in that the West Bengal notification directed certain specific "cases" to be tried by the Special Court constituted under the West Bengal Special Courts Act.
That notification had obviously been issued under that part of section 5 (1) of the West Bengal Special Courts Act which authorised the State Govern ment to direct particular "cases" to be tried by the Special Court.
A majority of this court held that at any rate section 5 (1) of the West Bengal Special Courts Act in so far as it authorised the State to direct "cases" to be tried by the Special Court and the notification issued thereunder offended against the provisions of article 14 of the Consti tution and as such were void under article 13.
The Saurash tra notification, however, has been issued quite obviously under that part of section 11 which authorises the State Government to direct "offences ' ', "classes of offences" or "classes of cases" to be tried by the Special Court and the question before us on the present appeal is whether that part of section 11 under 471 which the present notification has been issued offends against the equal protection clause of our Constitution.
It is contended that the opinion expressed by the majority of this Court in ' the West Bengal case on the corresponding part of section S (1) of the West Bengal Special Courts Act was not necessary for the purposes of that appeal and re quires reconsideration.
After referring to our previous decisions in Chiranjit Lal Choudhury vs The Union of India and Others (1) and The State of Bombay vs
F.N. Balsara (2), I summarised the meaning, scope and effect of article 14 of our Constitu tion, as I understand it, in my judgment in the West Bengal case which I need not repeat but to which I fully adhere.
It is now well established that while article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation.
In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classifi cation must be rounded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii)that that differ entia must have a rational relation to the object sought to be achieved by the Act.
What is necessary is that there must be a nexus between the basis of classification and the object of the Act.
It will be noticed that section 11 of the Saurashtra Ordinance, like section 5 (1) of the West Bengal Special Courts Act, refers to four distinct categories, namely, "offences", "classes of offences", "cases" and "classes of cases" and empowers the State Government to direct any one or more of these categories to be tried by the Special Court constituted under the Act.
The expressions "offences", "classes of offences" and "classes of cases" clearly indi cate and obviously imply a process of classification of offences or cases.
(1) ; (2) ; at p. 326 ; ; 61 472 Prima facie those words do not contemplate any particular offender or any particular accused in any particular case.
The emphasis is on "offences", "classes of offences" or "classes of cases.
" The classification of "offences" by itself is not calculated to touch any individual as such, although it may, after the classification is made, affect all individuals who may commit the particular offence.
In short, the classification implied in this part of the sub section has no reference to, and is not directed towards, the singling out of any particular person as an object of hostile State action but is concerned only with the grouping of "offences", "classes of offences" and "classes of cases" for the purposes of the particular legislation as recited in its preamble.
An argument was raised, as in the West Bengal ease, that even this part of the section gave an uncontrolled and unguided power of classification which might well be exer cised by the State Government capriciously or "with an evil eye and an unequal hand" so as to deliberately bring about invidious discrimination between man and man although both of them were situated in exactly the same or similar circumstances.
I do not accept this argument as sound, for, the reasons I adopted in my judgment in the West Bengal case in repelling this argument apply with equal, if not with greater, force to the argument directed against the validity of the Saurashtra Ordinance.
It is obvious that this part of section 11 of the Ordinance which, like the corresponding part of section 5 (1) of the West Bengal Special Courts Act, confers a power on the State Government to make a classifi cation of "offences", "classes of offences" or "classes of cases", makes it the duty of the State government to make a proper classification, that is to say, a classification which must fulfil both conditions, namely, that it must be based on some intelligible differentia distinguishing the offences grouped together from other offences and that that differentia must have a reasonable relation to the object of the Act as recited in the preamble.
A 473 classification on a basis which does not distinguish one offence from another offence or which has no relation to the object of the Act will be wholly arbitrary and may well be hit by the principles laid down by the Supreme Court of the United States in Jack Skinner vs Oklahoma(1).
On the other hand, as I observed in the West Bengal case, it is easy to visualise a situation when certain offences, by reason of the frequency of their perpetration or other attending circumstances, may legitimately call for a special treatment in order to check the commission of such offences.
Are we not familiar with gruesome crimes of murder, arson, loot and rape committed on a large scale during communal riots in particular localities and are they not really different from a case of a stray murder, arson, loot or rape in another district which may not be affected by any communal upheaval ? Does not the existence of the gangs of dacoits and the concomitant crimes committed on a large scale as mentioned in the affidavit filed on behalf of the State call for prompt and speedier trial for the maintenance of public order and the preservation of peace and tranquillity in the State and indeed of the very safety of the community ? Do not those special circumstances add a peculiar quality to the offences or classes of offences specified in the notifi cation so as to distinguish them from stray cases of similar crimes and is it not reasonable and even necessary to the State with power to classify them into a separate group and deal with them promptly ? I have no doubt to ' my mind that the surrounding circumstances and the special features mentioned in the affidavit referred to above furnish a very cogent and reasonable basis of classification, for they do clearly distinguish these offences from similar or even same species of offences committed elsewhere and under ordinary circumstanceS.
This differentia quite clearly has a reason able relation to the object sought to be achieved by the Act, namely, the maintenance of public order, the preserva tion of public safety, the peace and tranquillity of the State.
Such a classification (1) 216 U.S. 535; L. Ed. 1655.
474 will not be repugnant to the equal protection clause of our Constitution, for there will be no discrimination, for whoever may commit the specified offence in the specified area in the specified circumstances will be treated alike and sent up before a Special.
Court for trial under the special procedure.
Persons thus sent up for trial by a Special Court cording to the special procedure cannot point their fingers to the other persons who may be charged before an ordinary Court with similar offences alleged to have been committed by them in a different place and in different circumstances and complain of unequal treatment, for those other persons are of a different category and are not their equals.
In my judgment, this part of the section, properly construed and understood, does not confer an uncontrolled and unguided power on the State Government.
On the con trary, this power is controlled by the necessity for making a proper classification which is to be guided by the pream ble in the sense that the classification must have a ration al relation to the object of the Act as recited in the preamble.
It is, therefore, not an arbitrary power.
The Legislature has left it to the State Government to classify offences or classes of offences or classes of cases for the purpose of the Ordinance, for the State Government is in a better position to judge the needs and exigencies of the State and the Court will not lightly interfere with the decision of the State Government.
If at any time, however, the State Government classifies offences arbitrarily and not on any reasonable basis having a relation to the object of the Act, its action will be either an abuse of its power if it is purposeful, or in excess of its powers even if it is done in good faith, and in either case the resulting discrimination will encounter the challenge of the Constitu tion and the Court will strike down, not the law which is good, but the abuse or misuse or the unconstitutional admin istration of the law creating or resulting in unconstitu tional discrimination.
In this case, however, the facts stated in the affidavit filed on behalf of the State make it abundantly 475 clear that the situation in certain parts of the State was sufficient to add a particularly sinister quality to certain specified offences committed within those parts and the State Government legitimately grouped them together in the notification.
The criticism that the State Government in cluded certain offences but excluded certain cognate of fences has been dealt with by my learned brother Mukherjea and I have nothing more to add thereto.
In my opinion, lot reasons given in my judgment in the West Bengal case and referred to above, section 11 of the Saurashtra Ordinance in so far as it authorises the State Government to direct offences or classes of offences or classes of cases to be tried by the Special Court does not offend against the equal protection clause of our Constitu tion and the notification which has been issued under that part of the section cannot be held to be invalid or ultra vires.
On the question of delegation of legislative power the matter appears to be concluded by the decision of the Privy Council in Benoarilal 's case(1) and the section may well be regarded as an instance of conditional legislation.
Fur ther, I would be prepared to say, for reasons stated in my judgment in the President 's Reference(2) that there has been no illegal delegation of legislative power.
For reasons stated above, I agree that the preliminary point should be rejected and the appeal should be heard on its merits.
CHANDRASEKHARA AIYAR J. Mr.
Sen tried his best to distinguish this case from our decision on the West Bengal Special Courts Act, 1950, The State of West Bengal vs Anwari Ali Sarkar and Gajan Mali (3).
But in my view he has not succeeded in his attempt.
Sections 9 and 11 of the Ordinance in question do not lay down any classification in themselves.
The preamble to the earlier Ordinance of 1948, which is still intact as the later one is only an amending (1) L.R. 72 I.A. 57.
(3) Cases Nos. 297 & 298 of 1951.
Since (2) ; reported as ; 476 measure, merely refers to the need to provide for public safety, maintenance of public order, and the preservation of peace and tranquillity in the State of Saurashtra.
This by itself indicates no classification, as the object is a general one, which has to be kept in view by every enlight ened government or system of administration.
Every law dealing with the commission and the punishment of offences is based on this need.
The notification under which the Special Court was established no doubt deals with "offences" as distinguished from "cases" or "groups of cases," but here also, there is no rational classification.
Offences present ing the same characteristic features, and cognate in this sense, have been separately dealt with; some of them are to go before the Special Court, while others are left to be tried by the ordinary courts.
The circumstance that the deviations from normal procedure prescribed in the Ordinance are not so many or vital, as in the Bengal case, does not in nay humble opinion, affect the result, as the defect of the absence of a reasonable or rational classification is still there.
The negation of committal proceedings is a matter of much moment to the accused, as it deprives him of the un doubted advantage of knowing the evidence for the prosecu tion and discrediting it by cross examination, leading possibly to his discharge even at that early stage.
The argument for the respondent that there has been no discrimination as against the appellant visa vis other persons charged with the same offences is unacceptable.
Cognate offences have been left over for trial by the ordi nary courts.
It is no answer to the charge by A of discrim inatory legislation to say that B & C have also been placed in the same category as himself, when he finds that D, E & F also liable for the same or kindred offences have been left untouched and are to be tried by ordinary courts under the normal procedure.
Much importance cannot be attached to the affidavit of the Assistant Secretary to the Government.
It may be that all the facts stated by him as regards the frequency and locale of the particular 477 offences are true.
But no such grounds for the classifica tion are indicated, much less stated, either in the impugned Ordinance or notification.
This is certainly not a legal requirement; but a wise prudence suggests the need for such incorporation, as otherwise the ascertainment of the reasons for the classification from extraneous sources may involve the consideration of what may be regarded as after thoughts by way of explanation or justification.
In my. view, the West Bengal Special Courts Act deci sion governs this case also, and section 11 is bad.
It is unnecessary to deal with the other point raised by the learned counsel for the appellants as regards the dele gation of legislative powers involved in the pro tanto repeal of some of the provisions of the Criminal Procedure Code, viz., sections 5 and 28 and the Schedule, especially as it seems concluded against him by the decision in King Emperor vs Benoari Lal Sarma and Others(1).
The convictions of the appellant and the sentences imposed on him are set aside, and there will be a retrial under the ordinary procedure.
Boss J. I agree with my brothers Mahajan and Chandra sekhara Aiyar that the Saurashtra State Public Safety Meas ures (Third Amendment) Ordinance, offends article 14.
As I explained in my judgment in The State of West Bengal vs Artwar Ali Sarkar(2), I prefer not to base my decision on the classification test.
For the reasons given there I am of opinion that the differentiation here travels beyond.
bounds which are legitimate.
It is true the points of differentiation are not as numerous here as in the other case but the ones which remain are, in my judgment, of a substantial character and cut deep enough to attract the equality clauses in article 14.
I would hold the Ordinance invalid.
Preliminary objection overruled.
(1) (1945) 72 I.A. 57.
| The Saurashtra State Public Safety Measures Ordinance, 1948, was passed "to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra.
" As crimes involving violence such as dacoity and murder were increasing, this Ordinance was amended by the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, which, by secs.
9, 10 and 11, empowered the State Government by notification in the official gazette to constitute Special Courts of criminal Jurisdiction for such area as may be specified in the noti fication, to appoint Special Judges to preside over such Courts and to invest them with jurisdiction to try such offences or classes of offences or such eases or classes of cases as the Government may, by general or special order in writing, direct.
The procedure laid down by 436 the Ordinance for trial before such Courts varied from the normal procedure prescribed by the Criminal Procedure Code in two material respects, viz., there was no provision for trial by jury or with the aid of assessors, or for enquiry before commitment to sessions.
In exercise of the powers conferred by this Ordinance the Government, by a notifica tion, constituted a Special Court for certain areas and empowered that Court to try offences under sees.
183, 189, 302, 304, 307, 392 and certain other sections of the Indian Penal Code which were specified in the notification.
It was contended on behalf of the appellant who had been convicted by the Special Court under secs.
302, 307 and 392 of the Indian Penal Code read with sec.
34, that the Ordi nance of 1949 and the notification above mentioned contra vened article 14 of the Constitution and were therefore ultra vires and void: Held, per PATANJALI SASTRI C.J, FAZL ALI, MUKHERJEA and DAS JJ. (MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR and Bose JJ.
dissenting) That the impugned Ordinance in so far as it authorised the State Government to direct offences or class es of offences or classes of cases to be tried by the Spe cial Court did not contravene the provisions of article 14 and was not ultra vires or void.
The notification issued under the Ordinance was also not void.
PATANJALI SASTRI C.J.
All legislative differentation is not necessarily discriminatory.
Discrimination involves an element of unfavourable bias, and it is in that sense that the expression has to be understood in the context.
Equal protection claims under article 14 are examined with the presumption that the State action is reasonable and.
justi fied.
Though differing procedures might involve disparity in treatment of persons tried under them, such disparity is not.
in itself sufficient to outweigh this presumption and establish discrimation unless the degree of disparity goes beyond what the reason for its existence demands, e.g., when it amounts to a denial of a fair and impartial trial.
The impugned Ordinance having been passed to combat the increas ing tempo of certain types of regional crime, the two fold classification on the lines of type and territory adopted by the said Ordinance read with the notification issued there under was reasonable, and the degree of disparity of treat ment involved was in no way in excess of what the situation demanded.
While on the one hand it cannot be said that any variation of procedure which operates materially to the disadvantage of the accused is discriminatory and violates article 14, the other extreme view that article 14 provides no further constitutional protection to personal liberty than what is afforded by article 21 is also wrong, FAZL ALI J. A distinction must be drawn between "dis crimination without reason" and "discrimination with reason" 437 The whole doctrine of classification is based on this dis tinction and on the well known fact that the circumstances which govern one set of persons or objects may not neces sarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances.
The clear recital of a definite objective in the earlier Ordinance and the impugned Ordinance which amended it, furnished a tangi ble and rational basis of classification and the Ordinance and the notification did not violate article 14.
[The Legisla ture should however have recourse to legislation like this only in very special circumstances.] MUKHERJEA J. Where the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation.
In such cases, the power given to the execu tive body would import a duty on it to classify the subject matter of legislation in accordance with the objective indicated in the statute.
If the administrative body pro ceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can certainly be annulled as offending against the equal protection clause.
The preamble of the main Ordinance (IX of 1948) taken along with the surrounding circumstances disclosed a defi nite legislative policy and objective, and the impugned Ordinance cannot therefore be held to be unconstitutional merely because it vested in the Government the authority to constitute Special Courts and to specify the classes of,offences to be tried by such courts with a view to achieve that objective.
The notification issued by the Government was also not void as it did not proceed on any unreasonable or arbitrary basis but on the other hand there was a reasonable relation between the classification made b.y the notification and the objective that the legislation had in view.
Though it is a sound and reasonable proposition that when the nature of two offences is intrinsically the same and they are punishable in the same manner, a person accused of one should not be treated differently from a person accused of the other, yet in determining the reach and scope of a particular legislation it is not necessary for the legislature to provide abstract symmetry.
A too rigid insistence on anything like scientific classification is neither practicable nor desirable.
DAS J. The relevant part of sec.
11 properly construed and understood does not confer an uncontrolled and unguided power on the State Government; on the contrary, the power is controlled by the necessity of making a proper classifi cation 438 which is to be guided by the preamble in the sense that the classification must have a rational relation to the object of the Ordinance as recited in the preamble.
The classifica tion effected by the impugned Ordinance and the notification thus satisfied the two conditions necessary for a valid classification, viz., that it must not be arbitrary but must be rounded on an intelligible differentia, and that differ entia must have a rational relation to the object sought to be achieved by the Act.
The Ordinance and the notification did not therefore contravene article 14 of the Constitution.
MAHAJAN J. Section 11 of the Ordinance suggests no reasonable basis for classification either in respect of offences or in respect of cases, nor has it laid down any measure for the grouping either of persons or of cases or of offences, by which measure these groups could be distin guished from those outside the purview of the Ordinance.
The words used in the preamble to the main Ordinance and the fact that sec.
9 of the impugned Ordinance provides that the power can be exercised for any particular area cannot limit the plain and unambiguous language of sec.
11, and the said section is therefore unconstitutional.
CHANDRASEKHARA AIYAR J. Sections 9 and 11 do not lay down any classification.
The preamble to the earlier Ordi nance also indicates no classification as the object stated there is a general one which has to be kept in view by every enlightened Government or system of administration.
The classification adopted in the notification also is not a rational one.
BOSE J.
The differentiation effected by the impugned Ordinance and the notification issued thereunder travels beyond bounds which are legitimate and the Ordinance there fore offends article 14 and is invalid.
Held also, per curiam, that the Ordinance was not in valid on the ground that it involved delegation of legisla tive powers.
The State of West Bengal vs Anwar Ali Sarkar ([1952] S.C.R. 284), In re , etc.
([1951] S.C.R. 7471 and King Emperor vs Benoarilal Sarma [72 I.A. 57] referred to.
|
ivil Appeal No. 143 of 1951.
Appeal by special leave from the judgment and decree dated 23rd March, 1950, of the High Court of Judicature at Patna (Reuben and Jamuar JJ.) in appeal from Original Decree No. 206 of 1946 arising out of a decree dated 31st January, 1946, of the Subordinate Judge at Patna in Title Suit No. 55/4 of 1943 45.
Saiyid Murtaza Fazl Ali for the appellants.
N.C. Chatterjee (A. N. Sinha, with him)for the respond ents Nos. 1 to 9.
B.K. Saran for the respondents Nos.
11 to 16.
April 14.
The Judgment of the Court was deliv ered by CHANDRASEKHARA AIYAR J.
This is an appeal by the defendants from a decree of the Patna High Court reversing a decree of the Subordinate Judge 's Court at Patna, and de creeing the plaintiffs ' suit for possession against the defendant first party who may be called for the sake of convenience as 'the Gopes '.
The lands were khudkhasht lands, partly belonging to the plaintiffs first party and partly belonging to Mussammat Anaro Kuer, from whom the plaintiffs second and third par ties trace title.
The ancestors of plaintiffs first party gave on 28 9 1899 an ijara with possession to one Lakhandeo Singh an ancestor of the defendant second party under Exhib it I (b) for a term 777 of six years from 1307 Fasli to 1312 Fasli for Rs. 540.
The poshgi money was to be repaid in one lump sum at the end of Fasli 1312.
If there was no redemption then the ijara was to continue in force till the money was repaid.
Mussammat Anaro Kuer gave her share in ijara to the same Lakhandeo Singh orally on 10th June, 1905, for a period of three years for Rs. 542.
Lakhandeo Singh, who is represented now by the defendant second party, made a settlement of the land thus got by him (8.26 acres or 13 bighas in all) with one Ram Lal Gope an ancestor of the defendant first party for a period of three years from Fasli 1315 to Fasli 1318.
There was a patta in favour of the tenant and a kabuliyat in favour of the landlord.
This was in 1908.
The mortgage was redeemed in June 1942 by payment in proceedings under section 83 of the Transfer of Property Act, When the plaintiffs went to take possession, they were resisted by the Gopes (defendant first party), and after unsuccessful criminal proceedings, the plaintiffs filed the present suit.
The Subordinate Judge dismissed it, holding that the Gopes were raiyats having acquired permanent occupancy rights in the lands as the result of the settlement by the mortgagee, Lakhandeo Singh.
On appeal the High Court set aside this decision and gave the plaintiffs a decree for possession on the finding that the defendants were not raiyats and had no permanent rights of occupancy.
This court granted to the defendants special leave to appeal.
The suit was in the alternative for recovery of the value of the lands as compensation or damages from the defendant second party in case it was found that the defendant first party could not be ejected.
The trial court decreed this alternative claim and awarded to the plaintiffs compensation at the rate of Rs. 200 per bigha.
The defendant second party carried the matter in appeal to the High Court and succeeded.
But we have nothing to do with this matter in the present appeal.
At the trial, the plaintiffs alleged and maintained that the lands were their zirat lands within the meaning SUPREME 778 of section 116 of the Bihar Tenancy Act and that the defend ant first party could acquire no rights of occupancy in the same.
The Subordinate Judge found against this contention and held that they were khud kasht or bakasht lands of the proprietor, in which rights of occupancy can be acquired He negatived the plea of the defendants that they were their ancestral raiyati lands.
He also held that there was no collusion between the mortgagee Lakhandeo Singh and Ram Lal Gope in the matter of settlement of lands.
It is on the basis of these findings which were accepted by both the parties that the hearing of the appeal proceeded before the High Court.
It was held by the Privy Council in Bengal Indigo Company vs Roghobur Das(1) that "a zuripeshgi lease is not a mere contract for the cultivation of the land at a rent, but is a security to the tenant for the money advanced".
They observed, speaking of the leases before them, that "the leases in question were not mere contracts for the cultiva tion of the land let; but that they were also intended to constitute, and did constitute, a real and valid security to the tenant for the principal sums which he had advanced, and interest thereon.
The tenants ' possession under them was, in part at least, not that of cultivators only, but that of creditors operating repayment of the debt due to them, by means of their security.
" These words apply to the ijara deed before us; its dominant intention was to provide a security for the loan advanced and not to bring into existence any relationship of landlord and ten ant.
The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has.
A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termina tion of his interest as mortgagee.
Further, the mortgagee, who takes possession of the mortgaged property, must manage it as a person of ordinary prudence would manage it if it were his own; and he must not commit any act which is de structive (1) 779 or permanently injurious to the property; see section 76, sub clauses (a) & (e)of the Transfer of Property Act.
It follows that he may grant leases not extending beyond the period of the mortgage; any leases granted by him must come to an end at redemption.
A mortgagee cannot during the subsistence of the mortgage act in a manner detrimental to the mortgagor 's interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the land thereby defeating the mortgagor 's right to khas possession; it would be an act which would fall within the provisions of section 76, subclause (e), of the Transfer of Property Act.
A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is a different matter altogether.
It is an exception to the general rule.
The tenant cannot be ejected by the mortgagor even after the redemption of the mortgage.
He may become an occupancy raiyat in some cases and a non occupancy raiyat in other cases.
But the settle ment of the tenant by the mortgagee must have been a bona fide one.
This exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication.
Where all the zamindari rights are given to the mortga gee, it may be possible to infer on the proper construction of the document that he can settle lands with tenants in the ordinary course of management and the tenants might acquire certain rights in the land in their capacity as tenants.
In the case of Manjhil Lal Biswa Nath Shah Deo vs Shaikh Mo hiuddin(1), there was a bona fide settlement of mortgaged rayati land by the mortgagee with tenants and it was held that the mortgagor was not entitled to evict them after redemption.
The earlier decision of Babu Bhairo Nath Ray vs Shanke Pahan(2), related to bakasht lands, and (1) (2) Pat.31.
780 there was no provision in the zuripeshgi lease restricting the power of the mortgagee lessee as regards settlement of tenants.
Khudkasht lands and bakasht lands are really in the nature of raiyati lands which come into the possession of the proprietor by surrender, abandonment or purchase.
In the present case.
we have the following clause in the ijara deed: "It is desired that the ijaradar should enter into possession and occupation of the share let out in ijara (being the khudkasht land under his own cultivation), culti vate them, pay 2 annas as reserved rent year after year to us, the executants, and appropriate the produce thereof year after year on account of his having the ijaradari interest.
" This term disentitles the mortgagee from locating tenants on the land mortgaged.
Ram Lal Gope, the grandfather of the defendants first party, who executed the kabuliat in 1908 must have known of the title of Lakhandeo Singh the mortga gee and the terms under which he held the lands under the registered zuripeshgi ijara deed and this is most probably why the tenant not only took the lease for a period of 3 years, but expressly undertook to give up possession over the thika lands on the expiry of the period of lease without urging any claim on the score that the lands were his old kasht lands.
His kabuliat (Exhibit 11) in fact refers to Lakhandeo Singh 's ijaradari interest.
In view of these facts, the learned Judges of the High Court stated that they were not prepared to hold that the settlement was a bona fide one or the mortgagee was within his rights in settling these lands.
Strong reliance was placed for the appellants on the Full Bench decision Binad Lal Pakrashi and Others vs Kalu Pramanik and Others (1) where it was held that a person inducted into possession of land as a raiyat even by a trespasser became a non occupancy raiyat within the meaning of section 5, sub section, 2 of the Bengal Tenancy Act and was protected from ejectment.
But this decision has been subsequently (1) Cal.
781 explained away in several cases as based on the proposition that the rights must have been bona fide acquired by them from one whom they bona fide believed to ' have the right to let them into possession of the land.
Such, however, is not the case here, in view of the recitals in the ijara deed in favour of Lakhandeo Singh and the kabuliat by Ram Lal Gope.
Sections 20 and 21 of the Bihar Tenancy Act were re ferred to by the learned counsel for the appellants in the course of his arguments and he pointed out that the land in this case was held ' continuously by his clients and their predecessors from 1908 to 1942, when they were sought to be ejected.
For these sections to apply, we must be in a position to hold that the appellants were "settled raiy ats".
"Raiyals" is defined in sub clause 2 of section 5 as meaning "primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family . " Sub clause 3 provides that a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure holder.
Lakhandeo Singh was not a "proprie tor" by which term is meant a person owning, whether in trust or for his own benefit, an estate or part of an es tate: he was only a mortgagee.
Nor was he a tenure holder or under tenureholder, as he does not comply with the defi nition given in sub clause (1) of section 5, namely, a person who had acquired from a proprietor or from another tenure holder a right to hold land for the purpose of col lecting rents, or for the purpose of bringing the land under cultivation by establishing tenants on it.
Such proof as there is in this case only goes to show that the lands were under the cultivation of the plaintiffs and that they were made over to the possession of the mortgagee so that he might cultivate them himself.
Hence, Ram Lal Gope could not claim that he was a settled raiyat of the village and that under the statute he secured occupancy rights in the lands Which he took on lease from Lakhandeo Singh.
782 Lastly, it was urged that the ijara by Mst.
Anaro Kuer was admittedly an oral transaction and there was no proof of any prohibition against the settlement with tenants so far as her share (3.97 acres) was concerned and that the rights of the parties as regards this area would stand on a differ ent footing from the rights in respect of the 4 acres and 29 cents belonging to the plaintiff first party.
This point was not taken in the courts below where the two ijaras given to Lakhandeo Singh were dealt with as if they were part and parcel of one and the same transaction, the rights and liabilities, whatever they were, being common to both.
We cannot allow the point to be taken now.
The result is that the High Court 's decree is con firmed and the appeal is dismissed with costs of the plain tiffs respondents.
There will be no order as to costs of the other respondents.
Appeal dismissed.
Agent for the respondents Nos.
1 to 9: M.M. Sinha.
Agent for the respondents Nos. 11 to 16: K.L. Mehta.
| As a general rule a person cannot transfer or otherwise confer a better title on another than he himself has and a mortgagee cannot therefore create an interest in mortgaged property which will enure beyond the termination of his interest as mortgagee.
Further, a mortgagee cannot during the subsistence of the mortgage act in a manner detri mental to the mortgagor 's interests, such as by giving a lease which may enable the tenant to acquire permanent occupancy rights in the land, thereby defeating the mortga gor 's right to khas possession.
A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is an exception to the general rule, but to fall within this exception the settlement of the tenant by the mortgagee must have been a bona fide one.
The exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settle ment of tenants on the land either expressly or by necessary implication.
Where a zuripeshgi ijara deed contained the following clause: "It is desired that the ijaradars should enter into possession and occupation of the share let out in ijara (being the kkudkasht land under his own cultivation), culti vate them, pay 2 as.
as reserved rent year after year to us, the executants, and appropriate the produce thereof year after year on account of his having the ijara interest" and the kabuliat executed by the tenant to whom the lands were leased by the mortgagee for a period of 3 years referred to the ijara deed and contained an express provision that he (the tenant) would give up possession of the tika land on the expiry of the lease without urging any claim on the score that the lands were his kasht lands: Held, confirming the decision of the High Court, that the settlement was not a bona fide one and the successors of the tenant (the de fendants) did not acquire permanent rights of occupancy in 101 776 the demised lands under the Bihar Tenancy Act even though the lands had been in the occupation of the tenant and his successors for over 30 years after the expiry of the lease.
Held further, that the defendants could not acquire occupancy rights under sections 20 and 21 of the Bihar Tenancy Act as the mortgagee was neither a "proprietor" nor a "tenure holder" or "under tenure holder" and the tenant and his successors were not, therefore, "settled raiyats" within the meaning of section 5, cl.
(2), of the said Act.
Manjhil Lal Biswanath Shah Deo.
vs Shaikh Mohiuddin (I.L.R. Babu Bairo Nath Ray vs
Shanke Pahan (I.L.R. 8 Pat.
31) and Binda Lal Pakrashi and Others vs Kalu Pramanik and Others (I.L.R. distinguished.
|
ON: Criminal Appeal No. 22 of 1950.
Appeal from the judgment and order dated 29th June, 1950, of the High Court of Judicature at Simla (Weston C.J. and Khosla J.) in Criminal Appeal No. 432 of 1949 arising out of a judgment dated 5th August, 1949, of the Court of the Additional Sessions Judge, Amritsar, in Ses sions Trial No. 7 of 1949 and Case ' No. 8 of 1949.
Jai Gopal Sethi (R. L. Kohli, with him) for the appel lants.
Gopal Singh for the State.
March 21.
The Judgment of the Court was delivered by FAZL ALl J.
The three appellants were tried by the Additional Sessions Judge at Amritsar and found guilty of having murdered two persons named Darshan Singh and Achhar Singh and sentenced to transportation for life.
The High Court of Punjab upheld their 841 conviction and sentence and granted them a certificate under article 134(1)(c)of the Constitution that the case is a fit one for appeal to this Court.
Hence this appeal.
The facts of the case may be briefly stated as follows.
On the evening of 16th December, 1948, a little before sunset, Achhar Singh, one of the murdered persons, went to the house of one Inder Singh in village Dalam for getting paddy husked.
Achhar Singh 's brother, Darshan Singh, who was working as a driver at Amritsar, came to Dalam from Amritsar the same evening, and, on coming to know from his father that Achhar Singh had gone to Inder Singh 's house, he also went there.
while the two brothers were returning home, they were attacked by the three appellants and two of their relatives in a lane adjoining Inder Singh 's house.
The five assailants, who were armed with deadly weapons, in flicted a number of injuries on the two victims, as a result of which they died then and there.
After the murder, the appellants and their companions tied the two dead bodies in two kheses (wrappers) and took them to village Saleempura where two other persons, named Ajaib Singh and Banta Singh, joined them, and the dead bodies after being dismembered were thrown into a stream known as Sakinala at a place about five miles from village Dalam.
Bela Singh, father of the deceased persons, who was one of the persons who claims to have witnessed the occurrence, did not leave the village at night on account of fear, but he started about two hours before sunrise on the next morning and lodged the first information report at 10 A.M. at the nearest police station.
A police officer arrived in village Dalam shortly after wards, and after investigation a charge sheet was submitted against seven persons including the present appellants.
At the trial, five of the accused were charged with offences under section 302 read with section 149 and under section 201 read with section 149 of the Indian Penal Code.
and the remaining two accused were charged with the offence under section 201 read with section 149 of that Code.
The learned Judge who tried 842 the accused, convicted the appellants and two other persons under section 302 read with section 149 of the Penal Code and sentenced them to transportation for life, and convicted Ajaib Singh under section 201 read with section 149 and sentenced him to three years ' R.I. Bantu Singh, accused, was acquitted.
On appeal, the Punjab High Court upheld the conviction of the present appellants and acquitted the remaining three persons.
Before proceeding to discuss the evidence in the case, it is necessary to refer to what has been.
described as the motive for the murder.
It appears that in June, 1947, Natha Singh, father of the third appellant, Swaran Singh, was murdered, and Darshan Singh and Achhar Singh, the two mur dered persons in the case before us, and their third broth er, Sulakhan Singh, were charged with the murder of that person.
As a result of the trial, Darshan Singh was acquit ted and Achhar Singh was sentenced to 11/2 years ' R.I., while Sulakhan Singh was sentenced to 7 years ' R.I.
The judgment of the Sessions Judge in that case was delivered shortly before the date of the present occurrence, and it is common ground that Achhar Singh had been released on bail by the appellate court and was at large at that time.
It is said that the appellants and their relatives felt aggrieved by the acquittal of Darshan Singh and by the light sentence passed on Achhar Singh, and therefore committed this murder in a spirit of frustration and revenge.
It was conceded before us by the learned counsel for the appellants that the facts stated above constituted a strong motive for the murder, but he also contended that they constituted an equally strong motive for the appellants being falsely implicated in case the murder was committed, as was suggest ed by him, in circumstances under which the murderers could not be seen or identified.
It therefore becomes necessary to set out the evidence adduced by the prosecution in support of the murder.
The evidence led by the prosecution may be divided under two main heads : (1) Direct evidence, and(2) Circumstantial evidence.
The direct evidence consists 843 of the testimony of four eye witnesses, namely, Bela Singh, father of the deceased, who claims to have gone to the scene of occurrence on hearing an outcry and to have witnessed the murderous assault on his sons; Inder Singh and his wife, Mst.
Taro, to whom the murdered persons had gone for getting paddy husked and who lived in a house adjoining the lane where the murder took place; and Gurcharan Singh, a resident of a different village, who states that he saw the occur rence when he was going towards village Dhadar on a cycle.
The circumstantial evidence in the case, on which the High Court has relied, may be briefly summarised as follows : (1) The second appellant, Massa Singh, who was arrested on the 18th December, 1948, was wearing a pyjama stained with human blood.
(2) The third appellant, Swaran Singh, who was arrested on the 18th December, 1948, took the police on the 19th December to his haveli which was locked, and, on opening it two kheses (wrappers) which were stained with human blood were recovered.
(3) Swaran Singh pointed out a spot on the way to Saki nala, where the two dead bodies were placed for a short time while they were being taken to Sakinala, and the police scrapped blood stained earth from that spot.
He also led the police to the bank of Sakinala and pointed out the trunk of the body of Darshan Singh which was lying in the nala.
(4) Lachhman Singh, who was arrested on the 28th Decem ber, 1948, pointed out a dilapidated khola near Sakinala where 3 spears, one kirpan and a datar, all stained with human blood, were recovered.
The learned Sessions Judge, who heard the evidence, seems to have been impressed by the evidence of the eye witnesses, and he has summed up his conclusion in these words : "This evidence was so consistent, so reliable, and of such nature that in my opinion it is definitely established that the five accused Lachhman Singh, Katha 844 Singh, Massa, Singh, Charan Singh and Swaran Singh are proved to have actually murdered both Darshan Singh and Achhar Singh.
This fact is further proved from subsequent events as deposed by P.W. 8 Bahadur Singh and P.W. 9 Gian Singh and P.W. 11 Bhagwan Singh.
These witnesses had wit nessed the various recoveries in this case which were made at the instance of all the accused.
" The learned Judges of the High Court, though they re pelled most of the criticisms levelled against the witness es, ultimately came to the conclusion that "in all the circumstances (of the case) it would be proper not to rely upon the oral evidence implicating particular accused unless there is some circumstantial evidence to support it".
Having laid down this standard, they examined the circum stantial evidence against each of the accused persons and upheld the conviction of the three appellants on the ground that the circumstantial evidence, to which reference has been made, was sufficient corroboration of the oral evi dence.
The case of the appellants was argued at great length by Mr. Sethi, who appeared for them, and everything that could possibly be said in their favour was urged by him with great force and clarity.
Proceeding, however, upon the principles laid down by this court, circumscribing the scope of a criminal appeal after the case has been sifted by the trial court and the High Court, it seems to us that the question involved in the present appeal is a short and simple one.
According to our reading of the judgment of the High Court, the learned Judges, who dealt with the case, did not condemn the oral evidence outright, but, as a matter of prudence and caution, they decided not to convict an accused person unless there were some circumstances to lend support to the evidence of the eye witnesses with regard to him.
It is quite clear on reading the judgment that the corroboration which the learned judges required to satisfy themselves was not that kind of corroboration which one requires in the case of the evidence of an approver or an accomplice, 845 but corroboration by some circumstances which would lend assurance to the evidence before them and satisfy them that the particular accused persons were really concerned in the murder of the deceased.
Judged by this standard, which it was open to them to prescribe, it seems to us that the case of each of the appellants clearly fell within the rule which they had laid down for their own guidance.
The comment of the learned counsel for the appellants with regard to the blood stained pyjama which was recovered from Massa Singh was, firstly, that it was not possible to gather from the evidence the extent of the blood stains, and secondly that it would be highly improbable that this ac cused person would be so reckless as to continue to wear a blood stained pyjama after having perpetrated the crime.
This criticism has been considered by the courts below, and it does not appear to us to be of such a nature as to affect the conclusion arrived at by them.
As to the recovery of blood stained weapons at the instance of Lachhman Singh, it was urged that the entire evidence with regard to this recovery should be discarded, as the police investigation in the case was not a straightforward one but was conducted in such a way as to raise suspicion that the police were delib erately trying to create some evidence of recovery against each of the accused persons.
It is sufficient to say that it is not the function of this court to reassess evidence and an argument on a point of fact which did not prevail with the courts below cannot avail the appellants in this court.
The comment against the discoveries made at the instance of Swaran Singh was that they are not admissible in evidence under section 27 of the Indian Evidence Act, which provides "When any fact is deposed to as discovered in conse quence of information received from a person accused of an offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as ' relates distinctly to the fact there.
by discovered, may be proved," 846 The main facts which it is necessary to state to under stand the argument on this point, may be summed up as fol lows : According to the prosecution, all the three accused, namely, Katba Singh, Massa Singh and Swaran Singh, were interrogated by the police on the morning of the 19th Decem ber, 1948, and they made certain statements which were duly recorded by the police.
In these statements, it was disclosed that the dead bodies were thrown in the Sakinala.
Thereafter, the police party with the three accused went to Sakinala where each of them pointed out a place where dif ferent parts of the dead bodies were discovered.
The learned counsel for the appellants cited a number of rulings in which section 27 has been construed to mean that it is only the information which is first given that is admissible and once a fact has been discovered in conse quence of information received from a person accused of an offence, it cannot be said to be re discovered in conse quence of information received from another accused person.
It was urged before us that the prosecution was bound to adduce evidence to prove as to which of the three accused gave the information first.
The head constable, who record ed the statements of the three accused has not stated which of them gave the information first to him, but Bahadur Singh, one of the witnesses who attested the recovery memos, was specifically asked in cross examination about it and stated: "I cannot say from whom information was got first".
In the circumstances, it was contended that since it cannot be ascertained which of the accused first gave the informa tion, the alleged discoveries cannot be proved against any of the accused persons.
It seems to us that if the evidence adduced by the prosecution is found to be open to suspicion and it appears that the police have deliberately attributed similar confessional statements relating to facts discovered to different accused persons, in order to create evidence against all of them, the case Undoubtedly demands a most cautious approach.
847 But as to what should be the rule when there is clear and unimpeachable evidence as to independent and authentic statements of the nature referred to in section 27 of the Evidence Act, having been made by several accused persons, either simultaneously or otherwise, all that we wish to say is that as at present advised we are inclined to think that some of the eases relied upon by the learned counsel for the appellants have perhaps gone farther than is warranted by the language of section 27, and it may be that on a suitable occasion in future those cases may have to be reviewed.
For the purpose of this appeal, however, it is sufficient to state that even if the argument put forward on behalf of the appellants.
which apparently found favour with the High Court, is correct, the discoveries made at the instance of Swaran Singh cannot be ruled out of consideration.
It may be that several of the accused gave information to the police that the dead bodies could be recovered in the Sakinala, which is a stream running over several miles, but such an indefinite information could not lead to any discov ery unless the accused followed it up by conducting the police to the actual spot where parts of the two bodies were recovered.
From the evidence of the head constable as well as that of Bahadur Singh, it is quite clear that Swaran Singh led the police via Salimpura to a particular spot on Sakinala, and it was at his instance that blood stained earth was recovered from a place outside the village, and he also pointed out the trunk of the body of Darshan Singh.
The learned judges of the High Court were satisfied, as appears from their judgment, that his was "the initial pointing out" and therefore the case was covered even by the rule which, according to the counsel for the appellants, is the rule to be applied in the present case.
The learned counsel for the appellants pointed out that the doctor who performed the post mortem examination of the corpses, found partially digested rice in the stomach of the two deceased persons, and he 110 848 urged that from this it would be inferred that the occurrence must have taken place sometime at night after the deceased persons had taken their evening meals together.
This argument again raises a question of fact which the High Court has not omitted to consider.
It may however be stated that a reference to books on medical jurisprudence shows that there are many factors affecting one 's digestion, and cases were cited before us in which rice was not fully digested even though considerable time had elapsed since the last meal was taken.
There are also no data before us to show when the two deceased persons took their last meal, and what article of food, if any, was taken by them along with rice.
The finding of the doctor therefore does not neces sarily affect the prosecution case as to the time of occur rence.
It was also contended that there being no charge under section 302 read with section 34 of the Indian Penal Code, the conviction of the appellants under section 302 read with section 149 could not have been altered by the High Court to one under section 302 read with section 34, upon the acquit tal of the remaining accused persons.
The facts of the case are however such that the accused could have been charged alternatively, either under section 302 read with section 149 or under section 302 read with section 34.
The point has therefore no force.
In our opinion, there is no ground for interfering with the judgment of the courts below, and we accordingly dismiss this appeal and uphold the conviction and sentence of the appellants.
We however wish to endorse the opinion of the High Court that having regard to the gruesome nature of the crime, the sentence imposed by the Additional Sessions Judge was inappropriate and his reasons for imposing the lighter penalty are wholly inadequate.
Appeal dismissed.
Agent for the appellant : R.N. Sachthey.
| Three persons K, M and S, who were accused of murder made statements to the police which disclosed that the dead bodies after being dismembered were thrown into a stream and the police party thereafter went with the three accused to the stream where each of them pointed out a place where different 109 840 parts of the dead bodies were discovered.
It was contended on behalf of the accused that it was only the information which was first given that was admissible under sec.
27 of the Evidence Act, that once a fact has been discovered in consequence of information received from a person accused of an offence, it cannot be said to be re discovered in consequence of information received from another accused person, and that in the absence of evidence to show which of the accused first gave the information the discoveries alleged cannot be proved against any of the accused persons: Held, that, even assuming that this argument was correct, as it appeared from the evidence that S led the police to a particular spot on the stream and it was at his instance that some blood stained earth was recovered from a place outside the village and he had also pointed out the trunk of one of the dead bodies, and the High Court was satisfied that there was an "initial pointing out" by S, the case was covered by the rule and the evidence as to the discoveries was admissible.
With regard to the rule applicable to cases where there is clear and unimpeachable evidence as to independent and authentic statements of the nature referred to in sec.
27 of the Evidence Act having been made by several accused persons either simultaneously or otherwise, some of the decided cases have gone further than is warranted by the language of sec.
27 of the Evidence Act and may have to be reviewed on a future occasion.
|
Civil Appeal No. 163 of 1951.
Appeal by special leave from the Judgment dated the 10th April.
1951, of the High Court of Judicature for the State of Punjab at Simla (Kapur J.) in Civil Revision No. 286 of 1950 arising out of Order dated the 24th March, 1950, of the Court of Subordinate Judge, 1st Class, Delhi, in an Application under Section 33 of Indian Arbitration Act, X of 1940.
Rattan Lal Chawla (K. N. Agarwal, with him) for the appellant.
Som Nath Chopra for the respondent.
February 25.
The Judgment of the court was deliv ered by FAZL ALI J.
This is an appeal by special leave against the judgment of the Punjab High Court upholding the decision of a Subordinate Judge of Delhi relating to a petition filed by the appellant company under section 33 of the Indian Arbitration Act against the respondents, 503 The material facts are these.
On the 22nd April, 1947, the appellant company insured a car belonging to the first respondent and issued a policy which fully sets out the terms and conditions of the agreement relating to the insur ance.
The first respondent left his car in a garage at Lahore and came away to India on the 31st July, 1947.
Subsequently, he learned about the loss of his car, and sent a legal notice dated the 18th March, 1948, through his advocate Mr. A.R. Kapur to the Head Office of the company at Calcutta, claiming a sum of Rs. 7,000 for the loss of the car.
On the 10th April, 1948, Mr. Kapur received a letter from the Branch Manager of the Company 's office at Amrit sar asking for information regarding certain matters stated in the letter.
This information appears to have been sup plied on the 30th April, 1948.
On the 26th May, 1948, the company 's Branch Manager at Amritsar wrote to the first respondent repudiating the liability of the company for the loss of the car on the ground that the loss was "due to communal riots which were going on in the whole of Punjab" and was not covered by the agreement of insurance.
A simi lar letter was written again by the Branch Manager on the 3rd July, 1948, to the first respondent, and another letter was written by one Mr. Rattan Lal Chawla representing him self to be counsel for the company, to Mr. A.R. Kapur, on the 1st August, 1948.
On the 21st November, 1949, the first respondent wrote a letter to the Branch Secretary of the Company 's office at Calcutta, stating that his claim was valid and nominating Mr. T.C. Chopra, Assistant Manager, Lakshmi Insurance Company Ltd., Delhi, as arbitrator on his behalf and requesting the company to appoint another person as arbitrator on its behalf.
Thereafter, the company pre sented an application on the 29th December, 1949, in the court of the Senior Sub judge, Delhi, under section 33 of the Indian Arbitration Act, against the first respondent and Mr. T.C. Chopra, the arbitrator, who is the second respond ent in this appeal, praying for 504 (1) a declaration to the effect that the reference to arbitration and the appointment of respondent No. 2 as sole arbitrator was illegal; (2) a declaration to the effect that if the respondent No. 2 made any award it would not be binding on the company;and (3) an injunction restraining the respondents Nos. 1 and 2 from taking any proceeding in the matter and the respond ent No. 2 from making any award.
Upon this petition, notice was issued to the respond ents, and an injunction was issued directing them not to file any award till the date of the next hearing, which was fixed for 31st January, 1950.
On the 4th February, 1930, the first respondent wrote to the second respondent (the arbitrator) that since no arbitrator had been appointed by the company and since the company had refused to appoint any arbitrator, he (Mr. Chopra) was to act as the sole arbitra tor.
On the 6th February, 1950, Mr. Chopra wrote to inform the insurance company that he had been appointed sole arbi trator and asked the company to send the statement of its case and to produce all the evidence on the 14th February, 1950.
On the 10th February, 1950, the insurance company filed a petition before the Subordinate Judge, Delhi, pray ing that the respondents be stopped from proceeding further in the matter so that its application under section 33 may not become infructuous.
On the 11th February, the Subordi nate Judge issued notice to the respondents fixing the 17th February as the date of hearing and passed the following order: "Moreover (till) the decision of this application the arbitrator should not give or pronounce his award but should continue the proceedings.
" On the 14th February, 1950, the second respondent pronounced his award after making a note to the following effect: " Mr. G.R. Chopra, the counsel of the defendants, sent a telephonic message at 12 A.M. requesting extension till 1 P.M.
I agreed and accordingly I waited for 505 him and the plaintiff with his counsel also waited up to 1 P.M.
Nobody turned up on behalf of the defendants.
I commenced the proceedings and took the statement of the plaintiff and the documents that he had produced." He made a further note at the end of the award to this effect : "As after the giving of the award a notice was served upon me not to give the award, I have not sent any formal letter to the parties informing them of the award and its costs.
" On the 24th March, 1950, the Subordinate Judge passed an order on the company 's application under section 33, dis missing it and holding that the terms of clause 7 of the agreement "were comprehensive enough to include the points of disputes between the parties now and as such are triable by the arbitrator and not by the court.
" The Subordinate Judge concluded his order by observing: "I, therefore, hold that the reference to the arbitra tion of the differences is perfectly valid and the points raised by the parties to this application with regard to the abandonment of claim and its becoming irrecoverable are to be decided by the arbitrator.
" The judgment of the Subordinate Judge was upheld in revision by the Punjab High Court and the company has now preferred an appeal to this court by special leave.
The points that were urged on behalf of the appellant in this appeal are these: (1) that the arbitration clause had ceased to be opera tive and the question as to the existence and validity of the arbitration agreement was triable by the court under section 33 of the Arbitration Act and not by the arbitrator; and (2) that the award was invalid and not binding on the appellant, because it was pronounced in spite of the order of the court dated the 11th February, 1950, directing the arbitrator not to pronounce his award.
506 Clause 7 of the policy of insurance rims as follows : "All differences arising out of this policy shall be referred to the decision of an arbitrator to be appointed in writing by the parties in difference or if they cannot agree upon a single arbitrator to the decision of two arbi trators one to be appointed in writing by each of the parties within one calendar month after having been required in writing so to do by either of the parties or in case the arbitrators do not agree of an umpire appointed in writing by the arbitrators before entering upon the reference.
The umpire shall sit with the arbitrators and preside at their meeting and the making of an award shall be a condition precedent to any right of action against the company.
if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within twelve calendar months from the date of such disclaimer have been referred to arbitration under the provisions herein con tained then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.
" It will be noticed that this clause provides among other things that if the company disclaimed liability to the insured for any claim under the policy and such claim was not within twelve calender months from the date of such disclaimer referred to arbitration, then the claim should be deemed to have been abandoned and was not recoverable.
The case of the company is that it disclaimed liability for the loss of the car on three successive occasions, namely, on the 26th May, 1948, the 3rd July, 1948, and the 1st August, 1948.
The first respondent however did not take any action in regard to the appointment of an arbitrator until the 21st November, 1949, i.e, until more than 12 months after even the last disclaimer by the company.
For this reason, the claim put forward by the first respondent must be deemed to have been abandoned and he cannot recover anything from the company.
On the other hand.
the case of the first respond ent, which 507 is set out in.
his affidavit dated the 17th February, 1950, is that there was never any valid disclaimer by the company of its liability.
The position that he took up was that the Branch Manager of the company had no authority to disclaim the liability, and it could have been disclaimed only by a resolution of the company.
Now these being the respective contentions of the parties, the question is whether the point in dispute fell to be decided by the arbitrator or by the court under section 33 of the Arbitration Act.
Section 33 is to the following effect: "Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits: Provided that where the Court deems it just and expedi ent, it may set down the application for hearing on other evidence also.
and it may pass such orders for discovery and particulars as it may do in a suit.
" The question to be decided is whether the point on which the parties are in dispute is a difference "arising out of the policy" in terms of clause 7 of the policy.
The test for determining such a question has been laid down in a series of cases and is a simple one.
The test is whether recourse to the contract by which the parties are bound is necessary for the purpose of determining the matter in dispute between them.
If such recourse to the contract is necessary.
then the matter must come within the scope of the arbitrator 's jurisdiction.
In the present case, both the parties admit the contract and state that they are bound by it.
Indeed, the appellant company, in order to make good its contention, is obliged to rely and does rely on that part of clause 7 of the policy which states that if the company should disclaim liability and the claim be not referred to arbitration within 12 months of such disclaimer, the claim shall be deemed to have been abandoned.
Evidently, the company cannot succeed without calling in aid this clause and 508 relying on it.
Again, the first respondent does not say that he is not bound by the clause but states that the matter was referred to arbitration before any valid disclaimer was made.
The position therefore is that one party relying upon the arbitration clause says that there has been a breach of its terms and the other party, also relying on that clause, says that there has been no breach but on the other hand the requirements of that clause have been fulfilled.
Thus, the point in dispute between the parties is one for the decision of which the appellant is compelled to invoke to his aid one of the terms of the insurance agreement.
It is thus clear that the difference between the parties is a difference arising out of the policy and the arbitrator had jurisdic tion to decide it, the parties having made him the sole judge of all differences arising out of the policy.
A large number of cases were cited before us on behalf of the parties, but it is unnecessary to refer to them, since the question which arises in this appeal is a simple one and is covered by the statement of law which is to be found in the decision of this Court in A.M. Mair & Co. vs Gordhandass Sagarmull C), and in a series of English author ities, some of which only may be referred to.
In Heyman vs Darwins, Ltd. (2) the law on the subject has been very clearly stated in the following passage : "An arbitration clause is a written submission, agreed to by the parties to the contract, and, like other written submissions to arbitration, must be construed according to its language and in the light of the circumstances in which it is made.
If the dispute is as to whether the contract which contains the clause has ever been entered into at all, that issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission.
Similarly, if one party to the alleged contract is contending that it is void ab initio (because, for exam ple, the making of such a contract is illegal)the arbitra tion (1)[1950] S.C.R. 792.
(2) [1941] 1 A.E.R.337,343 509 clause cannot operate, for on this view the clause ' itself is also void.
however, the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them as to whether there has been a breach by one side or the other, or as to whether circumstances have arisen which have discharged one or both parties from fur ther performance, such differences should be regarded as differences which have arisen 'in respect of, ' or 'with regard to, ' or 'under ' the contract, and an arbitration clause which uses these, or similar expressions, should be construed accordingly.
" In Macaura vs Northern Assurance Co. (1), the appellant had insured a large quantity of timber against fire and the greater part of the timber having been de stroyed by fire, he sued the insurance company to recover the loss but the action was stayed and the matter was re ferred to arbitration in pursuance of the conditions con tained in the policy.
The arbitrator held that the claimant had no insurable interest in the goods insured and disal lowed the claim.
One of the points raised in the case was that the arbitrator had no jurisdiction to decide the mat ter, but that contention was rejected by Lord Sumner in these words: "The defendants do not repudiate the policy or dispute its validity as a contract; on the contrary, they rely on it and say that according to its terms, express and implied, they are, relieved from liability: see Stebbing 's case(2), Woodall vs Pearl Assurance Co.(3).
It is a Fallacy to say that they assert the policy to be null and void." In Stebbing vs Liverpool and London and Globe Insurance Company Limited(2), to which reference was made by Lord Summer, the policy of insurance contained a clause referring to the decision of an arbitrator "all differences arising out of this policy ".
It also (1) (3) , (2) , 66 510 contained a recital that the assured had made a proposal and declaration as the basis of the contract, and a clause to the effect that compliance with the conditions indorsed upon the policy should be a condition precedent to any liability on the part of the insurers.
One of the conditions provided that if any false declaration should be made or used in support of a claim all benefit under the policy should be forfeited.
In answer to a claim by the assured, the insurers alleged that statements in the proposal and declaration were false.
When the matter came before the arbitrator, the assured objected that this was not a difference in the arbitration and that the arbitrator had no power to deter mine whether the answers were true or not, or to determine any matters which called in question the validity of the policy.
In holding that the arbitrator had jurisdiction to decide the matter, Viscount Reading C.J. observed as fol lows: " If the company were seeking to avoid the contract in the true sense they would have to rely upon some matter outside the contract, such as a misrepresentation of some material fact inducing the contract, of which the force and effect are not declared by the contract itself.
In that case the materiality of the fact and its effect in inducing the contract would have to be tried.
In the present case the company are claiming the benefit of a clause in the contract when they say that the parties have agreed that the statements in question are material and that they induced the contract.
If they succeed in escaping liability that is by reason of one of the clauses in the policy.
In resisting the claim they are not avoiding the policy but relying on its terms.
In my opinion, therefore, the question whether or not the statement is true is a question arising out of the policy.
" The main contention put forward on behalf of the appel lant is that the points in dispute fall outside the juris diction of the arbitrator, firstly because the existence of the arbitration agreement is challenged, and secondly, because the sole object of the application under section 33 of the Arbitration Act is tO have the 511 effect of the arbitration agreement determined.
In our opinion, neither of these objections is sound.
How can it be held that the existence of the arbitration agreement is challenged, when both parties admit that the clause in the policy which contains that agreement binds them.
It is neither party 's case that there is no arbitration agreement in the policy.
On the ,:other hand, both parties admit that such agreement exists, and each of them relies on it to support its case.
It is true that the appellant contends that the arbitration agreement has ceased to be applicable, but that contention cannot be sustained without having recourse to the arbitration agreement.
It is said that the agreement no longer subsists,but that is very different from saying that the agreement never existed or was void ab initio and therefore is to be treated as non existent.
Again, no question of determining the effect of the arbitration agreement arises, because there is no dispute between the parties as to what it means.
The language of the arbitration clause is quite clear, and both,parties construe it in the same way.
The real question between them is whether the first respondent has or has not complied with the conditions of the agreement.
But this question does not turn on the effect of the agreement.
This is the view which has substantially been taken by the High Court, and in our opinion it is correct.
The second point urged before us is that the award is invalid, since it was made in spite of the court 's injunc tion directing the arbitrator not to pronounce any award.
This point however does not, in our opinion, fall within the scope of this appeal.
The application under section 33 of the Arbitration Act, which is the subject of this appeal, was filed before the award was pronounced.
In that applica tion, there is no reference to the award; nor is there any reference to the circumstances which are now stated to invalidate the award and which happened after the applica tion was filed.
The learned counsel for the appellant made an application before us praying for the amendment of the petition under section 38 by introducing certain 512 additional facts and adding a prayer for declaring the award to be invalid, but it was rejected/by us.
It should be stated that as early as the 24th March, 1950, the Subordi nate Judge in dismissing the appellant 's petition under section 33, made the following observations : "During the pendency of the arbitration proceedings the arbitrator pronounced the award. .
The award has now been filed in the court of section Mohinder Singh, Sub Judge, 1st class, Delhi.
Any objection against the award can be filed there.
In this application in which there is no prayer for setting aside the award, which exists, I do not think it proper to decide the question of the validity of the award.
" In our opinion, the Subordinate Judge correctly indi cated the course which it was open to the appellant in law to adopt for the purpose of questioning the validity of the award, but not having taken that course and not having made any application in the courts below for amending the petition under section 33, the company cannot ask this court to go into the validity of the award by widening the scope of the original petition.
This court is always in favour of shortening litigation, but it would be a very unusual step to allow the petition under section 33 to be amended now and to decide a question involving investigation of facts with out having the benefit of the judgments of the courts below.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.
Agent for respondent No. 1.: S.D. Sekhri.
| The appellant company insured a car belonging to re spondent No. 1 and issued a policy which contained, inter alia, the following terms : "All differences arising out of this policy shall be referred to the decision of an arbitra tor to be appointed by the parties. .
If the company shall disclaim liability to the insured for any claim here under and such claim shall not within twelve calendar months from the date of such disclaimer have been referred to arbitration then the claim shall have been deemed to have been abandoned and shall not be recoverable.
" The car was lost, and the company through its Branch Manager disclaimed liability on three different dates.
The insured did not take any action in regard to the appointment of an arbitra tor until more than twelve months after the last disclaimer by the company.
The case of the company was that the in sured must be deemed to have abandoned his claim by virtue of the contract of insurance policy while 'the respondent averred that there was never any valid disclaimer by the company of its liability as the Branch Manager had no au thority to disclaim the liability and it could have been disclaimed only by the resolution of the company.
The company presented the present application under see.
33 of the Indian Arbitration Act praying for a declaration that the reference to arbitration was illegal and the award if made by the arbitrator would not bind the company.
It was contended on its behalf that the arbitration clause had ceased to be 65 502 operative and the question as to the existence and validity of the Arbitration agreement was triable by the court under sec.
33 of the Arbitration Act and not by the arbitrator.
Held, (i) that the point on which the parties were in dispute was a difference "arising out of the policy ", because recourse to the contract by which both the parties were bound was necessary for the purpose of determining the matter in dispute between them as there was no contention raised in the present case by either of the parties that there was no contract entered into at all or that it was void ab initio, and therefore the arbitrator had jurisdic tion to decide the matter referred to him.
A contention that the arbitration agreement has ceased to be applicable or that it no longer subsists will not oust the jurisdiction of the arbitrator.
(ii) No question of determining the effect of the arbitra tion within the meaning of sec.
33 arose because there was no dispute between the parties as to what it meant.
A.M. Mair and Co. vs Gordhandas Sagarmull [1950] (S.C.R. 792), Heyman vs Darwins Ltd. ([1941] 1 A.E.R. 337), Mecaura vs Northern Assurance Co. ([1925] A.C. 619), Stebbing vs Liverpool, London and Globe Insurance Co. Ltd. ([1917], 2 K.B. 433) referred to.
|
Criminal Appeal No. 53 of 1951.
Appeal by special leave from the Judgment and Order dated the 8th June 1951 of the ' High Court of Judica ture at Nagpur (Hemeon and Rao JJ.) in Criminal Appeal No. 297 of 1950, arising out of the Judgment and Order dated the 11 th September 1950 of the Court of the Additional Sessions Judge of Bhandara in Sessions Trial No. 25 of 1950.
Bakshi Tek Chand, (Gopal Singh, with him) for the appellant.
section K. Kapoor, for the respondent.
March 4.
The Judgment of the Court was delivered by BOSE J.
The appellant Kashmira Singh has been convicted of the murder of one Ramesh, a small boy aged five, and has been sentenced to death.
He was granted special leave to appeal.
Three other persons were tried along with him.
They were his brother Gurudayal singh, his nephew Pritipalsingh (son of Gurudayal), a boy of eleven, and one Gurubachan singh.
Gurudayal and pritipal have been acquitted.
Guruba chansingh confessed and was convicted.
He was also sentenced to death.
He has not appealed here.
The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law.
The prosecution case is this.
The deceased Ramesh was the son of P.W. 48 L.P. Tiwari who was the Food Officer at Gondia at the relevant date.
The appellant Kashmira Singh was an Assistant Food Procurement Inspector there.
On the 1st of July, 1949, Tiwari found the appellant and Harbilas (P.W. 31) getting rice polished at a certain rice mill.
At that date the polishing of rice was prohibited by a State law.
Tiwari accordingly reported the matter to the Deputy Commissioner of Bhandara.
He suspended the 528 appellant and later his services were terminated by an order of the State Government with effect from the 7th of July.
The orders were communicated on the 17th of November.
This embittered the appellant who on at least two occasions was heard to express a determination to be revenged.
In pursuance of this determination he got into touch with the confessing accused Gurubachan singh and enlisted his services for murdering the boy Ramesh.
On the 26th of December, 1949, festivities and religious ceremonies were in progress all day in the Sikh Gurudwara at Gondia.
The boy Ramesh was there in the morning and from there was enticed to the house of the appellant 's brother Gurudayalsingh and was done to death in a shockingly revolt ing fashion by the appellant, with the active assistance of Gurubachansingh, in the middle of the day at about 12 or 12 30.
The body was then tied up in a gunny bag and rolled up in a roll of bedding and allowed to lie in Gurudayal 's house till about 7 p.m.
At 7 p.m. the body wrapped as above was carried by Gurubachan on his head to a chowkidar 's hut near the Sikh Gurudwara.
The appellant accompanied him.
The map, Exhibit P 18A, shows that the distance along the route indicated was about half a mile to three quarters of a mile.
It was left there till about midnight.
Shortly before midnight the appellant and Gurubachan engaged the services of a rickshaw coolie Shambhu alias Sannatrao, P.W. 14.
They took him to the chowkidar 's hut, recovered the bundle of bedding and went in the rickshaw to a well which appears from the map, Exhibit 1 ' 18A, to be about half a mile distant.
There the body was thrown into the well. ]hat in brief is the prosecution ease.
Gurubachan 's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co accused ?
It is evident that it is not evidence in the ordinary 529 sense of the term because, as the Privy Council say in Bhuboni Sahu vs The King(1) "It does not indeed come within the definition of" 'evidence ' contained in section 3 of the Evidence Act.
, It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by crossexamination.
" Their Lordships also point out that it is "obviously evidence of a very weak type. .
It is a much weaker type of evidence than the evidence of an approv er, which is not subject to any of those infirmities.
" They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in "support of other evidence."
In view of these remarks it would be pointless to cover the same ground, but we feet it is necessary to expound this further as misapprehension still exists.
The question is, in what way can it be used in support of other evidence ? Can it be used to fill in miss ing gaps ? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accom plice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated ? In our opinion, the matter was put succinctly by Sir 'Lawrence Jenkins in Emperor vs Lalit Mohan Chuckerbutty(2) where he said that such a confession can only be used to "lend assurance to other evidence against a co accused "or, to put it in another way, as Reilly J. did in In re Periyas wami Moopan(3) "the provision goes no further than this where there is evidence against the co accused sufficient, if believed, to support his conviction, then the kind of confession de scribed in section 30 may be thrown into the scale as an additional reason for believing that evidence." (1) [1949] 76 I.A. 147 at 155.
(3) Mad.
75 at 77.
(2) CAl.
559 at 588.
530 Translating these observations into concrete terms they come to.
The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it.
If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid.
But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction.
In such an event the judge may call in aid the confession and use it to lend assurance to the other evi dence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.
Then, as regards its use in the corroboration of accom plices and approvers.
A co. accused who confesses is natu rally an accomplice and the danger of using the testimony of one accomplice t0 corroborate another has repeatedly been pointed out.
The danger is in no way lessened when the "evidence" is not on oath and cannot be tested by cross examination.
Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the judge as having no greater probative value.
But all these are only rules of prudence.
So far as the law is concerned, a conviction can be based on the uncorroborat ed testimony of an accomplice provided the judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it.
Two of us bad occasion to examine this recently in Rameshwar vs The State of Rajasthan(1).
It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed.
As the Privy Council observe in Bhuboni Sahu vs The King(2): "The tendency to include the innocent with the guilty is peculiarly prevalent in India, as judges have (1) ; (2) (1949) 76 I A.147 at 157.
531 noted on innumerable occasions, and it is very difficult for the court to guard against the danger. .
The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused.
" Turning now to the facts of the present case.
The evidence on which the prosecution relies, apart from the confession, is this : (1) Previous association between Gurubachan and the appellant.
The only evidence about this is P.W. 23 Upasrao, a water carrier.
He speaks of three meetings and is curiously definite about days of the week and times though he did not know on what day of the week diwali fell nor could he give the names of anybody else he met on those occasions.
Howev er, for what it is worth.
he says he saw them talking (1) three weeks before the murder, (v) on the 24th and (3) on the 25th.
They spoke in Punjabi which he does not under stand, but on the second occasion he heard them mention the name of Ramesh.
Two of these meetings, namely the first and the third tally with two of the only three meetings de scribed in the confession.
It is proved that the witness did not disclose these facts to the police but despite that the Sessions Judge believed him because of the confession.
The High Court appear to have disbelieved him, for in paragraph 37 of the judgment the learned judges point out that he is contradicted by his own statement to the police.
There his story was that the three brothers met and not Gurubachan and the appellant.
This evidence can therefore be disregarded and consequently the confession cannot be used to prove previous association.
It was argued however that if it is proved that the appellant helped in disposing of the body after the murder, then their previous association can be inferred because one would hardly seek the assistance of a stranger for a task like that.
That has some force but the weakness of that in this case lies on the fact that, 532 according to the prosecution case, as disclosed in the confession, Gurubachan was a stranger to Gondia.
i He had come there only six weeks before the murder and did not meet the appellant till three weeks later and then only casually.
Their second meeting, equally casual, was on the 21st, that is, five days before the murder, and on that date the appel lant is said to have disclosed his intention to this strang er whom he had only met once before.
It is true this strang er knew the appellant 's brother, but how ?
The brother was a travelling ticket inspector on the railway and used to allow Gurubachan to travel without a ticket, presumably because he was also a Sikh.
If probabilities are to be called in aid, the story disclosed in the confession has distinct weakness es, particularly as Gurubachan 's assistance was wholly unnecessary.
If the confession is true there was a well thought out plot timed with the precision almost of a minor military operation.
At a given moment the nephew Pritipal was to decoy the deceased away from his companions and isolate him.
Then, after leading him several hundred yards down the road, hand him over to Gurubachan.
Gurubachan was to take him down to point No. 6 on the map well over half a mile from the spot where he took over from Pritipal.
In the meanwhile, the appellant was to walk another half mile at right angles to Gurubachan 's course to the point No. 15 to hire a cycle.
From there he was to cycle close on a mile to point No. 6 and meet Gurubachan and the boy.
As the learned High Court Judges, who made a spot inspection, point out, the route would lie through a crowded bazaar locality.
From point No. 6 Gurubachan was to hand over the child to the appellant who was to cycle with him close on a mile to his brother Gurudayal 's quarters, point No. 16, through this same crowded bazaar.
In the meanwhile, Gurubachan was to walk back to his house (No. 17) and pick up a chisel and a piece of wire for the purpose of the murder and rejoin the appellant at Gurudayal 's house.
As will be seen, the timing would have to be within fairly close tolerances.
Then, at the murder itself, what 533 assistance did Gurubachan give ?
Nothing which a grown man could not easily have accomplished him self on a small helpless victim of five.
The appellant could have accomplished all this as easily without the assistance of Gurubachan, and equally Gurubachan, a mere hired assassin, could have done it all himself without the appellant running the risk of drawing pointed attention to himself as having been last seen in the company of the boy.
We hold that previous association of a type which would induce two persons to associate together for the purposes of a murder is not established.
(2) That the deceased Ramesh was in the Gurudwara about 9 30 or 10 in the morning of the 26th.
This is not disputed.
(3) That Kashmira Singh who had gone to the Gurudwara in the morning was absent between 11 A.M. and 12 45 P.M.
That the appellant was at the Gurudwara in the morning is not disputed, in fact his case is that he was there the entire day.
The evidence to prove that he left it between these hours consists of three persons: P.W. 30 Atmaram, P.W. 35 Tilakchand and P.W. 5 Bisan.
The prosecution story is that the appellant left the Gurudwara about 11 A.M. to go to the shop of P.W. 5 Bisan to hire a cycle.
He was first seen by P.W. 35 Tilakehand, a wood stall keeper, at point No. 13, just near the Gurudwara.
The witness places the time at about 10 30 or 11 A.M.
He says he saw him coming from the direction of the railway station and going past his stall.
Fifteen minutes later, he went past his stall again in the opposite direction, that is to say, towards the railway station which lies on his way to the cycle shop.
Next comes P.W. 30 Atmaram He keeps a bookstall on the broad gauge platform of the Gondia Railway Station.
He says he saw the appellant coming from the bridge and going to wards the Railway Police 69 534 Station of all places in the world.
He came near ,enough the witness to wish him good day.
He places 'the time at about 10 30 or 11.
The only comment we make on this witness is that he says he used to see the appellant at the station almost every day and they used to greet each other.
The possibility that the witness is mixing up this day with one of the other days cannot be excluded.
It is certainly a matter for comment that a would be murderer on his way to hire a cycle for the purpose and keep an assignment with his accomplice and victim should go out of his way and either go on to or very near the railway platform to greet a person he knows there and then walk away towards the police station of all places where the danger of recognition would be strong.
Next there is P.W. 5 Bisan, the man in charge of the cycle shop.
He speaks from his register and says the appel lant hired a cycle from him on that day at 11 20 A.M. and returned it at 12 45 P.M.
The Sessions Judge and the High Court lay great stress on this witness.
But as against this is the evidence of Anupsingh Bedi, D.W. 1, a respectable disinterested witness, who is a resi dent of Nagpur.
He says he saw the appellant at the Gurudwa ra at 11 and again "about 11 45 A.M." The sessions Judge thought he was interested because he admits he reported a complaint he had received from Gurudayalsingh, to the effect that the appellant was being harassed by the police and that they threatened to arrest ladies also, to the Inspector General of Police and the Home Minister.
He explained that as head of the Sikh community in that State he felt bound to pass on these complaints to the highest authorities.
We are unable to regard this as disclosing interest.
There is no suggestion that what he did was improper and we are of opinion he did nothing more than any man of responsibility in his position would have done.
The High Court has not criticised him.
The learned Judges merely say that he may be mistaken as to the time; nor of course does he suggest that he is giving more than a mere estimate.
All he 535 says is that, "It may have been about 11 45 A.M. by this time.
" We do not think there is much in all this.
Nobody, except P.W. 5 Bisan, pretends to be exact and when one is guessing at the time several days after the event there really is not much discrepancy between 11 20 and 11 45.
Even if it was 11 45 there would still have been sufficient time to commit the murder.
As two Courts have believed the evi dence on this point without calling in aid the confession, we are not prepared to depart from our usual rule regarding concurrent findings of fact.
We will therefore accept the position that the appellant was absent from the Gurudwara long enough to enable him to commit the murder.
We will also take into consideration the fact that he made a false statement on this point when he said he was not away at all.
(4) Disposal of the body.
The rest of the evidence relates to the disposal of the body and the only direct evidence connecting the appellant with this, apart from the confession, is that of Sannatrao P.W. 14, the rickshaw coolie.
He does not bring the appellant into the picture till about midnight.
Now this coolie is a very shaky witness.
We cannot but note the remarkable series of coincidences which emerge from his testimony.
First, he is not a rickshaw coolie at all.
He merely hap pened to hire a rickshaw that night, and he told the police that this was the first time he had ever done that at night after.
a day 's work.
Next, he knew the appellant because he happened to be a chowkidar in the Food Office at Gondia at the same time that the appellant was there as a Food Inspec tor.
But at the date of the incident neither was still in service, so by a somewhat strange coincidence the appellant happens to hire, for the first time, this old co worker in the middle of the night who, in his turn, happened to hire, also for the first time at night, a rickshaw for which he had no licence.
Next comes a still stranger coincidence.
He is taken to within a few paces of his own house and the body 536 is dumped, in his presence, into a welt, a stone 's throw from where he lives.
Gurubachan tells us that earlier in the day, about 7 P.M., he (Gurubachan) had carried, unaided, the "bedding" on his head for a distance which we know was hail to three quarters of a mile, namely from Gurudayal 's house to the chowkidar 's hut.
Despite this, the two are said to have engaged this rickshaw coolie to carry it just hall a mile (a shorter distance) to the well and there they threw it in in the man 's presence; and none of this was disclosed to the police till a month later, namely the 17th of January, though the witness was present when the body was recovered and though he was questioned on three previous occasions.
We do not doubt that a rickshaw was used because rick shaw tracks were discovered by the well long before anybody had suggested that a rickshaw had been used.
But we find it difficult to resist the inference that this witness was an accomplice so far as the disposal of the body was concerned.
Consequently, he is in much the same category so far as credibility is concerned, That brings us at once to the rule that save in exceptional circumstances one accomplice cannot be used to corroborate another, nor can he be used to corroborate a person who though not an accomplice is no more reliable than one.
We have therefore either to seek corrobo ration of a kind which will implicate the appellant apart from the confession or find strong reasons for using Guruba chan 's confession for that purpose.
Of course, against Gurubachan there is no difficulty, but against the appellant the position is not as easy.
We will therefore examine the reliability of Guruba chan 's confession against the appellant.
Now there are some glaring irregularities regarding this confession and though it was safe for the Sessions Judge and the High Court to act on it as against Gurubachan because he adhered to it throughout the sessions trial despite his pleader 's efforts to show the contrary, a very different position emerges when we come to the appellant.
537 The first point which emerges regarding this is that the confession was not made till the 25th of February 1950, that is to say, not until two months after the murder.
We do not know when Gurubachan was first interrogated but P.W. 42 Narayandas tells us that when he was taken to the police station house at Gondia for interrogation about the 1st or 3rd January he saw Gurubachan sitting in the police lock up.
We do not know how long he was kept there like this but it is evident that he was not there voluntari ly, at any rate till the 1st or 3rd because the Station Officer P.W. 44 says that "until Gurubachan Singh was ar rested he used to be allowed to go home."
Also he says that Gurubachan was interrogated several times and was confronted with Pritipal.
However, eventually Gurubachan was allowed to go away and he went to Balaghat.
Then, on the 16th of February the Station Officer P.W. 44 went to Balaghat, brought Gurubachan back with him to Gondia and handed him over to the C.I.D. Inspector Guha.
Guha P.W. 50 tells us that from then till the 20th of February, when he was arrested, he was kept under observation but was allowed to go home at night.
He did not confess till the 25th and the Station Officer P.W. 44 tells us that from the 20th to the 25th he was kept in one of the rooms in Guha 's quarters.
Then, after the confes sion on the 25th he was taken back to Guha 's custody for a couple of days and then only was he sent to the magisterial lock up.
(See Guha 's evidence).
He was kept in this lock up till the conclusion of the committal proceedings, that is, till the 30th of June, instead of being sent to jail custody in Bhandara where there is a jail.
The other accused includ ing Pritipal who had by then confessed were sent to Bhanda ra.
Now though Gurubachan was kept in the magisterial lock up the distinction between the magisterial lock up and police custody in Gondia is only 538 theoretical.
In practice, it is no better than police custody.
Police constable Lalbahadur P.W. 55 tells us that "The Station House Officer Gondia deputes constables for duty in the lock up.
The constables in charge take the prisoners out to the latrine and also arrange for their food.
The Head Constable in fact is in charge.
" Also, Guha admits that he interrogated Gurubachan in the lock up twice within the ten days which succeeded the confession.
This is in disregard of the Rules and Orders (Criminal) of the Nagpur High Court which enjoin at page 25, paragraph 84, of the 1948 edition that "After a prisoner has made a confession before a a magistrate he should ordinarily be committed to jail and the magistrate should note on the warrant for the information of the Superintendent of the jail that the prisoner has made a confession." No explanation has been given why these directions, which were made for good reason, were disregarded in Guruba chan 's case.
As we have said, the other prisoners were all committed to jail custody in the usual way, so there was no difficulty about observing the rule.
All this makes it unsafe to disregard the rule about using accomplice testimo ny as corroboration against a non confessing accused.
None of the judges who have handled this ease has given any reason why this rule could safely be departed from in this particular case.
In the circumstances, we do not feel that the confession by itself can be used to corroborate the rickshaw coolie Sannatrao, P.W. 14.
But there is other corroboration.
It consists of the sari border and this is the next point on which the prosecution relies.
There is one argument about this confession advanced on behalf of the appellant with which we shall have to deal.
The prosecution were criticised for not calling the magis trate who recorded the confession as a witness.
We wish to endorse the remarks of their 539 Lordships of the Privy Council in Nazir Ahrnad vs King Emperor (1) regarding the undesirability of such a practice.
In our opinion, the magistrate was rightly not called and it would have been improper and undesirable for the prosecution to have acted otherwise.
(5) Sari borders, Articles F, G, and T. Articles F & G are two pieces of a sari border which were used for tying up the mouth of the gunny bag, in which the body was placed.
The evidence about that is beyond doubt.
Article T is another piece of a sari border which was found in the appellant 's house on the 30th or December, 1949.
It is true the appellant was not present at the time but his mother was there and it will be seen that it was seized on the same day that the body was discovered.
There is strong proof that Articles F and G are a part of the same border as Article T, and as there is a concurrent finding regarding these facts we are not prepared to to take a different view.
That therefore affords corroboration of Sannatrao 's evi dence and the confession can be called in aid to lend assur ance to the inference which arises from these facts, namely that the appellant did help to dispose of the body.
The High Court and the Sessions Judge were accordingly entitled to act on this evidence for establishing that particular fact and we are not prepared to disturb their concurrent conclusions.
But the matter cannot be carried further because, not only are the sari borders not proved to have had any connection with the crime of murder but the confes sion shows that they did not.
The only conclusion permissi ble on these facts is that the appellant, at some time which is unknown, subsequent to the murder assisted either active ly or passively in tying up the gunny bag in which the corpse was placed and that he then accompanied Gurubachan in the rickshaw from the chowkidar 's hut to the well in the middle of the night.
(6) Coat, Article X, and Safa, Article Y, (1) A.I.R. 1936 P.C. 253 at 258, 540 These were seized on the 20th of January 1950 from a trunk in the house of the appellant 's brother Gurudayalsingh.
The appellant 's house is not in this neighbourhood.
It is some distance away in another part of the town.
The coat is a uniform coat of the kind worn by a Travelling Ticket Inspector on the Railways.
Gurudayal is a travelling Ticket Inspector.
The appellant is not.
Here again the appellant was not present when the seizures were made.
This coat and safa were recovered in the fourth search.
The first search was on the 30th of December 1949.
The next on the 10th of January 1950.
The third on the morning of the 20th and the fourth in the afternoon of the 20th.
These Articles were not found in the first three searches.
The Chemical Examiner reports that there is one minute blood stain on the safa and some (the number is not given), also minute, on the coat.
The seizure memo, exhibit P 55, picked out only five.
Those stains are not proved to be of human blood.
Now there is next no evidence to connect either the coat or the safa with the appellant.
The High Court has relied on the evidence of Sannatrao (P.W. 14), Gokulprasad the Station Officer (P.W. 44) and Tiwari (P.W. 48).
Sannatrao does no more than say that he noticed the appellant wearing a popat coloured sara and a black coat.
But he was not able to describe the clothes of the passenger he had carried immediately before the appellant, nor was he able to de scribe the appellant 's coat in detail.
That therefore is no identification of this coat with the one the appellant wore or owns.
The Station Officer Gokulprasad said that he had seen the appellant wear this very coat and sara and there fore he identified them as his clothes.
In cross examina tion he admitted that he had only seen the appellant on three occasions but not to speak to.
Consequently, that is not strong evidence of identification.
But what in our opinion is almost conclusive against this identification is that Tiwari, P.W. 48, who is clearest on the point and who of course had the best opportunities for observation, 541 gives a distinctive feature of the appellant 's coat, namely that it had only one button.
That is one of his reasons for knowing what the appellant used to wear.
But the seizure memo, exhibit P. 55, shows that the coat, Article X, had two buttons.
In the circumstances we find it difficult to see how it can be the appellant 's coat.
There is another strong point in the appellant 's favour which the High Court has not noticed.
P.W. 35 the wood stall keeper Tilakchand, who saw him on his way to pick up his victim, is definite that the appellant was not wear ing a coat at the time.
It is difficult to see why he should have donned a coat and got it stained with blood just for murdering a child of five.
In our opinion, it would be unsafe to conclude on this evidence that any connection is established between the coat and the sara and the appellant.
The furthest point to which this evidence can be pushed is to indicate that the appellant possessed a coat similar to Article X but which was not Article X.
We do not ordinarily interfere with a concurrent finding of fact but when the finding omits to notice these two very important points in the accused 's favour which, in our opinion, swing the balance the other way, we are unable to let the finding stand.
In our opinion, the nexus between the appellant and the coat and the sara is not established.
(7) Motive.
This is the last piece of evidence on which the prosecution rely.
Both courts hold that the motive is established and there is strong evidence to prove it.
We accordingly accept the finding that the appellant had a motive for enmity against Tiwari and that he had expressed a determination to be revenged.
The only comment we will make is that other persons who were also dismissed from service had similar motives.
What then is the summary of the evidence ? In the appel lant 's favour there are the facts that there is no proof of his having been last seen in the company of 70 542 the deceased.
The only evidence of the boy 's movements is that of Krishna (alias Billa) P.W. 9, a boy of seven years, and all he says is that Pritipal asked him to bring Ramesh with him to the Gurudwara that morning about 9 A.M.
The boys played about and had some tea and then Pritipal took Ramesh away in the direction of the prostitute 's house.
Pritipal later returned without Ramesh.
The Sessions Judge thought this witness had been tutored on at least one point.
Pritipal 's so called confession has been rejected because, in the first place, it is not a confession at all, for it is exculpatory, and, in the next, the High Court was not able to trust it.
Therefore, the only evidence of the boy 's last movements is as above.
The next point in the appellant 's favour is that he was seen without a coat shortly before the murder and at a time when he was not in the vicinity of his own house.
According to the prosecution, the murderer wore the coat, Article X, and the sara, Article Y. The third point is that the appellant was not seen by anyone in the vicinity of the place of occurrence.
The fourth point is that if the prosecution case is true, then it is remarkable that no one saw the appellant and the boy on a cycle through nearly a mile of what the High Court, which made a spot inspection, describes as a crowded locality.
The points against the appellant are (1)that he had a motive and that he said he would be revenged, (2) that he was absent from the Gurudwara about the time of the murder long enough to enable him to commit it, and denied the fact, (3) that some twelve hours after the crime he assisted in removing the body from a place between half to three quar ters of a mile distant from the scene of the crime, and (4) that at some unknown point of time he assisted in tying up the mouth of the gunny bag in which the body was eventually placed.
In our opinion, it would be unsafe to convict of murder on these facts.
543 A number of rulings were cited, including one of the Privy Council, and it was argued that in those cases persons were convicted of murder on similar facts.
We do not intend to examine them because no decision can be a. guide on facts.
Each case has its own special circumstances and must be decided on its own facts.
For example, in most of the cases cited the accused was associated with the disposal of the body very soon after the occurrence and at the scene of the crime.
Here, twelve hours had elapsed and the first connection proved with the disposal is at a place over half a mile distant from where the boy is said to have been murdered.
Next, the points we have shown in favour of the appellant in this case were not present there.
We allow the appeal on the charges of murder, conspiracy and kidnapping and reverse the findings and sentences on those charges and acquit the appellant of them.
We however convict the appellant of an offence under section 201, Indian Penal Code, and sentence him to seven years ' rigorous imprisonment.
The learned Sessions Judge omitted to record a convic tion under section 201 because he was convicting the appel lant of murder.
He followed a Nagpur decision which holds that in such a case it would be improper to convict in the alternative.
We express no opinion about that; the question does not arise as we have acquitted the appellant of the murder and the cognate charges.
The case now falls in line with that of the Privy Council in Begu vs The King Emperor(1) and the conviction and sentence are confined to section 201.
(1) (1925) 52 I.A. 191.
| The confession of an accused person against a co accused is not evidence in the ordinary sense of the term.
It does not come within the meaning of evidence contained in sec.
3 of the Indian Evidence Act inasmuch as it is not required to be given on oath, nor in the presence of the accused and cannot be tested by cross examination.
It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities.
Such a confession can only be used to tend assurance to other evidence against a co accused.
The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession alto gether from consideration and see whether, if it is be lieved, a conviction could safely be based on it.
If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid.
But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction.
In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify him self in believing what without the aid of the confession he would not be prepared to accept.
Bhuboni Sahu vs The King (76 I.A. 147) relied upon.
Emperor vs Lalit Mohan Chuckerbutty at 588) and In re Periyaswami Moopan (I.L.R. referred to.
A conviction can be based on the uncorroborated testimo ny of an accomplice provided the judge has the rule of caution, which experience dictates, in mind.
Rameshwar vs State of Rajasthan ; referred to.
The rule of caution is that save in exceptional circum stances one accomplice cannot be used to corroborate anoth er, nor can he be used to corroborate a person who though not an accomplice is no more reliable than one.
It is not proper or desirable for the prosecution to examine as a witness the magistrate who recorded the confes sion, 527
|
vil Appeal No. 64 of 1951.
On appeal from the Judgment and 646 Decree dated the 16th April.
1948, of the High Court of Judicature at Allahabad (Malik C.J. and Prasad J.) in First Appeal No 358 of 1943 arising out of the ent and Decree dated the 22nd February, 1943, Judgment and Decree dated the 22nd February, 1943 of the Court of the Additional Civil Judge Benares, in Original Suit No. 33 of 1938.
Gopi Nath Kunzru (K. B, Asthana, with him) the appel lants.
Krishna Shankar for the respondents.
April 25.
The judgment of the Court was delivered by DAs J.
This appeal arises out of an application by five out of ten judgment debtors made under section 8 of the U.P. Debt Redemption Act (No. of 1940) for ascertaining the amount due by them in accordance with the provisions of sections 9 and 10 of that Act and for amending the decree passed on March 31, 1939, by the Additional Civil Judge, Banaras, in O.S. No. 33 of 1938.
The facts materi al for the purposes of this appeal may now be briefly stated.
By a mortgage deed executed on June 22, 1922, Madho Ram, Sita Ram, Jai Ram aud Lakshman, all sons of Pandit Raja Ram Pant Sess, mortgaged cer tain immovable properties in favour of Damodarji, son of Kamta Nathji, owner of the Kothi Joshi Shivanath Vishwanath for the due repayment of the sum of Rs. 8,000 advanced on that date by a cheque together with interest thereon at 12 annas per cent per mensem with quar terly rests.
On July 28, 1931, the said mortgagors and their sons executed a mortgage over the same properties in favour of Kothi Kamta Nathji Vishwanathji for the due repayment of Rs. 3,000 with interest thereon at twelve annas per cent per mensem with quarterly rests.
It is recited in the deed that the sum of Rs. 8,000 was advanced on this date by a cheque and that the amount was utilised in paying up the amount due under the earlier 647 mortgage deed to Damodarji proprietor of Kothi Shivanath Vishwanath.
In 1935 the U.P. Agriculturists ' Relief Act (No. XXVII of 1934) came into force.
On May 1938, Girjadharji, son of Damodarji, and Murlidharji, minor son of Gangadharji who was another son of Damodarji, filed suit No. 33 of 1938 in the Court of the Additional Civil Judge, Banaras, against the mortgagors and their sons for the recovery Rs. 9,477 2 0 due as principal and interest up to date of suit and for further interest under the mortgage deed of July 28, 1931.
It appears from the judgment of the High Court under 'appeal that in their written statement the mortgagors claimed the benefit of the U.P. Agriculturists ' Relief Act (No. XXVII of 1934).
The plaintiffs contended that the mortgagors were members of a joint Hindu family and as Sita Ram one of the mortgagors was assessed to income tax the mortgagors were not agriculturists as defined in section 2 (2) of that Act and, therefore, could not claim the benefit conferred on the agriculturists by that Act.
The trial Court, by its judgment dated March 31, 1939, held that though Sita Ram was assessed to incometax for the year 1931 32, the amount of such in cometax did not exceed the amount of cess payable on the land held by him and consequently the second proviso to section 2 (2) did not apply to him and he was, therefore, an agriculturist and as the other mortgagors were also agricul turists all of them were entitled to the benefits under the Act.
Accordingly, after scaling down the interest, a sum of Rs. 9,497 14 1 was declared to be due for principal, interest and costs up to March 31, 1939, and a preliminary mortgage decree for sale was passed in that suit.
In 1940 the U.P. Debt Redemption Act (No. XIII of 1940) came into force.
On April 11, 1942, five of the judgment debtors made an application under section 8 of this Act before the Additional Civil Judge, Banaras, who passed the decree.
In the petition it was stated that the debt was actually advanced in 1922, that the petitioners were agri culturists within 648 the meaning of Act XIII of 1940, that the decreeholders can only get interest at the reduced rate of Rs. 4 8 0 per cent.
per annum from 1922, and that after adjustment of accounts nothing will be found ,outstanding against the petitioners.
The prayer was that an account of the money lending business be made from the beginning of 1922 and the decree in suit No. 33 of 1938 be modified by reducing the amount due thereunder.
The decree holders filed a petition of objection asserting, inter alia, that the petitioners were by no means agriculturists, that they and the respond ents Nos. 3 to 7 were members of a joint Hindu family at the time of the execution of the mortgage deed of July 28, 1931, that Sita Ram used to pay income tax at the date of the mortgage in suit and paid even at the time of the applica tion, that all the members of the petitioners ' family were not agriculturists within the meaning of the Act and were, therefore, not entitled to the benefits thereof, that the debt advanced under the mortgage deed of July 28, 1931, was not a "loan" as defined in the Act and, therefore, the Act did not apply.
It will be noticed that although the judg ment debtors applicants specifically prayed for the accounts being taken from 1922, when the loan was said to have been actually advanced, the decree holders, in their petition of objection, did not contest that position.
At the hearing of the application before the Additional Civil Judge, the learned pleader for the decree holders admitted that with the exception of Sita Ram the remaining judgment debtors were agriculturists under Act No. XIII of 1940 but that as Sita Ram was a party to the mortgage in suit they were not entitled to the benefit of the Act.
Two witnesses, namely Suraj Mani Tripathi and Sita Ram, were examined on behalf of the judgment debtors applicants.
Sita Ram stated that since 1907 he had been a teacher in Harish Chandra Intermediate College of Banaras, that in 1930 his salary was Rs. 90 per month, that since February 1932 to 1936 he paid incometax and that after that he paid no in come tax.
649 His evidence was corroborated by Suraj Mani Tripathi who was the Accountant of the College from 1930 to 1042.
Referring to the College Acquittance Roll Suraj Mani Tripathi deposed that the pay of Sita Ram was Rs. 90 per month throughout 1930, that in 1930 no income tax was levied, that in 1931 also his salary was Rs. 90 per month and that no income tax was deducted in 1931 too, that the first deduction of in come tax from his salary was made in February 1932.
No rebutting evidence was adduced by the decree holders on the hearing of the application under section 8 of the Act of 1940.
The income tax assessment form filed during the trial of the mortgage suit and marked as exhibits is dated Febru ary 9, 1933, and shows that on that date Sita Ram was as sessed at Rs. 1 14 0 as income tax on Rs. 180 for the year 1931 32.
By his judgment delivered on February 22, 1943, the Additional Civil Judge found that Sita Ram was not assessed to income tax either at the date of the application under section 8 or at the date of the mortgage of 1931 and, there fore, held that the applicants were agriculturists and that the case related to a loan as defined in Act XIII of 1940.
He then went on to discuss the question whether the account should be reopened from June 2, 1922, when the earlier mortgage was executed or from July 28, 1931, when the mort gage in suit was executed.
The decree holders who did not adduce any evidence on the hearing of the application evi dently relied on the evidence adduced in suit No. 33 of 1938.
After discussing that evidence the learned Judge came to the conclusion that so far as the judgment debtors were concerned the mortgagees in the two mortgages were one and the same.
He adversely commented on the non production of the books of account by the decree holders.
Re opening the accounts from June 2, 1922, the learned Judge concluded that the whole of the principal and interest payable accord ing to the Act had been fully discharged and that nothing remained due by the judgmentdebtors under the decree in suit No. 33 of 1938.
He 650 accordingly declared that the decree stood discharged in full and directed a note to that effect to be made in the Register of Suits.
The decree holders having appealed to the High Court, a Division Bench (B. Mallik, C.J. and 'Bind Basni Prasad J.) by its judgment delivered on April 16, 1948, held that the question whether Sita Ram was or was not an agriculturist on July 28, 1931, was not material as it was not denied that all the judgment, debtors were agriculturists on the date of suit.
Reference was made by the learned Judges to section 21 and it was stated that by reason of that section the mortgage amount could be recovered only from the mortgaged property and not personally from the mortgagors and accord ingly the proviso to the definition of "loan" in section 2 (9) of the Act had no application and it was, therefore, not necessary to show that the borrowers were agriculturists at the date when the advance was made and that as the judgment debtors were admittedly agriculturists at the date of the suit, the case was fully covered by the Full Bench decision of that High Court in Ketki Kunwar vs Ram Saroop (1).
The High Court, therefore, dismissed the appeal on this point alone.
The question whether the account should be reopened from 1922 or from 1931 was not raised by the decree holders at all. ]he decree holders have now come up on appeal before us on a certificate granted by the High Court under section 110 of the Code of Civil Procedure.
Sri G.N. Kunzru appearing in support of this appeal has strongly questioned the correctness of the Full Bench deci sion relied on by the High Court and the interpretation put by the High Court on section 21 and section 2(9) of the Act.
As we think this appeal can be decided on a simpler ground we do not consider it necessary, on this occasion, to express any opinion on either of these questions which are by no means free from doubt.
(1) I.L.R. [1943] All. 35; A.I.R. 1942 All.
390; (1942) A. L.J. 578.
651 The present application has been made under section 8 of the U. P. Debt Redemption Act, 1940, subsection (1) of which, omitting the proviso, runs as ' follows: "Notwithstanding the provisions of any decree, or of any law for the time being in force, an agriculturist or a workman liable to pay the amount due under a decree to which this Act applies passed before the commencement of this Act, may apply to the Civil Court which passed the decree or to which the execution of the decree has been transferred, for the amendment of the decree by reduction according to the provisions of this Act of the amount due under it, and on receipt of such application the Court shall, after notice to the opposite party, calculate the amount due from the appli cant in accordance with the provisions of sections 9 and 10 and shall amend the decree accordingly.
" It is clear from the wording of the sub section that there are three pre requisites for exercise of the right conferred by it, namely, (1) that the application must be by an agriculturist and (2)that that agriculturist must be liable to pay the amount due under a decree to which this Act applies and (3) that that decree was passed before the commencement of this Act.
That the judgment debtors appli cants were agriculturists at the date when suit No. 33 of 1938 was filed and also in 1942 when the application under section 8 was made is conceded by Sri G.N. Kunzru.
The decree in that suit was passed on March 31, 1939, which was well before the commencement of the Act.
The only question that remains is whether the amount was due under a decree to which the Act applies.
Under section 2(6) of the Act the phrase "decree to which this Act applies" means a decree passed before or after the commencement of this Act in a suit to which this Act applies.
Section 2(17) defines the phrase "suit to which this Act applies" as meaning any suit or proceeding relating to a loan.
The question then, arises: was the decree under which the judgment debtors applicants are liable passed in a suit 652 relating to a loan ? Loan is thus defined in sec tion 2(9): 'Loan ' means an advance in cash or kind made before the first day of June, 1940, recoverable from an agriculturist or a workman or from any such person and other persons jointly or from the property of an agriculturist or workman and includes any transaction which in substance amounts to such advance, but does not include an advance the liability for the repayment of which has, by a contract with the borrower or his heir or successor or by sale in execution of a decree been transferred to another person or an advance by the Central or Provincial Government to make advances or by a co operative society or by a schedule bank: Provided that an advance recoverable from an agricul turist or from an agriculturist and other persons jointly shall not be deemed to be a loan for the purposes of this Act unless such advance was made to an agriculturist or to an agriculturist and other persons jointly." In order to be a "loan" the advance must be recoverable from an agriculturist.
The word "recoverable" seems, prima facie, to indicate that the crucial point of time is when the advance becomes recover able, i.e., when the amount advanced becomes or falls due.
Under the mortgage of 1931 the date of redemption was 6 years from the date of execution, i.e., in July 1937.
Sri Kunzru concedes that Sita Ram was not as sessed to income tax.since 1936.
Assuming, but without deciding, that the proviso to section 2 (9) applies and that in order to be a "loan" it must be shown that the advance was made to one who, at the date of the advance, was an agriculturist as defined in section 2(3) of the Act the question has yet to be answered, namely, had Sita Ram ceased to be an agriculturist by reason of clause (b) of the provi so to section 2(3), that is to say, by reason of his being assessed to income tax on July 28, 1931.
According to the evidence of Surai Mani Tripathi and Sita Ram 653 income tax was first deducted at the source in the month of February 1932 by the College authorities and the actual assessment was made on February 9, 1933.
Therefore, Sita Ram was not assessed to incometax on July 28.
It is not disputed that the taxable minimum was reduced from Rs. 2,000 perannum to Rs. 1,000 per annum by the Indian Finance (Supplementary & Extending)Act, 1931, which was enacted on November 26, 1931.
Therefore, at the date of the advance, i.e., on July 28, 1931, Sita Ram Whose salary was below Rs. 2,000 per annum was not only not actually assessed to in come tax but was not even liable to such assessment.
The evidence of Suraj Mani Tripathi shows that the first deduc tion of incometax out of the salary was in the month of February 1932 and the income tax assessment form for 1931 32 (Ex.S) shows that tax was assessed on Rs. 180 which was evidently salary for February and March 1932 being the last two months of the assessment year.
The position therefore is that Sita Ram was not assessed to income tax at the date of the advance in 1931 or on the due date under the deed, i.e., in July 1937, or on the date of suit in 1938 or on the date of the application under section 8 in 1942.
It consequently follows that he was an agriculturist on all these dates.
The other judgment debtors were admittedly agriculturists.
Therefore, the application under section 8 was made by persons who were all agriculturists and who were liable to pay under a decree to which the Act applies, i.e., under a decree passed in a suit relating to a loan as defined by section 2(9).
The Courts below therefore, were right in their conclusion that the judgment debtors applicants were entitled to the benefit of the Act.
Sri G.N. Kunzru finally submitted that in any case the accounts could not be taken from 1922, for the mortgagees under the two mortgages were different.
We have already pointed out that this point was not specifically taken in the decree holders ' petition of objection.
The trial Court held as a fact that so far as the judgment debtors were concerned the 654 mortgagees were the same in both the mortgages.
Although in the petition of appeal to the High Court it was alleged that the mortgagees were different and the accounts could not be reopened from 1922, that ground was not specifi cally urged before the High Court.
The determination of that question must necessarily involve an investigation into facts.
We do not think, in the absence of a plea in this behalfin the decree holders ' petition of objection and also in view of their failure and neglect to raise this question before the High Court, it will be right for this final court of appeal, at this stage and in the circumstances of this case, to permit the appellants to raise this question of fact.
The result, therefore, is that this appeal must stand dis missed with costs.
Appeal dismissed.
| A mortgage was executed by several persons on the 28th July, 1931.
The term of the mortgage, namely six years, expired in July 1937, the mortgagees instituted a suit in May 1938 and a decree was passed in March 1939.
An applica tion for relief under the U.P. Debt Redemption Act (XIII of 1940) was made on 11th April, 1942, and this application was resisted on the ground that S, one of the mortgagors, had been assessed to income tax and was therefore not an agri culturist, and the suit was not consequently "a suit to which the Act applied.
" The evidence showed that S was earning a monthly salary of Rs. 90 and that from February 1932 he had been assessed to income tax till the year 1936.
The High Court held, relying on the Full Bench ruling in Ketki Kunwar vs Ram Saroop (I.L.R. 1943 All. 35), that under sec.
21 of the Act the mortgage money could be recovered only from the mortgaged property and not personally and that the proviso to sec.
2 (9) of the Act had therefore no application and the question whether S was an agriculturist on the date of the mortgage was immaterial.
As S was admit tedly an agriculturist on the date of the suit, the High Court held that the judgment debtors were entitled to relief under the Act.
On appeal Held, that, assuming that the proviso to sec.
2 (9) applied and that in order to be a "loan" within the meaning of the Act it must be shown that the advance was made to one who at the date of the advance was an agriculturist, S was not an agriculturist on the 28th.
July, 1931, as the Indian Finance (Supplementary and Extending)Act of 1931 which reduced the taxable minimum from Rs. 2,000 to Rs. 1,000 was passed only in November 1931 and income tax was first deducted from his salary only in February, 1932.
Quaere: Whether the Full Bench decision in Ketki Kuwar vs Ram Saroop (I.L.R. 1943 All. 35) is correct.
|
ivil Appeals Nos. 29 and 30 of 1951.
Appeals from the judgment and decree dated 26th October, 1943, of the High Court of Judicature at Allahabad (Verma and Yorke JJ.) in First Appeal No. 48 of 1938 arising out of the judgment and decree dated 6th August, 1937, of the Court of the Additional Civil Judge at Agra in Suit No. 30 of 1936.
M.C. Setalvad and Kirpa Ram (K. B. Asthana, with them) for the appellant in Civil Appeal No. 29 of 1951.
K.N. Agarwal for the appellant in Civil Appeal No. 30 of 1951.
C.K. Daphtary (G. C. Mathur, with him) for the respond ents in both the appeals.
April 24.
The Judgment of the Court was deliv ered by MAHAJAN J.
796 Mst.
Khem Kuer, the young widow of Shah Chiranji Lal, was murdered on the 28th August, 1919, and Mst.
Mohan Kuer, the mother, died on the 5th December, 1932.
Prem Kuer, the respondent in the appeal, claiming herself to be the heir to Shah Chiranji Lal as his sister, brought the suit giving rise to this appeal in the court of the civil judge, Agra, against, amongst others, Mst.
Phool Kuer, the present appellant, for recovery of possession of the properties of Shah Chiranji Lal and mesne profits.
Prem Kuer joined her half sister Mst.
Ram Kuer and their sons as plaintiffs along with herself.
In the array of defendants were impleaded Mst.
Phool Kuer and Mst.
Khem Kuer, widows of Shah Jwala Prasad and Shah Madho Lal and his sons and a host of others as transferees of the properties.
The main defence to the suit was that Shah Jwala Prasad and Shah Madho Lal were recognized to be the owners and heirs to the entire estate of Shah Chiranji Lal by Khem Kuer and Mohan Kuer in a family settlement arrived at between the parties in suit No. 120 of 1915, that by virtue of this family settlement the estate of the deceased was vested in them subject to the life estates of the two women and that the plaintiffs who came to be recognized as reversioners by the Hindu Law of Inheritance (Amendment) Act, 11 of 1929, were not entitled to claim it.
It was further pleaded that on the death of Khem Kuer in 1919, Mohan Kuer surrendered the estate in favour of Jwala Prasad and Madho Lal and they took possession of it as owners and the plaintiffs who subsequently became statutory heirs in 1919 could not be allowed to question the surrender and reopen the succession which could not remain in abeyance.
The learned additional civil judge who tried the suit, dismissed it holding that the compromise of 1915 was a bona fide settlement of a bona fide dispute and was binding as a family settlement being for the benefit of the estate, that Mohan Kuer surrendered the estate validly in favour of Jwala Prasad and Madho 795 MAHAJAN J.
The dispute in this appeal concerns the zemindari and house properties last owned by Shah Chiranji Lal who died at a young age on the 14th May, 1913, leaving him surviving a widow, Mst.
Khem Kuer, and his mother Mst.
Mohan Kuer, besides a number of collaterals, indicated in the pedigree table below : Shah Pirthi Raj : : : : : : : : Mst.
Tulsa Kuer=Shah Lal Chand=Mst.
Mohan Kuer : : : : : : : : : : : : Hira Lal : : : : : : : : Shah Jai : : : Kisen : : : Mst.
Ram Kuer : =Kherpal : : : : : : : : :Shah Jwala Shah Sri :Prasad Kisen : : : :(1)Khem : : : : : Kuer Shah Madho Ram Chand Lachman Kishen Lal :(2)Phool Lal Prasad =Mst.
Umri : Kuer : : : : : : : : : Sudar Mad : Dwarka shan sudan : Prasad Lal Lal : : : : : : : : : : : : Ganga Prasad Jamna Mst.
Prem Kuer Shah Chiranji Lal Prasad =Lekh Raj =Mst.
Khem Kuer : : : : : : Manohar Lal Lachmi Narain 797 Lal and they entered into possession of it after the death of Khem Kuer.
Some of the transferees who had been implead ed as defendants compromised the suit with the plaintiffs and that part of the suit was decided according to the terms thereof between those parties.
Prem Kuer preferred an appeal to the High Court of Judicature at Allahabad against the decree dismissing her suit.
The High Court by its judgment dated the 26th Octo ber, 1943, allowed the appeal, reversed the findings of the learned additional civil judge on the above issues and decreed the plaintiffs ' suit with costs.
Some of the trans feree defendants compromised with the plaintiff appellant in the High Court and the appeal was decided in terms thereof in their favour.
Two main points which are in controversy in this appeal and require consideration, are: 1.
Whether the compromise in suit No. 120 of 1915 amounts to a family settlement and binds the plaintiff respondent, and, 2.
Whether the surrender by Mst.
Mohan Kuer was a valid surrender under Hindu law.
In order to appreciate the respective contentions of the parties, it is necessary to set out shortly in chronological order the history of the events which has resulted in this controversy.
As already stated, Shah Chiranji Lal died on the 14th May, 1913, leaving considerable movable and immovable property.
At the time of his death, his widow Khem Kuer was about eleven years old and his mother Mohan Kuer was about 53 years old.
The two reversioners, Shah Jwala Prasad and Shah Madho Lal, made an application for mutation of names of the estate in their favour claiming it on the basis of a will alleged to have been made by Shah Chiranji Lal on the 13th May, 1913, a day before his death.
On the 10th of September, 1913, an application was made by Mohan Kuer for herself and as guardian of Khem Kuer Challenging the genu ineness of the will and claiming 798 that the estate of the late Shah Chiranji Lal should be mutated in their names.
Notice of this application was given to the two reversioners but they thought it prudent not to appear and to contest the contentions raised by the two ladies.
with the result that the inheritance of the late Chiranji Lal was mutated in the name of the widow as sole heir under the guardianship of Mohan Kuer by an order dated the 28th October, 1913.
The reversioners had also made applications in pending suits for getting themselves im pleaded as legal representatives.
Mohan Kuer applied for the removal of their names and for substitution of the name of the widow and of herself in those cases.
Pending decision of these matters, on the 11th May, 1915, suit No. 120 of 1915 was filed by Jwala Prasad and Madho Lal on the basis of the alleged will of the 13th May, 1913.
On the same day an application was made for the appointment of a receiver and an interim order appointing a receiver was passed by the court.
On the 18th May, 1915, Mohan Kuer for herself and as guardian of the minor widow made an application praying for the discharge of the receiver.
By an order dated the 23rd September, 1915, the receiver was discharged and it was held by the civil judge that the plaintiffs had no prima facie case and that the will propounded by them was a suspicious document.
On the 18th December, 1915, suit No. 120 of 1915 was compromised between the parties.
This compromise is in the following terms : "1.
The plaintiffs relinquish their claim for possession over the estate of Shah Chiranji Lal.
The defendants shall have all those rights to the estate of Shah Chiranji Lal, which she had as a Hindu widow according to law.
After the death of the two Musammats, the plaintiffs in equal shares and, after them, their heirs, who might have the right of survivorship one after the other, shall be the owners of the estate of Shah Chiranji Lal.
The name of Mst.
Mohan Kunwar defendant against one half of the property in lieu of maintenance, shall continue.
799 4.
Mohan Kunwar and Mst.
Khem Kunwar shall have power to do anything they might choose with the entire income from the movable and immovable property, cash, orna ments, amount of decrees and documents, household goods and other movables, which they might have in their possession.
The plaintiffs or anyone else shall have no power to inter fere or to ask for rendition of accounts.
In case Mohan Kunwar defendant dies first, Mst.
Khem Kunwar shall, as a Hindu widow, become the owner in posses sion of the entire property, of which Mst, Mohan Kuer might have been in possession in any way, subject to the provi sions of condition No. 4.
In ,case Mst.
Khem Kuer defendant dies first, Mst, Mohan Kuer shall as a Hindu widow, become the owner in possession of the entire property of which.
Mst, Khem Kuer might have been in possession in any way, subject to the provisions of condition No. 4." In accordance with the terms of this compromise suit No. 120 of 1915 was dismissed.
In the proceedings that were pending for substitution of names the court on the 22nd December, 1915, ordered that Khem Kuer and Mohan Kuer be impleaded as legal representatives of the late Shah Chiranji Lal.
On the 2nd September, 1918, Khem Kuer brought a suit against her mother in law Mohan Kuer for a declaration to the effect that she alone was the lawful heir of Chiranji Lal and was the owner of the property, mentioned in schedule A and that the defendant had no concern with it.
This suit was compromised between the parties on the 22nd April, 1919.
Mohan Kuer agreed that Khem Kuer 's suit be decreed.
Khem Kuer undertook to look after Mohan Kuer in every way and if she desired to live separately from her, she agreed to pay her a sum of Rs. 3000 per annum by way of maintenance.
Khem Kuer did not live long after her having become owner of the entire estate of her husband under the terms of this compromise.
As stated already, she was murdered on the 28th August, 1919.
The estate 104 800 thus became vested in Mohan Kuer both according to Hindu law as well as in accordance with the terms of the compromise of the 18th December, 1915.
It is alleged that either on the fourth or the thirteenth day after the death of Khem Kuer, Mohan Kuer when asked about the mutation of the estate, said that she had no concern with it and had relinquished it and had devoted herself to worship.
On the 15th September, 1919, an application bearing the signature of Mohan Kuer in Hindi was presented by her mukhtar Chaturbhuj in the court of the subordinate judge at Agra, praying that the sale certificate in suit No. 1919 (Shah Jwala Prasad vs Rai Bahadur Shah Durga Prasad), be prepared in the names of Shah Jwala Prasad and Shah Madho Lal, for they were the heirs in possession of the properties of Shah Chiranji Lal.
This application (Exhibit N 31) contains the following recital: "Mst.
Khem Kuer died on the 28th of August, 1919.
I do not want to take any proceedings in my own name.
Shah Jwala Prasad and Shah Madho Lal are the subsequent heirs and it is in their names that all the mutation proceedings etc. are being taken in the revenue court.
They have been made the heirs in possession of the entire property and an applica tion has been filed in their names in this court for prepara tion of the sale certificate.
This petitioner has got no objection to the preparation of the sale certificate in their names, for they are the heirs and are in possession of the property.
" The sale certificate was prepared accordingly.
On the 16th September, 1919, Jwala Prasad and Madho Lal applied for mutation in respect of the lands relating to mauza Somra in the court of the tahsildar of Etmadpur.
In column 5 of this application (Exhibit A 14) it was alleged that they were entitled to mutation by right of inheritance.
Similar appli cations were made in respect of other villages also.
(Vide Exhibit 128 etc.) Mutations were entered in all the villages on the basis that both of them were heirs in equal shares to the property of the deceased, though according to Hindu law, Shah Jwala Prasad alone was the 801 next heir.
During the course of the mutation proceedings one Chintaman, general attorney of Shah Jwala Prasad was exam ined on the 11th October, 1919 and he stated that Mst.
Khem Kuer died on the 28th August, 1919, that Shah Jwala Prasad and Shah Madho Lal were her heirs in equal shares, that Mohan Kuer was the mother in law of the deceased and she did not want her name to be recorded and had made relinquishment in favour of Shah Madho Lal and Shah Jwala Prasad in the civil court on the 15th September, 1919.
Chaturbhuj, gener al attorney of Mohan Kuer was examined in the same proceed ings on the 27th October, 1919, and he stated that Mohan Kuer did not want her name to be recorded in place of the name of the deceased, that she had no objection to the entry of the names of Shah Jwala Prasad and Shah Madho Lal, that she had sent him for making that statement.
He admitted the relinquishment filed by Mohan Kuer in the civil court with respect to the property of Mst.
Khem Kuer but he was not able to state when that relinquishment had taken place.
The tahsildar after recording these statements ordered the mutation of names in favour of the two reversioners (Exhibit M 2).
On the 22nd November, 1919, the two reversioners Shah Jwala Prasad and Shah Madho Lal, having entered into possession of the estate after the death of Khem Kuer made a gift of property of the value of about Rs. 50,000 in favour of the sisters of Shah Chiranji Lal by means of two deeds of gift.
(Vide Exhibit M 16).
These gift deeds contain the following recitals : "Shah Chiranji Lal deceased was the owner of Katariha estate in which besides other villages the villages speci fied below were also included, and as he had no issue after his death Mst.
Khem Kuer became his heir as a Hindu widow of a joint family subject to Mitakshara school of law.
On her death we the executants who were entitled to become the absolute owners of the estate of Shah Chiranji Lal according to Shastras became the absolute owner of the entire property 802 of Shah Chiranji Lal by inheriting the estate from him.
We obtained possession over everything and mutation of names also were effected in our favour from the revenue court in respect of all villages.
Shah Chiranji Lal deceased had two sisters Mst.
Ram Kuer and Mst.
Prem Kuer and he had a desire during his lifetime to give them some property but owing to sudden death he could not himself fulfil his intention during his lifetime.
We the executants accept this fact as desired by him.
Besides this the mother of Shah Chiranji Lal also desires the same thing and it is our duty to fulfil the same, and to give property to the Musammats aforesaid is considered to be a pious and good act from the religious point of view.
It is our duty also to respect their wishes and fulfil the same, so that the people of our caste and family might not think that after the death of Shah Chiranji Lal his wishes remained unfulfilled.
Hence for the reasons set forth above and keeping in view the honour of the family and pious nature of the act we the executants while in a sound state of body and mind . . . make a gift of the following villages in favour of the donees.
" The donees subsequently made a number of transfers of the property gifted to them and in every respect the gift deeds were acted upon.
Jwala Prasad, the presumptive rever sioner, died in the year 1980.
In suit No. 49 of 1928 (same as No. 89 of 1929) one Pandit Rikh Ram had obtained a decree against Shah Madho Lal and his sons and they appealed against it to the High Court and also applied for postponement of the preparation of the final decree.
Stay was ordered on the applicants furnishing security in the sum of Rs. 20,000 for future interest, costs, etc.
On the 26th May, 1930, in compliance with the order of the High Court a security bond was executed by Shah Madho Lal and his sons as first party and by Mst.
Mohan Kuer as second party, containing the following recitals : "After the death of Mst.
Khem Kuer Mst.
Mohan Kuer was to become the owner of the property with 803 limited interests as a Hindu mother, but she relinquished her inheritance and did not agree to accept any property.
By means of a private arrangement, i.e., a family arrange ment, it was decided as between Shah Jwala Prasad and Shah Madho Lal that they should be the owners of the property aforesaid in equal shares.
Documents in that connection were registered.
Thus Shah Madho Lal executant No.1 is the exclusive owner of the property given below which is being pledged and hypothecated under this security bond.
Execu tant No. 4, the second party, has, after hearing and under standing the contents of this security bond, joined in token of the veracity of the facts noted above so that in future she might not be able to take objection to it and so that she might have no objection of any sort to the security bond." (Executant No. 4 was Mst.
Mohan Kuer).
On the 30th June, 1930, an affidavit bearing the thumb impression of Mst.
Mohan Kuer was filed in the same pro ceedings containing the following statements : "I solemnly affirm and say that after the death of Mst.
Khem Kuer I did not agree to accept property nor was I the heir and that I relinquished the entire property in favour of Shah Jwala Prasad who became the owner of the entire property which was in possession of Khem Kuer.
" The Subordinate Judge expressed the view that the bond could not be held to have been executed by Mohan Kuer, she being a pardanashin lady.
He declined to accept the deed as sufficient and valid security.
On the 9th July, 1930, the High Court of Judicature at Allahabad dismissed the applica tion for stay of proceedings.
On the 15th July, 1931, Mohan Kuer instituted suit No. 24 of 1931 in the court of the subordinate judge of Mathura against the widows of Shah Jwala Prasad, Shah Madho Lal and his sons and a number of transferees who had taken the property from these two reversioners.
In para 8 of the plaint it was alleged 804 that the plaintiff was an old pardanashin woman, was simple and of week intellect and illiterate, that on account of the murder of Mst.
Khem Kuer, she was very terror stricken and was full of sorrow and had no knowledge about her rights, that the third defendant and Jwala Prasad who wanted to get the property took undue advantage of the plaintiff 's afore said condition and unlawfully entered into possession of the property left by Chiranji Lal deceased and caused the muta tion of names in their favour.
In para.
12 it was said that the defendants had got the thumb impressions of the plain tiff on certain documents without telling her the contents of those papers, simply by saying that a decree for a con siderable amount had been passed against the property and it was going to be sold in auction and that a security bond must be furnished for saving the property.
She prayed for a decree for possession of the property in dispute in her favour against the defendants.
During the pendency of this suit Mohan Kuer died on the 5th December, and on her death an attempt was made by the present plaintiffs to get them selves impleaded as her legal representatives but on the 9th October 1934 it was held that the claim of Mst.
Mohan Kuer was of a personal character and the suit therefore could not proceed owing to abatement.
It was, however, noted that the legal representatives could file a separate suit, if so advised.
It is in consequence of this order that the suit out of which this appeal arises was filed on the 30th April 1936.
It was contended by the learned Attorney General that the High Court on mere suspicions and unwarranted assump tions had found the main issues in the case against the appellant and had erroneously held that the compromise in suit No. 120 of 1915 was not binding on the 'plaintiffs and that the surrender by Mohan Kuer was not valid surrender under Hindu law.
After hearing the learned counsel at considerable length, we did not think it necessary to hear the respondent in reply, as in our opinion, the decision of the High Court on both the points was right.
805 On the point of surrender, the learned Attorney General contended that the widow effaced herself and put both the reversioners in possession of the property half and half, and agreed to take Rs. 3,000 from them for her maintenance and that the fact of surrender was satisfactorily proved from the conduct of Mohan Kuer in allowing the estate to be mutated in the names of the reversioners and in allowing them to take possession of it, also by the different state ments made by her and from the other documentary and oral evidence led in the case.
Emphasis was laid on the state ments contained in the application (Exhibit M 31), on the statement of her mukhtar Chaturbhuj, and on the recitals of the security bond and the affidavit, Exhibit P 30.
Whether Mohan Kuer effaced herself and surrendered the property, or whether she merely abandoned it, or whether she entered into an arrangement for the division of the estate between herself, the two reversioners and the daughters and their sons it is not possible to predicate with any amount of certainty.
No definite opinion can be offered on the question whether whatever she did, she did voluntarily after fully realizing the consequences of her act and wheth er as a pardanashin lady she had.been properly advised on the matter or whether she merely acted on sentiment.
Considerable doubt is cast on the story of surrender set up by the defendants by the recitals in the two deeds of gift, dated 22nd November, 1919, extracted above.
The donors did not base their title to the property either on the compromise of 1915 or on the surrender of Mohan Kuer of the year 1919 or on the will; on the other hand, they said that they had become owners of the property of Chiranji Lal by inheritance under Hindu law after the death of his widow.
Both of them could not possibly inherit the property half and half under Hindu law.
Moreover, there is no clear or definite evidence of either the time when the arrangement was made or of the terms thereof.
The evidence on these points is vague and 806 unsatisfactory.
It is completely wanting as to the arrange ment under which Mohan Kuer became entitled to receive Rs. 3,000 from them.
The conduct of Mohan Kuer and the various statements by her no doubt do indicate that she cut off her connection with the bulk of the estate of Chiranji Lal after the death of the widow and received a sum of Rs. 3,000 from the rever sioners and it is also clear that at her instance the rever sioners gave property of the value of Rs. 50,000 to her daughters, but in the absence of any satisfactory evidence as to the precise nature of this arrangement it is not possible to conclude that the widow after fully realizing as to what she was doing and after proper advice effaced her self.
In this connection the allegations made by her in the suit of 1931 cannot be altogether ruled out from considera tion.
Assuming however for the sake of argument that Mobart Kuer purported to relinquish her estate in favour of Jwala Prasad and Madho Lal, in our opinion, the relinquishment connot in law operate as an extinction of her title in the estate.
The principle underlying the doctrine of surrender is that it cannot possibly be made in favour of anybody except the next heir of the husband.
Vesting of the estate in the next reversioner takes place under operation of law and it is not possible for the widow to say that she is withdrawing herself from the husband 's estate in order that it may vest in somebody other than the next heir of the husband.
It was held by this court in Mummareddi Nagi Reddi vs Pitti Durairaja Naidu(1) that so far as the next heir is concerned, there cannot be a surrender of the total ity of the interest which the widow had, if she actually directs that a portion of it should be held or enjoyed by somebody else other than the husband 's heirs and that the position is not materially altered if the surrender is made in favour of the next heir with whom a stranger is associat ed and the widow purports to.
relinquish the estate in order that it may vest in (1) [1951] s.c.
R. 655.
807 both of them.
Though in the written statements of the two sets of defendants different versions of the character of the arrangement were pleaded, the learned Attorney General before us stated that the surrender by the widow was made both in favour of Jwala Prasad and Madho Lal in equal moie ties.
Madho Lal admittedly was not the next reversioner entitled to succeed to the estate.
Thus the surrender of the totality of the interest of the widow was not made in favour of the next heir.
That being so, it cannot operate as a valid surrender.
If the surrender could be held a valid one, then obviously succession that had opened out in 1919 and vested in the next heirs could not be divested at the instance of the plaintiffs in the year 1932 on the death of Mohan Kuer, but in view of the invalidity of the surren der it has to be held that succession to Shah Chiranji Lal 's estate opened in 1932 and the plaintiffs as next heirs were entitled to take it.
The next question for consideration is whether the compromise of 1915 entered into between Mohan Kuer as guardian of Khem Kuer, and the two reversioners who had claimed the estate on the basis of a will, was a bona fide family arrangement and thus binding on the ultimate rever sioners, the plaintiffs.
It is well settled that when the estate of a deceased Hindu vests in a female heir, a decree fairly and properly obtained against her in regard to the estate is in the absence of fraud or collusion binding on the reversionary heir, but the decree against the female holder must have involved the decision of a question of title and not merely a question of the widow 's possession during her life (vide Venayeck Anundrow vs Luxumeebaee (1).
This principle of res judicata is not limited to decrees in suits contested and it is competent to a widow to enter into a compromise in the course of a suit bona fide in the inter est of the estate, and not for ' her personal advantage, and a decree passed on such compromise is binding upon the reversioner.
The question whether the transaction (1) 808 is a bona fide settlement of a disputed right between the parties depends on the substance of the transaction and in order that it may bind the estate it should be a prudent and reasonable act in the circumstances of the case.
As observed by their Lordships of the Privy Council in Ram sumran Prasad vs Shyam Kumari (1), the true doctrine is laid down in Mohendra Nath Biswas vs Shamsunnessa Khatun(2), decided in 1914, and it is that a compromise made bona fide for the benefit of the estate and not for the personal advantage of a limited owner will bind the reversioner quite as much as a decree against her after contest.
That being so,we proceed to inquire whether the compromise in the present case is one that can be supported on these principles.
In agreement with the High Court we are of the opinion that it cannot be so supported.
Mohan Kuer in entering into the compromise on behalf of the minor widow never applied her mind to the interests of the ultimate reversioners.
She entered into it for her own personal benefit and for the personal benefit of the minor widow in complete indifference as to what was to happen to the estate after their respective deaths.
Under this compromise these two ladies got all the rights they had under Hindu law without sacrificing an iota of their property and then they agreed that after their death the plaintiffs in equal shares and after them their heirs shall be the owners of the estate of Chiranji Lal.
It did not matter in the least to the two ladies what was to happen to the estate after their deaths and they were quite willing to let this estate go to the plaintiffs in the suit, though one of them was a remote reversioner.
The compromise therefore was made in the interest of the actual parties to the suit in complete disregard of the interests of the ultimate reversioners.
The widows undoubtedly acted with reasonableness and pru dence so far as their personal interest was concerned but further than that they did not see.
The claim, of the two plaintiffs in Suit No. 120 of 1916 was adverse to the inter est of the (1) (1922) 49 I,A. 342.
(2) 809 reversion as they were claiming as legatees under the will.
The widows while entering into the compromise safeguarded their personal rights only and thus in entering into it they only represented themselves and not the estate or the rever sioners and surrendered nothing out of their rights, and it cannot be said that in the true sense of the term it was a bona fide settlement of disputed rights where each party gave up something of its own rights to the other.
The plain tiffs got an admission from the widows in regard to the future succession of the estate that after their deaths they would succeed though they were not heirs in accordance with Hindu law.
By this admission the widows lost nothing what soever.
Those who lost were the ultimate reversioners and their interest was not in the least either considered or safeguarded.
In these circumstances it seems to us that the compromise cannot be held to be a bona fide settlement or family arrangement of disputed rights and was entered into by Mohan Kuer for her personal advantage and of the advan tage of Khem Kuer.
The present case is analogous to the decision of the Privy Council in Imrit Konwur vs Roop Narain Singh (1).
There in a dispute between a person claiming to be an adopted son of the previous owner and the widow and her daughters who would have title after her, the widow gave up her daughters ' rights in consideration of her receiving practically unimpaired what she could.
Their Lordships held that such a compromise could not stand, as indeed it was not a compromise at all.
The learned Attorney General laid considerable emphasis on the decision of their Lordships of the Privy Council in Mata Prasad vs Nageshar Sahai (2).
In that case the widow admitted the right of the reversioner under Act I of 1869 and agreed that succession will be governed by that Act.
The reversioner agreed to let her remain in possession and undertook that he would not alienate the property during that period.
The widow in that case was not constituted a full owner under Hindu law and she did not get her full rights (1) (2) (1925) 52 I.A.393 810 under the compromise but as a matter of concession was allowed to remain in possession by the reversioner and as a matter of fact she sacrificed her rights to a considerable extent and did not act for her personal benefit at all except to the limited extent mentioned above.
In the cir cumstances of that case it was held "that the compromise was a bona fide family settlement of disputed claims and was binding on the reversioners.
In the present case the devolu tion of the property after the death of Chiranji Lal was agreed to be in accordance with Hindu law and that being so, the further devolution of the property after their death was no concern of the widows.
That was a matter of law.
The ultimate reversioners were stabbed in the back by the widow and such a compromise cannot be held to be binding on them.
A large number of cases were cited before us in which com promises under different circumstances had been held to be binding on the reversioners.
We consider that it is wholly unnecessary to examine those cases because the circum stances in which those compromises were made were quite different from the circumstances of the present case.
Considering all the materials which were placed before us, we hold in agreement with the High Court that the compromise in the present case was neither prudent nor reasonable so far as it affected the interests of the estate and that of the ultimate reversioners and that being so, is not binding on the plaintiffs.
For the reasons given above this appeal fails and is dismissed with costs.
Civil Appeal No. 30 of 1951.
This is an appeal by one of the transferees and arises out of the same suit out of which arises appeal No. 29 of 1951.
On the 13th June, 1928, Shah Madho Lal and his son Shah Madhusudan Lal executed a sale deed (Exhibit M 13) in favour of the appellant for the sum of Rs. 21,000.
The transferee while adopting the defence taken by Madho Lal and by the heirs of Jwala Prasad, pleaded that he was protected by the provisions of section 41 of the Transfer of Property Act.
811 The High Court held that in cases where a person who has allowed another to occupy the position of an ostensible owner has a limited estate, the rule of section 41 applies only during the lifetime of the limited owner and is not available to protect transferees against the claim of the reversioners.
A number of authorities were cited in support of this proposition.
The learned counsel for the appellant was unable to displace this proposition.
It is quite clear that the plea of section 41 of the Transfer of Property Act could only be raised against Mohan Kuer or her legal repre sentatives but is not available against the plaintiff, Mohan Kuer having acquired a limited life estate.
This contention is therefore rejected.
The learned counsel then contended that the plaintiff Prem Kuer had relinquished her rights in favour of her sons in 1933 and she had no locus standi to maintain the suit or to appeal against the decision of the trial judge as the title to the estate had vested in her sons.
The plaintiffs had alleged in para.
13 of the plaint that the relinquish ment was inoperative and void.
The defendants did not dis pute that allegation and it is not open to them at this stage to take up the plea which they could have taken in the trial court or in the appellate court.
Even in the grounds of appeal to this court the point was not taken.
If the point was taken at the proper stage the plaintiffs might well have proved that the relinquishment was no longer operative or they might have amended the plaint and put it in proper form.
The learned counsel adopted the arguments of the learned Attorney General in the other appeal and for the reasons given therein these points are decided against him.
This appeal therefore also fails and is dismissed with costs.
Appeals dismissed.
Agent for the appellant in Civil Appeal No. 29 of 1951: section section Shukla.
Agent for the appellant in Civil Appeal No. 80 of 195 I:P. C. Agarwal.
Agent for the respondents in both: Rajinder Narain.
| A relinquishment by a Hindu widow of her estate in favour of the next reversioner and a stranger in equal moieties is not a valid surrender under Hindu law.
A valid surrender cannot be made in favour of anybody except the next heir of the husband.
Mummareddi Nagireddi vs Pitti Durairaja Naidu [1951] (S.C.R. 655) followed.
It is competent to a Hindu widow to enter into a compro mise in the course of the suit bona fide in the interest of the estate and not for her personal advantage and a decree passed on such a compromise will be binding on the rever sioner.
The question whether a compromise is a bona fide settlement of a disputed right between the parties depends on the substance of the transaction and in order that it may bind the estate it should be a prudent and reasonable act.
[On the facts their Lordships held, agreeing with the High Court, that, the compromise in the present case was neither prudent nor reasonable so far as it affected the interests of the estate and of the ultimate reversioners and that it was not, therefore, binding on the reversioners.] Ramsumaran Prasad vs Shyam Kumari (49 I.A. 342), Mohendra Nath Biswas vs Shamsunnessa Khatun (21 C.L.J. 157) and Imrit Kunwar vs Roop Narain Singh fol lowed.
Mata Prasad vs Nageshar Sahai (52 I.A. 393) distin guished.
|
Criminal Appeal No. 12 of 1952.
Appeal by special leave from the judgment and order dated 4th June, 1951, of the High Court of Judicature of Punjab at Simla (Bhandari and Soni JJ.) in Criminal Appeal No. 109 of 1951 arising out of Judgment and order dated 19th March 1951 of the Court of the Additional Sessions Judge, Ferozepore, in Sessions Trial No. 18 of 1951.
T.R. Bhasin, for the appellant.
Gopal Singh, for the respondent.
April 30.
The Judgment of the Court was delivered by BOSE J.
This is a simple case though it was argued at great length on behalf of the appellant and a number of technical objections to the validity of the trial taken.
The appellant Bhagwan Singh has been convicted of the murder of one Buggar Singh and sentenced to death.
He has also been convicted under section 19(f) of the Indian Arms Act but we are not concerned with that here.
The prosecution story is that the appellant bore a grudge against the deceased because the deceased had fired at the appellant 's brother some six or seven years before the present occurrence and was sent to jail for 814 it.
When he came out of jail the police thought it prudent to take proceedings against both sides under section 107 of the Code of Criminal Procedure.
This resulted in the appel lant 's two brothers and his cousins being bound down, as also the deceased.
This, it is said, constituted the motive for the present crime.
On the date of the occurrence, the 7th of September 1950, the prosecution state that the appellant was sitting at the shop of Jit Singh, P.W. 2, when the deceased came there about 12 15 p.m. and borrowed Rs. 5 from Jit Singh who lent him the money and entered the transaction in his ac count book.
When the deceased left the shop he was followed by the appellant who shot him at point blank range with a pistol only 4 or 5 karams from the shop.
This attracted the attention of a number of bystanders who immediately chased the appellant and apprehended him after a short run of about 30 karams.
He was still carrying the pistol.
It was taken away from him by Jagir Singh Patwari, P.W. 4.
The appellant was immediately taken to the local police post about 100 karams distant and the shopkeeper Jit Singh, P.W. 2, made the first information report at 12 a7 p.m. within 15 minutes of the occurrence.
The motive is proved by Bhag Singh, P.W. 7, who has been believed and that part of the case was ' not challenged before us.
The occurrence was witnessed by a large number of persons of whom the prosecution examined only five.
Two of them turned hostile in the Sessions Court and one gave evidence which has been regarded by the High Court as neu tral.
The remaining two, Balbir Singh (P.W. 5) and Jaswant Singh (P.W. 6) have been believed.
The only questions are (1) whether the conviction can be rested on their testimony and(2) whether certain irregularities in the trial vitiate it.
No attack was made on the testimony of Balbir Singh, P.W. 5, except that the two eye witnesses who 815 resiled in the Sessions Court contradict him.
But it was argued that the evidence of Jaswant Singh P.W. 6, is viti ated because he was not examined by the Committing Magis trate.
It was said that makes his evidence in the Sessions Court inadmissible.
This raises a question which is largely academic in this case because the reason Jaswant Singh, P.W. 6, was not examined by the Committing Magistrate is that the witness had gone away and was not available and it would have been a needless, and indeed unjustifiable, holding up of the pro ceedings to wait till he could be found and summoned.
It is evident that the Sessions Court has power to examine wit nesses who were not examined before the Committing Magis trate because of section 540 of the Criminal Procedure Code, and if the witness is treated as a prosecution witness and examined by the prosecuting counsel instead of by the Court itself that at best would be an irregularity curable by section 537.
The proper time to object to such a procedure would be at the trial itself, and as the appellant was represented in the Sessions Court by two counsel it is too late to object to such a venial irregularity in this Court.
The learned counsel for the appellant took us elaborate ly through the provisions of Chapter XVIII of the Criminal Procedure Code and stressed in particular section 208 (1) but we need not enter into this because section 540 is a complete answer in this particular case.
None of the cases cited goes so far as to say that no witness who was not produced in the committal proceedings can be examined at the trial and we would be unable to agree if they did.
The decision most in favour of the appellant 's contention is Sher Bahadur vs The Crown (1)but that does no more than consider such an omission as a curable defect.
Abdul Qadir J. said at pages 338 and 342 that it was conceded before them that section 540 could be called in aid in such a case, and at page 339 the learned Judge dealt with the question of prejudice (1)(1934)I.L.R. 15 lah.331.
106 816 and concluded at page 344 with the remark that the question is one of fact in each case and that in his opinion there was prejudice in that particular case.
The other learned Judge took the same view at pages 3J,7 and 348 and said: "The Court can, of course, always use its discretion and allow the production of further evidence.
" It is to be observed that the objection in that case was raised at a very early stage and before the sessions trial had commenced; also that the prosecution wished to examine no less than eight material witnesses (out of a total of sixteen) which they had deliberately withheld in the commit tal proceedings.
We make no remarks about the correctness of the observations which travel beyond the question of prejudice because that is unnecessary here.
It is sufficient to say that the learned Judges conceded the power under section 510 and decided the case on the question of preju dice.
The question raised in Queen Empress vs G.W. Hayfield(1) does not arise here because the Sessions Court did not refuse to examine Jaswant Singh, P.W. 6, and so the question whether the prosecution could demand his examina tion as a matter of right never arose.
The fact remains that they were permitted to do so and the defence raised no objection.
The decision of the Allahabad High Court in S.H. Jhabwa la vs Emperor (2)and the Full Bench of the Lahore High Court in Mussammat Niamat vs The Crown(3) are against the learned counsel 's contention.
The decision of the Full Bench of the Lower Burma Chief Court in Emperor vs Channing Arnold (4) is not in point because the Committing Magistrate there refused to examine witnesses which the prosecution wanted, and indeed insisted that he should examine, and what was worse he prevented the accused from completing the cross examination of the only prosecution witness which the Committing Magistrate thought fit to examine.
Whatever else may be thought of (1) All. 212.
(3) (Z936) I.L.R. 17 Lah.
(2) A.I.R. 1933 All. 690.
(4) (1912) 13 Cr. L,.
J. 877.
817 section 208 it is evident that the accused has the right to cross examine.
at any rate, those of the witnesses who are.examined by the Committing Magistrate on behalf of the prosecution and section :547 cannot be used as a cloak for a hasty committal before such cross examination is complete.
In our opinion, the cases cited do not justify the extreme position taken up by the learned counsel for the appellant and as section 540 is a complete answer in this case all we need consider is the question of prejudice.
We do not hold that the Court is bound to examine a witness called under section 540 itself as a court witness and that it can never entrust the examination to the prosecuting counsel because even if that be the proper procedure no prejudice has been occasioned in this particular case.
The irregularity here on this score, if indeed it is one, is so trivial as to be innocuous.
A more important question is, was the appellant taken by surprise and was prejudice occasioned because of that ? We do not think so because Jaswant Singh was mentioned in the first information report, recorded within 15 minutes of the occurrence, as one of the eye witnesses and he was again mentioned as an eye witness in the calendar of the committal proceedings.
The appellant was presumably supplied with the witnesses ' statement to the police, or at any rate he had the right to demand a copy under section 162 and if he did not do so, It was presumably because neither he nor his two learned counsel wanted it.
The first information report is a full one and sets out all the essentials of the prosecution case; therefore, with all that information in the possession of the appellant and his counsel it could be impossible for him to contend that he did not know what this witness was to prove.
Had the witness travelled beyond the statements embodied in the first information report, objection to the use of any thing not contained in it would have been understandable, though to be effective such 818 objection would ordinarily have to be raised at the trial, but as the witness does not do that, there can be no objec tion on the score of prejudice.
It is to be observed that the Explanation to section 537 requires a Court to take into consideration the fact whether any objection on the score of irregularity could have been raised at an earlier stage.
Now the High Court bases its decision on the evidence of these eye witnesses and on the fact that the appellant was apprehended on the spot within a minute or two of the murder with the pistol still in his possession, and had the learned Judges stopped there, there would have been no foundation for the very elaborate network of technicalities upon which the learned counsel for the appellant embarked.
But Bhand ari J. (Soni J. concurring) after saying that "After a careful consideration of all the facts and circumstances of the case I entertain no doubt in my mind that Balbir Singh and Jaswant Singh P. Ws. have told nothing but the truth" went on to say"and that Jit Singh and Jagir Singh who made correct statements before the police and before the Committing Magistrate have given false evidence in the trial Court with the object of saving the appellant from the gallows.
" It was argued that the learned Judges have here used the evidence of these witnesses before the Committing Magis trate as substantive evidence despite the fact that it was legally inadmissible for that purpose because the formali ties prescribed by section 288 were not observed.
Reliance was placed upon Tara Singh vs The State(1).
Even if that be so, it would make no difference because the evidence of Balbir Singh and Jaswant Singh, whom the learned Judges primarily believe, is sufficient to afford a basis for the conviction and the mere fact that extraneous matter not necessary for the conviction was also called in aid would not affect (1) ; 819 the result.
But as a matter of fact the foundation for this attack is based upon incorrect assumptions.
We will deal with Jit Singh, P.W. 2, first.
He supported the prosecution case in his examination inchief but resiled when cross examined.
He was therefore treated as hostile and the learned Public Prosecutor was permitted to cross examine him.
In cross examination the witness 's statement in the Committal Court was read out to him and he was asked whether he had made such a statement and he said: "Yes.
" When that statement is read it is found to tally with his evidence in chief and with the depositions of Balbir Singh and Jaswant Singh and with the first information report.
Now it was not necessary to use the former statement as substantive evi dence at all and the fact that the learned High Court Judges placed this on a par with the statements to the police, including of course the first information report, indicates that they were not using the former statements as substan tive evidence but merely as corroboration of what was said in chief.
The distinction is a subtle one and can perhaps be best explained in the following way.
A witness is called and he says in chief, "I saw the accused shoot X".
In cross examination he resiles and says "I did not see it at all.
" He is then asked "but didn 't you tell A, B & C on the spot that you had seen it ?" He replies "yes, I did.
" We have, of set purpose, chosen as an illus tration a statement which was not reduced to writing and which was not made either to the police or to a magistrate.
Now, the former statement could not be used as substantive evidence.
It would only be used as corroboration of the evidence in chief under section 157 of the Evidence Act or to shake the witness 's credit or test his veracity under section 146, Section 145 is not called into play at all in such a case.
Resort to section 145 would only be necessary if the witness denies that he made the former statement.
In that event, it would be necessary to prove that he did, and if the 820 former statement was reduced to writing, then section 145 requires that his attention must be drawn to those parts which are to be used for contradiction.
But that position does not arise when the witness admits the former statement.
In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made.
Of course, that statement cannot be used as substantive evidence unless section 988 of the Criminal Procedure Code is called in aid.
But even without section 288 a Court would be entitled to say in such a case, basing on the evidence in chief, which is substantive evidence.
that what the witness said to the police, or to the Committing Magistrate, is the true version, not because those statements form substantive evidence but.
because they tally with the evidence in chief which is substantive.
This is only one of the many ways in which a witness 's testimony can be sifted and examined.
Corroboration is as useful to test the truth of a story as any other method.
In such a case, what the Court really does, though it may happen to put the matter the other way round, is to say that in its opinion the substantive evi dence given in chief is true because it is corroborated by an earlier statement and for that reason, namely because the version in chief is the true one the contradictory version given in cross examination is wrong, not because of the contradiction embodied in the former statement but because of what was said in chief, a version which it is now safe to believe on account of the corroboration afforded by the earlier statement.
It is true the earlier statement could also have been used for contradicting the version given in crossexamination and in that event, if it is in writing, the limitations imposed by section 145 of the Evidence Act would have to be observed, but the prosecution is not bound to do that.
It has a choice.
It can, if it so chooses, build up the version given in chief in any way it pleases and, having done that, use the version in chief to destroy the version in cross examination.
821 But in the case before us there is no need to resort to these subtleties because here the depositions were brought on record and could be used as substantive evidence even if the formalities prescribed by section 145 of the Evidence Act were not observed for the very simple reason that there was no need in this cause to resort to section 145.
As we have said, the prosecution had a choice here because of the two conflicting versions given in chief and in crossexami nation.
It was entitled to use the former statement either to contradict what was said in crossexamination or to corroborate what was said in chief.
In either event, sec tion 288 of the Criminal Procedure Code could be used to make the former statement substantive evidence because what the section says is "subject to the provisions of the Indian Evidence Act," and not subject to any particular section in it.
Section 157 is as much a provision of the Indian Evi dence Act as section 145 and if the former statement can be brought in under section 157 it can be transmuted into substantive evidence by the application of section 288.
Tara Singh vs The State(1) is to be distinguished because there, there were no two versions in the course of the same testimony.
The witness in question was hostile from the start in the Sessions Court and the whole purpose of resort ing to section 288 was to contradict what he said there and no question of corroboration arose.
The prosecution had no choice there, as it was here, of using the former statement either to contradict or to corroborate.
We turn next to Jagir Singh, P.W. 4.
In his case there was no choice.
He was hostile from the start and in his ease our observations in the ruling just referred to apply in full.
But on an examination of his evidence we find that the formalities prescribed by section 145 were complied with.
His cross examination, in contrast to Jit Singh 's where such a procedure was not necessary.
shows that every circumstance intended to be used as contradiction was put to him point by point and passage by passage.
That was (1) ; at 743.
822 conceded, but it was argued that this was done without drawing the witness 's attention to the parts of the writing which were to be used for the purposes of contradiction.
We are by no means satisfied that is the ease because at least one of the passages is reproduced in inverted commas and so must have been read out from the statement.
But that apart.
Immediately after the witness had been questioned about each separate fact point by point, the whole statement was read out to him and he admitted that he had made it in the Committing Court.
Now this procedure may be open to objection when the previous statement is a long one and only one or two small passages in it are used for contradiction that may, in a given case, confuse a witness and not be a fair method of affording him an opportunity to explain but in the present case the previous statement is a short one and the witness was questioned about every materi al passage in it point by point.
Accordingly, the procedure adopted here was in substantial compliance with what sec tion 145 requires.
There can be no hard and fast rule.
All that is required is that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner.
We are satisfied that was done here.
The matter is one of substance and not of mere form.
Jit Singh, P.W. 2, said that the statement made by him in the committal proceedings was not read over to him and so did Jagir Singh, P.W. 4.
It was argued that in the absence of an enquiry that must be accepted as true, and if true, the evidence becomes inadmissible.
Now the certificate of the Committing Magistrate en dorsed on the deposition sheet states that the deposition was read out to the witness and that the witness admitted it to be correct.
The Court is bound to accept this as correct under section 80 of the Indian Evidence Act until it is proved to be untrue.
The burden is on 823 the person seeking to displace the statutory presumption and if he chooses to rely on the testimony of a witness which the Court is not prepared to believe the matter ends there.
The duty of displacing the presumption lies on the person who questions it.
The Court is of course bound to consider such evidence as is adduced but it is not bound to believe such evidence nor is there any duty whatever on the Court to conduct an enquiry on its own.
There is nothing in this point.
But we again wish to discountenance the suggestion that the Committing Magistrate should have been examined to prove the truth of his certificate and we endorse the re marks we made in Kashmera Singh vs The State of Madhya Pradesh (1) based on the decision of the Privy Council in Nazir Ahmad vs King Emperor(2) regarding the undesirability of any such practice.
But even if the fact be true that the deposition was not read over, that would only amount to a curable irregularity and, as the Privy Council observed in Abdul Rahman vs King Emperor (3), in the absence of prejudice which must be disclosed in an affidavit which shows exactly where the record departs from what the witness actually said, there is no point in the objection.
The object of the reading over prescribed by section 360 of the Code of Criminal Procedure is not to enable the witness to change his story but to ensure that the record faithfully and accurately embodies the gist of what the witness actually said.
Therefore, before prejudice can be substantiated on this score, it must be disclosed by affidavit exactly where the inaccuracy lies.
The next and last objection is on similar lines.
Jit Singh, P.W. 2., and Jagir Singh, P.W. 4, said that their statements before the Committing Magistrate were made under the threats and duress of the police.
It was argued that that should not have been rejected without further enquiry, and a ruling in which a further enquiry was considered necessary was cited.
Here (1) ; (2) A.I.R. 1936 P.C. 253 at 258.
(3) A.I.R 1927 P.C. 44 at 45 47.
107 824 again, it is no part of a Court 's duty to enter upon a roving enquiry in the middle of a trial on matters which are collateral to the main issue.
The burden is on the person making these allegations to substantiate them and if he chooses to rely on evidence.which does not satisfy the Court he must ' suffer the same fate as every other person who is unable to discharge an onus which the law places upon him.
It was also argued that there was no proper compliance with the provisions.
of section 342 of the Criminal Proce dure Code.
We are satisfied that there was substantial compliance in this case.
The facts were simple and few and the crucial matters were brought to the attention of the appellant.
In any event, the learned counsel was unable to tell us even at the argument stage exactly how his client was prejudiced and tell us what answers his client would have given to the questions which, according to counsel, ought to have been put to the appellant.
We pressed him several times to disclose that but he was unable to do so.
As we said at the outset, the case is a very simple one in which a man was caught red handed with a pistol still in his hand and in which the first information report was recorded practically on the spot within 15 minutes of the occurrence.
The murder was committed in day light and there was no dearth of eye witnesses.
Two have been believed, and in the case of the other two, certain statements made by them in the Sessions Court resiling from statements previ ously recorded in the committal proceedings have been disbe lieved.
The appeal fails and is dismissed.
We see no reason to interfere with the sentence of death.
Appeal dismissed.
Mehta.
| The Sessions Court has power to examine witnesses who were not examined before the Committing Magistrate because of sec.
540, Criminal Procedure Code, and if the witness is treated as a prosecution witness and examined by the prose cuting counsel instead of by the court, that at best would be an irrigularity curable by sec.
537 of the Code.
The proper time to object to such a procedure would be at the trial itself.
Sher Bahadur vs The Crown (I.L.R. and Queen Empress vs G.W. Hayfield (I.L.R. 14 All.
212)distin quished S.S. Jhabwala vs Emperor (A.I.R. 1933 All. 690) and Mussamat.
Niamat vs The Crown I.L.R. 17 All. 176) approved.
Emperor vs Channing Arnold referred to.
Resort to sec.
145 of the Evidence Act is necessary only if a witness denies that he made the former statement.
In that event it would be necessary to prove that he did and if the former statement was reduced to writing, then sec.
145 requires that his attention must be drawn to those parts which are to be used for contradiction.
But that position does not arise when the witness admits the former statement.
In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission ' that it was made.
The former statement cannot be used as substantive evidence unless sec.
288, Criminal Procedure Code, is called in aid but even without sec.
288 the court would be entitled to say, basing on the evidence in chief which is the substantive evidence, that what the witness said to the police or the Committing Magistrate, is the true version, not because those state ments form substantive evidence, but because they tally with the evidence in chief which is substantive.
If a former statement can be brought in under sec.
157 of the Evidence Act, it can be transmuted into substantive evidence by the application of sec.
288 of the Criminal Procedure Code.
Tara Singh vs The State ; distinquished.
813 In the certificate of the Committing Magistrate endorsed on the deposition sheet states that the deposition was read out to the witness and the witness admitted it to be correct the court is bound to accept this as correct under sec.
80 of the Evidence Act until it is proved to be untrue.
It is not necessary nor desirable to examine the Commit ting Magistrate to prove the truth of his certificate.
Kashmera Singh vs The State of Madhya Pradsh [1952] (S.C.R.) 526 followed.
Even if it be true that the deposition was not read over, that would only amount to a curable irregularity and in the absence of prejudice which must be disclosed in an affidavit which shows exactly where the record departs from what the witness actually said, the objection cannot be sustained.
|
ivil Appeal No. 104 of 1050.
Appeal from a judgment and decree dated the 9th April, 1947, of the High Court of Judicature at Patna (Manohar Lal and Mukherjee JJ.) in First Appeal No. 68 of 1944 arising out of judgment and decree dated the 23rd December, 1943, of the Court of the First Additional Subordinate Judge, Gaya, in Suit No. 4 of 1941.
Gurbachan Singh (Manohar Lal Sachdev, with him) for the appellants.
S.B. Jathar for the legal representative of respondent No. 4. 870 1952.
May 16.
FAZAL ALI J.
This appeal arises out of a suit for partition which was dismissed by the trial court but was decreed by the High Court of Patna on appeal.
The material facts of the case are briefly as follows: One Rambilas Das had 2 sons, Budparkash Das and Nandki shore Das Nandkishore Das had several sons, the plaintiff, Gurtahl Das being one of his illegitimate sons.
The present suit was brought by Gurtahl Das against 4 persons, namely, Gurnarayan Das and Jai Narayan Das, sons of Nandkishore Das, Shibtahl Das, who was alleged to be one of the illegitimate sons of Nandkishore Das, and Mst.
Rambholi Kuer, wife of Nanaksharan Das, one of the sons off Nandkishore Das.
Anoth er person, Kuldip Das, who was the daughter 's son of Nandki shore 's brother, Budparkash Das, intervened in the suit after its institution and was impleaded as the fifth defend ant.
After the death of the second defendant, Jai Narayan Das, his wife, Surat Kuer, was brought on record.
The plaintiff 's case was that Budparkash Das and Nandki shoreDas formed a joint Hindu .family, and that Budparkash Das died without any male issue in a state of jointness with his brother, Nandkishore, with the result that the entire joint family property devolved on him.
Subsequently, dis putes arose regarding the management and enjoyment of the properties among the plaintiff and the defendants, which compelled the plaintiff to institute the present suit for partition.
The plaintiff alleged that the parties were Sudras and belonged to the Nanak Shai sect of Fakirs, and that he and the third defendant, Shibtahl Das, were dasipu tras of Nandkishore Das by a concubine, and Jai Narayan Das and Gurnarayan Das were also dasiputras of Nandkishore by another concubine.
The suit was contested mainly by the first defendant, Gurnarayan Das, and Mst.
Surat Kuer, on the following pleas : firstly, that the suit was not maintainable as a suit for partition, because the plaintiff was never 871 in possession of the properties of which he claimed parti tion, secondly that the family of the defendants were not Sudras but Dwijas and an illegitimate son could not sue for partition, thirdly that the defendants did not form a joint Hindu family with the plaintiff and Shibtahl Das, fourthly that Mst.
Rambholi Kuer was not the widow of Nanaksharan Das, and fifthly that the plaintiff and Shibtahl Das were not sons of Nandkishore Das.
The case of Mst.
Rambholi Kuer was that the parties were Dwijas and not Sudras, and defend ant No. 5, Kuldip Das, pleaded to the same effect and fur ther alleged that Budparkash Das was separate from Nandki shore Das, that although they did not divide the properties by metes and bounds, they used to divide the produce half and half, and that he was in possession of his share of the properties as the daughter 's son of Budparkash Das and they could not be made the subject of partition.
Shibtahl Das supported the claim of the plaintiff.
The trial court dismissed the suit, holding, among other things, (1) that the plaintiff not being in joint possession of any of the properties, the suit for partition was not maintainable, (2) that the parties were Sudras, (3) that Budparkash Das and Nandkishore Das were joint and not sepa rate, (4) that the plaintiff had no cause of action, and (5) that Shibtahl Das had not proved that he was the son of Nandkishore.
Against the decision of the trial court, the plaintiff preferred an appeal to the High Court at Patna, and Kuldip Das filed a cross objection contesting the find ing that Budparkash was joint with his brother, Nandkishore.
The High Court reversed the decision of the trial court and held (1)that the parties were Sudras and not Dwijas, (2) that Budparkash died in a state of separation from his brother, Nandkishore, and (3) that no suit for declaration of title was necessary and the plaintiff 's failure to pay sufficient court fee should not stand in the way of suitable relief being granted to him.
Both the High Court and the trial court found that defendants Nos. 1 and 2, Gurnarayan Das and 113 872 Jai Narayan Das were the legitimate sons of Nand kishore Das.
On the above findings, the High Court passed a prelimi nary decree directing that separate allotments of the properties should be made to the plaintiff and the defend ants excepting Shibtahl Das.
It was contended before us on behalf of the first appel lant that the finding of the courts below that the parties were Sudras was not correct and should be set aside.
This contention must however fail, since we find no good reason for departing from the wellestablished practice of this court of not disturbing concurrent findings of the trial court and the first appellate court.
In the present case, the finding that the parties are Sudras is largely based on the oral evidence, and the learned Judges of the High Court in arriving at their conclusion have not over looked the tests which have been laid down in a series of authoritative decisions for determining the question whether a person belongs to the regenerate community or to the Sudra community.
The next question which was very seriously debated before us was whether Budparkash Das and Nandkishore Das were joint or separate.
On this question, the two courts below have expressed conflicting views, but on a careful consideration of the evidence before us, we are in clined to agree with the learned Judges of the High Court, who after reviewing the entire evidence have come to the conclusion that Budparkash Das died in a state of separation from Nandkishore.
It will be material to quote here the following extract from the judgment of the trial judge in which he sums up the evidence on this question : "From the oral evidence on the record, this much is quite clear that Budparkash lived in a separate house and used to get crops.
This defendant (defendant No. 5, Kuldip Das) has also filed Exhibit B(2) chaukidari receipt for 1936 (Register No. 283) and Exhibit C 1 (copy of Assessment Register showing No. 284 in the name of Budparkash) which may go to show that possibly Budparkash was paying separate chowkidari tax, The defendant No. 5 has also filed some 873 letters marked A 1, A 5, A 4, A 6, A 10 and A 12, which not only show that this defendant is related to the defendants ' family, but also that grains and money were offered to him from time to time.
But none of these documents clearly show that there had been partition between Budparkash and Nandkishore or that the defendant No. 5 ever came in possession over any property, as being the heir of Bud parkash.
Of course there is some oral evidence to support him.
But I do not think, on considering and weighing the evidence that separation of Budparkash from Nandkishore has been proved.
The learned pleader for the defendant No, 5 has urged that the circumstances considered in the light of the ruling reported in Behar Report, Vol. 4 (1937 38) Privy Council at p. 302, would support the defendant 's case as there was defined share of Budparkash and Nandkishore in the Khatyan (exts.
G1 and G2).
I am not prepared to agree with the learned pleader on this point, as there is not a scrap of paper to show that Budparkash or even after him Kuldip Das separately appropriated the usufruct of any property, or ever Budparkash showed any intention of separation, I expect that if Budparkash had separated, at least on his death the defendant No. 5 would have maintained an account book of his income from the properties in dispute, specially as he lived at a distant place.
He does not appear to have ever cared to look after the property or demand accounts from his alleged co sharers.
" This summary of the evidence shows firstly, that the two brothers lived in separate houses, secondly, that they paid separate chaukidari taxes, and thirdly, that Budparkash used to get grains and money from Nandkishore from time to time.
The trial judge has also observed that the khatyans, exhib its G 1 and G 2 record the defined shares of the two broth ers, but the printed record shows that exhibits G 1 and G 2 are mere rent receipts.
As the khatyan was not printed, we sent for the original record and found that the entries in the khatyan, which are exhibits F 1 and , have been correctly noted in the judgment of the trial court.
It seems to us therefore that the findings which we have set out give greater support to the oral evidence adduced on behalf of defendant No. 5 than to the evidence adduced by the other parties, and that being so, we think that the finding of the High Court must be upheld.
We were greatly impressed by several letters of exhibit A series, which have been found to be genuine by both the courts below.
The genuineness of the letters was attacked before us, but we find no good reason for reversing the findings of the trial judge and the High Court.
In one of these let ters, exhibit A 10, Nandkishore Das writing to Kuldip on the 12th June, 1934, states that he was sending 25 maunds of rice, 7 maunds of khesari and rupees seventy five and then adds: "I have got with me all the accounts written, which will be explained when you will come and you will render a just account of your share when you come".
In another letter, exhibit A 12, which was written by Nandkishore to Kuldip on the I5th October, 1936, the former states: "I wrote to you several times to adjust account of your share, but you did not do so up till now.
I write to you to come and examine the account of your share.
I have not got money now.
If you have got time, then come for a day and have the account adjusted and take what may be found due to you".
It seems to us that if the parties were really joint in the legal sense of the term, there was no question of examining the accounts and adjusting them, and there would have been no reference to the share of Kuldip in the produce or the money collected.
The proper conclusion to be arrived at is, as the witnesses for defendant No. 5 have stated, that though there was no partition by metes and bounds, the two brothers were divided in status and enjoyed the usufruct of the properties according to their respective shares.
Several witnesses were examined on behalf of de fendant No. 5, who have stated from their personal knowledge that the two brothers lived in separate houses, were sepa rate in mess and the produce 875 was divided between them half and half.
It seems to us that the finding of the High Court as to the separation of the two brothers must be upheld.
The third contention urged on behalf of the appellants relates to the question whether the plaintiff is entitled only to maintenance or to a share in the properties left by Nandkishore Das.
The rights of an illegitimate son of a Sudra are considered in Mitaksbara Ch. 1, section 12, which is headed "Rights of a son by a female slave, in the case of a Sudra 's estate".
This text was fully considered by the Privy Council in Vellaiyappa vs Natarajan(1) and the conclu sions derived therefrom were summarized as follows : "Their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but is entitled as a member of the family to maintenance out of that property." This statement of the law, with which we agree, may be supplemented by three other well settled principles, these being firstly, that the illegitimate son does not acquire by birth any interest in his father 's estate and he cannot therefore demand partition against his father during the latter 's lifetime; secondly, that on his father 's death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s); and thirdly, that on a parti tion between a legitimate and an illegitimate son, the illegitimate son takes only one half of What he would have taken if he was a legitimate son.
(1) A.I.R. 1931 P.C. 294.
876 It seems to us that the second proposition enunciated above follows from the following passage in the Mitakshara text : "But after the demise of the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share.
" If therefore the illegitimate son is a coparcener with the legitimate son of his father, it must necessarily follow that he is entitled to demand partition against the legiti mate son.
There can be no doubt that though the illegitimate son cannot enforce partition during the father 's lifetime and though he is not entitled to demand partition where the father has left no separate property and no legitimate son but was joint with his collaterals, he can enforce partition in a case like the present, where the father was separate from his collaterals and has left separate property and legitimate sons.
The last point put forward on behalf of the appellants was that the plaintiff not being in possession of the properties which are the subject of the suit, he cannot maintain a suit for partition.
This contention cannot prevail, because the plaintiff is undoubtedly a cosharer in the properties and unless exclusion and ouster are pleaded and proved, which is not the case here, is entitled to partition.
Thus, all the points urged on behalf of the appellants fail, but, in one respect, the decree of the High Court must be modified.
To appreciate this, reference will have to be made to the following statements made by defendant No. 5 in paragraphs 8 and 11 of his written statement: "8.
That this defendant holds moiety share in jagir and kasht lands.
Mahanth Budh Parkash Das was living separately in the northern house allotted to him and the southern portion was allotted to the thakhta of Nandkishore Das, the smallest house divided into 2 havelis.
877 11.
That this defendant has nothing to do with the eight annas interest in the properties given in schedule under than C and D relating to jagir and kasht lands, which rightfully belonged to Nandkishore Das and has no concern with the properties noted in those schedules.
" Paragraph 11 is rather ambiguously worded, but it was conceded before us by the counsel for defendant No. 5 that the latter had no claim to any interest in the properties set out in schedules other than schedules C and D. Such being the purport of paragraphs 8 and 11, the decree should provide that defendant No. 5 will be entitled only to a share in the properties set out in schedules C and D and will have no share in the properties set out in the other schedules.
Subject to this modification, the decree of the High Court is affirmed, and this appeal is dismissed.
There will be no order as to costs.
Appeal dismissed.
Agent for the legal representative of 4th respondent: R.N. Sachthey.
| Under Hindu law, though an illegitimate son of a Sudra cannot enforce partition during his father 's lifetime, he can enforce partition after his father 's death if the father was separate from his collaterals and has left separate property and legitimate sons.
|
vil Appeal No. 105 of 1951.
On appeal from the judgment and decree dated the 22nd November, 1946, of the High Court of Judicature at Allahabad (Verma c.
J. and Mathur J.) in First Appeal No. 310 of 1941 arising out of judgment and decree dated the 4th March, 1941, of the Court of the Senior Civil Judge of Pauri, Garhwal, in Original Suit No. 1 of 1934.
K.S. Krishnaswamy lyengar (R. C. Ghatak and N.C. Sen, with him) for the appellants.
S.K. Dar (D. D. Unival, with him) for the respondent.
850 1952 May 9.
The Judgment of the Court was delivered by MUKHERJEA J.
The sanctity which orthodox Hindu thought and feeling attribute to visiting of sacred places is nowhere better illustrated than in the vast concourse of pilgrims, who are attracted every year, from all parts of India, to the mountain shrines at Badrinath, situated, high up in the Himalayas, in the District of Garhwal.
The place to which the appellation of 'Puri ' is given, contains a number of temples but the principal temple is the one where the idol Badrinath along with some other subsidiary idols is installed.
This main temple is divided into three por tions or apartments, and to the innermost portion which is considered to be the holiest and where the deities are located, no pilgrim is allowed access.
The pilgrims gather in the middle room; they have 'darshan ' or look at the deity from this place and there also they make their offerings and perform other rites of individual worship.
The last room is an outer apartment which is used as a sort of waiting place for the worshippers.
Outside the temple and at a short distance from it, there is a hot spring known as Tapta Kundu where the worshippers take ceremonial bath before they enter into the temple and to the Tapta Kundu they come back again after the ceremonies are over.
The temple at Badrinath is an ancient institution and is admittedly a public place of worship for the Hindus.
The chief priest or ministrant of the temple is known by the name of 'Rawal ' who originally looked after both the spirit ual and temporal affairs of the idol subject to certain rights of supervision and control exercisable by the Tehri Durbar which, however, were not very clearly defined.
It appears that there was a scheme for the management of the temple framed by the Commissioner of Kumaun Division, within whose jurisdiction Badrinath is situated, some time in the year 1899.
Under this scheme, the 'Rawal ' was to be the sole 851 trustee of the Badrinath temple and its properties, and the entire management was entrusted to him subject to his keeping accounts, which he had to submit for approval by the Tehri Durbar, and making arrangements for the disposal and safe custody of cash receipts and other non perishable valuables.
This scheme apparently did not work well and led to constant friction between the 'Rawal ' on the one hand and the Tehri Durbar on the other.
This unsatisfactory state of affairs led to public agitation and demand for reforms, and in 1939, the U.P.Legislature passed the Sri Badrinath Temple Act, the object of which was to remove the chief defects in the existing system of management.
The Act restricts the ' Rawal ' to his priestly duties and the secular management is placed in the hands of a small committee, the members of which are partly elected and partly nominated, powers being reserved to the Government to take steps against the commit tee itself, if it is found guilty of mismanagement.
The Act preserves the traditional control of the Tehri Durbar.
The appellants before us, who were the plaintiffs in the trial Court, claim to be Pandas associated with the Badri nath temple.
The Pandas are Brahmans belonging to the priestly class and are found to exist in almost all impor tant public places of worship in India.
They are not temple priests in the proper sense of the expression and have nothing to do with the regular worship of the idol which is carried on by the Shebayat, the High Priest or the manager as the case may be.
Their chief duty consists in acting as guides or escorts of the pilgrims, and taking them to var ious places of worship acquainting them at the same time with detailed information regarding the reputed sanctity of each.
They look after the comforts of the pilgrims and make arrangements for their boarding and lodging and also act as Tirtha Purohits, in which capacity they assist the pilgrims in the performance of various acts of individual worship as distinguished from the general worship which is conducted by or on behalf of the temple authorities.
852 It is admitted that there are several classes of Pandas in Badrinath and the Deoprayagi Pandas to which category the plaintiffs belong get normally the charge of all the pil grims that come from the plains, whereas the Pandas of the 'Dimri ' class act as attendants on all hill people.
the people coming to Badrinath from the plains generally follow the pilgrim 's route from.
Hardwar to Badrinath and in this route, at a distance of about 58 miles from Hardwar, stands the place known as Deoprayag where all the Deoprayagi Pandas reside.
It is in the light of these few introductory facts that we propose to follow the history of this litigation and deal with the points in controversy that it has given rise to.
The suit was commenced by the appellants in the Court of the Senior Civil Judge of Garhwal on 16th April, 1934, and the only defendant in the suit, as it was filed originally, was the 'Rawal ' who was at that time in entire charge of the Badrinath institution, both as Trustee and High Priest.
The suit was a representative one and purported to be brought on behalf of all the Deoprayagi Pandas, and permission of the Court under Order I, rule 8, of the Civil Procedure Code was duly taken.
The allegations in the plaint in substance are that the plaintiffs who are a body of Brahman Purohits residing at Deoprayag and also at Badrinath have the right, by immemorial custom, to act as Pandas and 'Tirtha Purohits ' of the pilgrims at Badrinath.
It is said that in performance of their duties they meet the pilgrims at Hardwar and con duct them throughout the pilgrimage to different places of sanctity and finally to Badrinath itself.
Besides looking to their creature comforts, they assist the pilgrims, while they stay at Badrinath, in having their ceremonial ablutions in the 'Tapta Kundu ' and then conduct them into the pre cincts of the temple and assist them in having 853 'darshan ' of the idols and making offerings to them.
The plaintiffs aver that because of the support that they lent to the transfer of the management of the temple from the 'Rawal ' to the Tehri Durbar, the defendant 'Rawal ' was displeased with them and in August 1933, wrongfully and without any just cause or excuse.
obstructed and threatened to obstruct the plaintiffs from entering the precincts of the temple along with their Yajmans or clients and unlawful ly restrained them from assisting the pilgrims in the usual way at the time of 'darshan ' and worship of the deities inside the temple.
The reliefs prayed for in the plaint after it was amended stand as follows : (1) That a declaration be granted that the plaintiffs are the Pandas of Badrinath temple and that they have a right to personally go into the precincts of the Badrinath temple at all times and on all occasions without obstruction when the said temple is open for doing 'darshan ', worship etc.
(2) That the plaintiffs have the right freely to go into the precincts of the said temple with their Yajmans or clients whenever it is open for assisting them in the matter of 'darshan ' or worship of God Badrinarayan and other dei ties and in the matter of making offerings to them.
(3) That the plaintiffs have the right to take within the precincts of the said temple whatever is put into their hands as gift by their clients at the time of worship etc.
(4) That a perpetual injunction be issued restraining the defendant 'Rawal ' from interfering with the immemorial rights of the plaintiffs.
The defendant, in his written statement, admitted that the Pandas did sometimes accompany rich pilgrims as their guides and receive presents from them for the services they rendered.
It was also admitted that the plaintiffs in their individual capacity as Hindus had the right to enter the temple of Badrinath for purposes of worship.
It was assert ed, however, 854 that it was neither necessary nor desirable that the plaintiffs should. be allowed to accompany their Yajmans or clients into the temple, as the defendant himself made adequate arrangements for 'darshan ' and worship by the.pilgrims; and he, as the sole trustee and manager of the temple, had the right to regulate entry into the temple so that over crowding might be avoided and order maintained inside it.
It was further pleaded that the suit of the plaintiffs was barred by res judicata and the law of limita tion.
On these pleadings, two issues of a preliminary nature were framed by the Civil Judge, one of them being, whether the plaintiffs ' suit was barred by res judicata.
This issue was decided against the plaintiff and the Civil Judge dis missed the suit on 18 9 1934 holding that the suit was barred by the rule of res judicata, as an earlier suit brought by five of the Deoprayagi Pandas and claiming iden tical reliefs against the 'Rawal ' was dismissed by the Commissioner of the Kumaun Division in the year 1896.
Against this order of dismissal, an appeal was taken by the plaintiffs to the High Court of Allahabad and a Division Bench of the High Court, by its judgment dated 23rd May, 1938, reversed the decision of the Civil Judge on this preliminary point and remanded the case for hearing of the suit on its merits.
The case then went back before the Civil Judge and while it was still pending, the Sri Badrinath Temple Act was passed.
A temple committee being formed in accordance with the provisions of this Act.
the said committee through its Secretary, was impleaded as Defendant No. 2 in the suit.
The committee filed a fresh written statement in which certain additional grounds were taken.
It was contended primarily that the suit as framed, was not maintainable by reason of the provisions of Sri Badrinath Temple Act of 1939, which abrogated all previous rights and customs and vested the ownership of the temple and its endowments in the temple committee.
It was asserted, further, that all gifts made within the precincts of the temple would vest in the temple 855 committee under section 3(b) of the Act and that the commit tee had the absolute right to regulate entry of persons inside the temple.
A number of issues were framed after this written state ment was filed, and on hearing the evidence adduced by the parties, the Civil Judge disposed of the suit by his judg ment dated 4th March, 1941.
The suit was decreed in part and the plaintiffs were given a declaration in their favour on one of the points in an attenuated and restricted form.
Besides certain pleas in bar which were raised by the de fendants in their written statements and in regard to which the trial judge 's decision was in favour of the plaintiffs, the substantial controversy between the parties centred round the two following points: (1) Whether the Deoprayagi Pandas could accompany their Yajmans or clients inside the temple and assist them in the 'darshan ' and worship of the deities (2) Whether the Pandas would have the right to accept within the precincts of the temple whatever was paid by the pilgrims as gifts or presents to them and not to the temple ? As regards the first point, the learned Civil Judge reviewed the entire evidence relating to the practice of admitting the Pandas along with their Yajmans inside the temple, as it obtained from very early times down to the date of the institution of the suit.
It appears that in 1892 certain rules were framed by the then 'Rawal ' for regulation of pilgrims in the Badrinath temple, and to these rules the Commissioner of Kumaun Division accorded his sanction on 4th July, 1892.
One of these rules, namely Rule (3), expressly laid down that "at the time of 'darshan ' by the pilgrims, no other persons and Pandas shall be allowed to go inside the temple along with the pilgrims".
On 22nd October, 1894, an application was filed before the Commissioner of Kumaun Division by some residents of Deoprayag complaining of unjust prohibition from entering the temple by the new manager and it was prayed that directions might 111 856 be given to the said Manager to desist from encroaching upon the time honoured rights of the Pandas.
On 28th October 1894, the Commissioner ordered that a copy of the petition might be sent to the Manager.
for report and in the body of the order he recorded his opinion that "the duty of the Pandas consists normally in escorting the pilgrims to the temple precincts.
Their entering the temple can be permitted when they did so as pilgrims.
" The petition was eventually rejected, and on 19th August, 1895.
five Deopray agi Pandas filed a suit in the Court of the Deputy Collec tor, Garhwal, who was invested with the powers of a Civil Court, praying for a declaration of their right to go inside the temple with their Yajmans which the 'Rawal ' was not willing to allow unless he gave special permission.
The trial court allowed the plaintiffs ' prayer but, on appeal, the judgment was reversed and the suit was dismissed.
This order of dismissal was affirmed on Second Appeal by the Commissioner of Kumaun Division who had the powers of a High Court in regard to this area, by his order dated 9th March, 1896.
This is the earlier decision on the strength of which the plea of res judicata was taken by the defend ant in the present suit.
According to the learned Civil Judge, after the rules as mentioned above were framed in 1892 and the judgment of the Commissioner, Kumaun Division, in the Civil Suit was given in 1896, it was the 'Rawal ' who decided whether or not he would give permission to any particular Panda to go inside the temple as an escort of his Yajmans and practice was almost uniform on this point down to the year 1903.
The same practice prevailed, according to the learned Judge, from 1903 to 1920.
From 1921, however, the practice became lax to a great extent and from the evidence of respectable witnesses examined on behalf of the plaintiffs, the learned Judge was of opinion that in many cases the Pandas were able to go inside the temple without any let or hindrance and without seeking any express permission from the 'Rawal '.
A definite challenge to the rights of the Pandas occurred again in 1933 which led 857 to the institution of the present suit.
After reviewing this evidence, the learned Civil Judge discussed the provi sions of the Shri Badrinath Temple Act bearing on this point ,and summed up his conclusions as follows: "In my view under the scheme of the Shri Badrinath Act, the Pandas or pilgrims have no absolute right to go inside the temple, regardless of the conditions imposed by the Committee about entry into the temple, but ordinarily in the entry of the pilgrims or Pandas is in accordance with the rules or bye laws framed by the Committee the pilgrims can always go inside accompanied by their Pandas, who are enti tled as devout Hindus to go inside the temple, and perform worship there, and can assist their Yajmans also.
In other words, there is no right of the plaintiffs which has to be recognised, and can be recognised, on the grounds of custom, usage, or otherwise, that they can without any let or hin drance and regardless of the conditions imposed by the Committee, enter the temple with the pilgrims whenever they like.
Like other pilgrims, and persons who are all subject to the control of the conditions that may be imposed by the Committee, the Deoprayagi Pandas can also enter the temple, perform worship there, and even help their Yajmans who happen to be inside the temple.
To lay down an absolute prohibition against them would not be in accordance with the provisions of Shri Badrinath Temple Act, and similarly to recognise that they have an absolute right to enter the temple with the pilgrims, would also nullify a number of provisions in the Shri Badrinath Temple Act.
Issue No. 2 is decided accordingly in the negative, but subject to recogni tion of the conditional right of the plaintiffs to accompany their pilgrims and help them in the 'darshan ', as mentioned above subject to the control of the Committee.
" In spite of this finding, which is certainly not very definite the Court dismissed in toto the plaintiffs ' prayer No. 2 in the plaint, the reason given being that 858 no absolute right as was claimed by the plaintiffs was established on the footing of a custom or otherwise.
As regards the other point, the learned Judge was of opin ion that although a Panda had no absolute right to go inside the temple along with his clients, yet if the commit tee or the temple authorities allowed him to do so, there was nothing in law or custom which could prevent him from accepting a gift which any pilgrim might desire to make in his favour.
The result was that the learned Judge gave the plaintiffs a declaration in the following terms : "The plaintiffs ' suit is decreed for a declaration that they have a right to accept within the precincts of the temple whatever was put into their hands as gifts (Dan or Dakshina or Shankalp) by the pilgrims, for the benefit of the plaintiffs and not the temple, and to retain such gifts for their personal benefit.
This right is however subject to the administrative control of the temple committee so far as the maintenance of order and decency and the enforcement of proper behaviour within the temple are concerned.
The exercise of this right will further be restricted by any special or general conditions imposed by the Committee of management under any bye law framed by it in accordance with the provisions of Shri Badrinath Temple Act or any other special law that may hereafter be applicable to the temple.
" The rest of the plaintiffs ' claim was dismissed.
Against this judgment, the plaintiffs took an appeal to the High Court of Allahabad.
The defendants also preferred cross objections challenging the propriety of that part of the trial Court 's decree which was in favour of the plain tiffs.
The appeal was heard by a Division Bench consist ing of Varma C.J. and Mathur J. and, by their judgment dated 22nd November, 1946, the learned Judges dismissed the plaintiffs ' appeal and allowed the cross objections filed by the defendants.
Thus, the decision resulted in a total dismissal of the plaintiffs ' suit.
It is from this judgment that the present appeal has come before us, 859 It was held by the High Court that the plaintiffs failed miserably to establish that there was any immemorial usage in existence under which they were entitled to accompany the pilgrims, as of right, inside the precincts of the temple.
It was held also that even if any such usage existed, that must be deemed to have been abrogated by the provisions of Shri Badrinath Temple Act, and reference was made in this connection to section 25 (1)(m) of the Act, which empowers the temple committee to frame bye laws not inconsistent with the provisions of the Act for the "maintenance of order inside the temple and regulating the entry of persons there in.
" It is to be noted that after the judgment of the trial court was delivered and the appeal came up for hearing before the High Court, the Badrinath Temple Committee passed a resolution which was approved of by the Governor of the U.P. State, and was to the following effect : "Subject to the provision of bye laws and any direction given by the committee, the Pandas can accompany their Yajmans within the temple.
" This resolution was communicated to the plaintiffs by the 2nd defendant by a letter dated 29th May, 1942, and undoubtedly after passing of this resolution, the grievance of the plaintiffs in regard to temple entry disappeared to a large extent.
The High Court however, refused to give the plaintiffs a declaration of their right in this respect even in a limited form as, in its opinion, the plaintiffs could not claim such declaration as a matter of right.
The view taken by the High Court seems to be that it is entirely for the committee to decide, whether the Pandas should be al lowed to enter the temple at all, and, if so, to what extent and under what conditions.
On the other question relating to the right of the plaintiffs to accept gifts made in their favour by the pilgrims within the precincts of the temple, it was held by the High Court that under section 3 (b) of the Shri Badri nath Temple Act, such gifts would become part of the endow ment,.
and the donees would be 860 incapable of laying any claim to the same.
It was further, held that bye law (8) of the Puja Bye laws framed by the temple committee which prevents a person other than those whose rights have been specifically recognised by the Committee, from receiving any gifts within the precincts of the temple, was quite a legitimate provision the making of which was within the rule making authority of the committee of management.
It was held, therefore, that in view of this rule, the plaintiffs ' claim in regard to receiving of gifts within the temple was not maintainable in law.
Mr.Iyengar, appearing in support of the appeal before us, has assailed the propriety of the High Court 's decision on both these points.
The first point that requires consideration is whether the plaintiffs can, on the facts admitted and found in this case, claim a declaration of their right to accompany the Yajmans or clients inside the Badrinath temple and assist them in having 'darshan ' of the deities and in performing such ceremonies as individual worshipers may perform.
Mr. Dar, who appears on behalf of the respondents, draws our attention to the fact that this right has practically been conceded by the temple committee in their resolution passed in March, 1942, referred to already, The learned counsel has very fairly stated.
to us that he would have no objection if the plaintiffs are given a declaration of their rights in this respect in some suitable form as might safeguard their.
interest, without in any way trenching upon the rights of temple committee and thereby obviate all disputes in the future.
It seems to us that the approach of the court below to this aspect of the case has not been quite proper, and, to avoid any possible misconception, we would desire to state succinctly what the correct legal position is.
Once it is admitted, as in fact ha.s been admitted in the present case, that the temple is a public place of worship of the Hindus, the right of entrance into the temple for purposes of 'darshan ' or worship is a right 861 which flows from the nature of the institution itself, and for the acquisition of such rights, no custom or in memorial usage need be asserted or proved.
As the Panda as well as his client are both Hindu worshippers.
there can be nothing wrong in the one 's accompanying the other inside the temple and subject to what we will state presently, the fact that the pilgrim, being a stranger to the spot, takes the assistance of the Panda in the matter of 'darshan ' or worship of the deities or that the landa gets remunera tion from his client for the services he renders, does not in any way affect the legal rights of either of them.
In law, it makes no difference whether one performs the act of worship himself or is aided or guided by another in the performance of them.
If the Pandas claim any special right which is not enjoyed ordinarily by members of the Hindu public, they would undoubtedly have to establish such rights on the basis of custom, usage or otherwise.
This right of entry into a public temple is, however, not an unregulated or unrestricted right.
It is open to the trustees of a public temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine.
The public may also be denied access to certain particularly sacred parts of the temple, e.g., the inner sanctuary or as it is said the Holy of Holies ' where the deity is actually located.
Quite apart from these, it is always competent to the temple authorities to make and enforce rules to ensure good order and decency of worship and prevent overcrowding in a temple.
Good conduct or orderly behaviour is always an obligatory condition of admission into a temple (1), and this principle has been accepted by and recognised in the Shri Badrinath Temple Act, section 25 of which provides for framing of bye laws by the temple committee inter alia for maintenance of order inside the temple and regulating the entry of persons within it(2).
(1) Vide Kalidas Jivram vs Gor Parjaram, I.L.R. 15 Bom.
p. 309; Thackeray vs Harbhum, I.L.R. 8 Bom.
p. 432.
(2) Vide Section 25 (1)(m).
862 The true position, therefore, is that the plaintiffs ' right of entering the temple along with their Yajmans is not a precarious or a permissive right depending for its existence upon the arbitrary discretion of the temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the temple committee may impose in good faith for maintenance of order and decorum within the temple and for ensuring proper performance of customary worship.
In our opinion, the plaintiffs are entitled to a declaration in this form.
We now come to the other point which is the real bone of contention between the parties to this appeal, and the question for consideration is whether the plaintiffs are entitled to a declaration that they have a right to take, within the precincts of the temple, whatever is put into their hands as gifts by their clients at the time of wor ship.
The trial court, as pointed out above, gave the plaintiffs a qualified declaration on this point, though the High Court rejected this claim altogether.
Mr. Iyengar has vehemently assailed the propriety of the grounds upon which the decision of the High Court rests, whereas Mr. Dar has contended inter alia that the claim of the plaintiffs under this head is wholly untenable in view of the provision of bye law (8) of the Puja Bye laws framed by the temple committee.
It may be stated at the outset that as the gift, if any, which a pilgrim might choose to make within the temple precincts is entirely a voluntary act on his part and as he could not be compelled to make a gift either in favour of the Pandas or anybody else, there could strictly speaking, be no legal right in the plaintiffs to receive any gift from his client which can be declared by a court of law.
The plaintiffs do accept the position that the pilgrims are not bound ' to give anything to the Pandas by way of Dakshina or sacrificial fee at the conclusion of the ceremonies in the temple; but what they say is this that if the pilgrims choose to make any gift to them, the temple committee could 863 not, in law, prevent the latter from accepting the same and treat such gifts as part of the temple property.
It is argued that bye law (8) of the Puja Bye laws is illegal and ultra vires and cannot take away the legal right of the donee to the gifted property under the ordinary law which has not been and cannot be affected in any way by the provi sions of the Sri Badrinath Temple Act.
A number of respectable witnesses examined on behalf of the plaintiffs do say that when they went on pilgrimage to Badrinath they made gifts to their Pandas inside the temple at the close of the ceremony of darshan and worship.
But the evidence taken, even at its face value, does not estab lish that the practice of making gifts to Pandas within the temple is a general one or that the pilgrims ,regard it as an indispensable part of the ceremony of worship; many of the witnesses plainly admit that they do not remember to have made any gifts at all within the temple precincts and others say that they paid dakshina or sacrificial fees to all the Brahmans who were found inside the temple at that time and not exclusively to their Pandas.
It is also stated that suphal or final blessing is Obtained from the Pandas by the pilgrims after making presents to them at the place called Tapta Kundu where the hot spring lies which is outside the temple.
Mr. Iyengar has drawn our attention to certain texts from the Kedar Kanda of Skanda Purana which describe the glory of the deity Badrinath, to show that it is a religious duty enjoined by the Hindu scriptures that a worshipper who goes to Badrikasram should make gifts to Brahmans after the darshan of the idol is obtained and offerings are made to it.
An English rendering of the passages relied upon by the learned counsel would read thus: "After having bathed in the Ganges, in the Narada Hrada (Kund) and others (Hradas), one (worshipper) shall bathe in the Vahni Tirth ( Tapta Kunda) after performing the obliga tory duties and with his mind 112 864 kept under control, he shall go into the temple of Badri nath with his.
mind concentrated on Shri Hari.
He shall make offerings to the best of his capacity and with utmost devo tion.
Then he shall look at the All Pervading Narayana from crown to foot, and HERE make gifts to Brahmans to the best of his capacity.
Thereafter, he shall do PRADAKSHINA (go round) with the utmost devotion.
Then he shall come back to the Tirthas (Vahni Tirtha etc.) and make gifts according to his means"(1).
It cannot and is not disputed that according to ortho dox Hindu ideas, gift to Brahmans is considered as a merito rious act and there are texts, to some of which Mr. Iyengar drew our attention, which extol the merits of such gifts when made at a sacred place or within a temple or on the banks of a holy river.
It may be as Mr. Iyengar suggests that the idea of making gifts within the temple had its origin in the religious texts to which the learned counsel drew our attention.
But, the point that requires considera tion in the present case is a different and much narrower one.
The question is whether under the powers of making bye laws which are conferred by the Sri Badrinath Temple Act upon the managing committee, the latter could make a rule as they have done, by which all persons other than those whose rights are specifically recognised are disabled from receiv ing gifts within the precincts of the temple.
It is perfectly true that under the general law, nobody can be prevented from accepting a gift which another person may be inclined to make in his favour, and it is immate rial in such cases at what place the gift is actually made.
One has to enquire, therefore, on what grounds the committee can interdict the taking of any gifts within the temple precincts.
The High Court seems to be of opinion and this view is sought to be supported on behalf of the respondents before us that the Sri Badrinath Temple Act itself has in express (1) Skanda purana, Kedar Khand, Badri Mahatma, Chapter VI, Verses 46 49. 865 terms abrogated the rights of the donee in regard to a gift made to him within the ,temple and as such gifts come within the definition of 'endowment ' as given in the Act, the temple committee gets a controlling hand over them and can make any regulations in relation thereto.
Reliance is placed in this connection upon section a (b) of the Sri Badrinath Temple Act which lays down that the expression "endowment" in relation to the Act "means all property moveable or immoveable belonging to or given or endowed for the maintenance or improvement of, or additions to, or worship in the temple, or for the performance of any service or charity connected therewith and includes the idols in stalled therein, the premises of the said temple and gifts of property made to anyone within the precints of the tem ple.
" The definition is undoubtedly couched in very wide language but it is to be noted that under section 4 of the Act which deals with the vesting of property, a gift does not vest in the temple at all unless it is made for the benefit of the temple or for the convenience, comfort or benefit of the pilgrims.
It is conceded by Mr. Dar that a gift intended for the personal benefit of the Pandas cannot vest in the temple and this is quite in accordance with the existing principles of Hindu law.
He contends, however, that such gifts could not vest in the donee, as well, in accordance with the definition of ' 'endowment" given in section a (b) of the Sri Badrinath Temple Act.
In other words, according to the interpretation which he would like to put upon sec tion 3 (b) of the Act, such gifts should be regarded as totally void after the passing of the Act and consequently title to the thing given would still remain in the donor even after the gift is made.
This does not seem to us to be a sound view to take.
If a legislation wants to take away the proprietary right which a person acquires under the ordinary law, it must express its intention in clear and unambiguous terms.
We are unable to spell any such intention out of the language used in section 3 (b) of the Sri 866 Badrinath Temple Act.
It may be that the wording of this sub section is defective and that there is an apparent conflict between the provision of this sub section and that of section 4 of the Act.
It is an arguable point whether the expression "gifts of property made to any one" should not be construed to mean grits made to any one for the benefit of the temple or for other purposes as are specified in section 4.
But it is not necessary for our purpose to express any opinion on that point in the present case.
All that we desire to say is that there is nothing in the Sri Badrinath Temple Act which lays down that a gift made to any person inside the temple and intended for the benefit of that person shall not belong to him.
But, even if the gifts made within the temple and intend ed for the benefit of the donee personally cannot vest in the temple under section 4 04 the Sri Badrinath Temple Act, the question still remains whether the committee in exercise of their powers to make bye laws, can frame a rule that no such gifts should be allowed to be made within the temple and whatever gifts the pilgrims might choose to make in favour of any person which is unconnected with offerings to the deity must be made outside the temple precincts.
Section 25 of the Act empowers the committee to make bye laws not inconsistent with the Act or the rules made thereunder or any other law for a variety of purposes which are enumerated in the different clauses of the sec tion; and clauses (m) and (n) run as follows: (m) The maintenance of order within the temple or inside the temple and regulating the entry of persons there in; and (n) The performance of duties prescribed in section 2:3.
Section 23 lays down the duties of the committee and sub section (9)prescribes it to be duty of the committee to do all such things as may be incidental and conducive to the efficient management of the temple and endowments and the convenience of the 867 pilgrims.
In our opinion, bye law (8) of the Puja Bye laws referred to above, ' which forbids the acceptance of the gifts by any person within the temple, unless he comes within the category of persons specifically authorised by the committee to receive the same, is a perfectly legiti mate bye law which it was quite competent for the committee to enact under the terms of clauses (m)and (n)of 25 referred to above.
It will be remembered that the religious duty to make gifts within the temple or at sacred places which is enjoined on Hindu worshippers by the texts relied upon by Mr. Iyengar has no particular reference to the Pandas who accompany the worshipper.
The injunction is to make gifts in favour of Brahmans generally and the Pandas, because they are Brahmans and happen to be available at the spot, naturally become recipients of such gifts.
It is a thing too well known to require mention that in many of the Hindu temples of renown in India, the pilgrims after their worship is finished, or even before that, are literally beseiged by an army of mendicants including many Sadhus or ascetics, the begging Brahmans who abound in all sacred places, and even people who are associated with various duties in the temple itself.
The presence of a large number of such persons who certainly do not come inside the temple as worshippers is positively detrimental to the maintenance of good order, decency and solemnity in the temple and not unoften it is a source of very great annoyance and discomfort to the pil grims themselves.
It seems to us that one of the objects which the temple committee had in view in framing these byelaws was to prevent this religious mendicancy showing it itself in an unseemly manner within the precincts of the temple itself, Bye law 8 of the Puja Bye laws referred to above, which prevents taking of a gift by any person within the temple, lays down, further,that the permanent employees of the temple shall not receive or solicit for any remunera tion, reward or Dakshina in any form from the pilgrims.
This prohibition is not confined to the temple but extends also 868 to places outside it.
Then again, bye law 15 specifi cally provides that no Sadhu or beggar shall beg or sit for begging for alms within the temple.
We think, therefore, that for the purpose of preventing overcrowding within the temple and to ensure order, decency and worshipful behaviour on the part of those who enter into it, the committee was quite justified in framing this bye law which lays down in substance that whatever gifts a pilgrim might be desirous of making and which is unconnected with the offerings to the deity shall be made outside the temple precincts and not inside it.
In our opinion, the Pandas do not stand.
to lose anything by reason of this regulation and their grievance is more or less a sentimental one.
As we have said already, the gift intended for the Pandas can under no circumstances vest in the temple, but a regulation of this character could certainly be deemed to be necessary as conducive to efficient management of the temple and endowments, the convenience of the pilgrims and the maintenance of order and decent behaviour within the temple precincts.
We do not see how such bye law can be said to be, in any way, inconsistent with the provisions of the Act.
It is certainly confined to the circumstances contem plated by the Statute itself and is not repugnant to the general principles of Hindu law which we have referred to already.
It does not, in our opinion, take away the proprie tary right of any person which is recognised under ordinary law.
Thus, although we cannot agree with the High Court of Allahabad regarding the interpretation that it has put upon sections 3 (b) and 4 of the Act, we think that bye law 8 of the Puja Bye laws is perfectly valid and is within the ambit of the powers conferred upon the committee by section 25 of the Act.
The appeal is thus allowed only in part.
The plain tiffs shall have a declaration that they are entitled to accompany their Yajmans inside the temple subject to any bye law or rule made by the committee in proper exercise of their powers under section 25 of 869 the Sri Badrinath Temple Act.
The other prayer of the plaintiffs is rejected.
As the appeal succeeds in part and as it raised ques tions of general importance with regard to which there were longstanding disputes between the parties, we think that the proper order should be to direct each party to bear his own costs in all the Courts.
The costs of the defendant shall come out of the temple funds.
Appeal allowed in part.
Agent for the respondent :section section Sukla.
| The right of the Deoprayagi Pandas to enter the Badri nath Temple along with their Yajmans is not a precarious or permissive right depending for its existence on the arbi trary discretion of the temple authorities; it is a legal right in the true sense of the expression, but it can be exercised only subject to the restrictions which the temple committee may impose in good faith for maintenance of order and decorum within the temple and for ensuring proper per formance of customary worship.
There is nothing in the Badrinath Temple Act, 1 939, which vests in the temple committee or the idol, gifts made to Pandas within the precincts of the temple.
But bye law (8) of the Puja Bye laws framed by the temple committee which forbids the acceptance of gifts by any person within the precincts of the temple unless he comes within the category of persons specifically authorised by the committee to receive the same is a valid bye law, which it was quite competent for the committee to enact under the terms of clauses (m) and (n) of sec.
25 of the Act and in view of this bye law the Pandas are not entitled to a declaration by the Court that they have a right to take, within the pre cincts of the temple, whatever they receive as gifts at the time of worship.
|
Civil Appeal No. 158 of 1951.
Appeal from the judgment and decree dated 24th March, 1948, of the High Court of Punjab at Simla (Teja Singh and Khosla JJ.) in Regular First Appeal No. 133 of 1945 arising out of judgment and decree dated 25th November, 1944, of the Court of the Senior Subordinate Judge, Kangra, at Dharmsala in Suit No. 86 of 1,943.
Daryadatta Chawla for the appellant.
Gurbachan Singh (Jindra Lat, with him) for the respond ent. 1952.
May 16.
The Judgment of the Court was delivered by FAZL ALl J.
This is an appeal against the judgment and decree of the High Court of Punjab at Simla reversing the judgment and decree of the Senior Subordinate Judge of Kangra in a suit instituted by the appellant for a declara tion that he was the sole lawful heir of one Musammat Ram Piari, whom he alleged to be his wife, and as such was entitled to the properties left by her, and for possession of those properties.
The suit was instituted against 2 persons, namely, Parvin Kumari, who was alleged to be the daughter of the plaintiff by Ram Piari, and Shrimati Raj Kumari, who were respectively impleaded as defendants Nos. 1 and 2.
The case of the plaintiff as set out in the plaint was that he was married to Ram Piari, the daughter of an employ ee of Raj Kumari (defendant No. 2) about 22 years before the institution of the suit, that after marriage she lived with him at Hoshiarpur and gave birth to a daughter, Parvin Kumari (defendant No. 1), on the 4th March, 1929, and that Ram Piari died in 828 April, 1941, leaving both movable and immovable properties which she had acquired in her own name with the aid of his money and which had been taken possession of by Raj Kumari.
He further alleged that he was a Rajput by caste belonging to tehsil Garhshankar in the district of Hoshiarpur, and was governed by custom in matters of succession, and, according to that custom, he, as the husband of the deceased Ram Piari, was entitled to the movable and immovable properties left by her to the exclusion of Parvin Kumari, her daughter.
The suit was contested by both Parvin Kumari and Raj Kumari, and both of them denied that the appellant had been married to Ram Piari.
Their case was that the proper ties in suit were acquired by Raj Kumari with her own money for Ram Piari, that the latter had made a will bequeathing them to her daughter, Parvin Kumari, that the appellant was not governed by custom, and that in any event the alleged custom could not apply to the personal and self .
acquired property of Ram Piari, As regards 2 cars which were also included in the list of properties claimed in the plaint, the case of Raj Kumari was that they belonged to her and that the deceased was only a benamidar.
The trial court decreed the plaintiff 's suit with re spect to all the properties excepting the 2 cars which were held to belong to Raj Kumari.
The court held that Ram Piari was the legally married Wife of the appellant, that he was governed by customary law applicable to Rajputs of Hoshiar pur district in matters of succession, and that according to that customary law he was the preferential heir to the estate of Ram Piari.
The court further held that the will of Ram Piari was invalid as she had no power under the customary law to make a will.
Both the defendants appealed to the High Court against the judgment of the trial court, and the appeal was ulti mately allowed and the plaintiffs suit was dismissed.
The High Court held that though there 829 was evidence of long cohabitation of the plaintiff and Ram Piari giving rise to a presumption of marriage, yet that presumption had been completely rebutted and the proper conclusion to be arrived at on the evidence on record was that the plaintiff had not been able to prove that Ram Piari was his lawfully wedded wife.
As to custom, the findings of the High Court were as follows : (1) that the appellant belonged to an agricultural tribe of Hoshiarpur district and was therefore governed by the custom prevailing among the Rajputs of that district; (2) that there was no local or general custom allowing the plaintiff to succeed in preference to the daughter to the property left by Ram Piari which had been given to her by a stranger, namely, Raj Kumari, and (3) that the parties were governed by Hindu law under which Parvin Kumari being the daughter of Ram Piari was entitled to succeed to the properties left by the latter in preference to the plaintiff.
Against the decision of the High Court, the plaintiff has now preferred this appeal, after obtaining a certificate from the High Court under sections 109 and 110 of the Code of Civil Procedure.
The first question which arises in this appeal is wheth er the plaintiff has succeeded in proving that Ram Piari was his legally wedded wife.
The plaintiff was admittedly em ployed as a copyist in the District Judge 's court at Hoshi arpur and was living in that town.
His case was that he gained the acquaintance of Raj Kumari (defendant No. 2), a wealthy lady of Kangra district who owned a tea estate in tehsil Palampur and occasionally visited Hoshiarpur, and through her good offices was married to Ram Piari, who was the daughter of one Chandar Bit, an employee of Raj Kumari working in her tea estate.
After marriage, Ram Piari lived with the plaintiff at Hoshiarpur as his lawfully wedded wife, and a daughter, Parvin Kumari, (also called Usha Rani) was born to 830 them on the 4th March, 1929.
Raj Kumari had great attachment to wards Ram Piari and often used to pay visits to Hoshiar pur to meet her.
In the year 1934 35 (no date is mentioned in the plaint; but this year is mentioned in the plain tiff 's evidence), Raj Kumari took Ram Piari from the plain tiff 's house with belongings of every description on the pretext of taking her out for recreation.
Ram Piari did not like going round with Raj Kumari and though she wanted to come back to the plaintiff she had not the courage to diso bey Raj Kumari, and in fact Ram Piari and ' Raj Kumari in wardly hated one another during the last years of the for mer 's life.
In the year 1941, Ram Piari died at Mayo Hospi tal at Lahore, leaving the properties in dispute which had been acquired by her by good management with the plaintiff 's own money.
As against this version of the.
plaintiff, the case of Raj Kumari was that Ram Piari had been enticed away by a motor driver sometime in 1921, that she returned to Holta estate after about 11 years with Parvin Kumari who was then about 3 years old, and after her return both she and her daughter remained with her (Raj Kumari) till Ram Piari died in 1941.
Raj Kumari, being a widow, felt very lonely and so brought up Ram Piari as a companion and all the properties in dispute had been acquired by her with her own money for the benefit of Ram Piari Parvin Kumari had been educated and brought up at her expense, and it was entirely false that she and Ram Piari inwardly hated each other, the truth being that they liked and were attached to each other.
The evidence adduced by the plaintiff to prove that Ram Piari was his lawfully wedded wife consists partly of the evidence of a number of witnesses and partly of circumstan tial evidence.
The direct evidence of marriage is furnished by Babu Ram, P. W. 7, Anant Ram, P.W. 11, Babu, P.W. 12, and Asa Ram, P.W. 13.
Babu Ram claims to be the family priest and alleges to have officiated as priest at the time of the plaintiff 's marriage, Anant Ram and Asa Ram are 831 jaswal Rajputs residing in village Bham, which is near the plaintiff 's village, Ajnoha, and Babu is a barber.
These four persons have said that they accompanied the marriage party and that the marriage of the plaintiff with Ram Piari was celebrated in their presence.
The evidence of the other witnesses and the circumstantial evidence upon which reli ance has been placed by the plaintiff have been summarized by the learned Subordinate Judge in his judgment in these words : "P. W. 5 Mukhi Ram is a Municipal Commissioner at Hoshi arpur.
P.W. 4 Doctor Shadi Lal is a leading Medical Practi tioner of Hoshiarpur.
P.W. 9 Lala Sham Lal and P.W. 10 Lala Har Narain have been co employees with the plaintiff in the same office; though these persons (except P.W. 9) have no social relations with the plaintiff and his family, yet they have been seeing Ram Piari living with plaintiff as his wife.
She was proclaimed as such by the plaintiff and both of them were treated as husband and wife by the people of the Mohalla and by the brotherhood in the village of plain tiff.
Exhibits P 18 and P 19 show that defendant No. 2 has been addressing Ram Piari, care of plaintiff in 1932 and has been receiving correspondence, care of the plaintiff which shows that she approved of the plaintiff 's alliance with Ram Piari .
Paras Ram, a younger brother of Ram Piari, lived in the house of Gokal Chand and it is in evidence that he used to address the plaintiff as jija a common name for sister 's husband.
From 1930 to 1934 Paras Ram read in the D.A.V. High School at Hoshiarpur and Exhibits P.W. 6/1 to 6 are copies of entries in the registers of the school regard ing applications which were given by Gokal Chand, plaintiff, for admission of his ward Paras Ram, son of Chandar Bit who was described as his sala (wife 's brother).
P.W. 6 Lala Bishan Das, teacher, has filed these copies.
His sister 's house was adjacent to the house of the plaintiff and he had occasions to see Ram Piari living and being treated as wife by the plaintiff during those years.
" 108 832 Upon the evidence to which reference has been made, the trial court came.to the conclusion that Ram Piari was the legally married wife of the appellant.
The learned judges of the High Court however found the evidence of the 4 witnesses who claimed to have been present at the marriage of the plaintiff to be quite uncon vincing, and they pointed out that the case of the plaintiff being that his marriage had been performed with great pomp and show, it was surprising that the evidence relating to it should be confined to 4 persons one of whom appeared to be a hired witness ' and the other 3 were interested persons.
As to the evidence of the 4 persons who claim to have been present at the plaintiff 's marriage, we find ourselves in agreement with the view taken by the High Court.
The evidence of the other witnesses undoubtedly establishes the fact that for some years the plaintiff and Ram Piari lived together as husband and wife and were treated as such, that Paras Ram, brother of Ram Piari, addressed the plaintiff as jija (a common name for sister 's husband), and that the plaintiff acted as Paras Ram 's guardian when the latter was admitted to D.A.V. School and was described as his brother in law in some of the entries in the school register.
The learned Judges of the High Court considered that the evi dence of certain witnesses who deposed to some of the facts on which the lower court relied, did not strictly comply with the requirements of section 50 of the Indian Evidence Act,firstly because the witnesses had no special means of knowledge on the subject of relationship between the plain tiff and Ram Piari, and secondly because what section 50 made relevant was not mere opinion but opinion "expressed by conduct" of persons who as members of the family or other wise, had special means of knowledge.
It seems to us that the question as to how far the evidence of those particular witnesses is relevant under section 50 is academic, because it is well settled that continuous cohabitation for a number of years may raise the presumption of marriage.
In the present case, it seems clear that the plaintiff and Ram Piari 833 lived and were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion a presumption might have been drawn that they were lawfully married.
But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them.
We agree with the learned Judges of the High Court that in the present case, such circumstances are not wanting, and their cumulative effect warrants the conclusion that the plaintiff has failed to prove the factum of his marriage with Ram Piari.
In the first place, the plaintiff has not examined any of his near relations such as his brother, or collaterals living in Ajnoha, or any co villagers, whose presence at the marriage would have been far more probable than the presence of the witnesses examined by him.
He has also not examined any of the witnesses residing in or round about Holta estate in spite of the fact that his own case is that the marriage was celebrated with great pomp and show.
was suggested in the courts below that since defendant No. 2 is an influen tial person, no local witnesses would be available to sup port the plaintiff 's case, but the High Court has very fully dealt with this aspect and pointed out firstly that Raj Kumari had litigation with a number of persons belonging to Palampur and such persons would not be under her influence, and secondly that no gold reason has been shown why Raj Kumari, who is alleged to have brought about the marriage between the plaintiff and Ram Hari, should take a completely hostile attitude towards him.
Then again, neither the parents nor any of the relations of Ram Piari have been examined to support the plaintiff.
On the other hand, Ram Hari 's own mother, Ganga, has deposed that the former was never married to the plaintiff, and the statement made by Ram Piari in her will, which is a very valuable piece of evidence, is to the same effect.
It is also in credible that in spite of the love which Ram Piari is said to have had for the plaintiff, she left him 834 and went away to live with Raj Kumari, and that during the long period when Ram Piari was away, the plaintiff should never have visited her or made enquiries about her and his alleged daughter, Parvin Kumari.
This is all the more strange, since it is stated by the plaintiff that Ram Piari continued to love him and that she and Raj Kumari inwardly hated each other.
Parvin Kumari says in her deposition that she had never seen her father and that when she reached the age of discretion she found herself living at Palampur.
The conduct of the plaintiff in showing such complete indiffer ence to his wife and daughter as is disclosed in his evi dence is most unnatural, and no less unnatural is his con duct in instituting a suit to deprive her of properties which had come into her hands not by reason of anything done by him but as a result of the generosity shown towards her by a stranger.
The plaintiff 's case that the properties in dispute were acquired by Ram Piari with the aid of his money is wholly untrue, and it has been rightly found by both the courts that they were acquired for her by Raj Kumari.
The plaintiff 's witnesses have tried to exaggerate his means to support his case, but the truth appears to be that he had hardly any means of his own beyond the somewhat meagre salary which he used to draw as a court typist.
Several of the witnesses including an Advocate and Ram Piari 's own mother have deposed that Ram Piari had eloped with a driver and had remained away from Holta estate for a number of years.
Even the Subordinate Judge has not reject ed the story of elopement, and though there is no reliable evidence as to when and how she met the plaintiff, the possibility of her having lived with him for some years even though they were not legally married, cannot be ruled out.
The plaintiff claims to be a Rajput of high caste, and it appears to us rather unusual that he should not marry in his own tribe but should take in marriage a Gurkha girl who was born of very poor parents and belonged to a place far away from where he himself lived.
835 The fact that Paras Ram lived with the plaintiff for some time and addressed the latter as jija, and that the plaintiff described himself as guardian and brother in law of Paras Ram, is as consistent with the defence version as with the plaintiff 'section If Paras Ram 's parents had been in affluent circumstances so as to be able to maintain and educate him, the case would have been different, but there is evidence to show that Chandar Bir was very poor and both his wife and daughter had to work as servants of Raj Kumari to earn their living.
In our opinion, the conclusion arrived at by the High Court has not been shown by the plaintiff to be incorrect, and whatever the true facts may be, we are compelled to hold that in the present state of evidence the plaintiff has not succeeded in establishing that Ram Piari was his legally wedded wife.
In the view we have taken, it is not necessary to deal with the question whether succession to the properties in dispute will be governed by customary law or by Hindu law, but since it was argued before us at very great length, we think that we might state the contentions of the parties and the difficulties which in our opinion arise in dealing with those contentions on the material before us.
Before doing so, however, we wish to set out briefly certain gener al principles which we think should be kept in view in dealing with questions of customary law.
They may be summa rized as follows : (1) It should be recognized that many of the agricul tural tribes in the Punjab are governed by a variety of customs, which depart from the ordinary rules of Hindu and Muhammadan law, in regard to inheritance and other matters mentioned in section 5 of ' the .
(2) In spite of the above fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by custom ary law must prove that he is so governed and must also prove the existence of the 836 custom set up by him.
See Daya Ram vs Sohel Singh and Others (1), Abdul Hussein Khan vs Bibi Song Dero C).
(3) A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions.
All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invar iability as to show that it has, by common consent, been submitted to as the established governing rule of a particu lar locality.
See Mr. Subhani vs Nawab(3).
(4) A custom may be proved by general evidence as to its existence by members of the tribe or family who would natu rally be cognizant of its existence and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj i am or Manual of Customary Law.
See Abroad Khan vs Mt. Channi Bibi(4).
(5) No statutory presumption attaches to the contents of a Riwaj i am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom.
The entries in the Riwaj i am may however be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case.
The presumption of correctness attaching to a Riwaj i am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities.
See Beg vs Allah Ditta (5), Saleh (1) 110 P.R. (1906) 390 at 410 (4) A.I.R. 1925 P.C. 267 at 271.
(2) LR.
45 I.A. 10.
(5) A.I.R. 1916 P.C. 129 at 131.
(3) A.I.R. 1941 P.C. 21 at 32.
837 Mohammad vs Zawar Hussain(1);Mt.
Subhani vs Nawab(2).
(6) When the question of custom applicable to an agri culturist is raised, it is open *to a party who denies the application of custom to show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service, etc., as his principal occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists.
See Muhammad Hayat Khan vs Sandhe Khan and Others(3), Muzaffar Muhammad vs Imam Din(4).
(7) The opinions expressed by the compiler of a Riwaj i am or Settlement Officer as a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case.
The only safe rule to be laid down with regard to the weight to be attached to the compiler 's remarks is that if they represent his personal opinion or bias and detract from the record of long standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the applicabil ity of the custom and any special sense in which the expo nents of the custom expressed themselves in regard to it, such remarks should be given due weight.
See Narain Singh vs Mt. Basant Kaur(5), Mt. Chinto vs Thelur (6); Khedam Hussain vs Mohammad Hussain(7).
Bearing these principles in mind, the difficulty which appears to us to beset the case of the plaintiff may be briefly stated as follows : The basis of the plaintiff 's case is that the custom by which he claims to be governed is a "zamindara custom" and he is governed by it by reason of his belonging to a family of agriculturists.
From the evidence, however, it appears that he Had sold most, if not (1)A.I.R.1944 P.C.18.
(5) A.I.R. 1935 Lab.
419 at 421, 422.
(2) A.I.R. 1941 P.C. 21 at 25.
(6) A.I.R. 1985 Lah.
(5)55 P.R. (1906) 270 at 274.
(7) A.I.R. 1941 Lah.
73 at 79 (4) I.L.R. , 125.
838 all, of his property in the village to which he belonged, that his ancestors were bankers or sahukars, that his father was a clerk of a lawyer practising in Hoshiarpur district and that he himself was a clerk in the District Judge 's court at Hoshiarpur and lived there, and there is hardly any evidence to show that any of his relations was dependent on agriculture or that he maintained connection with them.
In our opinion.
the witnesses of the plaintiff have tried to grossly exaggerate his pecuniary means and have not given a correct picture on which the answer to the question as to whether he would still be governed by the old custom would depend.
Again, though according to the answer to question 11 in the Riwaj i am of Hoshiarpur district, the general custom governing the Rajputs of that district would seem to be that a marriage within the tribe only is lawful, the plaintiff did not marry a Rajput of his district but is said to have married a Gurkha woman, about whose caste and char acter the evidence is conflicting, and whose family was admittedly not governed by the "Riwaj iam" upon which the plaintiff relies.
If both the husband and the wife are shown to belong to the same tribe and to be governed by the same custom, then the difficulty in deciding what would be the rule of succession on the death of the wife in regard to the wife 's self acquired property may not be very great.
But even if it be assumed that Ram Piari was lawfully married to the plaintiff, the serious question to be decided would be whether succession to the property which Ram Piari received as gift from a stranger and which she owned in her own right, would be governed by the custom governing her hus band 's family and not her own.
Such marriage as is said to have been contracted by the plaintiff being evidently an event of rare occurrence, the rule of succession set up by him cannot be said to derive its force from long usage.
As we have pointed out, a custom in order to be binding must derive its force from the fact that by long usage it has obtained the force of law; and if an Occasion never arose to apply the rule of succession 839 invoked by the plaintiff, to the property held by a wife in her own right, the foundation on which custom grows would be wanting.
When the matter is further probed, it appears that the plaintiff relies not only on custom but partly on custom 'and partly on the rule of Hindu law, namely, that the law which governs the husband will govern the wife also.
Whether the latter rule can be extended to a case like the present is a question of some difficulty, on which, as at present advised, we would reserve our opinion.
In the cir cumstances.
we prefer to leave the issue of custom undecid ed.
and base our decision on the sole ground, which by itself is sufficient to conclude the appeal, that the plain tiff 's marriage with Ram Piari has not been clearly estab lished.
The appeal therefore fails and it is dismissed.
but in the circumstances of the case and particularly since the appellant has appealed in forma pauperis, we direct that the parties will bear their own costs in all the courts.
Appeal dismissed.
| The plaintiff, a Rajput belonging to Tehsil Garhshankar in the District of Hoshiarpur (Punjab), instituted a suit against the defendant for the recovery of the properties which belonged to a deceased Gurkha woman R and which she had acquired by way of gift from a stranger, alleging that he was the lawfully wedded husband of Rand that accord ing to custom which applied to the parties with regard to succession he was entitled to succeed to the moveable and immoveable properties of R in preference to the defendant who was his daughter by R. Held, that even if it be assumed that R was lawfully married to the plaintiff, the question to be decided would be whether succession to property which R had received as a gilt from a stranger and which she owned in her own right would be governed by the custom governing her husband 's family and not her own.
Such marriage as was alleged to have been contracted by the plaintiff being evidently an act of rare occurrence, the rule of succession set up by the plaintiff cannot be said to derive its force from long usage and the plaintiff was not, in any event, entitled to succeed.
Their Lordships laid down the general principles which should be kept in view in dealing with questions of custom ary law as follows: (1) It should be recognised that many of the agricultur al tribes in the Punjab are governed by a variety of cus toms, which depart from the ordinary rules of Hindu and Muhammadan law, in regard to inheritance and other matters mentioned in section 5 of the .
(2) In spite of the above fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by custom ary law must prove that he is so governed and must also prove the existence of the custom set up by him.
(See Daya Ram vs Sohel Singh and Others, 110 P R. (1906) 390 at 410; Abdul Hussein Khan vs Bibi Song Dero, L.R. 45 I.A. 10).
(3) A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a CUstOm, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly 826 applied to Indian conditions.
All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality.
(See Mt. Subhani vs Nawab, A.I.R. 1941 P.C. 21 at 32).
(4) A custom may be proved by general evidence as to its existence by members of the tube or family who would natur ally be cognizant of its existence and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj i am or Manual of Customary Law.
(See Abroad Khan vs Mt. Channi Bibi, A.I.R. 1925P.C. 267 at 271).
(5) No statutory presumption attaches to the contents of a Riwaj i am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom.
The entries in the Riwaj i am may however be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances each case.
The presumption of correctness attaching to a Riwaj i am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities.
(See Beg vs Allah Ditta, A.I.R. 1916 P.C. 129 at 131 ;Saleh Mohammad vs Zawar Hussain A.I.R. 1944 P.C. 18; Mt. Subhani vs Nawab, A.I.R. 1941 P.C. 21 at 25).
(6)When the question of custom applicable to an agricultur ist is raised, it is open to a party who denies the applica tion custom to show that the person who claims to be gov erned by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service, etc., as his principal occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists.
(See Muhammad Hayat Khan vs Sandhe Khan and Others, 55 P.R. (1906) 270 at 274; Muzaffar Muhammad vs Imam Din, I.L.R. (1928) 9 Lab.
120, 125).
(7) The opinions expressed by the compiler of a Riwaj i am or Settlement Officer as a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case.
The only safe rule to be laid down with regard to the weight to be attached to the compiler 's remarks is that if they repre sent his personal opinion or bias and detract from the record of long standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the 827 applicability of the custom and any special sense in which the exponents of the custom expressed themselves in regard to it, such remarks should be given due weight.
(See Narain Singh vs Mr. Basant Kaur A.I.R. 1935 Lah.
419 at 421,422; Mr. Chinto vs Thelur, A.I.R. 1935 Lah. 98S; Khedam Hussain vs Mohammad Hussain, A.I.R. 1941 Lah.
73 at 79).
|
Civil Appeal No. 132 of 1951.
Appeal by Special Leave from the Judgment and Decree dated 17th May, 1950, of the High Court of Judicature at Calcutta (Harries C.J. and Sinha J.) in Appeal No. 41 of 1950 arising out of the Order of 766 Banerjee J. dated 19th December, 1949, in Suit No. 132 of 1948.
M.C. Setalvad, Attorney General for India (B. Sen, with him) for the appellant.
Naziruddin Ahmad (Nuruddin Ahmad, with him) or respond ent No. 1.
S.N. Mukherjee for respondent No.2 1952.
May 21.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
This Court granted special leave to appeal in this case on the Government agreeing to pay the costs of the respondents in respect of the appeal in any event.
The decree holder was a lady named Hira Devi.
The judg ment debtor was one Ram Grahit Singh, who retired on 31st January, "1 '947, as a Head Clerk in the Dead Letter Office, Calcutta.
A money decree was obtained against him on 30th July, 1948.
On 1st February, 1949, a receiver was appointed for collecting the moneys standing to the credit of the judgment debtor in a Provident Fund with the Postal authori ties.
The Union of India intervened with an application dated 20th September, 1949, for setting aside the order appointing the receiver.
Mr. Justice Banerjee dismissed the application of the Union of India, holding that a receiver could be appointed for collecting the Fund.
On appeal, Trevor Harries C.J. and Sinha J. upheld his view.
From the facts stated in the petition filed by the Union of India before the High Court, it appears that a sum of Rs. 1,394 13 1 represents arrears of pay and allowances .due to the judgment debtor and a sum Of Rs. 1,563, is the compulso ry deposit in his Provident Fund account.
Different consid erations will apply to the two sums, though in the lower court the parties seem to have proceeded on the footing that the entire sum was a "compulsory deposit" within the meaning of the provident Funds Act, 1925.
The main question to be decided.
is whether a receiver can be appointed in execution in respect of provident Fund money due to the judgment debtor.
767 Compulsory deposit and other sums in or derived from any fund to which the Provident Funds Act XIX of 1925 applies are exempt from attachment and sale under section 60 (k), Civil Procedure Code.
"Compulsory deposit" is thus defined in section 2 (a) of the Provident Funds Act XIX of 1925: Compulsory deposit means a subscription to, or deposit in a Provident Fund which under the rules of the Fund, is not, until the happening of some specified contingency repayable on demand otherwise than for the purpose of the payment of premia in respect of a policy of life insurance (or the Payment Of subscriptions or premia in respect of a family pension fund), and includes any contribution and any interest or increment which has accrued under the rules of the fund on any such subscription, deposit, contribution, and also any such subscription, deposit, contribution, interest or increment remaining to the credit of the sub scriber or depositor after the happening of any such contin gency.
" Such a deposit cannot be assigned or charged and is not liable to any attachment.
Section 3 (1)of the said Act provides : 3.
(1)" A compulsory deposit in any Government or Rail way Provident Fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any Civil, Revenue or Criminal Court in respect of any debt or liability incurred by the subscriber or depositor, and neither the Official Assignee nor any receiver appointed under the shall be entitled to, or have any claim on any such compulsory deposit.
" It is obvious that the prohibition against the assign ment or the attachment of such compulsory deposits is based on grounds of public policy.
Where the interdiction is absolute, to allow a judgment creditor to get at the fund indirectly by means of the appointment of a receiver would be to circumvent the statute.
That such a frustration of the very object of 768 the legislation should not be permitted was laid down by the Court of Appeal as early as 1886 in the case of Lucas vs Harris (1), where the question arose with reference to a pension payable to two officers of Her Majesty 's Indian Army.
Section 141 of the Army Act, 1881 provided: "Every assignment of, and every charge on, and every agreement to assign or charge any . . pension pay able to any officer or soldier of Her Majesty 's forces, or any pension payable to any such officer . . or to any person in respect of any military service, shall except so far as the same is made in pursuance of a royal warrant for the benefit of the family of the person entitled thereto, or as may be authorised by any Act lot the time being in force, be void.
In that case, the appointment of a receiver to collect the pension was in question.
Lindley, L.J., observed: In considering whether a receiver of a retired officer 's pension ought to be appointed, not only the language but the object of section 141 of the Army Act.
1881 must be looked to; and the object of the section would, in my opinion, be defeated, and not advanced, if a receiver were appointed." Lord Justice Lopes reiterated the same thing in these words : "It is beyond dispute that the object of the legislature was to secure for officers who had served their country, a provision which would keep them from want and would enable them to retain a respectable social position.
i do not see how this object could be effected unless those pensions were made absolutely inalienable.
preventing not only the person himself assigning his interest in the pension.
but also preventing the pension being seized or attached under a garnishee order, or by an execution or other process of law.
Unless protection is given to this extent the object which the legislature had in view is frustrated, and a strange anomaly would exist.
A person with a (1) 18 (Q.B D. 127.
769 pension would not be able to utilise his pension to pay a debt beforehand, but immediately his creditor had obtained judgment might be deprived of his pension by attachment, equitable execution, or some other legal process.
It is impossible to suppose that the legislature could have in tended such an anomaly.
" Section 51 of the Civil Procedure Code no doubt recognises five modes of execution of a decree and one of them is the appointment of a receiver.
Instead of executing the decree by attachment and sale, the Court may appoint a receiver but this can only be in a case where a receiver can be appointed.
The Provident Fund money is exempt from at tachment and is inalienable.
Normally, no execution can lie against such a sum.
The learned Judges in the Court below rested their view on the authority of the decision of the Privy Council in Rajindra Narain Singh vs Sundara Bibi(1).
This decision has caused all the difficulty and has created a current of thought that even though the property may not itself be liable to attachment, a receiver can be appointed to take possession of the same and to apply the income or proceeds in a particular manner including the payment of the debts of the judgment debtor.
It is necessary.
therefore, to examine the facts of the case carefully and find out whether the proposition sought to be deduced from it can be justified as a principle of general application apart from the particular circumstances.
The original decision of the Allahabad High Court from which the appeal was taken before the Judicial Committee is reported in Sundar Bibi vs Raj Indranarain Singh(2).
In a suit between two brothers, there was a com promise to the effect that the Judgment debtor shall possess and enjoy the immoveable properties mentioned in the list and estimated to yield a net profit of Rs. 8,000 a year without power of transfer during the lifetime of his broth er, Lal Bahadur Singh, he undertaking to pay certain public exactions and other dues (1)1925) 52 I.A. 262.
(2) (1921)43 All.
617 770 to his brother, Lal Bahadur Singh, amounting in all to Rs. 7,870 11 6, in four equal instalments per annum, each to be paid a month before the Government revenue falls due.
The arrangement was stated to be "in lieu of his mainte nance".
When the judgment debtor 's interest in the proper ties was sought to be attached and sold, he raised the objection that they were exempt from attachment and sale by reason of clause (n) of Section 60 of the Code which speaks of "a right to future maintenance".
The High Court held that the words employed in sub clause (n) contemplated R bare right of maintenance and nothing more a right enforce able by law and payable in the future and that inasmuch as in the case before them the properties had been assigned to the judgment debtor in lieu of his maintenance, it was not such a right, which alone was exempt from attachment and sate.
They thought that it was a fit case for the appoint ment of a receiver and remitted the execution petition to the subordinate judge for the appointment of a receiver after determining the allowance payable to the judgment debtor for his maintenance.
With this conclusion of the High Court the Judicial Committee concurred.
But they also expressed the view that they did not agree with the High Court on the subject of the actual legal position of the right of maintenance conferred upon the judgment debtor.
Taking the prayer of the judgment creditor to be that the right of maintenance be proceeded against, their Lordships observed that the right was in point of law not attachable and not saleable.
If it was an assignment of properties for maintenance, the amount of which was not fixed, it was open to the judgment creditor to get a receiver appointed subject to the condition that whatever may remain after making provision for the maintenance of the judgment debtor should be made available for the satisfaction of the decree debt.
The right to main tenance could not be attached or sold.
In so far as the decree holder sought to attach this right and deprive the judgment debtor of, his maintenance, he was not entitled to do 771 so, but where his application for the appointment of a receiver was more comprehensive and sought to get at any remaining income after satisfying the maintenance claim, the appointment of a receiver for the purpose was justified.
The decision of the Privy Council does not appear to lay down anything beyond this.
In our opinion, it is not an authority for the general proposition that even though there is a statutory prohibition against attachment and alienation of a particular species of property, it can be reached by another mode of execution, viz., the appointment of a re ceiver.
On the other hand, it was pointed out in the case of Nawab Bahadur of Murshidabad vs Karnani Industrial Bank Limited(1) that as the Nawab had a disposing power over the rents and profits assigned to him for the maintenance of his title and dignity without any power of alienation of the properties, no question of public policy arose and that a receiver of the rents and profits was rightly appointed.
This line of reasoning indicates clearly that in cases where there is no disposing power and the statute imposes an absolute bar on alienation or attachment on grounds of public policy, execution should not be levied.
Understood as mentioned above, Rajindra Narain Singh 's case creates no difficulty.
We shall now refer to the decisions that followed or distinguished the same.
In The Secretary of State for India in Council vs Bai Somi and Another(2), the maintenance of Rs. 96 per annum was made under a compromise decree a charge on the house which was to belong to the defendant. 'the court fee due to Government was sought to be recovered by attachment of the house.
The right to attach was negatived; the house could not be at tached as it belonged to the defendant; and the plaintiff 's right to maintenance could not be attached under section 60, clause (1).
In dealing with a prayer made by the Govern ment for the first time in the High Court for an order appointing a receiver of the plaintiff 's maintenance, Beaumont C.J. and (1) (1931) 58 I.A. 215.
(2) 100 772 another learned Judge held that even this could not be done.
The Chief Justice said , 'If these exempted payments can be reached in execution by the appointment of a receiver by way of equitable execution, the protection afforded by the section is to a great extent lost." They steered clear of Rajindra Narain Singh 's case by stating that there was in the judgment of the Board no clear expression of opinion and there was doubt whether the allowance then in question was maintenance or not.
The Madras High Court in The Secre tary of State for India in Council vs Sarvepalli Venkata Lakshmamma(1) has dealt with a question similar to the one in The Secretary of State for India in Council vs Bai Somi and Another(2) but it merely referred to the ruling in Rajindra Narain Singh 's case without dealing with the facts or the reasoning.
It throws no light.
The case in Janaki nath vs Pramatha Nath (3) was a decision by a single Judge and stands on the same footing as the Madras case.
There is nothing else on this subject in the judgment than the short observation, "the Provident Funds Act does not in my opinion prohibit the appointment of a receiver of the sum lying to the credit of the deceased in the Provident Fund.
" Possibly the view was taken that on the death of the employee and in the absence of any dependent or nominee becoming entitled to the fund under the rules, it became money payable to the heirs of the deceased and lost its original nature of being a compulsory deposit.
The case of Dominion of India, repre senting E. 1.
Administration and Another vs Ashutosh Das and Others(4) refers no doubt to Rajindra Narain Singh 's case but does not discuss it in any detail.
Roxburgh J. merely states "surely it is an improper use of that equita ble remedy to employ it to avoid a very definite bar created by statute law to achieving the very object for which the receiver is appointed.
" The decision in Ramprasad vs Moti ram(5) related to the attachment and sale in execution of a (1) (4) (2) (5) (1946) 25 Pat. 705.
(3) 773 money decree of the interest of a khoposhdar in a khorposh grant which was heritable and transferable.
It affords us no assistance.
The learned counsel for the respondents relied on three decisions of the Privy Council as lending him support.
One is Nawab Bahadur of Murshidabad 's case(1) already referred to.
Vibhudapriya Thirtha Swamiar vs Lakshmindra Thirtha Swamiar(2) and Niladri Sahu vs Mahant Chaturbhuj Das and Others(3) are the other two eases and they relate to maths and alienations by way of mortgage of endowed properties by the respective mahants for alleged necessity of the institu tions.
They bear no analogy to the present ease.
The mahants had a beneficial interest in the properties after being provided with maintenance.
A receiver could be ap pointed in respect of such beneficial interest so that the decrees obtained may be satisfied.
With great respect to the learned Judges of the Court below, we are of the opinion that execution cannot be sought against the Provident Fund money by way of appointment of a receiver.
This conclusion does not, however, apply to the arrears of salary and allowance due to the judgment debtor as they stand upon a different legal footing.
Salary is not attach able to the extent provided in Section 60, clause (1), Civil Procedure Code, but there is no such exemption as regards arrears of salary.
The learned Attorney General conceded that this portion of the amount can be proceeded against in execution.
The Provident Fund amount was not paid to the subscriber after the date of his retirement in January 1947.
This, however, does not make it any the less a compulsory deposit within the meaning of the Act.
Whatever doubt may have existed under the earlier Act of 1897 the decisions cited for the respondent, Miller vs B.B. & C.I. Railway(4) and Raj (1) (1931) 58 I.A. 215.
(3) (1926) 53 I.A. 253.
(2) (1927) 54 I.A. 228.
(4) 774 Kumar Mukharjee vs W.G. Godfrey(1) are under that Act, the meaning has now been made clear by the definition in section 2 of the present Act; any deposit "remaining to the credit of the subscriber or depositor after the happening of any such contingency" is also a compulsory deposit; and the contingency may be retirement from service.
In the result, the appeal is allowed and the order of the lower court dated 1st February, 1949, appointing a receiver is set aside as regards the Provident Fund amount of Rs. 1,563 lying to the credit of the judgment debtor.
Under the condition granting special leave, the Government will pay the 1st respondent 's costs of this appeal.
Appeal allowed.
Agent for the respondent No. 1: Naunit Lal.
Agent for the respondent No. 2: P.K. Chatterjee.
| A receiver cannot be appointed in execution of a decree in respect of a compulsory deposit in a Provident Fund due to the judgment debtor.
Whatever doubts may have existed under the earlier Act of 1897, the definition of "compulsory deposit" in section 2 (a) of the Provident Funds Act (XlX of 1925) clearly includes deposits remaining to the credit of the subscriber or depositor after he has retired from serv ice.
Arrears of salary and allowances stand upon a different footing and are not exempt from being proceeded against in execution.
|
297 of 1951.
Petition under article 32 of the Constitution of India for enforcement of fundamental rights by quashing the orders of the Deputy Commissioner and House Rent Controller, Banga lore, allotting the petitioner 's house to the 3rd respondent and for taking forcible possession of the same.
S.K. Venkataranga Iyengar for the petitioner.
A.R. Somanatha Iyer, Advocate General of Mysore, (R. Ganapathy Iyer, with him) for the respondent No. 1.
K. Ramaseshayya Chowdhury for the respondent No. 2. 1952.
May 26 The Judgment of the Court was delivered by 746 CHANDRASEKHARA AIYAR J.
This is an application under article 32 of the Constitution for quashing the orders of the Deputy Commissioner and House Rent Controller, Banga lore, (2nd respondent) allotting house No. 291, Fifth Main Road, Gandhi Nagar, Bangalore City, for the use of Sri Aswathanarayana Rao (3rd respondent) and taking forcible possession of the same.
The State of Mysore has been im pleaded as the first respondent, The facts are these.
The petitioner D.K. Nabhirajiah is a merchant and is the owner of the premises aforesaid.
After lengthy litigation, the previous tenant of the premises vacated it on 1st September, 1949.
On 2nd Septem ber, 1949, the petitioner notified the vacancy to the 2nd respondent as required by law but added that he wanted the premises for his own use to set up one.of his grown up sons in a business in electrical goods.
The third respondent Aswathanarayana Rao however wanted the house for a chil dren 's school which he was running under the name of Bala Mandir and so he not only applied to the Rent Controller for allotting to him that house but also moved the Minister for Law and 'Labour for the same purpose.
The second respondent made an order on 13th September, 1949, in the following terms: "With reference to your vacancy report in respect the above place you are informed under clause 3 (2) of the Mysore House Rent and Accommodation Control Order, 1948 that the building is required for the occupation of Balamandira Home for the children and for residential use of the Direc tor.
You are therefore directed under clause 3 (4) of the Mysore House Rent and Accommodation Control Order, 1948 to hand over possession of the above house to the said Sri Aswathanarayana Rao, Director, Balamandira.
" By an order dated 20th September, 1949, made on an appli cation by the petitioner dated 16th September, 1949, the Deputy Commissioner refused to reconsider the allotment and required the petitioner to give effect to the same at once and deliver possession to the allottee, 747 The petitioner preferred an appeal to the Commissioner of Labour who is the House Rent Control Appellate Authority and obtained a stay, but the appeal was eventually dismissed and the said order vacated on 28th December.
He filed a Revision Petition No. 97 of 1949 50 before the Government of Mysore but without success and the Government declined to interfere by their order dated 14th March, 1950.
He then resorted to the High Court of Mysore by means of a petition under section 45 of the Mysore Specific Relief Act.
This again was dismissed on the ground that the party who seeks to obtain an order under the said section cannot do so on the allegation that the statute which enjoins the doing or for bearing of the act is itself illegal or ultra vires.
Applications moved under article 226 of the Constitution in the course of the same proceedings also failed.
This was on 5th January, 1951.
Some intermediate steps may now be set out.
The third respondent complained that he had not been given possession.
On this complaint, the second respondent passed an order on the 20th March, 1950, to the following effect : "Sri Aswathanarayana Rao, the allottee of the above house, has reported that you have not handed over possession of the house to him.
You are required to show cause immedi ately why you should not be prosecuted for failure t0 obey the order.
Please note that if the house is not handed over to the allottee, action will be taken under clause 3 (6) to take forcible possession of the house through police.
" The petitioner lodged a protest against this order pointing out that the House Rent Accommodation Control Order did not vest the Controller with jurisdiction to allot the house, but on 23rd March, 1950, he received the following reply: "Your letters under reference have been examined care fully.
It is not correct to say that allotment of a house to any party (private)is illegal.
Clause 3 of 97 748 the Mysore House Rent Control Order, 1948, is amended to include any person also.
I do not find any other reason except that you are evading to give possession to the allot tee.
You are hereby finally warned that if possession is not given to the allottee action will be taken to prosecute you and take forcible possession of the house.
" On 11th April, 1950, the second respondent made the following order: "Whereas premises No. 291, Fifth Main Road, Gandhi Nagar was allotted to Sri Aswathanarayana Rao of Balamandira The owner 's appeal before the Labour Commissioner and Government having been rejected the owner filed a petition before the High Court of Mysore who passed an interim order and which was vacated by the order referred to above.
A subsequent appeal before the Labour Commissioner has also been reject ed and stay vacated in Endorsement in H.R.C. 1/1940 50 dated 10th April, 1950.
I therefore direct the owner Sri D. K Nabhirajiah to hand over possession of the said house to Sri Aswathanarayana Rao at once, failing which, I authorise the Superintendent of Police, Bangalore City or any other offi cer empowered by him in his behalf to take possession of the house and hand over to the allottee, Sri Aswathanarayana Rao." As this order was not obeyed by the petitioner, forcible possession was taken of the house with police help and the third respondent was given possession.
The petitioner seeks to quash the above mentioned orders of the second respondent dated 20th September, 1949, 20th March, 1950, 23rd March, 1950, and 11th April, 1950.
The prayer in the petition is thus worded: "for quashing the orders of the second respondent No. 522 Acc.
(b) 49 dated 20th September, 1949, confirmed by Appellate Authority in H.R.C. Appeal No. 117 of 1949 1950 dated 28th December, 1949, and by the Government of Mysore in H.R.C. Revision Petition No. 97 of 1949 1950 dated 14th March 749 1950, and also the subsequent orders of the second respondent No. 562 Acc.
(b) 50 dated 20th March, 1950, 23rd March, 1950, and 11th April, 1950, respectively allotting and taking over forcible possession of the property No. 291, Fifth Main Road.
Gandhi Nagar, Bangalore City, for the use of a private individual, the third re spondent, and for costs.
" The contention of the petitioner is a threefold one, namely : (1) The order allotting the premises to the third re spondent contravenes the provisions of article 31, sub clause (2) and article 19 (1} (f) of the Constitution.
(2) The order is discriminatory and offends article 14 of the Constitution.
(3) Under the Defence of India Rules under which the Accommodation Control Order was made, the allotment can only be of houses available for letting.
It will be convenient here to set out the relevant legis lative provisions.
The Mysore House Rent and Accommodation Control Order, 1948, (hereinafter referred to for the sake of convenience as the Control Order) was made in exercise of the powers conferred by clause (bb) of sub rule (2) of Rule 81 of the Defence of India Rules as applied to Mysore, and it came into force with effect from 1st July, 1948.
Clause 3 of the Control Order provides, subject to two exceptions, for notice being given by the landlord to the Controller within seven days after a house becomes vacant.
Subclause (2), as it originally stood, was in the following terms : "(2) If within ten days of the receipt by the Controller of a notice under sub clause (1), the Controller does not intimate the landlord in writing that the house is required for the purposes of the Government of Mysore, or of the Central Government, or of the Government of an Indian Prov ince or State, or of any local authority or public body, or of any educational or other public institution for the occupation of any 750 officer of any such Government authority, body or institu tion, the landlord shall be at liberty to let the house to any tenant, or if the Controller, on application made by the landlord permits the landlord to do so, to occupy the house himself.
" By a notification dated 4th May, 1949, the words: "or for the occupation of any individual" were added after the words "body or institution" in the said sub section.
The sub clause as amended runs thus: "(2) If within ten days of the receipt by the Controller of a notice under sub clause (1), the Controller does not intimate the landlord in writing that the house is required for the purposes of the Government of Mysore, or of the Central Government, or of the Government of an Indian Prov ince or State, or of any local authority or public body, or of any educational or other public institution, or for the occupation of any officer of any such Government authority.
body or institution or for the occupation of any individual, the landlord shall be at liberty to let the house to any tenant, or if the Controller on application made by the landlord, permits the landlord to do so, to occupy the house himself.
" Sub clause (8) says : "The landlord shall not let the house to a tenant or occupy it himself, before the expiry of the period of ten days specified in sub clause (2), unless he has received intima tion that the house is not required for the purposes re ferred to in that sub clause or the permission referred to therein, earlier." To this sub clause, a proviso was added by a notification to the following effect: "Provided that the Controller, before requiring the house for any of the purposes stated above, shall take into consideration such representation, if any, as may be made by the owner regarding his bona fide requirements for personal occupation.
" Then comes sub clause (4) which reads as follows : "(4) If the house is required for any of the purposes or for the occupation by any of the officers 751 specified in sub clause (2)the landlord shall deliver pos session of the house to the Government authority, body or institution concerned and such Government authority or body or institution shall be deemed to be the tenant of the landlord, with retrospective effect from the date on which the Controller received notice under sub clause (1), the terms of the tenancy being such as may be agreed upon be tween the landlord and, the tenant: Provided that the rent payable shall not exceed the fair rent which may be payable for the house under the provisions of this Order.
" The Mysore House Rent and Accommodation Control Order of 1948 was repealed by the Mysore House Rent and Accommodation Control Act XXX of 1951.
But what is relevant and material for disposal of this petition is the earlier Control Order as all the proceedings now in question were taken under it.
If the allotment had been made under the Control Order prior to the date of its amendment on 4th May, 1949, the petitioner would have had a good case to urge.
Sub clause (2) as it then stood spoke of the house being required for certain specified purposes or for any educational or other public institution, or for the occupation of an officer of any Government authority, body or institution;and the house could not have been required for the occupation of a private individual.
But the amendment has enlarged the scope of the power of the Controller by providing that the requirement may also be for the occupation of any individu al.
The answer to the first contention based on article 31 (2) or article 19(1) (I) of the Constitution is a short one.
The Constitution came into force on the 26th January, 1950, after the impugned orders were made and at a time when there was nothing like a chapter of Fundamental Rights.
The argu ment that the requisition in the present case was not for any public purpose and the restriction on the respondent to hold property must be in the interests of the general public presupposes that the Constitution governs the case.
This 752 assumption, however, is not well founded.
The order of allotment was made before the Constitution came into force and at a time when the Control Order provided, validly, that a house could be taken for the occupation of a private individual.
During the period of 10 days specified in sub clause (2), the landlord could not let the house or occupy it himself, and on allotment, he was bound to deliver up possession to the allottee.
His rights as landlord were thus at an end so far as possession was concerned.
Whether retrospective effect could be given to article 13 (1) of the Constitution arose for decision in Keshavan Madhava Menon vs The State of Bombay(1).
Dealing with the argument that the said article rendered voidab initio and for all purposes an earlier law which was inconsistent with fundamental rights, it was laid down by this Court in that case "that such laws existed for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution." (Per Das J., at page 234).
Mr. Justice Mahajan observed at pages 249 and 250: "It is admitted that after the 26th January, 1950, there has been no infringement of the appellant 's right of freedom of speech or expression.
In September, 1949, he did not enjoy either complete freedom of speech or full freedom of expression.
It is in relation to the freedom guaranteed in article 19 (1) of the Constitution to the citizen that the provisions of article 13 (1) come into play.
the article does not declare any law void independ ently of the existence of the freedoms guaranteed by Part III.
A citizen must be possessed of a fundamental right before he can ask the court to declare a law which is incon sistent with it void; but if a citizen is not possessed of the right, he cannot claim this relief.
" These remarks have application here.
The learned Advocate for the petitioner sought to get over this difficulty by pointing out that the (1) ; 753 dispossession took 'place on 11 4 1950.
This, however, is no answer.
The dispossession was a mere consequence which followed under clause '3, sub clause (6) of the Control Order.
The right to possession was lost earlier and the landlord merely held on to the property.
Article31 (2)does not apply for another reason.
There was no acquisition by the State of the house.
The taking of possession can only be from a person who is entitled to possession.
The petitioner landlord lost his right to possession by reason of the Controller 's order.
As soon as the allotment is made, the allottee becomes a tenant and the owner becomes the landlord by reason of sub clause (4)of the Control Order and the learned Advocate General of the Mysore State contended that a statutory tenancy was thereby created.
It is no doubt true that it is provided by sub clause (4) that the terms of the tenancy may be such as may be agreed upon between the landlord and the tenant, and there is no provision, as found in the later Act, as to what is to happen in the event of there being no agreement.
If it is correct that a tenancy is brought into existence by the operation of the statute, it is possible that in case the terms are not the subject of any agreement between the landlord and the tenant, the ordinary law of landlord and tenant will apply in the absence of any provision for the fixation of terms by the Controller.
But the point does not arise for decision in this case and nothing.
further need be said about it.
The applicability of sub clause (4) of the Control Order was sought to be avoided in another manner.
It was pointed out that sub clause (2) referred in its first part "to the purposes of the Government of Mysore" etc., and in its later part "for the occupation of any officer or any such Govern ment authority, body or corporation, or for the occupation of an individual", but that when we come to sub clause (4), the two categories are kept distinct or separate and in referring to the second category the Control Order 754 speaks only of the requirement of the house for the occupa tion by any of the officers and nothing is said about the occupation of any individual.
The amending Act did not introduce the words "or for the occupation of any individu al" into sub clause (4).
Therefore, it was urged that the whole basis of the Advocate General 's contention about a statutory tenancy being created fell to the ground.
At first sight, there seems to be something in the point.
But if sub clause (2) is read as a whole, having in 'view the object sought to be achieved by the legislation, it is fairly clear that there is no such necessary antithesis between the two categories or clauses and that the words "for the purposes" can be so read as to include "occupation" also. 'the omission of the words "for the purposes" in the latter part of sub clause (2) was perhaps to avoid inartis tic phraseology.
"For the occupation" certainly reads better than "for the purposes of the occupation".
Ground No. 2 regarding discrimination was not pressed.
Then, we come to ground No 3.
Clause (bb) of sub clause (2) of Rule 81 of the Defence of India Rules is in these terms: "(bb) for regulating the letting and sub letting of any accommodation or class of accommodation, whether residential or non residential, whether furnished or unfurnished and whether with or without board, and in particular, (i) for controlling the rents for such accommodation (either generally or when let to specified persons or classes of persons or in specified circumstances); ((ii) for preventing the eviction of tenants and sub tenants from such 'accommodation in specified circumstances and); (iii) for requiring such accommodation to be let either generally, or to specified persons or classes of persons, or in specified circumstances; . ," 755 It was urged that the power conferred under this sub clause applied only to those cases where the house was available for letting or sub letting and not to eases where a house was not so available, in other words, if the land lord of any premises said that they were required for his own occupation, the Government had no power to requisition the same, Emphasis was laid on the word "regulating".
This, however, is an obviously unsound interpretation to be placed upon the words.
They mean that the Government might provide for and regulate the letting and sub letting etc., and that such is the scope is clear from the words in sub clause (2) "may by order provide".
The argument for the petitioner, if accepted, would render the powers entirely nugatory, as it would then be open to every landlord to say that the prem ises are required for self occupation, or even that he has already let it out to another and that therefore it is not available for being let.
There was no requisition of property in this case under section 75 (A) of the Defence of India Rules.
The Control Order was promulgated under rule 81 (2) (bb) which provides for the regulation of letting and sub letting houses.
It is rather the exercise of a police power of regulation in public interest than anything done in the exercise of a power of eminent domain, in which case alone questions relating to compensation and public purpose will arise.
In the course of the arguments, it was suggested that the amendment notification of 4th May, 1949, introducing the words "or for the occupation of any individual" was invalid because the regulation of letting and sub letting under clause (bb) could only be for the Defence of British India or for the efficient prosecution of the war, or for main taining supplies and services essential to the life of the community, and that the taking of property for the occupa tion of a private individual was outside the scope of the power.
Apart from the fact that no such ground has been taken in the petition, it has also to be noted that 98 756 the Control Order purports to have been made not only under clause (bb) of sub rule (2) of rule 81 of the Defence of India Rules, but also under the Supplies, Services and Miscellaneous Provisions (Temporary Powers) Act of 1947.
We have not got this Act before us and it was not even referred to in the course of the arguments.
Hence no decision is called for on this point.
The petition fails and is dismissed without any order as to costs.
Petition dismissed.
Agent for the petitioner: K.R. Krishnaswarny.
| A house belonging to the petitioner in the Bangalore City fell vacant on the 1st September, 1949, and on the 13th September, 1949, an order was passed by the Rent Con troller 745 under the Mysore House Rent and Accommodation Control Order, 1948, allotting the house to another person and directing the petitioner to deliver possession to the lat ter.
The petitioner protested and took various steps to get the order vacated but he was unsuccessful and forcible possession was taken from him under an order made on the 11th April, 1950.
He applied to the Supreme Court under article 32 of the Constitution for quashing the order allotting the house and the subsequent orders made to enforce that order, on the ground, infer alia, that these orders contravened the provisions of articles 31 (2) and 19 (1) (f) of the Consti tution: Held, (i) that as the order of allotment was made before the Constitution came into force and at a time when the Control Order provided, validly, that a house could be taken for the occupation of a private individual, the order could not be impugned on the ground that it contravened article 31 (2) or 19 (1)(f) of the Constitution: (ii) the fact that possession was actually taken only in pursuance of an order made on the 11th April, 1950, was immaterial as the peti tioner 's right to possession was lost earlier; (iii) article 31 (2) was inapplicable for another reason also, namely, that there was no acquisition of the house by the State, as taking of possession can only be from a person who is enti tled to possession and the landlord lost his right to pos session by reason of the Controller 's order.
Held also, that the power conferred by cl.
(bb) of sub cl.
(2) of Rule 81 of the Defence of India Rules (under which the Control Order was made) was not confined to cases where the house was available for letting or subletting in the sense that the landlord did not require the house for his own use or had not let it to another himself.
|
Civil Appeal No. 4 of 1952.
Appeal from the judgment and order of the High Court of Judicature for the Punjab at 698 Simla dated 24th May, 1951, in Civil Writ No. 15 of 1951.
M.L. Manekshaw (P. N. Bhagwati, with him) for the appellant.
M.C. Setalvad, Attorny General for India (G. N. Joshi, with him) for the respondent.
May 26.
The Judgment of the Court was delivered by MAHAJAN J.
This is an appeal from the judgment of the High Court of Judicature of the State of Punjab dated the 24th May, 1951, dismissing the petition filed by the appel lants for writs of certiorari, prohibition and mandamus against the respondent.
Aboobaker Abdul Rahman, the father of the appellants, was ,possessed of considerable movable as well as immovable properties including a. cinema theatre, known as the Imperi al Cinema.
situateat Bombay.
Soon after the partition of India, he went to Pakistan and was in Karachi in the month of September, 1947, where he purchased certain properties in that month.
On information supplied by one Tek Chand Dolwani to the Additional Custodian of Evacuee Property, the Addi tional Custodian started proceedings under the Bombay Evacu ees (Administration of Property) Act, 1949, against Aboobak er in or about the month of July, 1949.
During the pendency of the said proceedings, the Government of India Ordinance XXVII of 1949 came into force.
Thereupon, on the 16th Decem ber, 1949, the Additional Custodian issued a notice to the said Aboobaker under section 7 of the Ordinance and a fur ther notice on the 11th January, 1950, to show cause why his property should not be declared to be evacuee property.
Pursuant to the said notices an enquiry was held by the Additional Custodian of Evacuee Property who after recording the statement of the said Aboobaker and examining some other evidence produced by the said Tekchand Dolwani and taking into consideration the written statement filed by him, adjudicated on the 8th February, 1950, that 699 the said Aboobaker was not an evacuee.
He, however, issued another notice to Aboobaker on the same day calling upon him to show cause why he should not be declared an intending evacuee under section 19 of the said Ordinance.
On the 9th February, 1950, he adjudicated him as an intending evacuee.
On the 31st March, 1950, Tekchand Dolwani being the informant and interested in the adjudication of the said Aboobaker as an evacuee, filed an appeal against the order of the 9th February to the respondent (The Custodian General of India) praying for an order declaring the said Aboobaker an evacuee and that he being the first informant should be allotted the said cinema.
On the 18th April.
1950, the Ordinance was replaced by Act XXXI of 1950.
The appeal was heard by the respondent in New Delhi on the 13th May. 1950.
At the hearing it was urged on behalf of Aboobaker that he having been declared an intending evacuee and he having accepted that order, no appeal lay therefrom and that the said Tekchand Dolwani was not a person ag grieved by any order passed by the Additional Custodian and therefore had no locus standi to appeal under the provisions of section 24 of Ordinance XXVII of 1949.
The hearing of the appeal was concluded on the lath May, 1951 and it is alleged in the written statement of the respondent that the order was dictated by him on the same day after the conclusion of the hearing and was also signed by him and it bore that date.
Aboobaker suddenly died on the 14th May, 1950, which was a Sunday and the respondent pronounced the order written on the 13th to the counsel of Aboobaker on the 15th May, 1950.
By this order the respond ent held that the appeal purporting to be from the order passed by the Additional Custodian on the 9th February, 1950, declaring the said Aboobaker an intending evacuee in effect and in substance was directed against the order made on the 8th February in the proceedings started under section 7 of the Ordinance declining to declare the said Aboobaker 's property as evacuee property.
700 He further held that the said Tekchand Dolwani was interest ed in the appeal and had locus standi to prefer it.
Having overruled the preliminary objections raised by the appel lants, the hearing of the appeal was adjourned and further inquiry was directed to be made in the matter.
Notices of the adjourned hearing of the appeal were given from time to time to the two appellants.
On the 30th February, 1951, they were informed that the appeal would be heard on the 7th March, 1951.
The two appellants allege that they are some of the heirs enti tled to the estate of the said Aboobaker.
Two of his sons migrated to Pakistan and one of the appellants is his third son and the other appellant is his only daughter.
Being aggrieved by the order of the respondent dated the lath May, 1950, the appellants filed a petition in the High Court of the State of Punjab at Simla on the 26th February, 1951, under article 226 of the Constitution, praying for a writ of certiorari for quashing and setting aside that order and for a writ of prohibition or mandamus directing the said respondent to forbear from proceeding with the hearing of the said appeal on the 7th March, 1951, or on any other date or dates.
The appellants raised the following contentions in the petition: 1.
That the appeal preferred by Tekchand Dolwani before the respondent was in terms an appeal against the order of the 9th February, 1950, and not an appeal against the conclusion reached on the 8th February, 1950, and inas much as the said order was made against Aboobaker and not in his favour, Tekchand had no right of appeal against the same and the respondent had no jurisdiction to entertain it or make any order therein.
That Tekchand was not a person aggrieved by the order dated the 8th February, 1950, within the meaning of section 24 of the Ordinance and was not entitled to appeal against the said order and inasmuch as no appeal lay at his instance, the respondent had no jurisdiction to entertain it or make any order therein.
701 3.
That after the death of Aboobaker on the 14th May, 1950, the respondent ceased to have jurisdiction to proceed with the hearing of the appeal or make any order therein.
The High Court held that the order of the respondent pronounced on the 15th May, 1950, was not a nullity and the appeal preferred by Tekehand was in effect and in substance an appeal from the order passed by the Additional Custodian on the 8th February, 1950, and that Tekchand was a person aggrieved within the meaning of section 24 of the Ordi nance.
It accordingly dismissed the petition with costs but on the 27th June, 1950, granted him leave to appeal to this Court under article 133 of the Constitution.
On the 30th July, 1951, during the pendency of the appeal in this Court, the respondent finally pronounced orders on the appeal of Tekchand and held that Aboobaker was an evacuee and his property was declared evacuee property.
A petition under article 226 for quashing.
this order is pending in the High Court of the State of Bombay.
The learned counsel for the appellants canvassed the following points before us: 1.
That the appeal to the respondent was against the order of the 9th and not against the order of the 8th, and as no appeal lay against the order of the 9th the respondent had no jurisdiction to hear it.
That assuming that the appeal was preferred against the order of the 8th, that order was not an appealable order inasmuch as section 24 allows an appeal against an order declaring properties evacuee properties and not against any conclusion that a certain person is or is not an evacuee, and thus no appeal was Competent at all which could be heard by the respondent.
That Tekchand was not a person aggrieved within the meaning of section 24 of the Ordinance and had no locus standi to prefer the appeal and the respondent had no juris diction to entertain it at his instance.
702 4.
That the order pronounced on the 15th after the death of Aboobaker was a nullity.
It is mentioned in the judgment of the High Court that Shri M.L. Manekshah conceded that the death of Aboobaker does 'not in any way affect the validity of the order pro nounced by the Custodian General on the 15th May, 1950.
The learned counsel adopted practically the same attitude before us in view of the affidavit of the respondent in which it was affirmed that the order in question was dictated on the 13th May, 1950, and was signed on the same date.
the High Court on the principle of Order XXII, Rule 6, Code of Civil Procedure, held that an order written but not pronounced could be pronounced even after the death of the party af fected.
In these circumstances the last contention of the learned counsel does not require any further consideration and is rejected.
The larger question that has been raised in the petition pending before the High Court of the State of Bombay that the properties of Aboobaker could not be declared evacuee properties after his death as they had devolved on his heirs was not raised in these proceedings and we have not been invited to decide it.
That being so, the question is left open.
The remaining three questions canvassed before us, unless they are of such a nature as would make the decision of the respondent dated the 13th May, 1950, a nullity, cannot be the subject matter of a writ of certiorari.
It is plain that such a writ cannot be granted to quash the deci sion of an inferior court within its jurisdiction on the ground that the decision is wrong.
Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice.
Want of jurisdiction may arise from the nature of the subjectmatter, so that the inferior court might not have authority to enter on the inquiry or upon some part of it.
It may also arise from the absence of some essential preliminary or upon the existence of some 703 particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it.
But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course pre scribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly.
The three questions agitated before us do not seem to be ques tions which bear upon the jurisdiction of the court of appeal, or its authority to entertain them.
It was contended that no court of limited jurisdiction can give itself jurisdiction by a wrong decision a point collateral to the merits of the case upon which the limit of its jurisdiction depends and that the questions involved in the appeal before the respondent were collateral to the merits of the case.
As pointed out by Lord Esher, M.R., in Reg.
vs Commissioner Income Tax(1),, the formula enunciated above is quite plain but its application is often mislead ing.
The learned Master of the Rolls classified the cases under two categories thus: "When an inferior court or tribunal or body which has to exercise the power of deciding facts, first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body.
It may in effect say that, if a certain stab of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise.
There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.
But there is another state of things which may exist.
The legislature may entrust the tribunal on body with a jurisdiction which includes the jurisdiction, to determine whether the preliminary state of facts exists as well as the jurisdiction, and on finding that it doe: exist, to proceed further or do something more.
Wher (1) 21 Q .B DD. 313.
704 the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider what ever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none.
In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribu nal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts.
including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their juris diction.
" The tribunal constituted to hear appeals under section 24 has been constituted in these terms: "Any person aggrieved by an order made under section 7, section 16, section 19 or section 38 may prefer an appeal in such manner and within such time as may be prescribed (a) to the Custodian, where the original order has been passed by a Deputy or Assistant Custodian; (b) to the Custodian General, where the original order has been passed by the Custodian, an Additional Custodian or an Authorized Deputy Custodian.
" Like all courts of appeal exercising general jurisdic tion in civil cases, the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts.
Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, but by the very nature of things it has also jurisdiction to deter mine any points raised before it in the nature of prelimi nary issues by the parties.
Such jurisdiction is inherent in its very constitution as a court of appeal.
Whether an appeal is competent, whether a party has locus standi to prefer it, whether the appeal in substance is from one or another order 705 and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appellate court so constituted.
Such a tribunal falls within class 2 of the classification of the Master of the Rolls.
In these circumstances it seems to us that the order of the High Court of Punjab that a writ of certiorari could not issue to the respondent quashing the order of the 13th May, 1950, was right.
We are further of the opinion that none of the contentions raised has any merit whatsoever.
For a proper appraisal of the contention that Tekchand Dolwani is not a "person aggrieved" within the meaning of those words in section 24 of the Ordinance, it is necessary to refer to the rules made under the Ordinance.
It is provided in rule S (5), that any person or persons claiming to be interested in the enquiry or in the property being declared as evacuee property, may file a written statement in reply to the written statement filed by the persons interested in the property claiming that the property should not be declared evacuee property; the Custodian shall then either on the same day or on any subsequent day to which the hearing may be adjourned, proceed to hear the evidence, if any, which the party appearing to show cause may produce and also evidence which the party claiming to be interested as mentioned above may adduce.
In the proceedings before the Additional Custodian, Tekchand Dolwani filed a reply to the written statement of Aboobaker and adduced evidence in support of the stand taken by him that the property of Aboobaker was evacuee property.
Further Tekchand Dolwani was the first informant who brought to the notice of the Custodian concerned that the property of Aboobaker was evacuee property and in view of the order of the Ministry of Rehabilitation he was, as a first informant, entitled to first consideration in the allotment of this property, the Additional Custodian was bound to hear him on the truth and validity of the information given by him.
When a person is given a right to raise a contest in a certain matter and his contention is negatived, then 706 to say that he is not a person aggrieved by the order does not seem to us to be at all right or proper.
He is certain ly aggrieved by the order disallowing his contention.
Sec tion 24 allows a right of appeal to any person aggrieved by an order made under section 7.
The conclusion reached by the Additional Custodian on the 8th February, 1950, that Aboo baker was not an evacuee amounted to an order under section 7 and Tekchand therefore was a person aggrieved by that order.
Section 43 bars the jurisdiction of the civil court in matters which fall within the jurisdiction of the Custo dian.
In clause 1 (a) it provides as follows: "no civil court shall have jurisdiction to entertain or adjudicate upon any question whether any property is or is not evacuee property or whether an evacuee has or has not any right or interest in any evacuee property .
" It is clear therefore that the Additional Custodian has to find and adjudicate on the question whether a certain property is or is not evacuee property and whether a certain person is or is not an evacuee and such an adjudication falls within the ambit of section 7 of the Ordinance.
Lord Esher M.R. in In re Lamb, Ex parte Board of Trade(1) observed as follows : "The meaning of the term 'person aggrieved ' was ex plained by this Court in Ex parte Official Receiver U).
It was there determined that any person who makes an applica tion to a Court for a decision, or any person who. is brought before a Court to submit to a decision, is, if the decision goes against him, thereby a 'person aggrieved ' by that decision." Lord Justice Kay in the same judgment made the following observations: "The preliminary objection to the appeal is two/old: (1) It is said that the Board of 'trade are not 'persons aggrieved '.
They are persons whom the court was bound to hear, If they wished to be heard, on the validity of this objection, and the decision has (1) (2) 707 been against them.
How it can be said that they are not 'persons aggrieved ', by the decision, passes my understand ing.
When two persons are in the position of litigants before the High Court, and the decision of the Court goes against one of them, how it can be said that he is not a 'person aggrieved ' by the decision, I cannot understand.
I am clearly of opinion that the Board were 'persons ag grieved ' by this decision.
Then (2) it is said that the decision is not an 'order '.
When the High Court makes a declaration of right, and further orders the costs of the application to be paid (which is the common form here used), and that is drawn up and sealed with the seal of the Court, and, I suppose placed on record, as all orders of the High Court are, it seems to me that it is clearly an order of the Court.
" In our opinion, Tekchand Dolwani is a person aggrieved within the rule stated in the decision mentioned above and the respondent rightly held that he had locus standi to prefer the appeal.
The next point urged was that the appeal had been pre ferred against the order of the 9th February and not against the order of the 8th and that the respondent had no juris diction to hear it.
Whether the appeal in substance had been preferred against the order of the 8th or the order of the 9th was a matter which was certainly within the compe tence of the respondent to decide and does not involve any question of jurisdiction whatsoever.
Be that as it may.
we have examined the memorandum of appeal presented by Tekchand Dolwani to the respondent and it appears to us that the High Court was right when it held that the appeal was in effect and in substance an appeal from the order passed by the Additional Custodian on the 8th February.
The relief claimed in appeal concerns the order of the 8th and the grounds of appeal only relate to this matter.
The only defect pointed out was in the description of the order attacked in appeal.
It is well settled that such errors of description cannot be allowed to prejudice the right of a party.
The two 708 orders of the 8th and 9th made on consecutive days, though under different provisions of the Ordinance, were inter linked and the latter order was merely consequential on the conclusion reached on the 8th and the description in the memorandum of appeal that the appeal was against the order of the 9th cannot be considered as really an error of a kind of which serious notice could be taken.
The last point raised before us was not taken in the High Court and therefore we have not the benefit of that court 's decision on the point.
It was contended that no appeal lay against the order of the Additional Custodian dated the 8th February declining to declare Aboobaker an evacuee, that the only order that the Custodian is entitled to pass under section 7 is an order declaring any property to be evacuee property and that it is this order and this order alone which is appealable under section 24.
In our opinion, this contention is without force.
Section 24 con fers a right of appeal against all orders made under section 7 and does not specify the nature of the orders made appeal able.
In an enquiry under section 7 the first point for adjudication is whether a certain person falls within the definition of the word "evacuee" given in the Ordinance.
Ii he comes within the ambit of the definition, then any property heldby him becomes evacuee property.
The civil court is barred from entertaining or adjudicating upon the questions whether the property is or is not evacuee proper ty, or whether an evacuee has any right or interest in any evacuee property.
The decision of the Custodian whether in the affirmative or in the negative amounts to an adjudica tion under section 7 and is as such appealable.
It was contended that when the Custodian reached the conclusion that a certain person is not an evacuee, then he is not entitled to make any order whatsoever but has just to file the proceedings.
This contention is unsound.
When a certain person claiming to be interested in getting a property declared evacuee property is allowed to put in a written statement and lead 709 evidence, then the decision of the court whether favourable or unfavourable to him has to take the form of an adjudica tion and necessarily amounts to an order.
Reference in this connection may be made to the decision of the Federal Court in Rayarappan Nayanar vs Madhavi Amma(1) on an analogous,provision of the Code of Civil Procedure contained in Orders XL, Rule 1, and XLIII, Rule 1 (s).
Order XLIII, Rule 1 (s) makes any order made under Order XL, Rule 1, appealable, while Order XL, Rule 1, only empowers the court to appoint a receiver.
It was held that the order removing a receiver was appealable under Order XLIII, Rule 1, inas much as such an order fell within the ambit of Order XL, Rule 1, and the power of appointing a receiver included the power of removing or dismissing him.
The present case stands on a higher footing.
The power of granting a certain relief includes obviously the power of refusing that relief.
In our opinion, therefore, the order made by the Additional Custodian refusing to declare Aboobaker an evacuee and his property evacuee property was an order made under section 7 of the Ordinance and was therefore appealable under section, 24.
The result is that this appeal fails and is dismissed with costs.
Appeal dismissed.
| A writ of certiorari cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong.
It must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it, or in violation of the principles of natural justice.
Want of jurisdiction may arise from the nature of the subject mat ter, so that the inferior court might not have authority to enter on the inquiry or upon some part 0 697 it.
It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it.
But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly.
When an inferior court or tribunal which has the power of deciding facts is established by the legislature.
it may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise.
There, it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.
But the legislature may entrust the court or tribunal itself with a jurisdiction which includes the jurisdiction to determine whether the prelimi nary state of facts exists and on finding that it does exist, to proceed further or do something more.
In the second case the rule that a tribunal cannot give itself jurisdiction by wrongly deciding certain facts to exist does not apply.
Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, but by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the par ties.
Such jurisdiction is inherent in its very constitu tion as a court of appeal.
Whether an appeal is competent, whether a party has locus standi to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appel late court so constituted.
An order by an Additional Custodian in a proceeding under Ordinance No. XXVII of 1949 refusing to declare a person an evacuee and his property evacuee property is an order under section 7 of of the Ordinance and is appealable under section 24.
A person claiming to be interested in an enquiry as to whether a person is an evacuee and his property evacuee property, who has filed a written statement and adduced evidence, is a "person aggrieved" by an order that the latter is not an evacuee and has a locus standi to prefer an appeal from the order.
|
30 of 1950.
Appeal under article 132 (1) of the Constitution of India from the Judgment and Order dated 24th October, 1950, of the High Court of Judicature at Bombay (Bavdekar and Vyas JJ.) in Criminal Application No. 1003 of 1950.
M.C. Setalvad (Attorney General for India) and C.K. Daphtary (Solicitor General for India), with G.N. Joshi for the appellant.
Respondent ex parte.
676 1952.
May 26.
This is an appeal from an order of the Bombay High Court directing the release of the respondent who had been detained under section 3 of the Preventive Detention Act of 1950. 'The learned Attorney General states at the outset that Government does not want to re arrest the respondent but merely desires to test the High Court 's decision on certain points which will have far reaching effects on preventive detentions in the State of Bombay.
Following the precedent of their Lordships of the Privy Council in King Emperor vs Vimlabai Deshpande(1) we proceed to decide the appeal but direct that the respondent shall not in any event be re arrested in respect of the matters to which the appeal relates.
The respondent was originally arrested under an order of the District Magistrate, Belgaum, dated the 26th February, 1950, though he was then beyond the jurisdiction of that authority.
On the 11th of .July, 1950, the Bombay High Court held that a detention of that kind was invalid.
The decision was given in the case of In re GhateC (2).
This necessitated a review of 57 cases, among them the respond ent 'section Orders were passed in all those cases on the 17th of July, 1950.
About 52 of the detenus were released and in the remaining cases fresh orders of detention were passed by the Government of Bombay.
In the respondent 's case the order was in these terms: "Whereas the Government of Bombay is satisfied with respect to the person known as Shri Purushottam Jog Naik of Ulga Village, Taluka Karwar, District Kanara, that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, it is necessary to make the following order: Now, therefore, in exercise of the powers conferred by sub section (1.) of section 3 of the Preventive (1) I.L.R. at 655.
(2) 677 Detention Act, 1950 (No. IV of 1950), the Government of Bombay is pleased to direct that the said Shri Purushottam Jog Naik be detained.
By order of the Governor of Bombay, Sd/ V. T. Dehejia, Secretary to the Government of Bombay, Home Department.
Dated at Bombay Castle, this 17th day of July, 1950.
" He was served with the grounds of detention on the 26th of July, 1950, and with a fuller set on the 9th of August.
The original grounds were as follows: "In furtherance of your campaign for non payment of rent, you were instigating the people in the Belgaum Dis trict to commit acts of violence against landlords.
``In all probability, you will continue to do so.
" The second set gave the following additional particulars: "The people in Belgaum District, whom you were instigat ing to commit acts of violence against landlords in further ance of your campaign for non payment of rent, were the tenants in Hadalge and round about villages in the Khanapur Taluka of Belgaum District, and the said instigation was carried on by you for some months till your arrest in April, 1949.
" On the 24th of August, 1950, the respondent applied to the Bombay High Court under section 491 of the Criminal Proce dure Code for an order of release.
He succeeded, and the appeal is against that order.
The first ground on which the learned High Court Judges proceeded was that the detention order of the 17th July was defective as it was not expressed inproper legal form.
The basis of their reasoning is this.
Article 166(1) of the Constitution requires that " All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
" It will be seen that the order of detention states in the preamble 678 `` Whereas the Government of Bombay is satisfied. " and the operative part of the order runs " Now, therefore . the Government of Bombay is pleased to direct etc.
" It does not say that the Governor of Bombay is pleased to direct.
The learned Judges held that this is not an order expressed to be made in the name of the Governor and accord ingly is not protected by clause (2) of article 166.
They conceded that the State could prove by other means that a valid order had been passed by the proper authority, but they held that the writing, (Record No. 3), which purports to embody the order, cannot be used to prove that a valid order was made because the formula set out in article 166(1) was not employed.
We are unable to agree.
Now we do not wish to encourage laxity of expression, nor do we mean to suggest that ingenious experiments regard ing the permissible limits of departure from the language of a Statute or of the Constitution will be worthwhile, but when all is said and done we must look to the substance of article 166 and of the Order.
The short answer in this case is that the order under consideration is "expressed" to be made in the name of the Governor because it says "By order of the Governor.
" One of the meanings of "expressed" is to make known the opinions or the feelings of a particular person and when a Secretary to Government apprehends a man and tells him in the order that this is being done under the orders of the Governor, he is in substance saying that he is acting in the name of the Governor and, on his behalf, is making known to the detenu the opinion and feelings and orders of the Governor.
In our opinion, the Constitution does not require a magic incanta tion which can only be expressed in a set formula of words.
What we have to see is whether the substance of the require ments is there.
It has to be remembered that this order was made under the , and therefore had to conform to its terms.
Section 3 of the Act provides that the State Government may, if satisfied, 679 "make an order directing that such person be detained.
" It is true that under section 3 [(43 a) (a)] of the General Clauses Act the words "the State Government" mean the Governor, but if that be so, then the expression must be given the same meaning in the order which merely reproduces the language of section 3, not indeed because the General Clauses Act applies to the order (it does not) but because the order is reproducing the language of the Act and must therefore be taken to have the same meaning as in the Act itself, particularly as the order concludes with the words, " By order of the Governor of Bombay.
" It will be noticed that section 3 of the enables certain authorities specified by it to make orders of detention.
These include, not only State Governments but also the Central Government, any District Magistrate or Sub Divisional Magistrate and certain Commis sioners of Police.
The list does not include the Governor of a State.
Now, though the term "State Government" appearing in an enactment means the Governor of the State, there is no provision of law which equates the term Governor with the State Government of which he happens to be the head.
On the contrary, the Constitution invests him with certain func tions and powers which are separate from those of his Gov ernment.
It was therefore appropriate that the order in this case should have set out that the Government of Bombay was satisfied and not some other authority not contemplated by the Act and that that Government directed the detention.
It was also proper that the order should have been executed under the orders of the Governor authenticated, under the rules, by the signature of the Secretary.
It is true that addition of the words "and in his name" to the words "By order of the Governor of Bombay" would have placed the matter beyond controversy but we are unable to see how an order which purports to be an order 680 of the Governor of 'BombaY can fail to be otherwise than in his name.
If A signs his name to a communication that commu nication goes out in his name.
Equally, if he employs an agent to sign on his behalf and the agent states that he is signing under the orders of A, the document still goes forth in the name of A.
In our opinion, the High Court was wrong on this Point The next step in the High Court 's reasoning was this.
The learned Judges held that the writing produced as the order did not prove itself because of the defect we have just considered but that nevertheless it was open to the State Government to prove by other means that such an order had been validly made.
The learned Judges therefore called upon Government to make an affidavit setting out the facts.
An affidavit was made by the Home Secretary but the learned Judges were not satisfied and asked for a further affidavit.
The Home Secretary thereupon made a second one but the learned Judges were i still not satisfied and considered that the Minister in charge should have made an affidavit himself.
We do not intend to discuss this matter because once an order of this kind is unable to prove itself and has to be proved by other means it becomes impossible to lay down any rule regarding either the quantum of evidence necessary to satisfy the Court which is called upon to decide the question or the nature of the evidence required.
This is a question of fact which must be different in each case.
Of course, sitting as a court of appeal, it would have been necessary for us to decide this had we reached a different conclusion on the first point and had the State Government desired the re.arrest of the respondent.
But as we are only asked to deal with general principles, all we need say as regards this is that it is not necessary in every case to call the Minister in charge.
if the Secre tary.
or any other person, has the requisite means of knowledge and his affidavit is believed, that will be enough.
681 We wish, however, to observe that the verification of the affidavits produced here is defective. 'The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally.
The verifica tion however states that everything was true to the best of his information and belief.
We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit.
Verifications should invar iably be modelled on the lines of Order XIX, rule 3, of the Civil Procedure Code, whether the Code applies in terms or not.
And when the matter deposed to is not based on person al knowledge the sources of information should be clearly disclosed.
We draw attention to the remarks of Jenkins C.J. and Woodroffe J. in Padmabati Dasi vs Rasik Lal Dhar(1) and endorse the learned Judges ' observations.
In fairness to the Home Secretary we deem it right to say that his veracity was neither doubted nor impugned by the High Court, but only his means of knowledge.
He was speaking of the "satisfaction" of the Minister and the High Court was not satisfied regarding his knowledge of the state of the Minister 's mind.
The learned Judges considered that the Minister himself would have been a more satisfactory source of information, but as we say, this is not a question of law.
As a matter of abstract law, of course, the state of man 's mind can be proved by evidence other than that of the man himself, and if the Home Secretary has the requisite means of knowledge, for example, if the Minister had told him that he was satisfied or he had indicated satisfaction by his conduct and acts, and the Home Secretary 's affidavit was regarded as sufficient in the particular case, then that would constitute legally sufficient proof.
But whether that would be enough in any given case.
or whether the ' 'best evidence rule" should be applied in strictness in that particular case, must necessarily depend upon its facts.
In the present case, there was the element that 57 cases were dealt with in the course of 6 days (1) Cal.
682 and orders passed in all on one day.
But we do not intend to enter into the merits.
All we desire to say is that if the learned Judges of the High Court intended to lay down as a proposition of law that an affidavit from the Minister in charge of the department is indispensable in all such cases, then they went too far.
The learned Attorney General contended that the Minis ter in charge could not be asked to divulge these matters because of article 163 (3) of the Constitution.
We donor decide this question and leave it open.
Another point which was argued related to the privilege which the Home Secretary claimed on behalf of the State Government under article 22 (6) of the Constitution.
Govern ment disclosed certain facts in the grounds furnished to the detenu and claimed privilege regarding the rest of the facts in its possession.
In our opinion, the grounds supplied were sufficiently specific and they could form a proper basis for the "satisfaction" of the Government.
As regards the rest, Government has claimed privilege in the affidavit of the Home Secretary on the ground of public interest.
This raises further questions which we do not intend to examine as the respondent is not to be re arrested.
The order of release was, in our opinion, wrong, but in view of Government 's undertaking not to re arrest the re spondent, we direct that he be not re arrested in respect of the matters to which this appeal relates.
Order of High Court set aside.
| The material portion of an order of detention made under 3 of the preventive Detention Act 1950, ran as fol lows: 675 "Whereas the Government of Bombay is satisfied with respect to the person known as J. N . . that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order it is necessary to make the following order: Now, therefore, . . the Gov ernment of Bombay is pleased to direct that the said J.N. be detained.
By order of the Governor of Bombay (Sd.) V.T.D. Secretary to the Government of Bombay, Home Department".
The High Court of Bombay held that the order was defec tive as it was not "expressed to be in the name of the Governor" within the meaning of article 166 (1) and was not accordingly protected by article 166 (2): Held, that the order was not defective merely because it stated that the Government of Bombay was satisfied and that the Government of Bombay was pleased to direct that J.N. be detained, and, though the addition of the words "and in his name" to the words "By order of the Governor of Bombay" would have placed the matter beyond controversy, the order was really one expressed to be taken in the name of the Governor of Bombay within article 166.
Held further, that, assuming that the order was defec tive it was open to the State Government to prove by other means that such an order has been validly made.
It is not absolutely necessary in every case to call the Minister in charge; if the Secretary or any other person has the requi site means of knowledge and his affidavit is believed, that will be enough.
Verification should invariably be modelled on the lines of O. XIX, r. 3, of the Civil Procedure Code, whether the Code applied in terms or not, and when the matter deposed to is not based on personal knowledge the sources of informa tion must be clearly disclosed.
|
section 86, 147, and 155 of 1952) under article 32 of the Constitution for writs in the nature of habeas corpus.
Petitioners in person in ,petitions Nos. 86, 147 and 157 of 1952.
Rajani Patel for the petitioner in petition No. 155.
M.C. Setalvad, Attorney General for India, (G. N. Joshi, with him) for the respondents.
R. Ganapathi Iyer for the intervener (State of Hydera bad).
May 26.
The Judgment of the Court was delivered by BOSE J.
This petition and three others, namely peti tions Nos.
147, 155 and 157 of 1952, raise issues regarding the vires and applicability to these cases of section 3 of the Preventive Detention (Amendment) Act, 1952.
This judg ment is confined to those points and will govern these cases only in so far as they raise those points.
The remaining points which do not touch these issues will be dealt with by another Bench.
The only exception is a point raised in petition No. 155 of 1952 with which the other petitions are not concerned.
We will deal with that separately.
The present petition (No. 86 of 1952) was argued very ably and with commendable conciseness by the petitioner in person.
The fact that he has not been able to persuade us to his view is not due to any defect in his presentation of the case.
The petitioner was arrested on the 15th of November, 1951, and an order of detention under the Preventive Deten tion Act of 1950 was served on him the same day, and he was given the grounds of detention on the following day, the 16th.
His case was placed before an Advisory Board and on the 8th of February, 1952, the Bombay Government "confirmed and continued" the detention under section 11 (1) of the Preventive Detention Act of 1950.
This Act, as it originally stood, was due to expire on the 1st of April, 1951, but in that year an amending 686 Act was passed which, among other things, prolonged its life to the 1st of April, 1952.
The order of detention in this case was passed under the Act of 1950 as amended by the ,Act of 1951.
According to past decisions of this Court, the detention would have expired on the 1st of April, 1952, when the Act of 1950 as amended in 1951 would itself have expired.
But a fresh Act was passed in 1952 (Act XXXIV of 1952), the Preventive Detention (Amendment) Act, 1952.
The effect of this Act was to prolong the life of the Act of 1950 for a further six months, namely till the 1st of Octo ber, 1952.
The question is whether that Act also prolonged the detention and whether it had the vires to do so.
It was contended that the mere prolongation of the life of an Act does not, by reason of that alone, prolong the life of a detention which was due to expire when the Act under which it was made expired.
Therefore, as the Act under which the present detention was made was due to expire on the 1st of ApriL, 1952, the mere prolongation of its life by the amending Act did not affect a prolongation of the detention.
Accordingly, the petitioner should have been released on the 1st of April, 1952, and as there is no fresh order of detention he is entitled to immediate release.
We need not express any opinion on that point because there is present in the amending Act something more than a mere prolongation of the life of the old one.
There is section a which is in these terms: "Validity and duration of detention in certain cases Every detention order confirmed under section 11 of the principal Act and in force immediately before the commence ment of this Act shall have effect as if it had been con firmed under the provisions of the principal Act as amended by this Act; and accordingly, where the period of detention is either not specified in such detention order or specified (by whatever form of words) to be for the duration or until the expiry of the principal Act or until the 31st day of March, 1952, such detention order shall continue to 687 remain in force for so long as the principal Act is in force, but without prejudice to the power of the appropriate Government to revoke or modify it at any time.
" It will be noticed that the concluding part of this section states that the detention order shall remain in force "for so long as the principal Act is in force." Sec tion 2 of the amending Act defines the "principal Act" to mean the Act of 1950.
Therefore, it was argued, as the Act of 1950 was due to expire on the 1st of April, 1952, the present detention also came to an end on that date and so, in the absence of a fresh order of detention, the petition er 's detention after that date was illegal.
This argument, though ingenious, is fallacious.
The construction of an Act which has been amended is now governed by technical rules and we mast first be clear regarding the proper canons of construction.
The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all.
This is the rule in England:see Craies on Statute Law, 5th edition, page 207; it is the law in Amenca: see Crawford on Statutory Construc tion, page 110; and it is the law which the Privy Council applied to India in Keshoram Poddar vs Nundo Lal Mallick(1).
Bearing this in mind it will be seen that the Act of 1950 remains the Act of 1950 all the way through even with its subsequent amendments.
Therefore, the moment the Act of 1952 was passed and section 2 came into operation, the Act of 1950 meant the Act of 1950 as amended by section 2, that is to say, the Act of 1950 now due to expire on the 1st of October, 1952.
(1)(1927) 54 I.A. 152 at 155.
688 Turning now to section 3, whose vires is questioned, and examining it clause by clause we first get these words: "Every detention order confirmed under section 11 of the principal Act and in force immediately before the commencement of this Act.
" According to the rule of construction just examined, the words "principal Act" mean the Act of 1950 as amended by the Acts of 1951 and of 1952, 'that is to say, the Act of 1950 due to expire on the 1st of October, 1952.
Incidental ly, in the particular context it could not mean the Act of 1950 as it stood in 1950 because no order confirmed under it as it then stood could have been alive "at the commencement of this Act", namely on the 15th of March, 1952.
The section contin ues "shall have effect as if it had been confirmed under the provisions of the principal Act as amended ' by this Act.
" The underlined words "as amended by this Act" were relied on to show that wherever the words "the principal Act" were referred to they meant the unamended original Act of 1950, otherwise these words would have been unnecessary.
In our opinion, they were unnecessary in the sense that their absence would not have made any difference to the interpretation though it would have made the section harder to follow and understand.
We say that for this reason.
Without the underlined words the section paraphrased would read "Every detention order confirmed under the original Act shall have effect as if confirmed under its provisions.
" If this were to be read literally it would lead to an absurdity, for if the order is actually confirmed under the original unamended Act it would be pointless to introduce a fiction and say that the order shall be deemed to be con firmed under that Act as unamended.
But even apart from a strictly technical construction, the language of the section is accurate because, as we 689 have said, the rule is that an amended Act must be read as if the words of amendment had been written into the Act except where that would lead to an inconsistency, and this would be one of those cases unless the words are construed in a sensible and commonsense way.
The draughtsman there fore had either to leave the words as they were, with an apparent inconsistency, or make his meaning clear by adding the words he did.
But we do not think the addition made any difference to the result.
We now turn to the second half of section 3, that is to say, to the words following the semi co]on.
It is important to note here that this part is consequential on the first and merely explains the effect of the first half.
It is also relevant to note that it deals with four different kinds of orders, different, that is to say, in the form of the words used though in the end they all come to the same thing.
It deals with the following kinds of order: (1) an order in which the period of detention is not specified at all; in that event the detention would end at midnight on the night of the gist of March, 1952.
It is clear that in this context the words "the principal Act" cannot mean the Act expiring on the 1st of October, 1952, because it envisages an order made before the Act of 1952 was in being and so on the date of its making the order could only refer to the Act then in being; (2) an order in which the period is stated to be "for the duration of the principal Act", that is to say, till the 31st of March, 1952 , (3) an order in which the period is specified to be until the expiry of the principal Act, which again brings us back to the 31st of March, 1952, as the last day of deten tion; (4) an order in which the period is specified to be till the 31st of March, 1952.
In all these four cases the section says that the detention order shall "continue to remain in force, for so long as the principal Act is in force", that , is to say, till the 1st October, 1952.
690 That follows from the first part of the section because that is the meaning which the law directs shall be placed on these words unless the context otherwise directs and the context does not direct otherwise here.
This part of the section is only explanatory.
But we wish to found deeper than this.
It is the duty of Courts to give effect to the meaning of an Act when the meaning can be fairly gathered from the words used, that is to say, if one construction will lead to an absurdity while another will give effect to what common sense would show was obviously intended the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently.
Indeed, the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided.
See the speech of Lord Wens leydale in Grey vs Pearson (1) quoted with approval by the Privy Council in Narayana Swami vs Emperor (2); also Salmon vs Duncombe(3).
The rule is also set out in the text books: See Maxwell on the Interpretation of Statutes, 9th edition, page 236, and Craies on Statute Law, 5th edition, pages 89 to 93.
The meaning of section 3 is quite plain and only desperate hair splitting can reduce it to an absurdity.
Courts should not be astute to defeat the provisions of an Act whose meaning is, on the face of it, reasonably plain.
Of course, this does not mean that an Act, or any part of it, can be recast.
It must be possible to spell the meaning contended for out of the words actually used.
We hold that there is no difficulty of construction.
It was next argued that in any event the extended deten tion became a fresh detention (because of the Act of 1952) from the date the Act came into force, and reliance was placed upon the judgments of two of us, Mahajan and Das JJ.
in section Krishnan vs The State of Madras(4).
It is enough to say that was not the (1) r at 106.
(3) 11 App.
627 at 634.
(2) A.I.R. 1939 P.C. 47.
(4) ; at 635 and 640.
691 decision of the Court in that case, and further, that the two Judges who held it was a fresh detention nevertheless considered that a fresh order with its concomitant fresh grounds and a fresh reference to the Advisory Board were not required; therefore, either way the petitioner must fail.
Reference was made to the equality clause in article 14 of the Constitution but that argument is easily met because the classification which section 3 makes is reasonable.
In one class it places all those whose cases have already been considered by the Advisory Board and in the other those whose cases have yet to go before it; also the law is fair, or at any rate as fair as detention laws can be, despite this distinction because power is left to the appropriate Government to revoke or modify these orders, or any of them, at any time.
Substantially therefore there is no differenti ation.
Article 14 was considered at length in The Slate of West Bengal vs Anwar Ali Sarkar (1), and according to the law laid down there, the Court must be satisfied on two points before it can strike at a law on the ground of unlawful discrimination.
It must be satis fied (1) that the law in fact discriminates and (2) that such discrimination is not permissible on the principle of a rational classification made for the purposes of the legislation.
The argument here was that section a discriminated against those detenus whose cases had been referred to the Advisory Board and whose detention was confirmed, on the strength of its report, under section 11 (1) before the amending Act of 1952 was passed.
The reason given was that these detentions are automatically extended up to the 1st of October, 1952, by section 3 without further reference to an Advisory Board, whereas in other cases, that is to say, in the case of those who were detained before the amending Act but whose cases had not been referred at the date it came into force, and in the case of those detained after the (1)[1952] S.c.R.284 692 amending Act, the Advisory Board is called into play and individual attention is given to each case with the result that many of those detentions might not be for as long as six months.
They might, for example, be only for one month or two.
It was urged that this was discrimination of a kind which cannot be supported by any principle of permissible classification because classification into the above catego ries has no reasonable relation to the objects of the legis lation, such as security of the State, maintenance of public order and so forth.
We are unable to accept this line of reasoning.
To say that section.
3 automatically extends the detention of persons in the petitioner 's position to the 1st of October, 1952, and stops there, is only to make a partial statement of the effect of section 3 because the extension is subject to the power of the appropriate Government to revoke or modify it at any time.
In other words, the automatic con tinuation of the detention till the 1st of October is not absolute and irrevocable but is made dependent on the power of the appropriate Government to revoke or modify it at its discretion under section 13 of the Act.
The State may or may not continue the detention for the whole of the extended period.
In both classes of cases the duration the deten tion within the overall limit of the life of the Act is left to the discretion of the State.
The only difference is that in the one class of cases the discretion is exercised after the period has been extended by the amending Act, in the other the appropriate Government fixes the period itself in its discretion and can again at its discretion revoke or modify it.
In both cases, the substance of the law is that the period of detention is left to the discretion of the State, and so there is no substantial discrimination.
It was argued that however fair this may look on paper, in practice there will be grave discrimination because, as a matter of fact, the State will not apply its mind in the majority of cases like the petitioner 'section That is an argument we cannot accept and no material Was placed before us t0 justify such a conclusion, 693 We turn now to the next point.
It was contended that sec tion 3 offends the Constitution because article 22 (4) and (7) do not envisage the direct intervention of Parliament in a whole batch of cases.
The protection guaranteed is that there shall be individual attention and consideration to each separate case by some duly specified and constituted authority.
In our opinion, this is not accurate.
Article 22 (4) guarantees that there shall be no preven tive detention for more than three months unless the law authorising it makes provision for an Advisory Board and the Board after considering each individual case separately reports that there is in its opinion sufficient cause for such detention.
To that extent there must be individual consideration of each case, but once the report is made and is unfavourable to the detenu, then the detention can be for a longer period provided it does not exceed "the maximum period prescribed by any law made by Parliament under sub clause (b) of clause (7).
" Sub clause (b) of clause (7) empowers Parliament to prescribe "the maximum period for which any person may in any class or . . . of cases be detained under any law providing for preventive deten tion.
" Parliament is accordingly empowered to specify a class.
It has done so.
The class is all persons whose cases have already been considered by an Advisory Board.
It is empowered to prescribe a maximum period.
That also it has done.
The extended detention (that is to say, for more than three months) can then be "under any law providing for preventive detention.
" A law made by Parliament falls within these words.
Parliament is equally authorised to say who shall determine the period of detention, and as there is nothing in the Constitution to prevent it can itself exer cise the authority it is empowered to delegate to others.
Stress was laid on the words "any person" in subclause (b) of clause (7) and it was contended that this contem plates individual attention in each case.
But 694 if that is so, then it means that Parliament must itself direct the maximum period for each separate person falling within the class individually.
The words are, we think, reasonably plain and we hold that Parliament can prescribe the maximum for a class taken as a whole as it has done in section 3.
It was next argued that once the power given under clause (7) to fix a maximum period has been exercised the power exhausts itself and cannot be exercised again in respect of the same detention.
In our opinion, no such limitation is imposed upon Parliament by the Constitution.
Then it was said that section 3 stands on a footing different from section 12 of the amending Act of 1951 as it introduces the idea of potentially indefinite detention and accordingly is repugnant to the Constitution, and in any event is a fraud upon it.
In so far as this means that section a fixes no time limit, the contention is unsound because the section specifies the exact period of the deten tion, namely till the expiry of the Act of 1950, that is to say, till the 1st of October, 1952.
In so far as it means that Parliament is enabled to continue detentions indefi nitely by the expedient of periodic amendments in the Act of 1950, the answer is that Parliament has the power.
This was precisely the power exercised in the amending Act of 1951 and upheld by this Court in section Krishnan vs The State of Madras(1).
The present Act is no different from that in this respect.
So far, we have dealt with the facts in petition No. 86 of 1952.
The facts in the other three petitions naturally differ in their details but they all conform to the same general pattern so far as the points discussed above are concerned, so there is no need to discuss them individually.
We hold that section 3 of the amending Act of 1952 is intra vires and that the detentions are not bad on any of the grounds discussed above.
The rest of the points raised in each individual case are left open except for one point which (1) ; 695 arises in petition No. 155 of 1952.
That point is as fol lows.
The first ground of detention given to the petitioner in this case reads: "Being the President of Jamat of Agris you have used your position as such to increase your influence over the residents of Uran Peta, have created a band of obedient and trusted associates, have inflicted heavy fines on villagers in Uran Peta who have disregarded your wishes and have imposed on them boycott or excommunication in cases of their refusal to pay the fines.
" It was argued that at the very outset 'these allegations import nothing more than an exercise of functions such as the infliction of fines and excommunication which the peti tioner as head of the caste had authority to do.
They do not touch any of the matters covered by section 3 (1) (a) of the , under which the petitioner is detained.
For example, they do not touch the security of the State or the maintenance of public order or any of the other matters specified in section 3.
They are therefore irrelevant to the detention, and as it is impossible to say how far these irrelevant matters influenced the detention, the petitioner is entitled to release.
Reliance was placed upon certain observations of the Federal Court in Rex vs Basudev(1).
We think it unnecessary to examine this point because we do not think the ground is irrelevant nor do we agree that it means what the petitioner says.
In our opinion, the grounds of detention must be regarded as a whole and when that is done the relevance of the first ground becomes plain.
The gravamen of the charge against the petitioner is that he aimed at setting up a parallel government in the Uran Peta area and that in order to achieve that end he did various acts such as intimidating the workers in the salt pans with threats of murder, and his own workers with threats of death, unless they carried out his (1) at 651.
696 orders; and among the lesser instances given to illustrate the exercise of parallel governmental authority are the ones set out in the first ground, namely the infliction of fines with the sanction of excommunication and boycott to ensure their payment and due obedience to his orders.
This point has no force and is decided against the petitioner.
It will not be open to him to re agitate this afresh when his case is reheard on the remaining issues.
All the four cases will now be set down for hearing on the remaining points which arise in them.
As they do not involve constitutional issues they need not go before a Constitution Bench.
Agent for the petitioner in Petition No. 155: M.S.K. Sastri for P.G. Gokhale.
Agent for the respondents and Intervener:P. A. Mehta.
| An order directing the detention of the petitioner was made on the 15th of November, 1951, under the Preventive Detention Act of 1950 as amended by the Amending Act of 1951, which prolonged the duration of the Act of 1950 up to the 1st April, 1952.
The Preventive Detention (Amendment) Act of 1952 extended the duration of the Act of 1950 for a further period of six months, that is to say, until the 1st October, 1952.
Section 3 of the Act of 1952 provided further that detention orders confirmed under the principal Act and in force immediately before the commencement of the Act of 1952, shall, where the period of detention is not specified in the order, remain in force "for so long as the principal Act (which was defined as the Act of 1950) was in force.
" It was contended on behalf of the petitioner that his detention after 1st April, 1952, was illegal.
Held, (i)When a subsequent Act amends an earlier one in such a way as to incorporate itself or a part of itself into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repug nancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that there is no need to refer to the amending Act at all.
After the passing of the Act of 1952 the expressions "the Act of 1950" and "the principal Act" meant the Act of 1950 as amended by the Act of 1952, and the effect of section 3 of the Act of 1952 was that the detention of the petitioner would remain in force until the 1st October, 1952, without prejudice to the power of the Government to modify or revoke it; (ii) section 3 did not contravene article 14of the Constitu tion as there was a rational classification of the cases of detention orders in the section, and the period of detention was left in every case to the discretion of the State; (iii) the words "any person" in sub cl.
(b) of c1.7 of article 22 of the Constitution do not contemplate that individ ual attention should be paid to each case; on the contrary, the words used in the said sub clause empower the Parliament to prescribe the maximum for a class taken as a whole as it has done in section 3, and section 3 does not therefore offend cl.
(4) or cl.
(7) of article 22; (iv) the power of the Parliament to fix a maximum period does not exhaust itself once it has exercised that power but can be exercised again in respect of the same detention; (v) section 3 is not repugnant tO the Constitution on the ground that it does not fix a time limit, for it speci fies the period as until the expiry of the Act; nor on the ground that it introduces the idea of potentially indefinite detention by periodical amendments; for the Parliament has the power to do that: 685
|
Civil Appeal No. 114 of 1951.
Appeal from the Judgment and Decree dated the 5th Sep tember, 1947, of the High Court of Judicature at Allahabad (Waliullah and Sapru JJ.) in First Appeal No. 516 of 1942 arising out of Judgment and Decree dated the 3rd October, 1942, of the Court of the Civil Judge of Shahjahanpur in Original Suit No. 10 of 1941.
Achhru Ram (N. C '.
Sen, with him) for the appel lants.
C.K. Daphtary (K. B. Asthana, with him) for the re spondents.
October 20.
The Judgment of the Court was deliv ered by BHAGWATI J.
This is an appeal by the heirs and legal representatives of the deceased plaintiff against the decree of the High Court of Judicature at Allahabad allowing ' the appeal of the defendants against the decree passed by the Court of the Civil Judge of Shahjahanpur in favour of the plaintiff allowing the plaintiff 's claim in part.
One Kailashi Nath Kapoor, the plaintiff, was employed by the District Board of Shahjahanpur, the defendants, as their Secretary in the year 1924.
He 1124 was also entrusted in 1929 with the additional duties of doing assessment work for the defendants.
The work done by the plaintiff did not find favour with some members of the Board and on the 9th November, 1939, six members of the Board tabled a resolution asking the Chairman to convene a special meeting of the Board to consider a resolution for the dismissal of the plaintiff.
A special meeting of the Board was convened on the 17th December, 1939.
Twelve charges were framed against the plaintiff and he was re quired to furnish his answers to them.
A special meeting of the Board was thereafter convened on the 20th January, 1940.
The resolution for the dismissal of the plaintiff was on the agenda but the meeting had to be adjourned for want of quorum to the 29th January, 1940.
At the adjourned meeting of the 29th January, 1940, twenty five out of the twentyseven members of the Board were present.
The charges against the plaintiff were gone into and eleven out of the twelve charges were held proved.
Two resolutions were consequently passed by the Board at this meeting, one being a resolution for his dismissal, and the other being a reso lution for his suspension till the matter of his dismissal was decided under section 71 of the U.P. District Boards Act, X of 1922, on an appeal if any preferred by the plain tiff to the Government.
The plaintiff preferred an appeal to the Government against the resolution for his dismissal and this appeal was dismissed by the Government on the 19th December, 1940.
The plaintiff thereafter commenced in the Court of the Civil Judge at Shahjahanpur the suit out of which this appeal arises against the defendants for a declaration that the two resolutions passed by the Board on the 29th January, 1940, were illegal and ullra vires of the Board and that he continued to be the Secretary and Assessing Officer of the Board, for an injunction restraining the Board from prevent ing him from discharging his duties as such Secretary and Assessing Officer, for arrears of his salary with interest and contribution to his provident Fund and in the alterna tive 1125 for damages and compensation for illegal dismissal and suspension and for costs.
The defendants contended that the said resolutions were valid and binding on the plaintiff and that the plaintiff was not entitled to any relief as claimed.
The learned trial judge held that the two resolutions passed by the Board on the 29th January, 1940, were properly passed and that there was no irregularity in the procedure.
He held that the resolution for dismissal of the plaintiff was valid and binding on the plaintiff but the resolution for suspension was not legal.
In the result he decreed the plaintiff 's claim for arrears of salary, and the contribu tion towards the provident fund against the defendants for the period of suspension and awarded to the plaintiff a sum of Rs. 6,629 4 0 with proportionate costs, the rest of the plaintiff 's claim was dismissed.
The defendants appealed to the High Court against this decree and the plaintiff filed cross objections in regard to his claim which had been disallowed.
The plaintiff died during the pendency of the appeal and his heirs and legal representatives, being his widow and his four sons, were brought on the record.
The High Court concurred with the trial court in the finding that there was no irregularity, impropriety or illegality in the procedure followed and the steps taken before the meet ing or at the meeting of the Board when the two resolutions were considered and passed.
It however disagreed with the conclusion reached by the trial Court that the resolution for suspension was ultra vires the Board.
It held that the resolution for suspension also was valid and binding on the plaintiff and thus dismissed the plaintiff 's suit with costs throughout.
The crossobjections of the plaintiff were of course dismissed with costs.
The heirs and legal repre sentatives of the plaintiff obtained leave to appeal to the Federal Court against this decision of the High Court and the appeal was admitted on the 5th November, 1948.
Both the Courts below having found that there was no irregularity, impropriety or illegality in the procedure followed and the steps taken when the two 1126 resolutions in question were passed by the Board the only question that survived for consideration by this Court was whether the resolution for suspension of the plaintiff was valid and binding on the plaintiff or in other words whether it was competent to the Board to pass the resolution for the suspension of the plaintiff after it had passed the resolu tion for his dismissal under section 71 of the Act.
Section 71 of the Act provides for the dismissal and punishment of the secretary: "A board may by special resolution punish or dismiss its secretary: Provided, firstly, that such resolution is passed by a vote of not less than two thirds of the total number of members of the board for the time being: Provided, secondly, that the secretary of a board shall have a right of appeal to the State Government against such resolution within one month from the date of the communica tion of the resolution to him, and that the resolution shall not take effect until the period of one month has expired or until the State Government have passed orders on any appeal preferred by him.
" It will be relevant at this stage to note that this section 71 was amended by U.P. Act I of 1933.
Section 71 as it originally stood ran thus: "A board may by special resolution punish or dismiss its secretary provided, (a) that such a resolution is passed by a vote of not less than two thirds of the total number of members of the board for the time being, or (b) that it is passed by a vote of not less than one half of the total number of members.
and is ' sanctioned by the Local Government ' .
It may be noted that in the original section 71 provi sion was made for the sanction of the Local Government in certain cases.
No such provision is to be found in the amended section 71 of the Act.
The resolution according to the amended section 71 is to be passed by a vote of not less than two thirds of the 1127 total number of members of the Board and such a resolution is not to take effect until the period of one month has expired within which the secretary can exercise his right of appeal or until the Government have passed orders on the appeal if any preferred by him.
There is no question of the sanction of the Local Government to any resolution for dismissal the only provision being that the resolution is to take effect after the expiration of the period of one month or after the Government have passed orders on the appeal if any preferred by the secretary within that period of one month.
Once that period of one month expires without the secretary preferring any appeal against the resolution of the Board or the Government passes final orders on the appeal preferred by him, the resolution takes effect without anything more in the nature of a sanction by the Government.
The power of suspension is conferred and regulated in section 90 of the Act : "(1) Suspension may be of two kinds: (a) suspension as a punishment, and (b) suspension pending inquiry or orders.
(2) Where a general power to punish is conferred by this Act, it shall be deemed to include a power to suspend as a punishment for a period not exceeding three months.
(3) Where a power of dismissal, whether subject to the sanction of any other authority or not, is conferred by this Act, it shall be deemed to include a power to suspend any person against whom the power of dismissal might be exer cised, pending enquiry into his conduct or pending the orders of any authority whose sanction is necessary for his dismissal.
(4) Where suspension is ordered pending inquiry or or ders, and the officer suspended is ultimately restored, it shall be at the discretion of the authority ordering his suspension whether he shall get any, and, if so what, allow ance during the period of suspension; but in the absence of any order to the contrary he shall be 1128 entitled to the full remuneration which he would have re ceived but for such suspension.
" The suspension which has been thus provided for is of two categories, (1) suspension as a punishment and (2) suspension pending enquiry or orders.
In the case of a suspension falling within the latter category the only power of suspension which is provided is that of suspending any person against whom the power of dismissal might be exer cised pending enquiry into his conduct or pending the orders of any authority whose sanction is necessary for his dis missal.
The power of suspension pending enquiry into the conduct of the person can only be exercised if an enquiry against him has been started and before any order is made for his dismissal as a result of such enquiry.
The power of suspension pending the orders of the authority whose sanc tion is necessary for his dismissal can similarly be exer cised provided the order of dismissal is made but that dismissal could be effective only after the orders of the authority whose sanction is needed for effectuating the same.
The section does not provide for any other case where as on the facts before us the order of dismissal does not require the sanction of any authority but has got to await either the expiry of a particular period after such order of dismissal has been made or the result of an appeal which may be preferred to the Government within the period prescribed in that behalf.
A decision of an authority to which an appeal is provided is not the same thing as a sanction by the authority.
A perusal of sub section (4) of section 90 makes this position quite clear.
The authority ordering the suspension is vested with the discretion to determine whether the officer suspended would get any or if so what allowance during the period of suspension where suspension is ordered pending enquiry or orders and the officer sus pended is ultimately restored.
There is no provision for any allowance where the officer having been dismissed is also suspended for the period which has of necessity to expire before his appeal is time barred or before the Gov ernment passes 1129 orders on the appeal if any preferred by him within the prescribed period.
Such a case is not at all provided for in sub section 4 of section 90 and the officer so suspended would be without any remedy whatever and would not be able to get any allowance at all from the authority ordering his suspension during such period of suspension.
It is necessary to bear in mind the provisions of these sections 71 and 90 of the Act in order to determine whether it was competent to the Board to pass a resolution for suspension of the plaintiff after it had passed the resolu tion for his dismissal on the 29th January, 1940.
On a construction of these sections 71 and 90 of the Act the trial Court came to the conclusion that the provisions of section 90 of the Act were exhaustive, that no other category of suspension apart from those specified could be ordered and that therefore the resolution for suspension of the plaintiff was ultra rites the Board.
The High Court in appeal realised the difficulty of the position.
It came to the conclusion that section 90 as it stood was in close conformity with the provisions of the old section 71 of the Act which provided for the resolution for dismissal passed by a vote of not less than one half of the total number of members being required to be sanctioned by the Local Govern ment.
The sanction was expressly provided there.
But when that section came to be amended by the U.P. Act I of 1933, the provision for sanction was deleted and it provided for the resolu tion not taking effect until the period of one month had expired within which the secretary could exercise his right of appeal or until the Government had passed orders on the appeal ii any preferred by him.
When this amendment was made in the old section 71 of the Act the provision made in section 90 in regard to the power of suspension was lost sight of and no corresponding amendment was made in section 90, sub section (1)(b), sub section (3) or subsection (4) which would bring the provisions of 145 1130 section 90 in conformity with the amended section 71 of the Act.
The High Court was therefore at pains to place what it called a liberal construction on the provisions of section 71 and section 90 of the Act trying to read in the power of suspension provided in section 90 also a power of suspension during the period that the secretary preferred an appeal to the Government against the order of his dismissal and the Government passed orders on such appeal.
Apart from placing this so called liberal construction on the expression "the orders of any authority whose sanc tion is necesssary" in section 90 subsection 3, the High Court also brought to its aid the provisions of Section 16 of the U.P. General Clauses Act of 1904 which provides that "unless a different intention appears the authority having power to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power ".
It came to the conclusion that nothing in the terms of section 71 or section 90 of the Act controlled or negatived an intention to sustain the general power of suspension, i.e. suspension pending orders on an appeal.
The High Court thus justified the resolution for the suspen sion of the plaintiff passed by the Board on the 29th January, 1940.
We are afraid we cannot agree with this line of reason ing adopted by the High Court.
The defendants were a Board created by statute and were invested with powers which of necessity had to be found within the four corners of the statute itself.
The powers of dismissal and suspension given to the Board are defined and circumscribed by the provisions of sections 71 and 90 of the Act and have to be culled out from the express provisions of those sections.
When express powers have been given to the Board under the terms of these sections it would not be legitimate to have resort to general or implied powers under the law of master and servant or under section 16 of the U.P. General Clauses Act.
Even under the terms of section 16 of that Act, the powers which are vested 1131 in the authority to suspend or dismiss any person appointed are to be operative only "unless a different intention appears" and such different intention is to be found in the enactment of sections 71 and 90 of the Act which codify the powers of dismissal and suspension vested in the Board.
It would be an unwarranted extension of the powers of suspen sion vested in the Board to read, as the High Court pur ported to do, the power of suspension of the type in ques tion into the words "the orders of any authority whose sanction is necessary".
It was unfortunate that when the Legislature came to amend the old section 71 of the Act it forgot to amend section90 in conformity with the amendment of section 71.
But this lacuna cannot be supplied by any such liberal construction as the High Court sought to put upon the expression "orders of any authority whose sanction is necessary".
No doubt it is the duty of the court to try to harmonise the various provisions of an Act passed by the Legislature.
But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act.
Reading the present, section 71 of the Act along with section 90 of the Act we are of the opinion that the power of suspension of the nature purported to be exercised by the Board in the case before us was not the power of suspension contemplated in section 90 sub section (3) of the Act.
If the plaintiff allowed the period of one month to expire without preferring an appeal against the resolution to the Government or if the Government passed orders dismissing his appeal, if any, the resolution for ' his dismissal would become effective without any sanction of the Government.
The words used therefore in section 90, sub section (3) "pending the orders of any authority whose sanction is necessary for his dismissal" are inappropriate to the present facts and could not cover the case of a suspension of the nature which was resorted to by the Board on the 29th January, 1940.
We are therefore of the view that the resolution for suspension which was 1132 passed on the 29th January, 1940, was ultra vires the powers of the Board.
We have accordingly come to the conclusion that the decision reached by the High Court that the resolution for suspension which was passed by the Board on the 29th Janu ary, 1940, was valid and binding on the "plaintiff was erroneous and that the conclusion reached by the trial Court was correct.
The learned Solicitor General appearing for the defendants has however informed us that the sum of Rs. 6,629 4 0 and the proportionate costs which were awarded by the trial Court to the plaintiff have already been paid to the plaintiff.
Nothing therefore remains to be recovered by the heirs and legal representatives of the plaintiff even on the basis that the decree of the trial Court is restored as a result of this judgment of ours.
The only thing which therefore survives is the question of the costs of this appeal.
The trial Court had already awarded to the plaintiff proportionate costs.
The High Court in reversing the judgment of the trial Court dismissed the plaintiff 's suit with costs throughout including the costs of the cross objections which were filed by the plain tiff.
The heirs and legal representatives of the plaintiff filed the present appeal in regard to the whole claim of the plaintiff as laid in the plaint.
That claim could not be sustained before us by the heirs and legal representatives of the plaintiff and they only succeeded before us in regard to the claim of the plaintiff which had been allowed by the trial Court.
If an order for proportionate costs of this appeal were made it would certainly work to the prejudice of the heirs and legal representatives of the plaintiff.
We are not disturbing the order which had been made by the High Court in regard to the costs of the appeal before it.
No time was taken up before us in arguing the appeal on other points except the one in regard to the resolution for the suspension of the plaintiff being ultra rites and we think that under the circumstances of the case the proper order to pass in regard to the costs of this appeal before us should be that each party should bear its own costs.
1133 The only order which we need pass in this appeal before us under the circumstances is that the appeal is allowed, the decree of the trial court is restored, and each party do bear and pay its own costs of this appeal.
Appeal allowed.
| Section 71 of the U.P. District Boards Act, 1922, as amended in 1933 provided that a resolution of the Board for the dismissal of its secretary shall not take effect until the period of one month has expired or until the State Government have passed orders on any appeal preferred by him.
A District Board passed a resolution for dismissal of its secretary and also for his suspension till the matter of his dismissal was decided under section 71 of the Act on an appeal if any preferred by the secretary: Held, that under section 90 of the Act a secretary could be suspended only as a punishment or pending inquiry or 1123 pending the orders of any authority whose sanction is neces sary for his dismissal.
The words "pending the orders of any authority whose sanction is necessary for his dismissal" could not appropriately cover the case of a suspension like the present one and the resolution for suspension was 'therefore ultra vires.
Held further, that since the Board was created by stat ute, and its powers of dismissal and suspension are defined and circumscribed by sections 71 and 90 of the Act it would not be legitimate to have resort to general or implied powers under the law of master and servant or under section 16 of the U.P. General Clauses Act;and even under section 16 of that Act powers which are vested in an authority to suspend or dismiss any person appointed, are to be operative only "unless a different intention appears" and such a different intention is to be found in sections 71 and 90 of the Act which codify the powers of dismissal and suspension vested in the Board.
|
iminal Appeal No. 41 of 1952.
Appeal by Special Leave from the Judgment and Order dated the 3rd October,, 1951, of the High Court of Judicature for the State of Punjab at Simla (Bhandari and Soni JJ in Criminal Appeal No. 86 of 1961, arising out of the Judgment and Order dated the, 31st January, 1951, of the Court of the Sessions Judge, Ambala, in Case No. 23 of '1950 and Trial No. 2 of 1951, 96 Jai GopalSethi (B. L. Kohli with him) for the Appellant.
H.S. Gujral, for the respondent.
Bhagat Singh Chawla, for the Caveator.
October 22.
The judgment 0f the Court was delivered by MAHAJAN J. Palvinder Kaur,was tried for offences under sections 302 and 201, Indian Penal Code, in connection with the murder of her husband, Jaspal Singh.
She was convicted by the Sessions Judge under section, 302 and sentenced to transportation for life.
No verdict was recorded regarding the charge under section 201, Indian Penal Code.
appeal to the High Court she was acquitted of the charge of murder, but was convicted under section 201, Indian Penal Code, and sentenced to seven years ' rigorous Imprisonment.
Her appeal by special leave is now before us.
Jaspal Singh, deceased, was the son of the Chief of Bhareli (Punjab).
He was married to Palvinder Kaur a few years ago and they had two children.
The. husband and wife were living together in Bhareli house, Ambala.
It is said that Jaspal 's relations with his father and grandfather, were not very cordial and the two elders thought that Palvinder Kaur was responsible, for this.
It is also said that Jaspal lived the allowance he got from his father and supplemented his income by selling milk and eggs and by doing some odd jobs.
Mohinderpal Singh (a fugitive from justice) who is related to the appellant and was employed as a storekeeper in Baldevnagar Camp, Ambala, used occasionally to reside in Bhareli house.
It is suggested that he had started a liaison with Palvinder.
The prosecution case is that Sardar Jaspal was administered potassium cyanide poison by the appellant and Mohinderpal the afternoon of the 6th February, 1950.
The dead body was then put into a large trunk and kept in one of the rooms in the house in Ambala city.
About ten days later i.e., the 97 16th February, 1950, Mohinderpal during the absence of the appellant, removed the trunk from the house in a jeep when he came there with Amrik Singh and Kartar Singh (P. Ws.), two watermen of the Baldevnagar Camp.
The trunk was then taken to Baldevnagar Camp and was kept in a store room there.
Three days later, the 19th February, 1950, Mohinderpal accompanied by Palvinder and a domestic servant, Trilok Chand (P. W. 27), took the trunk a few miles the ' road leading to Rajpura, got to a katcha road and in the vicinity of village Chhat took the jeep to a well a mound and threw, the box into it.
The jeep was taken to a gurdwara where it was washed.
After the disappearance of the deceased, his father made enquiries from Mohinderpal regarding the ' whereabouts of his missing son.
Mohinderpal made various false statements to him.
the 8th March, 1950, the father advertised in the "Daily Milap" begging his son to return home as soon as possible as the condition of his wife and children and parents had become miserable owing to his absence.
On the 10th March, 1950, i.e., a, month and ten days after the alleged murder and 19 days after the trunk was thrown into the well, obnoxious smell was coming out of the well, and the matter being reported to the lambardars of ' village Chhat, the trunk was taken out.
The matter was reported to the police and Sardar Banta Singh, Sub Inspector of Police, the 11th March arrived at the scene and prepared the inquest report and sent for the doctor.
The postmortem examination was performed the spot the next day.
No photograph of the body was taken and it was allowed to be cremated.
After more than two and a half months, the 28th April, 1950 th first information report was lodged against the appellant and Mohinderpal and the26th June a challan was presented in the court of the committing magistrate Mohinderpal was not traceable and the case Was started against the appellant alone, 98 There is no direct evidence to establish that the appellant or Mohinderpal or both of them administered potassium cyanide to Jaspal and the evidence regarding the murder is purely circumstantial.
The learned Sessions Judge took the view that the circumstantial evidence in the case was incompatible with the innocence of the accused, and held that the case against the appellant was proved beyond any reasonable doubt.
The High Court appeal arrived at a different conclusion.
It held that though the body found from the well was not capable of identification, the clothes recovered from the trunk and found the body proved that it was the body of Jaspal.
It further held that the cause of death could not be ascertained from the medical evidence given in the case.
The evidence the question of the identity of the dead body consisted of the statement of constable Lachhman 'Singh, of the clothes and other ' articles recovered from inside the trunk and of an alleged confession of the accused.
As regards the first piece of evidence the High Court expressed the following opinion: "There is in our opinion considerable force in the contention that not only are foot constable Lachhman Singh and Assistant Sub Inspector Banta Singh testifying to the facts which are false to their knowledge but that the prosecution are responsible for deliberately introducing a false witness and for asking the other witnesses to support the story narrated by Lachhman Singh that he identified the body to be that of Jaspal Singh the 11th March and communicate the information to the father of the deceased the following day.) ' As regards the extra judicial confessions alleged to.
have been made to Sardar Rup Singh and Sardar Balwant Singh, father and grandfather of the deceased, they were held inadmissible and unreliable.
The confession made by Palvinder to the magistrate, the 15th April, 1950, was however used in evidence against her the following reasoning: "It is true that strictly speaking exculpatory statements in which the prisoner denies her guilt cannot 99 be regarded as confessions, but these statements are often used as circumstantial evidence of guilty consciousness by showing them to be false and fabricated.
" It was also found that though Palvinder might have desired to continue her illicit intrigue with Mohinderpal she may not have desired to sacrifice her wealth and position at the altar of love.
She may have had ' a motive to kill her husband but a stronger motive to preserve her own position as the wife of a prospective chief of Bhareli and that in this situation it was by no means impossible that the murder was committed by Mohinderpal alone without the consent and knowledge of Palvinder, and that though a strong suspicion attached to Palvinder, it was impossible to state with confidence that poison was administered by her.
Therefore it was not possible to convict her under section 302, Indian Penal Code.
Concerning the charge under section 201, Indian Penal Code, the High Court held that the most important piece of evidence in support of the charge was the confession which Palvinder made the 15th April, 1950, and this confession, though retracted, was corroborated this point by independent evidence and established the charge.
The judgment of the High Court was impugned before us a large number of grounds.
Inter alia, it was contended that in examining Palvinder Kaur at great length the High Court contravened the provisions of the Code of Criminal Procedure and that the Full Bench decision of the High Court in Dhara Singh 's case(1) was wrong in law, that the alleged confession of the appellant being an.
exculpatory statement, the same was inadmissible in evidence and could not be used as evidence against her, that it had been contradicted in most material particulars by the prosecution evidence itself and was false and that in any case it could not be used piecemeal; that the offences under sections 302/34 and 201, Indian Penal Code, being distinct offences committed at two different times and being (1) (I952) , 100 separate transactions, the appellant having been convicted of the offence under section 302, Indian Penal Code, only by the Session Judge, the High Court had no jurisdiction when acquitting her of that offence to, convict her under section 201 of the same Code; that the statements of Mohinderpal to 'various witnesses land his conduct were not relevant against the appellant; that Karamchand and Mst.
Lachhmi were in the nature of accomplices and the High Court erred in relying their testimony without any corrobora tion; that the High Court having disbelieved eight of the witnesses of the prosecution and having held that they were falsely introduced into the case, the investigation being extremely belated and the story having been developed at different stages, the High Court should not have relied the same; and lastly that the pieces of circumstantial evidence proved against the appellant were consistent with several innocent explanations and the High Court therefore erred in relying them without excluding those possi bilities.
The decision of the appeal, in our view, lies within a very narrow compass and it is not necessary to pronounce all the points that were argued before us.
In our judgment, there is no evidence 'to establish affirmatively that the death of Jaspal was caused by potassium cyanide and that being so, the charge under section 201, Indian Penal Code, must also fail. ' The High Court in reaching a contrary conclusion not only acted suspicions and conjectures but inadmissible evidence.
, The circumstances in which Jaspal died will for ever remain shrouded in mystery and the material placed the record it is not possible to unravel them.
It may well be that he was murdered by Mohinderpal without the knowledge or consent of Palvinder and the incident took place at Baldevnagar Camp and not at the house and that Mohinderpal alone disposed of the dead body and that the confession of Palvinder is wholly false and the advertisement issued in Milap correctly reflected the facts 101 so far as she was concerned.
The evidence led by the prosecution, however, is of such a character that no, reliance can be placed it and no affirmative conclusions can be drawn from it.
The remarks of the Sessions Judge; that the consequences had definitely revealed that justice could not always be procured by wealth and other worldly resources and that the case would perhaps go down in history as one of the most sensational cases because of the parties involved and the gruesome way"in which the murder was committed, disclose a frame of mind not necessarily judicial.
It was unnecessary to introduce sentimentalism in a judicial decision.
The High Court was not able to reach a positive conclusion that Palvinder was responsible for the murder of her husband.
Whether Jaspal committed suicide or died of poison taken under a mistake or whether poison was administared to him by the appellant or by Mohinderpal or by both of them are questions the answers to which have been left very vague and indefinite by the circumstantial evidence in the case.
In view of the situation of the parties and the belated investigation of the case and the sensation it created, it was absolutely necessary for the courts below to safeguard them.
selves against the danger of basing their conclusions suspicions howsoever strong.
Seems to us that the trial court, &Ad to a certain extent the High Court, fell into the same error against which warning was given by Baron Alderson in Beg.
vs Hodge(1), where he said as follows: The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
" (1) 102 We had recently occasion to emphasize this point in Nargundkar vs The State of Madhya Pradesh(1).
In order to establish the charge under section 201, Indian Penal Code, it is essential to prove that an offence has been committed mere suspicion that it has been committed is not sufficient,that the accused knew or had reason to believe that such offence had been committed and with the requisite knowledge and with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting such offences knowing or having reason to believe the same to be false.
It was essential in these circumstances for the prosecution to establish affirmatively that the death of Jaspal was caused by the administration of potassium cyanide by some person (the appellant having been acquitted of this charge) and that she had reason to believe that it was so caused and with that knowledge she took part in the concealment and 'disposal of the dead body.
There is no evidence whatsoever this point.
The following facts, that Jaspal died, that his body was found in a trunk and was discovered from a well and that the appellant took part in the disposal of the body do not establish the cause of his death or the manner and circumstances in which it came about.
As already stated, there is no direct evidence to prove that potassium cyanide was administered to him by any person.
The best evidence this question would have been that of the doctor who performed the postmortem examination.
That evidence does not prove that Jaspal died as a result of administration of potassium cyanide.
the other hand, the doctor was of the opinion that there were no positive postmortem signs which could suggest poisoning.
He stated that potassium cyanide being corrosive poison, would produce hypermia, softening and ulceration of the gastro intestinal track and that in this case he did not notice any such signs.
He further said that potassium cyanide corrodes the lips and the mouth, and none of these signs was the body.
This evidence (1) [1952] S.C.R, 1091 103 therefore instead of proving that death was caused by administration of potassium cyanide, to the extent it.
goes, negatives that fact.
The High Court placed reliance the confession of Palvinder made the 15th April, 1950, to bold this fact proved.
The confession is in these terms: "My husband Jaspal Singh was fond of hunting as well as of photography.
From hunting whatever skins (khalls) he brought home he became fond of colouring them.
He also began to do the work of washing of photos out of eagerness.
One day in December, 1949, Jaspal Singh said to my cousin (Tay 's son) Mohinderpal Singh to, get him material for washing photos.
He(Mohinderpal Singh) said to Harnam Singh, who is head clerk in Baldevnagar Camp, to bring the same from,the Cantt.
Harnam Singh went to the Cantt.
and return said that the material for washing photos could be had only by a responsible Government official.
He told so to Mohinderpat Singh, who said that Harnam Singh should take his name and get the medicine.
Thereupon Harnam Singh went to the Cantt.
and brought the medicine.
I kept this medicine.
As the medicine wassticking to the paper I put it in water in a small bottle and kept it in the almirah.
In those days my husband was in Ambala and I lived with him in the kothi in the city.
He went for hunting for 2 3 days and there he developed abdominal trouble and began to purge.
He sent for medicine 3 4 days from Dr. Sohan Singh.
One day I placed his medicine bottle in the almirah where medicine, for washing photos had been placed.
I was sitting outside and Jaspal Singh enquired from me where his medicine, was.
I told him that it was in the almirah.
By mistake he took that medicine which was meant for washing photos.
At that time, he fell down and my little son was standing by his side.
He said 'Mama, Papa had fallen '.
I went inside and saw, that he was in agony and in short time be expired.
Thereafter I went to Mohinderpal Singh 104 and told him all that had happened.
He said that father of Jaspal Singh had arrived and that he should be 'intimated.
But I did not tell him, because his connections were not good with his son and myself.
Out of fear I placed his corpse in a box and Mohinderpal Singh helped me in doing so.
For 4 5 days the box remained in my kothi.
Thereafter I said to Mohinderpal Singh that if he did not help me I would die.
, He got removed that box from my kothi with the help of my servants and placing the same in his jeep went to his store in Baldevnagar Camp and kept the same there.
That box remained there for 8 10 days.
Thereafter one day I went to the camp and from there got placed the trunk in the jeep and going with Mohinderpal Singh I threw the same in a well near Chhat Banur.
I do not remember the date when Jaspal Singh took the medicine by mistake.
It was perhaps in January, 1950.
" The statement read as a whole is of an exculpatory character.
It does not suggest or prove the commission of any offence under the Indian Penal Code by any one.
It not only exculpates her from the commission of an offence but also exculpates Mohinderpal.
It states that the death of Jaspal was accidental.
The statement does not amount to a confession and is thus inadmissible in evidence.
It was observed by their Lordships of the Privy Council in Narayanaswami vs Emperor(1) that the word "confession" as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime.
A confession must either admit in terms the offence, or at any rate substantially all the 'facts which constitute the offence.
An admission of a gravely incriminating fact, even a conclusively, incriminating fact, is not of itself a confession.
A statement that contains self exculpatory matter 'cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed.
In this view of the law the High Court (1) (1939) 66 I.A. 66; A.I.R. 1939 P.C. 47: 105 was in error in treating the statement of Palvinder as the most important piece of evidence in support of the charge under section 201, Indian Penal ' Code.
The learned Judges in one part of their judgment observed that strictly speaking exculpatory statements in which the prisoner denies her guilt cannot be regarded as confessions, but went to say that such statements are often used as circumstantial evidence of guilty consciousness by showing them to be false and fabricated.
With great respect we have not been able,to follow the meaning of these observations and the learned counsel appearing at the Bar for the prosecution was unable to explain what these words exactly indicated.
The statement not being a confession and being of an exculpatory nature in which the guilt had been denied by the prisoner, it could not be used as evidence in the case to prove her guilt.
Not only was the High Court in error in treating the alleged confession of Palvinder as evidence in the case but it was further in error in accepting a part of it after finding that the rest of it was false.
It said that the statement that the deceased took poison by mistake should be ruled out of consideration for the simple reason that if the deceased had taken poison by mistake the conduct of the parties would have been completely different, and that she would have then run to his side and raised a hue and cry and would have sent immediately for medical aid, that it was incredible that if the deceased had taken poison by mistake, his wife Would have,stood idly by and allowed him to die.
The court thus accepted the inculpatory part of that statement and rejected the exculpatory part.
In doing so it contravened the well accepted rule regarding the use of confession and admission that these must either be accepted as a whole or rejected as a whole and that the court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible.
Reference in this connection may be made to the observations of the Full Bench of the Allahabad 106 High Court in Emperor vs Balmakund(1), with which observations we fully concur.
The confession there comprised of two elements, (a) an account of how the accused killed the women, and (b) an account of his reasons for doing so, the former element being inculpatory and the latter exculpatory and the question referred to the Full Bench was: Can the court if it is of opinion that the inculpatory part commends belief and the exculpatory part is inherently incredible, act upon the former and refuse to act upon the latter ? The answer to the reference was that where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible.
The alleged confession of Palvinder is wholly of an ' exculpatory nature and does not admit the commission, of any crime whatsoever.
The suspicious circumstances from which an inference of guilt would be drawn were contained in that part of the statement which concerned the disposal of the dead body.
This part of the statement could not be used as evidence by holding that the first part which was of an exculpatory character was false when there was no evidence to prove that it was so, and the only material which it could be so hold was the conduct mentioned in the latter part of the same statement and stated to be inconsistent with the earlier part of the confession.
The result therefore is that no use can be made of the statement made by Palvinder and contained in the alleged confession and which the High Court thought was the most important piece of evidence in the case to prove that the death of Jaspal was caused by poisoning or as a result of an offence having been committed.
Once this confession is excluded altogether, there remains no evidence for holding that Jaspal died as a result of the administration of potas sium cyanide.
(1) (193o) I.L.R. 52 All.
107 The circumstantial evidence referred to by the High Court which according to it tends to establish that Jaspal did not die a natural death is of the ' following nature: That Palvinder and Mohinderpal had a motive to get rid of the deceased as she was carrying with Mohinderpal.
The motive, even if proved in the case, cannot prove the circumstances under which Jaspal died or the cause which resulted in his death.
That Mohinderpal was proved to be in possession of a quantity of potassium cyanide and was in a position to administer it to the deceased is a cir cumstance of a neutral character.
Mere possession of potassium cyanide by Mohinderpal without its being traced in the body of Jaspal cannot establish that his death was caused by this deadly poison.
In any case, the circumstance is not of a character which is wholly incompatible with the innocence of the appellant.
The other evidence referred to by the High Court as corroborating the latter part of Palvinder 's alleged confession in the view of the case that we have taken does not require any discussion because if the confession is inadmissible, no question of corroborating it arises.
Mr. Sethi argued that the statements contained in the alleged confession are contradicted rather than corroborated by the evidence led by the prosecution and that the confession is proved to be untrue.
It is unnecessary to discuss this matter in the view that we have taken of the case.
The result, therefore, is that we are constrained to hold that there is no material, direct or indirect, for the finding reached by the High Court that the death of Jaspal wascaused by the administration of potassium cyanide.
If we believe the defence version his death was the result of an accident.
If that version is disbelieved,then there is no proof as to the cause of his death.
The method and manner in which the dead body of Jaspal was dealt with and disposed of raise some suspicion but from these, facts a positive conclusion cannot be reached that he died an unnatural death necessarily, Cases are not unknown 108 where death is accidental and the accused has acted in a peculiar manner regarding the disposal of the dead body for reasons best known to himself.
One of them might well be that he was afraid of a false case being started against him.
Life and liberty of persons cannot be put in jeopardy mere suspicions, howsoever strong, and they can only be deprived of these the basis of definite proof.
In this case, as found by the High Court, not only were the Sub Inspector of police and police constables and other witnesses guilty of telling deliberate lies but the prosecution was blameworthy in introducing witnesses in the case to support their lies and that being so, we feel that it would be unsafe to convict the appellant the material that is left after eliminating the perjured,, false and inadmissible evidence.
For the reasons given above we allow this appeal, set aside the conviction of the appellant under section 201, Indian Penal Code, and acquit her of that charge also.
Appeal allowed.
| In eases depending circumstantial evidence courts should safeguard themselves against the danger of basing _their conclusions suspicions howsoever strong.
Rex V. Hodge , and Nargundkar vs State of Madhya Pradesh (1952) S.C.R. 1091 referred to, 95 To establish a charge under section 201, Indian Penal Code, it is essential to prove that an offence has been committed (mere suspicion that it has been committed is not sufficient); that the accused knew or had reason to believe that such offence had been committed ; and that with the requisite knowledge and with the intent to screen the offender from legal punishment the accused caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be, false.
Where the evidence showed that a person had died, that his body was found in &,trunk and was discovered in a well and that the accused took part in the disposal of the body but there was no evidence to show the cause of his death or the manner or circumstances in which it came about: Held, that the accused could not be convicted for an offence under section 201.
A statement that contains self exculpatory matter cannot amount to a confession, if the exculpatory matter is of some fact, which if true would negative the offence alleged to be confessed.
A confession must either admit in terms the offence or at any rate substantially all the facts that constitute the offence.
Narayanaswami vs Emperor (1939) 66 I.A. 66, referred to.
It is a well accepted rule regarding the use of confessions and admissions that these must either be accepted as a whole or rejected as a whole and that the court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible.
Emperor vs Balmukand All. 1011, followed.
Where the statement made by the accused contained an admission that she had placed the dead body of her husband in a trunk and bad carried it in a jeep and thrown it into a well, but with regard to the cause of the death the statement made by her was that her husband bad accidently taken a poisonous substance which was meant for washing photos erroneously thinking it to be a medicine: Held, the statement read as a whole was exculpatory in character and the whole statement was inadmissible in evidence and the High Court acted erroneously in accepting the former part of it and rejecting the latter part as false.
Judgment of the High Court of Punjab reversed.
|
N: Criminal Appeal No. 26 of 1950.
On appeal by special leave from the judgment and order dated the 13th November, 1950, of the High Court of Judi cature at Bombay (Bavdekar and Dixit JJ.) in Criminal Appeal No. 712 of 1950, arising out of judgment dated the 14th August, 1950, of the Court of the Sessions Judge, South Satara, SangIi, in Criminal Appeal No. 85 of 1950 and Crimi nal Case No. 614 of 1950.
C.K. Daphtary, Solicitor General of India (G. N. Joshi, with him) for the appellant.
B. Somayya (B. K.V. Naidu, with him)for the respondent. 1952.
May 27.
Fazl Ali and Bose JJ.
delivered Judgment as follows: FAZL ALI J.
I agree that the acquittal of the respond ent should not be disturbed, and I also agree generally with the reasoning of my brother, Bose.
The question whether turmeric is foodstuff is not entirely free from difficulty.
In one sense, everything which enters into the composition of food so as to make it palatable may be described as 'foodstuff ', but that word is commonly used with reference only to those articles which are eaten for their nutritive value and which form the principal ingredients of cooked or uncooked meal, such as wheat, rice, meat, fish, milk, bread, butter, etc.
It seems to me desirable that the Act ShoUld be amended so as to expressly include 879 within the definition of the somewhat elastic expression "foodstuff" turmeric and such other condiments as the Legis lature intends to be treated as ' such for achieving the objects in its view.
BOSE J.
The question in this case is whether turmeric is a "foodstuff" within the meaning of clause 3 of the Spices (Forward Contracts Prohibition) Order, 1944, read with section 2 (a) of the Essential Supplies (Temporary Powers) Act, 1946, (Act XXIV of 1946).
The respondent was charged with having contravened clause 3 of the Order of 1944 because he entered into a forward contract in turmeric at Sangli on the 18th of March, 1950, in contravention of clause 3 of the Order.
He was convicted by the trial Court and sentenced to three months ' simple imprisonment together with a fine of Rs. 1,000 and in default, a further three months.
But he was acquitted on appeal by the Sessions Court.
An appeal to the High Court against the acquittal failed.
The State of Bombay appeals here but makes it plain that it does not want to take any further steps against the respondent in this matter but merely wants to have the question of law decided as a test case as the judgment of the Bombay High Court will have far reaching effects in the State of Bombay.
It will be necessary to trace the history of this legis lation.
In the year 1944 the then Central Government of India promulgated the Spices (Forward Contracts 'Prohibi tion) Order, 1944, under Rule 81 (2) of the Defence of India Rules.
Clauses 2 and 3 read together prohibited forward contracts in any of the "spices" specified in the first column of the schedule to that Order.
Among the articles listed in the schedule was turmeric.
The conviction is under that Order and it is admitted that if that Order is still valid the conviction would be good.
The Defence of India Act was due to expire on the 30th of September, 1946, and with it the Spices Order of 1944.
But before it expired an Ordinance called 114 880 the Essential Supplies (Temporary Powers) Ordinance of 1946 was issued.
This was Ordinance No. XVII of 1946.
The object of the Ordinance, as set out in the preamble, was to provide for the control of what it called "essential commod ities".
It defined this to mean, among other things, "foodstuffs", and by a further definition "foodstuffs" was defined to include edible oilseeds and oils.
Neither spices in general nor turmeric in particular were mentioned.
Section 5 of this Ordinance embodied a saving clause which saved certain Orders which would otherwise have expired along with the Defence of India Rules.
The section ran as follows: "Any order . made . under rule 81 (2) of the Defence of India Rules, in respect of any matters specified in section 3, which was in force immediately before the commencement of this Ordinance, shall, notwithstanding the expiration of the said Rules continue in force so far as consistent with th.is Ordinance and be deemed to be an order made under section 3.
" The Ordinance was later replaced by the Act with which we are now concerned, the Essential Supplies (Temporary Powers) Act, 1946, (Act XXIV of 1946).
The Act merely repro duces the language of the Ordinance in all material particu lars and it is conceded that if the matter falls under the Ordinance it will also fall under the Act.
The appellant 's contention is that turmeric is a food stuff, therefore the Order of 1944 is saved.
The respond ent 's contention is that turmeric is not a foodstuff.
He contends that the Order of 1944 was limited to spices and.
that turmeric was included in the term by reason of a spe cial definition which specifically included it; and as the Act of 1946 and the Ordinance are limited to "foodstUffs" the Order of 1944 dealing with turmeric was not saved.
The question therefore is, is turmeric a "foodstuff"? Much learned judicial thought has been expended upon this problem what is and what is not food and what is and what is not a foodstuff; and the only conclusion I can draw from a careful consideration of all 881 the available material is that the term "foodstuff" is ambiguous.
In one sense it has a narrow meaning and is limited to articles which are eaten as food for purposes of nutrition and nourishment and so would exclude condiments and spices such as yeast, salt, pepper, baking powder and turmeric.
In a wider sense, it includes everything that goes into the preparation of food proper (as understood in the narrow sense) to make it more palatable and digestible.
In my opinion, the problem posed cannot be answered in the abstract and must be viewed in relation to its.
background and context.
But before I dilate on this, I will examine the dictionary meaning of the words.
The Oxford English Dictionary defines "foodstuff" as follows: "that which is taken into the system to maintain life and growth and to supply waste of tissue.
" In Webster 's International Dictionary "food" is defined as: "nutritive material absorbed or taken into the body of an organism which serves for purposes growth, work or repair and for the maintenance of the vital processes.
" Then follows this explanation: "Animals differ greatly from plants in their nutritive processes and require in addition to certain inorganic substances (water, salts etc.) and organic substances of unknown composition (vitamins) not ordinarily classed as foods (though absolutely indispensable to life and contained in greater or less quantities in the substances eaten) complex organic substances which fall into three principal groups, Proteins, Carbohydrates and Fats.
Next is given a special definition for legal purposes, namely "As used in laws prohibiting adulteration etc.
, 'food ' is generally held to mean any article used as food or drink by man, whether simple, mixed or compound, including ad juncts such as condiments etc., and often excluding drugs and natural water.
" 882 The definition given of "foodstuff" is 1.
Anything used as food.
Any substance of food value as protein, fat etc.
entering into the composition of a food.
" It will be seen from these definitions that "foodstuff" has no special meaning of its own.
It merely carries us back to the definition of "food" because "foodstuff" is anything which is used as "food" So far as "food" is concerned, it can be used in a wide as well as a narrow sense and, in my opinion, much must depend upon the context and background.
Even in a popular sense, when one asks another, "Have you had your food ? ", one means the composite preparations which normally go to constitute a meal curry and rice, sweetmeats, pudding, cooked vegetables and so forth.
One does not usually think separately of the different preparations which enter into their making, of the various condiments and spices and vitamins, any more than one would think of separating in his mind the purely nutritive elements of what is eaten from their non nutritive adjuncts.
So also, looked at from another point of view, the var ious adjuncts of what I may term food proper which enter into its preparation for human consumption in order to make it palatable and nutritive, can hardly be separated from the purely nutritive elements if the effect of their absence would be to render the particular commodity in its finished state unsavoury and indigestible to a whole class of persons whose stomachs are accustomed to a more spicely prepared product.
The proof of the pudding is, as it were, in the eating, and ii the effect of eating what would otherwise be palatable and digestible and therefore nutritive is to bring on indigestion to a stomach unaccustomed to to such unspiced fare, the answer must, I think, be that however nutritive a product may be in one form it can scarcely be classed as nutritive if the only result of eating it is to produce the opposite effect; and if the essence of the definition is the nutritive element, then the commodity in question must cease 883 to befood, within the strict meaning of the definition, to that particular class of persons, without the addition of the spices which make it nutritive." Put more colloquially, "one man 's food is another man 's poison.
" I refer to this not for the sake of splitting hairs but to show the unde sirability of such a mode of approach.
The problem must, 1 think, be solved in a commonsense way.
I will now refer to the cases which were cited before us.
In The San Jose, Cometa and Salerno(1) sausage skins the envelope in which sausage meat is usually con tained were held to be foodstuffs.
But this was a case of conditional contraband captured during the war in pursuance of a war time measure, and the decision was given in accord ance with international law.
This does not appear from the judgment but is plain from an earlier judgment of the same learned President on which his later decision was based.
The earlier judgment is reported in The Kim(2).
He explains there at page 27 that the law of contraband is based on "the right of a belligerent to prevent certain goods from reach ing the country of the enemy for his military use," and he states, also at page 27, that "International law, in order to be adequate well as just, must have regard to the circumstances the times, including the circumstances arising out the particular situation of the war, or the condition the parties engaged in it." One of the changing circumstances he felt he had to take into consideration is set out at page 29: "The reason for drawing a distinction between foodstuffs intended for the civil population and those for the armed forces or enemy Government disappears when the distinction between the civil population and the armed forces itself disappears.
Experience shows that the power to requisition will be used to the fullest extent in order to make sure that the wants of the military are supplied, and however much goods may be im ported for civil use it is by the military that (1) (2) , 884 they will be consumed if military exigencies require it, especially now that the German Government have taken control of all the foodstuffs in the country.
" It is understandable that viewed against a background like that, the word "foodstuffs" would be construed in its wider sense in order to give full effect to the object behind the law, namely the safety and preservation of the State.
It is also perhaps relevant to note that the term which was under consideration in those cases occurred in a war time measure, namely a Proclamation promulgated on the 4th of August, 1914, the day on which the first world war started.
There is authority for the view that war time measures, which often have to be enacted hastily to meet a grave pressing national emergency in which the very existence of the State is at stake, should be construed more liberally.
in favour of the Crown or the State than peace time legisla tion.
The only assistance I can derive from this case is that the term "foodstuffs" is wide enough to cover matter which would not normally fall within the definition of what I have called food proper.
I do not think it is helpful in deciding whether the wider or the narrower definition should be employed here because the circumstances and background are so different.
The next case to which I will refer is James vs Jones(1).
That was a case of baking powder and it was held that baking powder is an article of food within the meaning of the English Sale of Food and Drugs Act, 1875.
Now it has to be observed here that the object of that Act was to prevent the adulteration of food with ingredients which are injurious to health.
It is evident that the definition would have to be wide so as to include not only foodstuffs strict ly so called but also ingredients which ultimately enter into its preparation, otherwise the purpose of the legisla tion, which was to conserve the health of the British peo ple, would have been defeated.
(1) 885 Next comes a case relating to tea in which a narrower view was taken: Hinde vs Allmond(1).
The question there was whether tea was an "article of food" within the meaning of an Order designed to prohibit the hoarding of food, namely the Food Hoarding Order of 1917.
The learned Judges held it was not.
But here it is necessary to note the background and at any rate some of the reasons given for the decision.
The prosecution there was directed against an ordinary housewife who had in her possession a quantity of tea which exceeded the quantity required for ordinary use and con sumption in her household.
The Food Hoarding Order did not specify tea or indeed any other article.
It merely prohib ited generally the hoarding of any "article of food" by requiring that no person should have in his possession or under his control at any one time more than the quantity required for use and consumption in his household or estab lishment.
Shearman J. said that he rested his judgment on the "commonsense interpretation of the word 'food ' in the Order, apart from its meaning in any other statute" and said : "I agree with my brother Darling that if it had been intended to include tea as food, it ought to have been expressly so provided in the Order." Darling J. explained what he meant in this case in a later decision, Sainsbury vs Saunders(2), and said that there was nothing to prevent the Food Controller from saying that a person should not have, for example, so much wine in his possession, provided he did not simply call it "food" and provided also that he let a person who was to be pun ished know what it was that he was not to do.
I think it is clear that the learned Judges were influ enced in their judgment by the fact that the Order in the earlier case was one which affected the ordinary run of householders and housewives who would not have lawyers at their elbows to advise them regarding their day to day marketing.
In the circumstances, they decided that the word should be given (1) (2) 886 its ordinary and popular meaning, otherwise many inno cent householders, who had no intention of breaking the law, would be trapped; and this seems to be the ratio decidendi in the decision of the Bombay High Court in Hublal Kamtapra sad vs Goel Bros. & Co. Ltd. (Appeal No. 14 of 1950) which is the decision virtually, though not directly, under appeal here, though the learned Judges also take into consideration two further facts, namely that the law should be construed in favour of the freedom of contracts and a penal enactment in favour of the subject.
The English decision about tea just cited is to be contrasted with another decision, also about tea, given a few months later in the same year: Sainsbury vs Saunders(1).
Two of the Judges, Darling and Avory, JJ.
were parties to the earlier decision; Salter J. was not.
He held that though tea had been held in the earlier case not to be a "food" for the purpose of the Food Hoarding Order of 1917, it was a "food" within the meaning of the expressions used in certain Defence of the Realm Regulations read with the New Ministries and Secretaries Act of ,1916 which empowered the Food Controller to regulate "the food supply of the country" and the "supply and consumption and production of food." Avory J. also considered that tea was an article of food for the purposes of these laws though Darling J. pre ferred to adhere to his earlier view.
All three Judges also held that the provisions were wide enough to enable the Food Controller to hit at articles which were not food at all, such as sacks and tin containers (Darling J.) so long as he was able by these means even indirectly to regulate the supply of "food", but that portion of the decision does not concern us here because the laws they were interpreting were more widely phrased.
Now the comparison of one Act with another is dangerous, especially when the Act used for comparison is an English Act and a war time measure, and I have no intention of falling into that error.
I am concerned here with the Act before me and must (1) 887 interpret its provisions uninfluenced by expressions, howev er similar, used in other Acts.
I have referred to the cases discussed above, not for purposes of comparison but to show that the terms "food" and "foodstuffs" can be used in both a wide and a narrow sense and that the circumstances and background can alone determine which is proper in any given case.
Turning to the Act with which we are concerned, it will be necessary again to advert to its history.
Rule 81 (2) was wide and all embracing and the Order of 1944 clearly fell within its ambit.
It is also relevant to note that one of the purposes of the Order, as disclosed in its preamble, was to "maintain supplies essential to the life of the communi ty.
" As turmeric was specifically included with certain other spices, it is clear that turmeric was then considered to be a commodity essential to the life of the community, that is to say.
it was considered an essential commodity and not merely a luxury which at a time of austerity could be dispensed with.
Then, when we turn to the Ordinance and the Act of 1946, we find from the preamble that the legislature considered that it was still necessary "to provide for the continuance . of powers to control the production, supply and distribution of, and trade and commerce in, foodstuffs. "Section 3 (1) of the Act continues this theme: "The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by notified order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
" The Ordinance is in the same terms.
Now I have no doubt that had the Central Government re promulgated the Order of 1944 in 1946 after the passing of either the Ordinance of the Act of 1946, the Order would have been good.
As we have seen, turmeric falls within the wider definition of "food" 1142 888 and "foodstuffs" given in a dictionary of international standing as well as in several English decisions.
It is, I think, as much a "foodstuff", in its wider meaning, as sausage, skins and baking powder and tea.
In the face of all that I. would find it difficult to hold that an article like turmeric cannot fall within the wider meaning of the term "foodstuffs".
Had the Order of 1944 not specified turmeric and had it merely prohibited forward contracts in "foodstuffs" I would have held, in line with the earlier tea case, that that is not a proper way of penalising a man for trading in an article which would not ordinarily be consid ered as a foodstuff.
But in the face of the order of 1944, which specifically includes turmeric, no one can complain that his attention was not drawn to the prohibition of trading in this particular commodity and if, in spite of that, he chooses to disregard the Order and test its validi ty in a court of law, he can hardly complain that he was trapped or taken unawares; whatever he may have thought he was at any rate placed on his guard.
As I see it, the test here is whether the Order of 1944 would have been a good order had it been repromulgated after the Ordinance of 1946.
In my opinion, it would, and from that it follows that it is saved by the saving clauses of the Ordinance and the Act.
I have already set out section 5 of the Ordinance.
In my opinion, the Order of 1944 falls within its purview, and ii it is saved by that, it is equally saved by section 17 (2) of the Act.
The section is in these terms: "Any order . . deemed to be made under the said Ordinance and in force immediately before the commencement of this Act shall continue in force and be deemed to be an order made under this Act.
" In my opinion, the conviction was good and the High Court was wrong in setting it aside, but though the matter has no relevance here because of the undertaking given by the learned Solicitor General not to proceed against the respondent any further in this matter, I think it right to observe that.
the attitude of 889 the learned English Judges in the first tea case would not be without relevance on the question of sentence in many, cases of this kind.
There can, I think, be no doubt that businessmen who are not lawyers might well be misled into thinking that the Ordinance and the Act did not intend to keep the Order of 1944 alive because the Order related to certain specified spices while the Ordinance and the Act changed the nomenclature and limited themselves to "food stuffs", a term which, on a narrow view, would not include condiments and spices.
However, these observations are not relevant here because we are not asked to restore either the conviction or the sentence.
In view of that, there will be no further order and the acquittal will be left as it ' stands.
| The term "foodstuff" is ambiguous.
In one sense it has a narrow meaning and is limited to articles which are eaten as food for purposes of nutrition and nourishment and so would exclude condiments and spices such as yeast, salt, pepper, baking powder and turmeric.
In a wider sense it includes everything that goes toto the preparation of food proper (as understood in the narrow sense) to make it more palatable and digestible.
Whether the term is used in a particular statute in its wider or narrower sense cannot be answered in the abstract 878 but must be answered with due regard to the background and context.
Turmeric is a "foodstuff" within the meaning of cl.
(3) of the Spices (Forward Contract Prohibition) Order of 1944, read with s.2 (a)of the Essential Supplies (Temporary Powers) Act (XXIV of 1946).
The said order of 1944 falls within the purview of section 5 of Ordinance No. XVIII of 1946, which was later reenacted as Act XXIV of 1946, and it is equally saved by section 17 (2) of the Act.
James vs Jones , Hinde vs Allmond (87 L.J. K.B. 893), Sainsbury vs Saunders referred to.
|
l Appeals Nos.
152, 167 and 167 A of 1951.
Appeal from the Judgments dated April 25, and May 1, 1950, of the High Court of Judicature for Patiala and East Punjab States Union at Patiala (Teja Singh C. J. and Chopra J.) in T. P. A. R. I. A. O. No. 34 of 1950 and Civil Appeals Nos.
493/494 of Samwat 2005.
Rang Behari Lal (Ram Nivas Sanghi, with him) for the appellants in Civil Appeals Nos. 167 and 167 A. Udai Bhan Chaudhuri for the appellant in Civil Appeal No. 152.
Lachhman Das Kaushal for the respondent in Civil Appeals Nos. 167 and 167 A. Ram Nivas Sanghi for the respondent in Civil Appeal No. 152.
October 24.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
These appeals are connected and raise a common question of law.
They come before us on special leave granted by the Pepsu High Court at Patiala under sub clause (e) of clause (1) of article 133 of the Constitution, 754 The facts in Civil Appeal No. 152 of 1951 are different from those in the other two appeals, and the consequences are different also.
The proceedings arise out of the liquidation of two companies called the Marwari Chamber of Commerce Ltd., (in Civil Appeal No. 152 of 1951) and the Aggarwal Chamber of Commerce Ltd., (in the other two appeals).
The Official Liquidator settled the list of contributories, and after various steps taken before the Liquidation Judge of the High Court by way of objection on grounds of law as well as on merits, there were payment orders on 4th June, 1946, in Civil Appeal No. 152 of 1951 and on 18th January, 1949, in the latter two appeals.
The correctness and the validity of the payment order in Civil Appeal No. 152 of 1951 was challenged in appeals taken to the High Court by the Official Liquidator and the contributory.
The order of the Liquidation Judge was modified in favour of the Liquidator, and as against a sum of Rs. 4,762 13 3 ordered to be paid, there was an order for the payment of Rs. 24,005 7 3.
On further appeal by the contributory to the Judicial Committee, it was held that the appeal to the Division Bench was barred by time, and consequently the judgment of the Bench was set aside, and that of the Liquidation Judge restored.
This was on 6th December, 1949.
In the other two appeals, an application for removal of the name of the contributory was granted by the Liquidation Judge, but on appeal a Division Bench of the High Court reversed this order.
On further appeal taken by the company, the Judicial Committee, Patiala, remanded the case for retrial, and the Liquidation Judge made an order for payment of Rs. 8,191 0 9 on 18th January, 1949, as aforesaid.
On 2nd February, 1950, the firm Murari Lal Hari Ram, appellant in Civil Appeal No. 152 of 1951, filed an application under section 152, Civil Procedure Code, for amendment of the order of the Liquidation judge, Kartar Singh J., alleging that there was a 756 clerical or arithmetical error arising from an accidental slip or omission in that a sum of Rs. 24,005 7 3 was taken as due by the firm instead of the correct figure of Rs. 21,805 7 3.
This application was dismissed by the learned Judge on 16th March, 1950.
The firm applied to him for a certificate for leave to appeal, but this again was dismissed.
An appeal was preferred from the order dismissing the amendment petition, but it was thrown out on the ground of want of a certificate from the Single Judge.
This order is dated 1st May, 1950, and is couched in these, terms " We have recently held in Ganpat Rai Hira Lal vs Aggarwal Chamber of Commerce, Ltd., L.P.A. Nos. 493 and 494 of Samvat 2005 (Pepsu) that no appeal lies from an order of a Single Bench to a Division Bench without a certificate by the Single Judge that the case is a fit one for further appeal.
In this case it is admitted that the appellants made an application for a certificate to the Single Bench, from whose decision he is appealing, but the same was refused.
The appeal is.
therefore not competent and is dismissed in limine.
" The reference in the order to the case of Ganpat Rai Hira Lal vs Aggarwal Chamber of Commerce Ltd., L.P. A. Nos. 493 and 494 of Samvat 2005 (Pepsu) is to the order made by the High Court in the connected matter which has given rise to the two Appeals Nos. 167 and 167 A of 1951.
There, an appeal was lodged from the payment order of the Liquidation Judge, but it was dismissed on the same ground, namely, want of a certificate from the Single Judge.
In Civil Appeal No. 152 of 1951, the argument for the appellant is that no certificate front the Single Judge is necessary, as the matter is governed not by Ordinance X of 2005 of the Patiala State but by the Patiala States Judicature Farman Shahi, 1999 Bikarmi, under which no certificate is necessary.
It is true that under section 44 of the earlier Farman a certificate that the case is a fit one for appeal is required only if the judgment, decree, or order sought to be appealed is wade in the exercise of civil 98 756 appellate jurisdiction.
It is, however, clear that we are not governed by this provision.
The amendment application was made on 2nd February, 1950, as stated already.
No appeal is provided under the Civil Procedure Code from an order amending or refusing to amend a judgment, decree or order, though an appeal would lie from the amended decree or order.
There is no warrant for the view that the amendment petition is a continuation of the suit or proceedings therein.
It is in the nature of an independent proceeding, though connected with the order of which amendment is sought.
Such a proceeding is governed by the law prevailing on its date, which admittedly is Pepsu.
Ordinance X of 2005, and which provides in section 52 for a certificate.
The section is in the following terms: " Subject to any other provision of law, an appeal shall lie to the High Court from a judgment, decree or order of one Judge of the High Court and shall be heard by a Bench consisting of two Judges of the High Court: Provided that no such appeal shall lie to the High Court unless the Judge who decides the case or in his absence the Chief Justice certifies that the case is a fit one for appeal. " So far as the appellant firm is concerned, there is no question of any right of appeal vested in it which is sought to be taken away by giving retrospective effect to the Ordinance which came into force in August, 1948.
The order of the High Court holding that no appeal lies from an order of a single Judge without a certificate by him that the case is a fit one for appeal, is, in our opinion, right.
In the other two Appeals Nos. 167 and 167 A, of 1951, different considerations come into play.
The payment order of the Liquidation Judge was on 18th January, 1949, and the appeal was preferred on 19th February, 1949.
In the meantime, as there was some doubt on the question, the appellants took the precaution of applying to the Judge for a certificate, but this was dismissed on 3rd March, 1949.
On the relevant dates, the Patiala States Judicature Farman, 1999, was in force, and the appellants hood a, right of 757 appeal from the payment order without a certificates They could not be deprived of this right by a subsequent change in the law, unless the later enactment provides expressly or by necessary implication for retrospective effect being given.
The learned Judges of the High Court conceded this in their order, but they thought 'that section 116 of Ordinance X of 2005 (1948 49) contained an express provision to the contrary.
The section is in these terms: Notwithstanding anything contained in this Ordinance, all suits, appeals, revisions, applications, reviews, executions and other proceedings, or any of them, whether civil or criminal, pending in the Courts and before judicial authorities in any Covenanting State shall be continued and concluded respectively in Courts or before judicial authorities of the like status in the Union ; and the Courts or authorities in the Union shall have the same jurisdiction in respect, of all such suits, appeals, revisions, reviews, executions, applications and other proceedings, or any of them, as if the same had been duly commenced and continued in such Courts or before such authorities.
" It is fairly obvious that this is a transitory regula tion, providing for a change over of proceedings from one set of Courts in the Covenanting State to others of like status in the Union and for their continuance etc.
in the latter Courts.
It does not say that the proceedings must be treated as having freshly commenced.
What is contemplated in the latter part of the section is a notional commencement, if such a term could be used.
The section obviously means that all rights which arose or are likely to arise in the future shall remain intact notwithstanding the new set up, and that they would be dealt with by the Union Courts in place of the Courts of the Covenanting State.
There is nothing in the section to justify the view that any taking away of a vested right of appeal retrospectively was intended.
The decision in Colonial Sugar Refining Co. vs Irving(1) clearly applies to the facts, and the order of the High Court that (1) 758 the appeals are not competent is, in our opinion, erroneous.
The result is that Appeal No. 152 of 1951 is dismissed with costs throughout, while Appeals Nos. 167 and 167A of 1951 are allowed with costs throughout.
Appeal No. 125 dismissed.
Appeals Nos. 167 and 167A allowed.
Agents for the appellants in Appeals Nos. 167 and 167A: Mohan Behari Lal.
Agent for the appellant in Appeal No. 152: Kundan Lal Mehta.
Agent for respondents in Appeals Nos. 167 and 167A: Naunit Lal.
Agent for respondent in Appeal No. 152: Mohan Behari Lal.
| Section 116 of the Pepsu Ordinance X of 2005 (1948 1949) is a transitory regulation providing for a change over of proceedings 'from one set of courts in the covenanting State to others of like status in the Union, and for their continuance etc.
in the latter courts.
It does not mean that the proceedings must be treated as having freshly commenced.
What is contemplated in the latter part of the section is a notional commencement, and the section means that all rights which arose or are likely to arise in future shall remain intact not with standing the new set Lip and that they would be dealt with by the Union courts in place of the courts of the covenanting State.
There is nothing in the section to justify the view that any taking away of a vested right of appeal retrospectively was intended.
Under the Patiala States Judicature Farman of 1999 a certificate was necessary for an appeal to a Division Bench from an order of a single Judge of the Patiala High Court only in respect of judgments and orders made in the exercise of civil appellate jurisdiction.
Under the Pepsu Ordinance X of 2005 (1948 49) a certificate was necessary in all cases.
In Appeal No. 152 an application made on 2nd February, 1950, for amendment of an order made by a Liquidation Judge in 1946 was dismissed and an appeal from the order of dismissal to a Division Bench was dismissed on 1st May, 1950, for want of a certificate.
In appeals Nos. 167 and 167A, the payment orders were made on the 18th January, 1949, and appeals from those orders were dismissed on 3rd March, 1949, for want of a certificate: Held, (i) that as a petition for amendment was not a continuation of the earlier proceedings but was in the nature of an 753 independent proceeding though connected with the order sought to be amended, it was governed by the law prevailing on its date, viz., the Pepsu Ordinance of 2005 under which a certificate was, necessary, and in Appeal No. 152 the dismissal of the appeal to the Division Bench for want of a certificate was right; (ii)that with regard to Appeals Nos. 167 and 167 A, as the law in force on the relevant dates was the Patiala States Judicature Farman of 1999 the appellants had a right to appeal from the payment order without a certificate; this vested right could not be taken away by a subsequent change in the law unless the later enactment expressly or by necessary implication was retrospective in operation and deprived them of such a right, that there was nothing in section 116 of the Ordinance to show that it was intended to have retrospective effect and the order of the High Court dismissing the appeals as incompetent was, therefore, erroneous.
Colonial Sugar Refining Company vs Irving referred to.
|
ases Nos. 20 and 21 of 1950.
Appeals under article 132(1)of the Constitution of India from the judgment and order dated the 19th May, 1950, of the High Court of Judicature at Bombay (Dixit and Shah, JJ.) in Confirmation Case No. 4 of 1950 and Criminal Appeals Nos. 190 and 199 of 1950, arising out of judgment dated the 13th March, 1950, of the Court of the Special Judge at Ahmedabad in Special Cases Nos. 2 and 3 of 1949.
N.C. Chatterjee and Ram Lal Anand (Hardyal Hardy and S.L. Chibber, with them) for the appellants.
712 M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the respondent.
A.A. Peerbhoy and J.B. Dadachanji lot the Intervener.
May 20.
The judgment of Mehr Chand Mahajan, Mukherjea, Das and Chandrasekhara Aiyar, JJ.
was deliv ered by Das J. Patanjali Sastri delivered a separate dissenting judgment.
PATANJALI SASTRI C.J.
I regret I am unable to a gree with the reasoning and conclusion of my learned brother Das J. whose judgment I have had the advantage of reading.
The appellants were convicted and sentenced to death and varying terms of imprisonment by the Special Judge, Ahmeda bad, on charges of murder and other offences under the Indian Penal Code, the Arms Act and the Bombay Police Act.
The Special Judge was appointed by a notification issued under the Bombay Security Measures Act, 1947, (hereinafter referred to as the impugned Act) and on August 6, 1949, the State Government, in exercise of the powers conferred by section 12 of the impugned Act, directed the Special Judge to try the case of the appellants who were implicated in what was known as the Central Bank Robbery Case.
Charges were framed on January 13, 1950, without any preliminary enquiry and committal by a Magistrate which had been dis pensed with by the impugned Act, and seventeen witnesses for the prosecution were examined before January 26, 1950, when the Constitution came into force.
The proceedings continued, and after the examination of sixty witnesses in all, ended in the conviction of the appellants on March 13, 1950.
Separate appeals were preferred by the present appel lants to the High Court which, however, confirmed the con viction and sentence in each case.
An objection that the trial was illegal as the impugned Act was void under article 13 (1) of the Constitution, read with article 14, was over ruled on the ground that 713 those provisions had no retrospective operation and did not affect proceedings already started in the Court of the Special Judge.
the learned Judges followed the decision of a Special Bench of their own Court in In re Keshav Madbar Menon(1) which has since been affirmed by this Court in ; It is urged on behalf of the appellants that the deci sion relied on by the High Court is distinguishable and that the present case is governed by the decision of this Court in The State of West Bengal vs Anwar Ali Sarkar(2) to the effect that section 5 of the Bengal Act (which is in identi cal terms with section 12 of the impugned Act) is discrimi natory and void in so far, a any rate, as it empowers the State Government to direc "cases" to be tried by a Special Court under a special procedure.
Accordingly, it was claimed that the Special Judge had no jurisdiction to try the appellant applying the special procedure prescribed by the impugned Act.
Granting, however, that section 12 of the impUgned Act must, in view of the decision in Anwar Ali Sarkar ' case (2), be held to be discriminatory and void in so far as it empow ers the State Government to refer individual cases to a Special Judge for trial, it does no seem to me to follow that the trial of the appellants which had validly started before the Special Judge who had been duly empowered to try the case, is vitiated by reason of the Constitution subse quently coming into force.
It is to be noted that the West Bengal case(2) was argued on the basis that article 12 of the Constitution was applicable to the proceeding from their inception, although the notification directing the trial of some of the persons accused in that case was issued on the day before the commencement of the Constitution.
The posi tion here is different The appellant 's case was sent to the Special Judge for trial by notification dated 6th August, 1949, and the Judge took cognisance of it, framed the charges and proceeded with the trial to a considerable extend before the commencement of the Constitution on 26th (1) (1950) 52 Born.
L.R. 540.
(2) [5952] S.C.R. 284.
714 January, 1950.
There could be no question, therefore, of the appellants ' fundamental right under article 14 being in fringed up to that point, as it has been held by this Court in Keshavan Madhava Menon 's case(1) that the provisions of the Constitution relating to fundamental rights have no retrospective operation and do not affect a criminal prose cution commenced before the Constitution came into force.
On and after 26th January, 1950, the appellants, no doubt, had the right to the equal protection of the law; but, as has been repeatedly pointed out, that right only meant that the State, including the executive and the legis lature, should apply the same law, substantive and procedur al, to all persons alike in the same situation without discrimination.
It is said that after the commencement of the Constitution persons who commit the same offences with which the appellants stood charged would, according to Anwar All Sarkar 's case (2) not be liable to be tried by the Special Judge under the special procedure and, if so, the trial of the appellants, too, could not be continued by the Special Judge under such procedure after 26th January, 1950, because such of the departures from the normal procedure of trial under the Criminal Procedure Code as were applied to the appellants during the rest of their trial, being disad vantageous to them in some respects, involved discrimination against them.
It is, therefore, claimed that the continued application of such discriminatory procedure after the Constitution came into force rendered the trial and the resulting conviction illegal.
I am unable to agree.
In the first place, as already pointed out: equal protection of the laws postulates persons in the same situation and in the same circumstances claiming that the same law should be applied to them.
Can it be said that the appellants, whose trial by the Special Judge had been lawfully com menced and was pending at the commencement of the Constitu tion, were in the same situation with persons who committed the same offences after the Constitution came into (1) (2) ; 715 force ? It seems to me that the situation and circumstances are different in the two cases and no complaint of dis criminatory treatment by reason only of the trial having been continued under the special procedure can be sustained, even assuming that the ordinary procedure under the Crimi nal Procedure Code became applicable to the appellants on and after 26th January, 1950.
Such assumption, however, seems to be open to ques tion.
Section 1, sub section (2), of the Criminal Procedure Code enacts that "Nothing herein contained shall affect . . any special jurisdiction or power con ferred or any special form of procedure prescribed, by any other law for the time being in force . .
The juris diction conferred on the Special Judge by the impugned Act, which, as pointed out already, was perfectly valid and fully operative down to the 26th ,January, 1950, thus remained unaffected and application to the appellants of the ordinary procedure prescribed by the Code was excluded.
It cannot, therefore, be said that on the 26th January, 1950.
the appellants were in a position to claim that they were enti tled to be tried under the ordinary procedure like those who committed the same offences after that date or who, having committed them before such date, had not been direct ed to be tried 'by the Special Judge.
It was said that sec tion 1 (2) of the Criminal Procedure ' Code pre supposes a valid law conferring a special juris diction or prescribing a special form of procedure and, inasmuch as such parts of the special procedure as could still be applied to trials continued after the commencement of the Constitution are void under article 13(1) read with article 14, section 1(2) of the Code could not stand in the way of the appellants being tried under the ordinary procedure.
This argument seems to me to beg the question.
It assumes that the special procedure is discriminatory and void to the extent to which it could have been applied to the trial of the appellants after 26th January, 1950.
But the assumption would not be valid unless the appellants could be tried 716 under the normal procedure after 26th January, 1950, in which case alone they could say "Why not try us under the Code; why discriminate?" But, having regard to section 1 (2) of the Code, the normal procedure would become applica ble only if the special procedure is excluded as being discriminatory and void.
The argument thus proceeds in a circle.
Again, it is difficult to see on what principle the jurisdiction of the Special Judge, validly created and exercised over the appellants ' case, could cease to continue on and after 26th January, 1950.
According to the appel lants ' contention.
the special procedure prescribed by the impugned Act became discriminatory and void after 26th Janu ary, 1950, and, therefore, inapplicable to what remained of their trial.
But, could this circumstance affect the compe tence of the Special Judge to try their case of which he had validly taken cognisance ? In Keshoram Poddar vs Nundo Lal Mullick(1) the Judicial Committee of the Privy Council held that the cessation of the jurisdiction of a Rent Control Tribunal after 31st March, 1924, over properties beyond a certain rental value did not affect its power to deal with a case after such cessation if the case was within its juris diction when it was filed and related to a period prior to such cessation.
Their Lordships observed: "The application of the Act is when the parties begin to move under it.
This was done in the present case before March 1924.
The rest is merely the working out of the application".
The position here seems to me to be closely analogous.
The Special Judge was competent to try the appellants ' case when the trial commenced before 26th January, 1950, and the impugned Act was validly applied to the case.
The rest was merely working out the application of the impugned Act.
I find it diffi cult to see why the competency of the Special Judge to try the case should cease after 26th January, 1950, any more than that of the Rent Control Tribunal to deal with a pend ing matter after 31st March, 1924, when its jurisdiction was restricted.
(1) (1927) 54.
I.A.152.
717 If, then, the jurisdiction of the Special Judge to continue the trial of the appellants remained unaffected by the advent of the Constitution, it would be impracticable for the Judge to switch the pending trials to a different procedure from 26th January, 1950, so as to give effect to the equal protection claims of under trial prisoners.
The impugned Act, for instance, enacts that "Notwithstanding anything contained in the Code the trial of offences before a Special Judge shall not be by jury or with the aid of assessors" (section 20).
The trials having been held so far without a jury or assessors as the case may be.
it would obviously be impossible in such cases to continue them after 26th January, 1950, with a jury or with the aid of asses sors, where such trials are required to be so conducted under the ordinary procedure.
Again, the impugned Act provides that no case shall be transferred from any Special Judge, a necessary consequence of the exclusive jurisdiction of the Special Judge and the special mode of proceeding prescribed for him.
If a right of transfer under section 526 of the Code were to be recognised as accruing after 26th January, 1950, to persons undergoing trial before the Spe cial Judge, the scheme of trial by Special Courts may well break down.
The alternative courses open to the Court would, therefore, seem to be either to hold that article 13(1), read with article 14, does not affect pending trials even in respect of procedural matters, as it has been held not to affect such trials in respect of substantive rights and liabilities accrued before the date of the Constitution in Keshavan Madhava Menon 's case(1), or to go back on that decision and give those provisions of the Constitution retrospective, effect.
I am clearly of opinion that the principle of the above said decision must rule the present case.
That principle has been stated thus: "Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book, for, to do so will be to give them retrospec tive effect which, we have said, they do not possess.
Such laws exist for all past transactions and ,.for enforcing all (1) ; 718 rights and liabilities accrued before the date of the Con stitution", (Italics mine).
Indeed, the last few words are apt to cover the present case, though, as a party to that decision, I am sensible that we did not have in mind a case precisely like the one now before us.
But, it is well to remember that over fine distinctions sometimes lead to unsuspected traps.
In the foregoing discussion I have assumed that such departures from the normal procedure as were still applica ble to what remained of the appellants ' trial after the 26th January, 1950, were so materially prejudicial to them as to amount to a denial of the equal protection of the laws within the meaning of article 14 of the Constitution.
I am, however, by no means satisfied that that is the position.
One of these deviations relates to the recording of evi dence. '1 he SpeCial Judge is empowered to record only a memorandum of the substance of the evidence of each witness examined, whereas the Criminal Procedure Code requires the evidence to be recorded in full.
Another relates to the summoning of witnesses for the defence, the Special Judge being given a discretion to refuse to summon a witness ' 'if satisfied after examination of the accused that the evidence of such witness will not be material" (section 13), while under section 257(1)of the Code the Magistrate has the discretion to refuse to summon witnesses if he considers that the application for the issue of process for compelling the attendance of any witness is made "for the purpose of vexa tion or delay or for defeating the ends of justice".
And lastly, the impugned Act provides that no court shall have jurisdiction to transfer any case from any Special Judge (section 18 (3)), whereas transfers under section 526 of the Code are allowed on certain specified grounds.
The more important departures from the procedure under the Code such as dispensation of preliminary enquiry and committal and the elimination of jury and assessors had already been applied, and validly applied, to the trial of the appellants before the Constitution came into force.
and there can be no ques tion of such departures vitiating the trial.
I am unable to regard the 719 procedural variations in the recording of evidence and the summoning of witnesses as so serious as to amount to a denial of the equal protection of the laws within the mean ing of article 14.
Even if the appellants were to be tried under the normal procedure of the Code after 26th January, 1950, the omission to record the evidence in full and the refusal to summon a witness in the circumstances mentioned in section 13 may well be regarded as mere irregularities curable under section 537 of the Criminal Procedure Code.
As regards transfer, it does not, as already pointed out, fit in with the scheme of trial before a Special Judge, and, unless any system of trials by Special Courts is to be condemned as violative of article 14 the decision of this Court in Kathi Raning Rawat vs The State of Saurashtra(1) shows that it can be validly instituted in appropriate circumstances a prohibition of transfer cannot be regarded as falling within the inhibition of article 14.
I have emphasised elsewhere, and I do so again, that in applying the dangerously wide and vague language of the equality clause to the concrete facts of life, a doctrinaire approach should be avoided.
In all the circumstances of this case, I do not feel impelled to set aside the trial and conviction of the appel lants and I accordingly dismiss the appeals.
DAs J.
These two appeals are from the judgment of a Division Bench of the Bombay High Court (Dixit and Shah JJ.) dated May 19, 1950, dismissing the appeals preferred by the appellants against the order made by Shri M.S. Patti on March 13, 1950, as the Special Judge appointed under the Bombay Public Security Measures Act, 1947, whereby he con victed and sentenced them to death and to different terms of imprisonment under the different charges.
The prosecution case is shortly as follows: On the morning of May 26, 1949, between the hours of 10 30 a.m. and 11 a.m. in the city of Ahmedabad the two appellants with another companion, after injuring, by gunshot, the driver and a peon of the Central (1) ; 720 Bank of India Ltd, forcibly removed motor van No.
BY 4388 belonging to the bank in which a large sum of money was being carried from its head office at Gandhi Road to its branch office at Maskati.
After abandoning the motor van at a distance of threefourths of a mile, the three gunmen forcibly took possession of the bicycles of some persons who were riding the same and continued their escape.
In course of their flight, they fired and injured several people.
Eventually, however, the two appellants were arrested by the police but their companion made good his escape.
The driver and the peon of the bank who had been injured succumbed to their injuries, one dying on the spot and the other in the hospital on the next day.
After investigation, the Ahmedabad Police, on July 19, 1949, submitted to the City Magistrate, Ahmedabad, two charge sheets Nos. 183 and 188 A against the two appellants and the then unknown absconder in respect of several of fences committed in course of the transaction that took place on May 26, 1949.
The charge sheet No. 183 was in respect of offences under sections 394, 397, 302, 307 read with section 84 of the Indian Penal Code, section 19 (e) of the Arms Act, and section 68 (1) of the Bombay District Police Act.
The charge sheet No. 183 A was in respect of offences punishable under sections 307, 392 read with sec tion 84 of the Indian Penal Code, section 19 (e) of the Arms Act and section 68 (1) of the Bombay District Police Act.
In each of these charge sheets there was appended a note to the effect that the District Superintendent of Police, Ahmedabad City, had requested the District Magistrate.
Ahmedabad, to move the Government of Bombay/or the constitu tion of a Special Court to hear the cases and that the said charge sheets might be transferred to the Special Court as and when one was so constituted.
In view of this note the City Magistrate did not hold any enquiry but only re manded the appellants.
By a Notification dated August 6, 1949, the Government of Bombay exercising its powers under section 10 ofthe Bombay Public Security Measures Act, 1947, 721 constituted a Special Court of criminal Jurisdiction for the Ahmedabad District and under section 11 of that Act appoint ed Shri M.S. Patil, District and Sessions Judge, Ahmedabad, as a Special Judge to preside over the Special Court.
By another Notification made on the same date, the Government of Bombay in exercise of powers conferred by section 12 the Act directed the Special Judge to try two particular cases, namely, the Postal Van dacoity case in which there were 9 accused and the Central Bank robbery with murder case in which the two appellants before us were the accused under the two charge sheets.
In view of the above Notification the City Magistrate, Ahmedabad, transferred the two cases against the appellants to the Court of the Special Judge and they came to be numbered as cases Nos. 2 and 3 respectively of 1949.
On December 31, 1949, the Government of Bombay directed that the trial of the appellants should be held by the Special Judge in the Ahmedabad Central Prison.
There was no order of committal by any Committing Magistrate nor was there any preliminary enquiry by the Special Judge.
On January 13, 1950, the Special Judge consolidated the two cases against the appellants with a view to holding a joint trial.
On the same day he framed five several charges, namely, four under different sections of the Indian Penal Code and one under section 19 (e) of the Indian Arms Act and section 68 (1)of the Bombay District Police Act.
On January 19, 1950, the 'first prosecution witness was examined and up to January 25, 1950, seventeen prosecution witnesses were examined.
The Constitution came into operation on January 26, 1930.
The hearing proceeded thereafter and the deposi tion of the last witness was recorded on February 9, 1950.
Altogether sixty two witnesses were examined.
The two appellants were examined under section 342 of the Code of Criminal Procedure on February 10, 1950.
One handwriting expert was examined as a Court witness on February 13, 1950, and arguments for the prosecution commenced on the following day.
After the conclusion of the 722 arguments for the defence on February 23, 1950, the Special Judge delivered his judgment on March 13, 1950.
According to his findings both the appellants had committed eleven different offences punishable under several penal provisions of law as specified by him and he convicted both the appel lants of the said eleven offences and sentenced both of them to death under section 302/34, Indian Penal Code, and to transportation for life under section 307/34, Indian Penal Code, and to various terms of imprisonment under various other sections of the Indian Penal Code, Arms Act and Bombay District Police Act.
The capital sentences were, of course, subject to the confirmation by the High Court.
Both the appellants appealed to the Bombay High Court.
The appeals along with the reference for the confirma tion of the sentences of death were heard together by Dixit and Shah JJ.
who by their judgments dated May 19, 1950, dismissed the appeals and confirmed the sentences of death.
The appellants applied to the High Court for certificates under articles 132 (1) and 134 (1) (c) of the Constitution to enable them to appeal to this Court.
The High Court (Bhagwati and Dixit JJ.), however, granted the appellants a certificate only under article 132 (1) but declined to issue any under article 134 (1) (c).
The appellants thereupon filed the present appeals pursuant to the certificate under article 132 (1).
A petition was filed before us under arti cle 132 (3) for leave to urge, as an additional ground, that the trial was vitiated by reason of misjoinder of charges.
No such ground was actually advanced before the High Court and as this Court did not think fit to permit the appellants to raise a new point at this stage it disallowed that peti tion.
Accordingly these appeals must be limited to attack ing the judgment of the High Court on the ground that a substantial question of law as to the interpretation of the Constitution has been wrongly decided.
The only substantial question of law as to the interpre tation of the Constitution urged before us is that 723 the Bombay Public Safety Measures Act, 1947, or, at any rate, that part of section 12 of that Act which authorises the State government to direct specific "cases" to be tried by a Special Judge appointed under that Act, offends against the equal protection of law guaranteed by article 14 of the Constitution and is as such void under article 13 on the principle laid down by this Court in the cases of The State of West Bengal vs Anwar Ali Sarkar(1) and Kathi Raning Rawat vs The State of Saurashtra(2).
In order to appreciate the point in issue, it is necessary to consider in some detail the provisions of the impugned Act.
The Act came into force on March 23, 1947.
It was then instituted as "An Act to consolidate and amend the law relating to public safety, maintenance of public order and the preservation of peace and tranquillity in the Province of Bombay".
The preamble recited the expediency of consoli dating and amending the law relating to those several mat ters.
By section 9 (3) the Act was to remain in force for a period of three years.
The Act was amended by Bombay Act I of 1950 and, amongst other things, the words "security of the State, maintenance of public order and maintenance of supplies and services essential to the community in the State of Bombay" were substituted for the words "public safety, maintenance of public order and the preservation of peace and tranquillity in the Province of Bombay" occurring in the long title and preamble of the Act.
The word "six" was substituted for the word "three" in section 2(3).
The remaining sections of the Act are grouped under several heads.
Thus sections 3 (A1) to 5B are grouped under the heading "Restrictions of movements etc.
" A contravention of an order made under some of these sections is made an offence punishable as mentioned therein.
The subject of "collective fines" is dealt with under that heading in section 6. "Control of. camps etc.
and uniforms" are covered by sections 7 and 8, each of which makes a contra vention (1) ; (2) ; 94 724 of any order made under it an offence.
Section 9 prescribes whipping as a punishment for certain offences under certain Acts in addition to any other punishment to which the of fender may be liable under those Acts.
Section 9A is set down under the heading "Control of Publications etc." and section 9B under the heading "Control of Commodities etc.
" Each of those sections makes a contravention of any order made thereunder an offence punishable as provided therein.
Sections 10 to 20 which are collected under the heading "Special Courts" are material for the purposes of the point in issue before us and will have to be carefully noted.
The rest of the sections are set out under the headings "Miscel laneous" and "Amendments to Acts".
Turning to the group of sections under the heading "Special Courts", it will be noticed that section 10, like section 3 of the West Bengal (Special Courts) Act.
1950, and section 9 of the Saurashtra State Public Safety Measures Ordinance, 1948, authorises the government by notification in the Official Gazette to constitute Special.
Courts of criminal jurisdiction for such ' area as may be specified in the notification.
Section 11 which corresponds to section 4 of the West Bengal Act and section 10 of the Saurashtra Ordinance empowers the government to appoint as a Special Judge to preside over a Special Court any person possessing the requisite qualifications mentioned therein.
Section 12 is expressed in precisely the same terms in which section 5(1)of the West Bengal Act and section 11 of the Saurashtra Ordinance are ' expressed, namely: "A Special Judge shall try such offences or class of offences or such cases or class of cases as the Provincial Government may, by general or special order in writing direct.
" It will be noticed that the offences mentioned in the above section are not limited to offences created by this Act only but also cover offences under any other law, e.g, the Indian Penal Code, Section 13 runs thus 725 "13.
(1) A Special Judge may take cognizance of of fences without the accused being committed to his Court for trial.
(2) A Special Judge shall ordinarily record a memoran dum only of the substance of the evidence of each witness examined, may refuse to summon any witness if satisfied after examination of the accused that the evidence of such witness will not be material and shall not be bound to adjourn any trial for any purpose unless such adjournment is, in his opinion, necessary in the interests of justice.
(3) In matters not coming within the scope of sub sections (1) and (2), the provisions of the Code, in so far as they are not inconsistent with the provisions of sections 10 to 20, shall apply to the proceedings of a Special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session." Under section 14 the Special Judge may in his discretion direct the evidence of a person who is not in a position to attend the Court to be recorded on commission.
Enhanced punishments are provided for certain offences by section 15 as follows: "Notwithstanding anything contained in the Indian Penal Code, whoever commits an offence of attempt to murder may, in lieu of any punishment to which he is liable under the said Indian Penal Code, be punishable with death, and whoever commits an offence of voluntarily causing hurt by stabbing may.
in lieu of any punishment to which he is liable under the said Indian Penal Code, be punishable with death or transportation for life.
" Section 16 authorises the Special Judge to pass any sentence authorised by law and section 17 prescribes a special rule of procedure for recovery of fines.
Section 18 gives a right of appeal to a person convicted on a trial held by a Special Judge within a period of fifteen days from 'the date of sentence and also empowers the High Court to call for the records of the proceedings of any 726 case tried by a Special Judge and in respect of such case exercise any of the powers conferred on a Court of appeal by sections 423, 426 and 428 of the Code.
Sub section (3) of section 18 runs thus: "No Court shall have jurisdiction to transfer any case from any Special Judge or to make any order under section 491 of the Code in respect of any person triable by a Spe cial Judge or, save as herein otherwise provided, have jurisdiction of any kind in respect of proceedings of any Special Judge." Thus the right to apply for transfer of the case and the right to apply for revision are denied to an accused who is tried by a Special Judge.
Ordinary law is, by section 19 made applicable in so far as it is not inconsistent with the provisions of sections 10 to 20.
Section 20 provides as follows : "Notwithstanding anything contained in the Code, the trial of offences before a Special Judge shall not be by jury or with the aid of assessors.
" Thus, besides providing for enhanced punishment and whipping the Act eliminates the committal proceedings [section 13 (1)], permits the Special Judge to record only a memorandum of the evidence, confers on him a larger power to refuse to summon a defence witness, than what is conferred on a Court by section 257(1) of the Code of Criminal Proce dure and also deprives the accused of his right to apply for a transfer or for revision.
That these departures from the ordinary law cause prejudice to persons subjected to the procedure prescribed by the Act cannot for a moment be denied.
This Court has, by its decisions in the State of West Bengal vs Artwar Ali Sarkar (supra) and in Kathi Raning Rawat v The State of Saurashtra (supra).
recognised that article 14 condemns discrimination not only by a sub stantive law but also by a law of procedure and that the procedure prescribed by the corresponding provisions in the West Bengal Special Courts Act and the Saurashtra Ordinance which introduced similar departures from the ordinary law of procedure constituted a discrimination 727 against persons tried by the Special Judge according to procedure prescribed by those pieces of legislation and finally that, in any event, section 5 (1) of the West Bengal Act and section 11 of the Saurashtra Ordinance, both of which corresponded to section 12 of the Bombay Public Secu rity Measures Act, in so far as they authorised the govern ment to direct specific and particular "cases" to be tried by the Special Judge, was unconstitutional and void.
In view of the departures from the ordinary law brought about by the Bombay Public Safety Measures Act, 1947, which are noted above, it cannot but be held, on a parity of reason ing, that at any rate section 12 of the Act, in so far as it authorises the Government to direct particular "cases" to be tried by a Special Judge, is also unconstitutional.
Learned Attorney General appearing for the State of Bombay does not controvert the legal position as discussed above but he points out that the offences were committed in May, 1949, that the Special Court was constituted and the Special Judge was appointed in August, 1949, and these "cases" were directed to be tried by the Special Judge in August, 1949, that the Special Judge actually framed charges against the appellants on January 13, 1950, and that the depositions of seventeen witnesses had been taken before the Constitution came into force and when the Bombay Public Safety Measures Act, 1947, was valid in its entirety.
He contends, on the authority of the decision of this Court in Keshavan Madhava Menon vs The State of Bombay(1).
that the Constitution has no retroactive operation and that it does not affect the rights acquired or the liabilities incurred under laws which, before the advent of the Constitution, were valid, and, quoting from the jud ment of the majority of the Bench in that case, that "such laws exist for all past transactions and for enforcing all rights and liabili ties accrued before the date of the Constitution", he urges that the legal proceedings commenced before the Constitution came into (1) ; 728 operation are in no way affected by it and may well be proceeded with.
In Keshavan Madhava Menon 's case, the appellant was the Secretary of People 's Publishing House, Ltd., of Bombay.
In September, 1949, he was alleged to have published a pamphlet which, according to the Bombay Government authorities was a "news sheet" within the meaning of section 2 (6) of the Indian Press (Emergency Powers) Act, 1931.
On December 9, 1949, he was arrested and a prosecution was started against him in the Court of the Chief Presidency Magistrate at Bombay for having published the pamphlet without the author ity required by section 15(1) of the Act and for having thereby committed an offence punishable under section 18 of that Act.
During the pendency of the proceedings the Con stitution of India came into force on January 26, 1950.
On March 3, 1950, the petitioner filed a written statement submitting, inter alia, that the definition of "news sheet" as given in section 2(6) of that Act, and sections 15 and 18 thereof were inconsistent with article 19(1)(a) and, as such, void under article 13 of the Constitution.
This was followed up by a petition filed in the High Court on March 7, 1950, under article 228 of the Constitution.
The Bombay High Court considered it unnecessary to deal with the ques tion whether sections 15 and 18 were inconsistent with article 19(1)(a) but held that, Assuming that they were inconsistent, the proceedings commenced under section 18 before the commencement of the Constitution could neverthe less be proceeded with.
The High Court took the view that the word "void" was used in article 13(1) in the sense of repealed" and that consequently it attracted section 6 of the General Clauses Act which by article 367 was made ap plicable for the interpretation of the Constitution.
The High Court having dismissed the applicant the appellant came up on appeal before this Court after having obtained a certificate granted by the High Court under ' article 132 (1) of the Constitution.
the majority of this Court held that the Constitution and no retrospective effect but was wholly prospective 729 in its operation and as the existing laws, in so far as they were inconsistent with the fundamental rights, were rendered void only to the extent of their inconsistency, they were not void for all purposes but were void only to the extent they came into conflict with the fundamental rights.
In other words, the majority of this Court held that while on and after the commencement of the Constitution no existing law could, by reason of article 13 (1), be permitted to stand in the way of the exercise of any of the fundamental rights, that article could not be read as wiping out the inconsistent law altogether from the statute book and as obliterating its entire operation on past transactions, for to do so would be to give it retrospective effect which it did not possess.
Such law, it was held, existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution.
To the same effect were the observations of Mahajan J. who delivered a separate but concurrent judgment, namely, that a provision that with effect from a particular date an existing law would be void to the extent of the repugnancy had no retro spective operation and could not affect pending prosecutions or actions taken under such law, and there was in such a situation no necessity for introducing a saving clause and that it did not need the aid of a legislative provision of the nature contained in the Interpretation Act or the Gener al Clauses Act.
According to him, not being retrospective in its operation, the Constitution could not, therefore, in any way affect prosecutions started for punishing offences that were complete under the law in force at the time they were committed.
It will be noticed that in that case the prose cution was started according to the ordinary law of proce dure.
The only question there was whether a criminal pro ceeding instituted for a contravention of the provisions of the Indian Press (Emergency Powers) Act which amounted to a completed offence before the date of the Constitution could be continued after the Constitution came into force where no change in procedure was involved.
The result of that deci sion iS that although 730 the acts which before the Constitution constituted an of fence under that Act would not, if done after the date of the Constitution, amount to an offence, nevertheless as the Constitution had no retrospective operation it did not obliterate the offence completed before the date of the Constitution and the offender could, therefore, be proceeded against after the Constitution came into force.
It was in this sense that it was stated in Keshavan Madhava Menon 's case that the law existed for the past transactions and for enforcing all rights acquired or liabilities incurred before the date of the Constitution.
If the law did not exist, the offence created by it would ipso facto disappear and no question of punishing the non existing offence could arise.
The observations made in that case related to the substan tive rights acquired or liabilities incurred under the Act before the Constitution came into force.
Under what proce dure the rights and liabilities would be enforced did not come up for consideration in that case, as the procedure adopted throughout was the same.
namely, the procedure prescribed by the Code of Criminal Procedure.
The law of procedure regulates legal proceedings gener ally from its inception up to its termination and usually connotes a continuous process. ]he Bombay Public Safety Measures Act, 1947, by sections 10 to 70 under the heading "Special Courts" prescribes a special procedure for the trial by the Special Judge of "such offences or class of offences or cases or class of cases as the government may by general or special order in writing direct".
The offences or cases so directed to be tried by the Special Judge need not be, or relate to, the special offences created by the Act itself but may be or relate to, any offence under any law, e.g., Indian Penal Code.
Arms Act and the Bombay District Police Act.
It has been seen that the special procedure prescribed by the impugned Act constitutes a departure from the ordinary law of procedure and is, in some important respects, detrimental to the interest of the persons subjected to it and as such is discriminatory.
The 731 discrimination does not end with the taking of cognizance of the case by the Special Judge without the case being commit ted to him but continues even in subsequent stages of the proceedings in that the person subjected to it cannot, even at those subsequent stages, have the benefit of having the evidence for or against him recorded in extenso, may not get summons for all witnesses he wishes to examine in defence only on the ground that the Special Judge does not consider that such evidence will be material and cannot exercise his right to apply to a superior Court for transfer.
of the case even though the Special Judge has exhibited gross bias against him or to apply for revision of any order made by the Special Judge.
As the Act 'was valid in its entirety before the date of the Constitution, that part of the pro ceeding before the Special Judge, which, up to that date, had been regulated by this special procedure cannot be questioned, however discriminatory it may have been, but if the discriminatory procedure is continued after the date of the Constitution, surely the accused person may legitimately ask: "Why am I to day being treated differently from other persons accused of 'similar offences in respect of proce dure? It is stated in Maxwell 's Interpretation of Statutes, 9th Edn., p. 232 "No person has a vested right in any course of proce dure.
He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode.
" If in the absence of any special provision to the con trary, no person has a vested right in procedure it must follow as a corollary that nobody has a vested liability in matters of procedure in the absence of any special provision to the contrary.
If this is the position when the law of procedure is altered by statute, why should the position be different when the Act prescribing the discriminatory proce dure becomes 732 void by reason of its repugnancy to the equal protection clause of the Constitution? Although the substantive rights and liabilities acquired or accrued before the date of the Constitution remain enforceable, as held in Keshavan Madhava Menon 's case, nobody can claim, after that date, that those rights or liabilities must be enforced under that particular procedure although it has, since that date, come into con flict with the fundamental right of equal protection of laws guaranteed by article 14.
It is said, in reply, that in this case there is, in law, no discrimination which can be said to be within the mischief sought to be prevented by article 14.
The appel lants are persons whose "cases" had been properly sent for trial to the Special Court before the Constitution came into force and, therefore, they cannot complain if the procedure prescribed by the Act is continued to be applied to their "cases" although such procedure cannot be applied to "cases" which had not been referred to the Special Court up to that date, for the appellants cannot claim to be similarly situ ated with persons whose "cases" had not been directed to be tried by the Special Court before the date of the Constitu tion or who committed similar offences after that date.
In the circumstances.
the continued application of the proce dure laid down in the impugned Act to the "cases" of the appellants cannot.
it is contended, amount to discrimination in the eye of the law and is, therefore, not within the inhibition of the equal protection clause of the Constitu tion.
Article 14 being thus out of the way, the procedure laid down in the impugned Act continues to be valid in law as regards the persons whose ' 'cases" had been subjected to it before the advent of the Constitution I and so far as those persons are concerned there has been no change in the procedure and, therefore, their "cases" must continue to be regulated by that procedure.
We are unable to accept this argument as sound.
It is now well established that while article 14 forbids class legislation it does not forbid reasonable Classification for the purposes of legis lation.
In 733 order, however, to pass the test of permissible classifica tion, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible dif ferentia which distinguishes persons or things that are grouped together from others who are left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act.
What is necessary is that there must be a nexus between the basis of classification and the object of the Act.
To take an exam ple: Under section 11 of the Contract Act persons who have not attained majority cannot enter into a contract.
The two categories are adults and minors.
The basis of classifica tion is the age.
That basis obviously has a relation to the capacity to enter into a contract.
Therefore, the section satisfies both the requirements of a permissible classifica tion.
In the present case, although the first part of section 12of the Bombay, Act, like section 5 (1)of the West Bengal Actor section 11 of the Saurashtra Ordinance, may indicate and imply a process of classification, the section, in so far as it authorises the government to direct particu lar "cases" to be tried by the Special Court, does not purport to proceed upon the basis of any classification at all.
Further, the supposed basis of the alleged classifica tion, namely the fact of reference to the Special Court before the Constitution came into effect, has no reasonable relation to the objects sought to be achieved by the Act.
The avowed objects of the Act recited in the preamble are the expediency of consolidating and amending the law relat ing to the security of the State, maintenance of public order and maintenance of supplies and services essential to the community in the State of Bombay.
If the consideration of the security of the State or the maintenance of public order requires the application of the special procedure there is no obvious reason why it should be applied to "cases" already referred and not to cases not yet referred at the date of the Constitution.
The same consideration applies equally to both categories of cases.
It is, there fore, clear that there is no nexus 734 which connects the basis on which the supposed classifica tion is founded with the objects of the Act, for the object of the Act is wide enough to cover both categories of "cases ".
Therefore, it is not a permissible classification.
Indeed, it is an instance of fanciful classification which has no rational basis at all.
We see no particular reason why the special procedure should be applied to the appel lants ' "cases" any more than it should be applied to "cases" not referred to the Special Court up to the 26th January, 1950.
No special or peculiar circumstances have been shown to exist which may make the appellants ' "cases" specially suited to this special procedure.
In the absence of a rational basis of classification, as explained above, there can be no justification, after the advent of the Constitu tion, for depriving the appellants of the right to move the Court for transfer or for revision or to obtain process for the attendance of defence witnesses or of having the evi dence of the witnesses recorded as in an ordinary trial which is available to other persons accused of similar offences and prosecuted according to the ordinary procedure laid down in the Code of Criminal Procedure.
It is, there fore, clear that in this case the discrimination continued after the Constitution came into force and such continuation of the application of the discriminatory procedure to their cases after the date of the Constitution constituted a breach of their fundamental right guaranteed by article 14 and being inconsistent 'with the provisions of that article the special procedure became void under article 13 and as there is no vested right or liability in matters of proce dure the appellants are entitled to be tried according to the ordinary procedure after the date of the Constitution.
Their complaint is not for something that had happened before 26th January, 1950, but is for unconstitutional discrimination shown against them since that date.
Their grievance, their cause of action as it were, is post consti tution and, therefore, must be scrutinised and examined in the light of their constitutional rights.
So viewed, there can be no doubt or 735 question that they have been discriminated against after the date of the Constitution in the matter of procedure.
It has already been held in the West Bengal and the Saurashtra cases that discrimination can lie in procedure just as much as in a substantive law.
Therefore, the continuation of the trial after that date according to the discriminatory proce dure resulting in their conviction and sentence cannot be supported.
Indeed in a sense the Special Judge 's jurisdic tion came to an end, for he was enjoined to proceed only according to the special procedure and that procedure having become void as stated above, he could not proceed at all as a Judge of a Special Court constituted under the impugned Act.
The learned Attorney General relied on the decision of the Privy Council in Keshoram Poddar vs Nundo Lal Mallick(1).
The Calcutta Rent Act, 1920, enabled the land lord or tenant of premises in Calcutta to obtain from the Controller of Rents a certification of the standard rent of the premises and also gave a right to apply to the President of the Calcutta Improvement Tribunal for revision of the order of the Controller.
The Act was originally to be in force for a period of three years which was subsequently extended until the end of March, 1924, and finally the figure 1927 was substituted for 1924 with a proviso "that after 31st March, 1924, this Act shall cease to apply to any premises the rent of which exceeded Rs. 250 a month".
The appellant was let into possession on 1st June, 1920, but the rent payable was not then fixed.
He remained in possession until March, 1923, and the question raised by the case was what rent ought to be paid for that period of occupation.
Disputes having arisen, the appellant applied to the Con troller and on 23rd October, 1922, the Controller fixed the rent at Rs. 4,500 per month.
On 25th November, 1922, the appellant appealed to the President of the Improvement Tribunal to revise that decision.
The revision application could not be taken up by the President until long after 31st March, 1924, and when it was eventually (1) I.L.R. ; 54 I.A. 152.
736 posted before him on 3rd August, 1924, he held that had no jurisdiction to determine the matter, for the Act had ceased to apply to the premises.
It will be observed that the application to the President was made long before 31st March, 1924, and that the period for which the rent had to be determined was between June, 1920, and March, 1923.
The Privy Council held that the application of the Act was when the parties began to move under it and that was done before March, 1924, and that the President accordingly had jurisdiction to decide it.
That decision appears to us to have no application to the facts of the present case, for the problem before us does not relate to a period anterior to the Constitution when the Act was good and the Special Judge had authority to apply the special procedure.
The point for decision now is whether the continuation of the procedure prescribed by the Act after the Constitution came into force operates to the prejudice of the appellants and, as such, offends against their newly acquired fundamental right of equal protection of law guaranteed by article 14.
The Constitution has no retrospective operation to invali date that part of the proceedings that has already been gone through but the Constitution does not permit the special procedure to stand in the way of the exercise or enjoyment of post constitutional rights and must, therefore, strike down the discriminatory procedure if it is sought to be adopted after the Constitution came into operation.
To that situation, the decision of the Privy Council referred to above can have no application.
For reasons Stated above, the conviction of the appel lants on trial held by the Special Judge after the date of the Constitution according to the special procedure pre scribed by the impugned Act and the sentences passed on them cannot be supported and these appeals must, therefore, be allowed and the convictions and sentences must be set aside.
The appellants are entitled, after the Constitution, not to be discriminated against in matters of procedure and are entitled to be tried according to law.
We, therefore, 737 direct that they be tried for the offences alleged to have been committed by them according to law and in the meantime they be retained in custody as undertrial prisoners.
Appeals allowed.
Agent for the intervener: Rajinder Narain.
| Held, per MAHAJAN, MUKHERJEA, DAs and CHANDRASEKHARA AIYAR, JJ.
(PATANJALI SASTRI C.J. dissenting).
Section 12 of the Bombay Public Safety Measures Act, 1947, in so far, at any rate, as it authorises the Government to direct particular "cases" to be tried by a Special Judge appointed under the Act does not purport to proceed on any classifica tion and therefore contravenes article 14 of the Constitution and is void under article 13 on the principles laid down in the cases of State of West Bengal vs Anwar Ali Sarkar ([1952] S.C.R. 284) and Kathi Raning Rawat vs Tht State of Saurash tra ([1952] S.C.R. 435).
The appellants who were accused of having committed murder and other serious offences were directed by the Government of Bombay by an order made on the 6th August, 1949, to be tried under the Bombay Public Safety Measures Act by a Special Judge appointed under the Act, charges were framed against them on the 13th January, 1950, and they were convicted in March, 1950.
On appeal it was contended before the High Court that the trial and conviction were illegal as the Bombay Public Safety Measures Act was void under article 13 read with article 14of the Constitution which came into force on the 26th January, 1950, but the High Court held that as the proceedings against the accused had commenced before the Constitution, the provisions of articles 13 and 14 did not apply and the conviction was not illegal.
Held,by a majority, that although substantive rights and liabilities acquired or accrued before the date of the Constitution remain enforceable, it cannot be held that after that date, those rights or liabilities must be en forced under the particular procedure that was in force before that date, although it has since that date been repealed or come into conflict with the fundamental right to equal protection of the laws guaranteed by the 711 Constitution, as there is no vested right in procedure.
The fact of reference of "cases" to the Special Judge before the Constitution came into force has no reasonable relation to the objects sought to be achieved by the Act, the discrimi nation therefore continued after the Constitution came into force and such continuation of the application of the dis criminatory procedure to the cases of the appellants after the date of the Constitution constituted a breach of the fundamental right guaranteed by article 14, and the appellants were therefore entitled to be tried under the ordinary procedure after the date of the Constitution.
PATANJALI SASTRI C.J. (contra).
Granting that section 12 of the Bombay Act must, in view of the decision in Anwar Ali Sarkar 's case, be held to be discriminatory and void in so far as it empowers the State Government to refer individual cases to a Special Judge for trial, the trial of the appel lants which had validly started before the Special Judge who had been empowered to try the case cannot be vitiated by the Constitution subsequently coming into force.
The provisions of the Constitution relating to fundamental rights have no retrospective operation and do not affect a criminal prose cution commenced before the Constitution came into force.
The jurisdiction of the Special Judges validly created and exercised before the Constitution and their competence to try the cases referred to them cannot be affected by the special procedure becoming discriminatory.
The correct view is that article 14 does not affect pending trials even in matters of procedure.
Moreover the appellants against whom proceedings had been commenced before the Special Judge, were not in the same situation as others and there was nothing discriminatory in a law which permits them to be tried under the special procedure which was applicable to them when the proceedings were started against them.
|
iminal Appeal No. 40 of 1951, 127 Appeal from the Judgment and Order dated the 1st June, 1951, of the High Court of Judicature in Assam (Thadani C.J. and Ram Labhaya J.,) in Criminal Reference No. I of 1951, arising out of Judgment and Order dated the 15th November, 1950, of the Court of the Additional District Magistrate, Lakhimpur, in Case No. 1126C of 1950.
Jindra Lal for the appellant.
Nuruddin Ahmed for the respondent.
October 23.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
Rameshwar Bhartia, the appellant, is a shopkeeper in Assam.
He was prosecuted for storing paddy without a licence in excess of the quantity permitted by the Assam Food Grains Control Order, 1947.
He admitted storage and possession of 550 maunds of paddy, but pleaded that he did not know that any licence was necessary.
The 'Additional District Magistrate recorded a plea of guilty, but imposed him a fine of Rs. 50 only, as he considered his ignorance of the provisions of the Food Grains Control Order to be genuine.
The stock of paddy was left in the possession of the appellant by the Procurement Inspector under a Jimmanama or security bond executed in his favour.
He was subsequently unable to produce it before the court, as the whole of it was taken away by a Congress M.L.A. for affording relief to those who suffered in the earthquake, and so, the appellant was ordered to procure a similar quantity of paddy after taking an appropriate licence, and to make over the same to the procurement department payment of the price.
The District Magistrate, being moved to do so by the procurement department, referred the case to the High Court under section 438, Criminal Procedure Code, for enhancement of the sentence, as in his opinion the sentence was unduly lenient and the Jimmanama, which was admittedly broken, should have been forfeited.
128 The reference was accepted by the High Court, and the sent ence was enhanced to rigorous ' imprisonment for six months and a fine of Rs. 1,000.
As regards the Jimmanama, the case was sent back to the trial court for taking action according to law under section 514, Criminal Procedure Code, for its forfeiture.
The appellant applied to the High.
Court for a certificate under article 134 (1) (c) of the Constitution that the case was a fit one for appeal to this Court.
This application was granted.
Out of the three points urged for the appellant, two were rejected, but the third one was accepted as a good ground, namely, that there was a contravention of the provisions of section 556, Criminal Procedure Code and that consequently the, trial before the Additional District Magistrate was void.
One of the contentions urged before us was that Shri C.K. Bhuyan was not a "Director" at all and therefore there was no valid sanction under section 38 of the Order.
A notifications dated 16th May) 1950, and published in the Assam Gazette of the 24th May, 1950, was produced before us to show that Sri C.K. Bhuyan was an Additional Deputy Commissioner and it was conceded by the appellant 's counsel before the High Court that if he was a Deputy Commissioner, he would be a Director under the Order, as all Deputy Commissioners in Assam were notified as Directors for the purposes of the Order.
Mr. Jindra Lal sought to draw a distinction between a Deputy Commissioner and an Additional Deputy Commissioner in this respect, but there is no warrant for the same,, apart from the circumstance that it is a question of fact which has to be investigated afresh, and which we cannot allow to be raised now for the first time.
The primary question to consider in this appeal is whether there has been any infringement of Section 556, Criminal Procedure Code, and a consequent want of jurisdiction in the court which tried the offence.
The facts relevant to this question lie 129 within a narrow compass.
The Procurement Inspector sent a report , Ist July,1950 about the nature of the offence ; he wrote out a short note the, subject, and requested that the accused might be prosecuted and the Assistant Director of Procurement, Dibru garh, might be authorised to dispose of the paddy immediately to avoid loss due to deterioration, Sri 0.
K. Bhuyan,who was the then District Magistrate Lakhimpur, made the following order: "Prosecution sanctioned under section 7 (1) of ,the Essential Supplies (Temporary Powers) Act, 1946, for violation of sections 3 and 7 of the Assam Food Grains Oontrol Order, 1947.
" The case happened to be tried by the same gentleman in his capacity as Addtional District Magistrate, and the accused was convicted as aforesaid.
The argument for the appellant was that having sanctioned the prosecution, Sri C.K. Bhuyan became "personally interested" in the case within the meaning of section 556, and was therefore incompetent to try the same.
It was contended that the trial was not only irregular but illegal.
There is no question that "personal interest" within the meaning of the section is not limited to private interest, and that it may well include official interest also.
But what is the extent of the interest which will attract the disability is a subject which different views are possible and have been taken.
Section 556 itself indicates the difficulty.
The Explanation to the section runs in these terms: "A Judge or Magistrate shall not be deemed a party, or personally interested, within the , meaning of this section, to or in any case by reason only that be is a Municipal Commissioner or otherwise concerned therein in a public capacity, or by reason only that he has viewed the place in which an offence, is alleged to have been committed, or any other place .in which any other transaction material to the case 'is alleged to have occurred, and made an inquiry III connection with the case.
" 130 This shows that to be connected with a case in a public capacity is not by itself enough to render the person incompetent to try it.
Even if he had made an enquiry in connection with this case, it would not matter.
But look at the illustration: "A, as collector, upon consideration of information furnished to him, directs the prosecution of B for a breach of the excise laws.
A is disqualified from trying this case as a Magistrate.
" It is evident from the words of the illustration that if a prosecution is directed by a person in one capacity, he shall not try the case acting in another capacity as a Magistrate.
The explanation and illustration lend some support to the view that there is a distinction between a passive interest and an active interest, and that it is only in the latter case that the disqualification arises or intervenes.
Under sub section (3) (a) of section 2 of the Assam Food Grains Control Order "Director" means "the Director of Supply, Assam, and includes, for the purpose of any specific. provision of this Order, any other officer duly authorised in that behalf by him or by the Provincial Government by notification in the Official Gazette.
" Section 38 provides: No prosecution in respect of an alleged contravention of any provision of this Order shall be instituted without the sanction of the Director.
" A little confusion is likely to arise from the employment of the word " Director" in the Control Order and the word "directs" in the illustration to section 556 of the Code '.
It has to be borne in mind that a sanction by the Director within the meaning of the Code does not necessarily mean "a direction given by him that the accused should be prosecuted.
" In both cases of sanction and direction, an application of the mind is necessary, but there is this essential difference that in the one case there is a legal impediment to the prosecution if there be no sanction, and in the other case, there is a positive order that 131 the prosecution should be launched.
For a sanction, all that is necessary for one to be satisfied about is the existence of a prima facie case.
In the case of a, direction, a further element that the accused deserves to be prosecuted is involved.
The question whether a Magistrate is personally interested or not has essentially to be decided the facts in each case.
Pecuniary interest, however small, will be a disqualification but as regards other kinds of interest, there is no measure or standard except that it should be a substantial one, giving rise to a real bias, or a reasonable apprehension the part of the accused of such bias.
, The maxim " Nemo debet esse judex in propria sua causa" applies only when the interest attributed is such as to render the case his own cause.
The fulfllment of a technical requirement imposed by a statute may not, in many cases, amount to a mental satisfaction of the truth of the facts placed before the officer.
Whether sanction should be granted or not may conceivably depend upon consideration extraneous to the merits of the case.
But where a prosecution is directed, it means that the authority who gives the direction is satisfied in his own mind that the case must be initiated.
Sanction is in the nature of a permission while a direction is in the nature of a command.
Let us now examine some of the decisions the subject.
For the appellant, strong reliance was placed the judgment of the Privy Council in Gokulchand Dwarkadas vs King(1), and it was argued the basis of some of the observations of the Judicial Committee that a sanction was an important and substantial matter and not a mere formality.
The facts in that case were that while there was a sanction of the Government for a prosecution under the Cotton Cloth and Yarn Control, Order, there was nothing in the sanction itself, or in the shape of extraneous evidence, to show that the sanction was accorded after the relevant facts were placed before the sanctioning authority.
To quote their Lordships ' own words; (1) (1948) 52 C.W.N.325.
132 "There is no evidence to show that the report of the Sub Inspector to the District Superintendent of Police, which was not put in evidence, was forwarded to the District Magistrate, nor is there any evidence is to the contents of the endorsement of the District Magistrate, referred to in the sanction, which endorsement also was not put in evidence.
The prosecution was in a position either to produce or to account for the absence of the 'report made to the District Superintendent of Police and the endorsement of the District Magistrate referred to in the sanction, and to call any necessary oral evidence to supplement the documents and show what were the facts which the sanction was given.
" It is in this connection that their Lordships em phasise that the sanction to prosecute is an important step constituting a condition precedent, and observe: "Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case.
Nor, in their Lordships ' view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of clause 23.
" This, however, is no authority for the position that a sanction stands the same footing as a direction.
It is true that the facts should be known to the sanctioning authority ; but it is not at all necessary that the authority should embark also an investigation of the facts, deep or perfunctory, before according the sanction.
The decision lends no support to the view that wherever there is a sanction, the sanctioning authority is disabled under section 556 of the Code from trying the case initiated as a result of the sanction. the other hand, there is plenty of support for the opposite) view.
In the very early case of The Government of Bengal vs HeeraLall Dass and Others(1), at a time when there (1) (1872) 17 Weekly Reporter, Criminal Rulings, 39. 133 was no such statutory provision as section 556 of the Code but, only the general rule of law that a man could not be judge in a case in which he had an interest, the facts were that a Sub Registrar, who was also an Assistant Magistrate, having come to know in his official capacity as a registering officer that an offence under the Registration Act had been committed, sanctioned a prosecution, and subsequently tried the case himself.
A Full Bench consisting of Sir Richard Couch C. ' J. and five other learned Judges came to the conclusion, after an examination of some of the English cases, that the trial was not vitiated.
The learned Chief Justice said: "In this case, I think, the Sub Registrar has not such an interest in the matter as disqualifies him from trying the case; and I may observe with reference to some of the arguments that have been used as to the Sub Registrar having made up his mind, and that the accused would have no chance of a fair trial, that the sanction of the superior officer, the Registrar, is required before the prosecution can be instituted, and certainly I do not consider that the prosecution will not be instituted unless the Sub Registrar has made up his mind as to the guilt of the party.
It is his duty, when he comes to know that an offence has been committed, to cause a prosecution to be instituted, by which I understand that there is prima facie evidence of an offence having been committed, that there is that which renders it proper that there should be ail enquiry, and the Registrar accordingly gives his sanction to it ; and certainly, I cannot suppose that, because an officer in his position sanctions the institution of a prosecution, his mind is made up as to the guilt of the party and .
that he is not willing to consider the evidence which may be produced before him when he comes to try the case.
In this case, there appears to 'be no such interest as would prevent the case from going" before the Magistrate as the trying authority . 134 In Queen Empress vs Chenchi Reddi(1) it was pointed out that when there was only an authorisation and not a direction, there was no supervening disability ; and the case of Girish Chunder Ghose vs The QueenEmpress(2) was distinguished, the ground that there the Magistrate had taken a very active part in connection with the case as an executive officer.
The Bombay High Court went even a step further in the case reported in Emperor vs Bavji(3), where the Magistrate who tried the case had earlier held a departmental enquiry and forwarded the papers to the Collector with his opinion that there was sufficient evidence to justify a criminal prosecution.
As he did no more than express an opinion that there was evidence, which he, had neither taken nor sifted, which made a criminal prosecution desirable, it was held that the Magistrate was not disqualified from holding the trial, though, no doubt it would have been more expedient had the Collector sent the case for disposal to another of his subordinates.
As stated already, the question whether the bar under section 556 comes into play depends upon the facts and circumstances of each particular case, the dividing line being a thin one somewhat but still sufficiently definite and tangible, namely, the removal of a legal impediment by the grant 'of sanction and the initiation of criminal proceedings as the result of a direction.
In the present case before us, we have nothing more than a sanction, and consequently we are unable to hold that the trial has become vitiated by reason of the provisions of section 556, Criminal Procedure Code.
The other point taken behalf of the appellant is a more substantial one.
The security bond was taken from him not by the court but by the Procurement Inspector.
It is true that it contained the undertaking that, the seized paddy would be produced before the court, but still it was a promise made to the particular official and not to the court.
The High (1) Mad. 238.
(3) (19O3) (2) Cal.
857. 135 Court was in error in thinking that section 514, Criminal Procedure Code, applied.
Action could be taken only when the bond is taken by the court under the provisions of the Code such as section 91 for appearance, the several security sections or those relating to bail.
Clause (1) of section 514 runs: "Whenever it is proved to the satisfaction of the, Court by which a bond under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the first class, or when the bond is for appearance before a Court, to the satisfaction of such Court, that such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid.
" The language is perfectly clear; the power to forfeit and the imposition of the penalty provided for in the later parts of the section arise only if the preliminary conditions are satisfied.
There was no argument addressed to us that the High Court in suggesting that action should be taken under section 514 for forfeiture of the bond acted in the exercise of its inherent powers under section 561 A.
It did not purport to exercise any such power; and, moreover, there will then arise the question whether when the Code contains an express provision a particular subject, there could be any resort to inherent jurisdiction, under a general provision.
We have got an additional circumstance in the appellant 's favour in this case that the seized paddy was taken away by a member of the Legislative Assembly for giving relief to those affected by the earthquake, and if that is true, as it seems to be from the letter written by the ' M.L.A. to the Additional District Magistrate the 1st November, 1950, it appears to us harsh, if not unjust, to ask him to produce the same paddy or a similar quantity of paddy.
The order of the High Court sending back the case to the 136 Magistrate for taking action according to law under section 514 will, therefore, stand set aside.
We generally do not interfere in the matter of sentence, but in this case we find that the Magistrate has held that the appellant 's plea that he was ignorant of the provisions of the Assam Food Grains Control Order, 1947, was a genuine one.
Having regard to this circumstance and the fact that from a fine of Rs. 50 to 6 months ' rigorous imprisonment and a fine of Rs. 1,000 is a big jump, we think it is appropriate that the sentence of imprisonment imposed by the High Court should be set aside and we order accordingly.
The fine of Rs. 1,000 will stand.
Sentence reduced.
| The question whether a Magistrate is "personally interested" in a ease within the meaning of section 556, Criminal Procedure Code, has essentially to be decided the facts of each case.
Where an officer as a District Magistrate exercising his powers under section 7(1) of the Essential Supplies (Temporary Powers) Act, 1946, sanctioned the prosecution of a person for violation of sections 3 and 7 of the Assam Food Grains Control Order, 1947, and the same officer as Additional District Magistrate tried and convicted the accused, and it was contended that as the officer had given sanction for prosecution he was "personally interested" in the case within the meaning of section 656, Criminal Procedure Code, and the trial and conviction were therefore illegal: Held, that bymerely giving sanction for prosecution he did not become personally interested" in the case and the trial and conviction were not illegal.
In both cases of sanction and direction to prosecute, an application of the mind is necessary, but there is this essential difference that in the one case there is a legal impediment to the prosecution if there is no sanction and in the other case there is a positive order that the prosecution should be launched.
For a sanction, all that is necessary for one to be satisfied about is the existence of a prima facie case.
In the case of a direction, a further element that the accused deserves to be prosecuted is involved.
Whether sanction should be granted or not may conceivably depend considerations extraneous to the merits of the case.
But where a prosecution is directed, it means that the authority who gives the sanction is satisfied in his own mind that the case must be initiated.
Sanction is in the nature of a permission, while direction is in the nature of a command.
Gokulchand Dwarka Das vs The King , Government of Bengal vs Heera Lall Dass and Others (1872) 17 W. R. Cr. 39, Queen Empress vs Chenchi Reddi (1901) I.L.R. , Girish Chunder vs Queen Empress (1893) I.L.R. , and Emperor vs Ravji , referred to.
|
iminal Appeal No. 80 of 1963.
Appeals by special leave from the judgment and order dated March 26, 1963, of the Punjab High Court in Criminal Mis.
No. 186 of 1963.
Criminal Appeals Nos.
86 to 93 of 1963.
Appeal by special leave from the judgment and order dated February 21, 1963 of the Punjab High Court in Criminal Misc.
No. 155, 102, 108, 105, 104, 101 and 107 of 1963 and judgment and order dated February 1963 of the same High Court in Criminal Misc.
No. 99 of 1963.
Criminal Appeals Nos.
109 to 111 of 1963.
Appeals from the judgment and order dated May 31, 1963 of the Maharashtra High Court in Criminal Applications Nos. 217, 218 and 114 of 1963.
Criminal Appeals Nos.
114 to 126 of 1963.
Appeals from the judgment and order dated May 31, 1963 of the Maharashtra High Court in Criminal Applications Nos. 271, 265, 270, 267, 219, 220, 269, 264, 263, 266 and 273 of 1963.
Criminal Appeal No. 65 of 1963.
Appeal by special leave from the judgment and order dated April 3, 1963, of the Maharashtra High Court (Nagpur Bench) in Criminal Application No. 11 of 1963.
M. C. Setalvad, N. C. Chatterjee, A. V. Viswanatha Sastri, section Mohan Kumaramangalam, C. B. Agarwala, Sarjoo Prasad, D. R. Prem, A. section R. Chari, section G. Patwardhan, W. section Barlingay, Etharajalu Naidu, Veda Vyas, Raghubir Singh, K. T .
Sule, Asif Ansari, Hardayal Hardy, Bawa Shiv Charan Singh, section N. Mukherjee, Durgabhai Deshmukh, M. section K. Sastri, G. B. Rai, Ganpat Rai, D. N. Mukherjee, A. N. Sinha, Udayaratnam, K. V. Raghnatha Reddy, Janardhan Sharma, K. R. Choudhury, B. P. Maheshwari, I. B. Goyal, I. K. Nag, Y. Kumar, Hardev Singh,, M. I. Khowaja, section section Shukla, K. K. lain, Bishambar Lal Khanna, section Murthi, P. K. Chakravarti, P. K. Chatterjee, A. George Pudussary, Girish Chandra Mathur, Udai Pratap 804 Singh,Yogeshwar Prasad,M. R. Krishna Pillai, B. D.Sharma, K. P. Gupta, T. section Venkataraman, M. Veerappa,T.R.Ramachandra, R. C. Prasad, Santosh Chatterjee,N.N. Keshwani, K. Jayaram, R. Ganapathy Iyer, Thyagarajan, R. Vasudeva Pillai, R. V. section Mani, section C. Majumdar, Shaukat Hussain, K. Baldev Mehta, Mohan Behari Lal, Sadhu Singh, V. G. Row, section N. Kakkar, section K. Kapur, Parthasarathy, Shanti Swarup Bhatnagar, K. L. Mehta, Satish Mehta, Brij Kishore Prasad, Ali Ahmad, V. A. Syeid Muhammad, Narayanarayan Gooptu, Tapesh Roy, Madhan Bhaittia, Ajit Singh Banis and Brij Raj Kishore, J. B. Dada chanji O. C. Mathur, Ravinder Narain, D. P. Singh, M. K. Ramamurthi, R. K. Garg, and section C. Agarwal, for the appellant (in Cr. A. No. 80 of 1963).
C. K. Daphtary, Attorney General, L. K. Kaushal, Deputy Advocate General, Punjab, D. D. Chaudhuri, R. N. Sachthey and R. H. Dhebar, for the respondent (in Cr. A. No. 80 of 1963).
A. section R. Chari, D. P. Singh, M. K. Ramamurthi, R. K. Garg and section C. Agarwal for the appellant (in Cr. A. No. 86 of 1963).
Hardev Singh and Y. Kumar, for the appellants (in Cr. A. Nos.
87 to 93 of 1963).
L. D. Kaushal, Deputy Advocate General, Punjab, D.D.Chaudhri, R. N. Sachthey and R. H. Dhebar, for the respondent (in Cr. A. Nos. 86 to 93 of 1963).
A. section R. Chari, 0.
P. Malhotra, B. Parthasarathy, J. B. Dadachanji, 0.
C. Mathur and Ravinder Narain, for the appellant (in Cr. A. No. 65 of 1963).
N. C. Chatterjee, and Janardan Sharma, for the appellant (in Cr. A. No. 109 of 1963).
K. T. Sule, Jitendra Sharma and Janardan Sharma, for the appellants (in Cr. A. Nos. 111 and 114 to 126 of 1963) and for the Detenue Interveners Nos. 12, 14, 16, 18 and 37).
C. K. Daphtary, Attorney General, N. section Bindra, B. R. G. K. Achar, R. N. Sachthey and R. H. Dhebar, for the respondents (in Cr. A. No. 65, 109 to 111 and 114 to 126/1963).
C. K. Daphtary, Attorney General, H. N. Sanyal, Solicitor General, section V. Gupte, Additional Solicitor General, R.N.Sachthey and R. H. Dhebar, for intervener No. 1 Naunit Lal, for intervener No. 1.
B. Sen and P. K. Bose, for intervener No. 3.
section P. Varma, for intervener No. 4.
M. Adhikari, Advocate General, Madhya Pradesh and I.N.Shroff, for intervener No. 5.
A. Ranganadham Chetty and A. F. Rangam, for intervener No. 6.
G. C. Kasliwal, Advocate General, Rajasthan, R. H.Dhebar, R. N. Sachthey, for intervener No. 7.
C. P. Lal, for intervener No. 8.
N. C. Chatterjee, Narayan Gooptu, Tapesh Roy, D. P.Singh, M. K. Ramamurthi, R. K. Garg and section C. Agarwal, for intervener No. 69.
A. section R. Chari, Narayan Gooptu, Tapesh Roy, D. P. Singh, M. K. Ramamurthi, R. K. Garg and section C. Agarwal, for intervener No. 70.
A. section Peerbhoy A. Desai, M. Rajagopalan and K. R. Choudhari, for interveners Nos. 79 and 80.
September 2, 1963.
The judgment of P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, M. Hidayatullah,B. Gajendragadkar, J. K. Subba Rao, J. delivered a dissenting Opinion.
GAJENDRAGADKAR, J.
This group of 26 criminal appeals has been placed for hearing and disposal before a special Constitutional Bench, because the appeals constituting the group raise two common important questions of Constitutional law.
Nine of these appeals have been preferred against the decisions of the Punjab High Court, whereas seventeen have been preferred against the decisions of the Bombay High Court.
All the appellants are detenues who have been detained respectively by the Punjab and the Maharashtra State Governments under Rule 30(1)(b) of the Defence of India Rules (hereinafter called the Rules) made by the Central Government in exercise of the powers conferred on it by section 3 of the Defence of India Ordinance, 1962 (No. 4 of 1962) (hereinafter called the Ordinance).
They applied to the Punjab and the Bombay High Courts respectively under section 491 (1) (b) of the Code of Criminal Procedure and alleged that they had been improperly and illegally detained.
Their contention was that section 3(2)(15)(1) and section 40 of the Defence 806 of India Act, 1962 (No. 51 of 1962) (hereinafter called 'the Act ') and Rule 36(1)(b) under which they have been detained are constitutionally invalid, because they contravene their fundamental rights under Articles 14, 21 and 22(4), (5) & (7) of the Constitution, and so, they claimed that an order should be passed in their favour directing the respective State Governments to set them at liberty.
These petitions have been dismissed on the ground that the Presidential Order which has been issued under article 359 of the Constitution creates a bar which precludes them from moving the High Court under section 491 (1) (b) Cr.
That is how the decisions of the two High Courts under appeal raise two common questions of considerable importance.
The first question is : what is the true scope and effect of the Presidential Order which has been issued under article 359 (1) ? The answer to this question would depend upon a fair and reasonable construction of article 359(1) itself.
The second question is : does the bar created by the Presidential Order issued under article 359(1) operate in respect of applications made by detenues under section 491 (1) (b) of the Code? The answer to this question would depend upon the determination of the true character of the proceedings which the detenues have taken under section 491(1)(b), considered in the light of the effect of the Presidential Order issued under article 359(1).
Both the Punjab and the Bombay High Courts have held against the appellants.
Meanwhile, when similar petitions were made before the Allahabad High Court in Criminal Cases Nos. 1618, 1759 and 1872 of 1963 Sher Singh Negi vs District Magistrate, Kanpur & Anr., the said High Court took a contrary view and directed the release of the detenues who had moved it under section 491 (1) (b) of the Code.
It is because the questions raised are important and the answers given by the different High Courts have disclosed a sharp difference of opinion that a Special Bench has been constituted to deal with these appeals.
If the two principal questions are answered in favour of the detenues, a third question would arise and that relates to the validity of the impugned sections of the Act and the relevant statutory Rules.
On the 8th September, 1962, the Chinese aggressively attacked the northern border of India and that constituted a threat to the security of India.
That is why on 807 the 26th October, 1962, the President issued a Proclamation under article 352 of the Constitution.
This Proclamation declared, that a grave emergency existed whereby the security of India was threatened by external aggression.
On the same day, the Ordinance was promulgated by the President.
This Ordinance was amended by Ordinance No. 6 of 1962 promulgated on November 3, 1962.
On this day, the President issued the Order under article 359(1), suspending the rights of citizens to move any Court for the enforcement of the rights conferred by articles 21 and 22 of the Constitution for the period during which the proclamation of emergency issued on October 26, 1962 would be in force.
On November 6, 1962, the rules framed by the Central Government were published.
Then followed an amendment of the Presidential Order on November 11 1962.
By this amendment, for the words and figures "article 21" the words and figures "articles 14 and 21" were substituted.
On December, 6, 1962, Rule 30 as originally framed was amended and Rule 30 A added.
Last came the Act on December 12 1962.
Section 48(1) of the Act has provided for the repeal of the Ordinances Nos. 4 and 6 of 1962.
Section 48(2) provides that notwithstanding such repeal, any rules made, anything done or any action taken under the aforesaid two Ordinances shall be deemed to have been made, done or taken under this Act as if this Act had commenced on October 26, 1962.
That is how the Rules made under the Ordinance continued to be the Rules under the Act, and it is under Rule 30(1) (b) that the appellants have been detained.
Before dealing with the points which have been raised for our decision in the present appeals, it is necessary to indicate briefly at the outset the general argument which has been urged before us by Mr. Setalvad on behalf of the appellants, and the learned Attorney General on the other side.
article 359(1.) which falls to be construed, occurs in Part XVIII of the Constitution which makes emergency provisions.
Whenever the security of India or any part of the territory of India is threatened whether by war or by external aggression or internal disturbance, the President may, under article 352, by proclamation, make a declaration to ,hat effect.
Articles 353 to 360 which occur in this Part thus constitute emergency provisions.
The learned 808 Attorney General contends that in construing an emergency provision like article 359(1), we must bear in mind the fact that the said Article is intended to deal with a situation which has posed a threat to the security of India, and so, fundamental rights guaranteed by Part III which are un doubtedly of vital importance to the democratic way of life guaranteed by the Constitution have to be regulated during an emergency, because the very security of the nation is exposed to serious jeopardy.
The security of the nation on such a solemn occasion must have precedence over the liberty of the individual citizens, and so, it is urged that if article 359 is capable of two constructions, one in favour of the fundamental rights of the citizens, and the other in favour of the grant of power to the President to control those rights, the Court should lean in favour of the grant rather than in favour of the individual citizen 's fundamental rights.
In support of this argument, the learned Attorney General has relied on two decisions of the House of Lords.
In The King (At the Prosecution of Arthur Zadig) vs Halliday,(1) Lord Finlay L. C. who was called upon to construe Regulation 14B of the Defence of the Realm (Consolidation) Regulations Act, 1914, noticed the argument that if the Legislature had intended to interfere with personal liberty, it would have provided, as on previous occasions of national danger, for suspension of the rights of the subject as to a writ of habeas corpus, and rejected it with the observations that the Legislature bad selected another war of achieving the same purposes, probably milder as well as more effectual than those adopted on the occasion of previous wars.
He added that the suggested rule as to construing penal statutes and the provision as to trial of British subjects by jury made by the Defence of the Realm Act, 1915, have no relevance in dealing with an executive measure by way of preventing a public danger.
The majority decision of the House of Lords in Liversidge vs Sir John Anderson (2 ) has also been relied upon by the learned Attorney General.
In that case, the House or Lords had to consider the true scope and effect of Regulation 18B of the Defence (General) Regulations, 1939.
(1) ; , 270.
(2) ; 809 Viscount Maugham in I rejecting the argument of the detenu that the liberty of the subject was involved and that the legislation dealing with the liberty of the subject must be construed, if possible, in favour of the subject and against the Crown, quoted with approval the language of Lord Finlay, L. C., in the case of Rex vs Halliday(1).
Lord Macmillan who took the same view observed that it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm.
That is in accordance with a general rule applicable to the interpretation of all statutes or statutory regulations in peace time as well as in war time.
Lord Wright and Lord Romer adopted the same approach.
The Attorney General relies on the fact that this approach has also been adopted by Gwyer, C. J., in Keshav Talpade vs The King Emperor(2).
In making his contention in regard to the proper approach.
which the Court should adopt in construing article 359, the learned Attorney General no doubt contended that the question about the approach would arise only if two constructions are reasonably possible.
According to him, article 359 was capable of only one construction and that is the construction which the High Courts of Punjab and Bombay have accepted.
On the other hand, Mr. Setalvad has argued that article 359 is not an emergency legislation properly so called and on the merits, he has strongly resisted the suggestion made by the learned Attorney General that if two reasonable constructions are possible, we should adopt that which is in favour of the grant of power to the President and not in favour of the citizens fundamental rights.
He has relied on the minority speech of Lord Atkin in the case of Liversidge(3) and has argued that the view taken by Lord Atkin should be preferred to the majority view which the House of Lords adopted in that case.
"In this country", observed Lord Atkin, "amid the clash of arms, the laws are not silent.
They maybe changed, but they speak the same language in war as in peace.
It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between (1) ; , 270.
(3) ; (2) , 63.
52 2 section C. lndia/64 810 the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
In this case, I have listened to arguments which might have been addressed acceptably to the Court of King 's Bench in the time of Charles I." Realising that he was in a minority, Lord Atkin added that he protested, even if he did it alone, against a strained construction put on words with the effect of giving ail uncontrolled power of imprisonment to the Minister.
In this connection, Mr. Setalvad referred to two subsequent decisions of the Privy Council in which the view taken by Lord Atkin has been accepted, vide Nakkuda Ali vs M. F. De section layaratne(1), and King Emperor vs Vimalabai Deshpande(2).
In the former case, Lord Radcliffe observed that indeed, it would be a very unfortunate thing if the decision of Liversidge 's case came to be regarded as laying down any general rule as to the construction of such phrases when they appear in statutory enactments, and he added that the said decision is an authority for the proposition that the words "if A. B. has reasonable cause to believe" are capable of meaning "if A. B. honestly thinks that he has reasonable cause to believe" and that in the context and attendant circumstances of Defence Regulation 18B they did in fact mean just that.
In distinguishing the said decision, Lord Radcliffe made the somewhat significant comment that the elaborate consideration which the majority of the House gave to the context and circumstances before adopting that construction itself shows that there is no general principle that such words are to be so understood.
Mr. Setalvad has also invited our attention to the fact that the majority decision of the House of Lords in Liversidge(3) has not received the approval from jurists, (vide Maxwell on Interpretation of Statutes p. 276, footnote 54, Craies on Statue Law p. 309, and Friedmann, Law in a Changing Society p. 37.) Like the Attorney General, Mr. Setalvad also urged that the stage to choose between two rival constructions would not arise in the present appeals because, according to him, the construction for which he contended was the only reasonable construction of article 359.
(1) , 76.
(2) 73 I.A. 144.
(3) ; 811 In our opinion, it is unnecessary to decide the merits of the rival contentions urged before us in regard to the rule of construction and the approach which the Court should adopt in construing article 359.
It is common ground that the question of approach would become relevant and material only if we are satisfied that article 359 is reasonably capable of two alternative constructions.
As we will presently point out, after hearing counsel on both sides, we have reached the conclusion that article 359 is reasonably ,capable of only one construction and that is the construction which has been put on it by the Punjab and Bombay High Courts.
That is why we are relieved of the task of dealing with the merits of the controversy between the parties on this point.
Let us then revert to the question of construing article 359.
In doing so, it may be relevant and somewhat useful to compare and contrast the provisions of Articles 358 and 359.
Indeed, both Mr. Setalvad and the learned Attorney General contended that article 359 should be interpreted in the light of the background supplied by the comparative examination of the respective provisions contained in articles 358 and 359 (1) & (2).
The said two Articles read as under : "358.
While a Proclamation of Emergency is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the competency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect 359 (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period a may be specified in the order.
812 (2)Any order made as aforsesaid may extend to the whole or any part of the territory of India.
" It would be noticed that as soon as a Proclamation of Emergency has been issued under article 352 and so long as it lasts, article 19 is suspended and the power of the legis latures as well as the executive is to that extent made wider.
The suspension of article 19 during the pendency of the Proclamation of emergency removes the fetters created on the legislative and executive powers by article 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by article 19, their validity is not open to challenge either during the 'continuance of the emergency or even thereafter.
As soon as the Proclamation ceases to operate, the legislative enactments passed and the executive actions taken during the course of the said emergency shall be inoperative to the extent to which they conflict with the rights guaranteed under article 19 because as soon as the emergency is lifted, article 19 which was suspended during the emergency is automatically revived and begins to operate.
Article 358, however, makes it clear that things done or omitted to be done during the emergency cannot be challenged even after the emergency is over In other words, the suspension of article 19 is complete during the period in question and legislative and executive action which contravenes article 19 cannot be questioned even after the emergency is over.
Article 359, on the other hand, does not purport expressly to suspend any of the fundamental rights.
It authorises the President to issue an order declaring that the right to move any court for enforcement of such of the rights in Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
What the Presidential Order purports to do by virtue of the power conferred on 'the President by article 359(1) is to bar the remedy of the citizens to move any court for the enforcement of the specified rights.
The rights are not expressly suspended, but the citizen is deprived of his right to move any court for their enforcement.
That is one important 813 distinction between the provisions of article 358 and article 359(1).
Before proceeding further, we may at this stage, in parenthesis, observe that there has been some argument before us on the question as to whether the fundamental rights specified in the Presidential Order issued under article 359 are even theoretically alive during the period specified in the said Order.
The learned Attorney General has contended that the suspension of the citizens ' right to move any court for the enforcement of the said rights, in law, amounts to the suspension of the said rights themselves for the said period.
We do not propose ,to decide this question in the present appeals.
We will assume in favour of the appellants that the said rights arc, in theory, alive and it is on that assumption that we 'will deal with the other points raised in the present appeals.
The other distinction lies in the fact that the suspension of article 19 for which article 358 provides continues so long as the Proclamation of Emergency is in operation, whereas the suspension of the right to move any court which the Presidential Order under article 359(1) brings about can last either for the period of the Proclamation or for a shorter period if so specified by the Order.
It would be noticed that the Presidential Order cannot widen the authority of the legislatures or the executive; it merely suspends the rights to move any court to obtain a relief on the ground that the rights conferred by Part III have been contravened if the said rights are specified in the Order.
The inevitable consequence of this position is that as soon as the Order ceases to be operative, the infringement of the rights made either by the legislative enactment or by executive action can perhaps be challenged by, a citizen in a court of law and the same may have to be tried on the merits on the basis that the rights alleged to have been infringed were in operation even during the pendency of the Presidential Order.
If at the expiration .of the Presidential Order, Parliament passes any legislation to protect executive action taken during the pendency, of the Presidential Order and afford indemnity to the executive in that behalf, the validity and the effect of such legislative action may have to be carefully scrutinised.
814 Since the object of article 359(1) is to suspend the rights of the citizens to move any court, the consequence of the Presidential Order may be that any proceeding which may be pending at the date of the Order remains suspended during the time that the Order is in operation and may be revived when the said Order ceases to be operative; and fresh proceedings cannot be taken by a citizen after the Order has been issued, because the Order takes away the right to move any court and during the operation of the Order, the said right cannot be exercised by instituting a fresh proceeding contrary to the Order.
If a fresh proceeding failing within the mischief of article 359(1) and the Presidential Order issued under it is instituted after the Order has been issued, it will have to be dismissed as being incompetent.
In other words, article 359(1) and the Presidential Order issued under it may constitute a sort of moratorium or a blanket ban against the institution or continuance of any legal action subject to two important conditions.
The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimant 's fundamental rights specified in the Presidential Order have been contravened, and the second condition relates to the period during which this ban is to operate.
The ban operates either for the period of the Proclamation or for such shorter period as may be specified in the Order.
There is yet another distinction between the provisions of article 358 and article 359(1).
The suspension of Art '.
19 for which, provision is made under article 358 applies to the whole of the country, and so, covers all legislatures and also States.
On the other hand, the Order issued under article 359(1) may extend to the whole of India or may be confined to any part of the territory of India.
These, broadly stated, are the points of distinction between article 358 and article 359(1), What then is the true scope and effect of, article 359(1).? Mr. Setalvad contends that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the Order should be construed to mean the right to move the Supreme Court which has been guaranteed by article 32(1).
He suggests that as one reads the relevant clause in article 359(1), one seems 815 to hear the echo of the right which has been constitu tionally guaranteed by article 32(1).
His argument, therefore, is that the only right of which a citizen can be deprived under article 359(1) is the right to, move the Supreme Court, and so, his case is that even in regard to fundamental rights specified in the Presidential Order, a citizen is entitled to ask for reliefs from the High Court under article 226 because the right to move the High Court flowing from article 226 does not fall within the mischief of article 359(1).
This argument attempts to interpret the words "the right to move for the enforcement of the specified rights" in isolation and without; taking into account the other words which indicate that the right to move which is specified in the said Article is the right to move "any courts$.
In plain language, the words "any court" cannot mean only the Supreme Court they would necessarily take in all courts of competent jurisdiction.
If the intention of the Constitution makers was to confine the operation of article 359(1) to the right to move only the Supreme Court, nothing could have been easier than to say so expressly instead of using the wider words "the right to move any court. ') To meet this difficulty,Mr.
Setalvad attempted to invoke the assistance of article 32(3).
article 32(3) provides that without prejudice to the: powers conferred on the Supreme Court by clauses (1) and ' (2), Parliament may by law empower any other court, to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
The argument is that the Constitution contemplates that there may be some other courts in the country on which the powers exercisable by the Supreme Court under article 32(2) may be conferred, and so, the words "any court" may have been intended to take within their purview the Supreme Court and such other courts oil whom the Supreme Courts powers under article 32(2) may have been conferred.
This argument is fallacious.
The scheme of article 32 clearly indicates that the right to move this Court which itself is a guaranteed fundamental right,, cannot be claimed in respect of courts falling under article 32(3).
article 32(3) merely provides for the conferment of this Court 's 816 powers under article 32(2) on the courts specified in clause (3).
The right guaranteed by article 32(1) cannot be claimed in respect of the said other courts.
Therefore, oh a plain construction of the relevant clauses of article 32, it is impossible to accept the argument that courts under article 32(3) must be regarded as having the same status as the Supreme Court and as such the right to move them must also be held to constitute a fundamental right of the citizen in respect of such courts.
Besides, it would be irrational to suggest that whereas the Constitution did not confer on the citizens a guaranteed fundamental right to move the High Court under article 226, it thought of conferring such a guaranteed fundamental right in regard to courts on which the Supreme ' Court 's powers under article 32(2) would be conferred by article 32(3).
Therefore, the attempt to suggest that 'the use of the words "any Court" used in article 359(1) is justified because they take in the Supreme Court and some other courts, fails and the conclusion inevitably follows that the words "any court" must be given their plain grammatical meaning and must be construed to mean any court of competent jurisdiction.
In other words the words "any court" include the Supreme Court and the High Courts before which the specified rights can be enforced by the citizens.
In this connection, it was attempted to be argued that the power of the High Court to issue the writs or orders specified in article 226(1) is a discretionary power and as such, no citizen can claim to have a right to move the High Court in that behalf, and '.
so, it was suggested that the proceedings contemplated by article 226(1) are outside the purview of article 359(1).
In our opinion, this argument is not well founded.
It is true that in issuing writs or orders under article 226(1), the High Courts have discretion to decide whether a writ or, %,order should be issued as claimed by the petitioner; but the discretion conferred on the High Courts in that behalf has to be judicially exer cised, and having regard to the scheme of article 226(1), it cannot be said that a citizen.
has no right to move the High Court for invoking its jurisdiction under article 226(1); article 226(1) confers wide powers on the High Courts to issue the specified writs, or other appropriate orders or directions; having regard to the nature of the said powers, 817 and the object intended to be achieved by their conferment there can be little doubt that in dealing with applications made before them the High Courts have to exercise their discretion in a judicial manner and in accordance with principles which are well settled in that behalf.
The High Courts cannot capriciously or unreasonably refuse to en tertain the said applications and to deal with them on the merits on the sole ground that the exercise of their juris diction under article 226(1) is discretionary.
Therefore, it is idle to suggest that the proceedings taken by citizens under article 226(1) are outside the purview of article 359(1).
We must accordingly hold that the right to move any court under article 359(1) refers to the right to move any court of competent jurisdiction.
The next question to consider is, what is the nature of the proceedings which are barred by the Presidential Order issued under article 359(1) ? They are proceedings taken by citizens for the enforcement of such of the rights conferred by Part III as may be mentioned in the order.
If a citizen moves any court to obtain a relief on the ground that his fundamental rights specified in the Order have been contravened, that proceeding is barred.
In determining the question as to whether a particular proceeding falls within the mischief of the Presidential Order or not, what has to be examined is not so much the form which the proceeding has taken, or the words in which the relief is claimed, as the substance of the matter and consider whether before granting the relief claimed by the citizen, it would be necessary for the Court to enquire into the question whether any of his specified fundamental rights have been contravened.
If any relief cannot be granted to the citizen without determining the question of the alleged infringement of the said specified 'fundamental rights, that is a proceeding which falls under article 359(1) and would, therefore, be hit by the Presidential Order issued under the said Article.
The sweep ,of article 359(1) and the Presidential Order issued under it is thus wide enough to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is in substance, seeking to enforce any of the 818 said specified fundamental rights.
We have already seen that the operation of article 359(1) and the Presidential Order issued under it is limited to the period during which the proclamation of emergency is in force, or for such shorter period as may be specified in the Order.
That being so, we feel no difficulty in holding that proceedings taken by a citizen either under article 32(1) or under article 226(1) are hit by article 359(1) and the Presidential Order issued under it.
In this connection it would be legitimate to add that the contention of the appellants which seeks to confine the operation of article 359(1) only to the right to move the Supreme Court, would make the said provision almost meaningless.
There would be no point in preventing the citizen from moving this Court, while leaving it open to him to move the High Courts for the same relief and then to come to this Court in appeal, if necessary.
That takes us to the question as to whether proceedings taken by a citizen under section 491(1)(b) are affected by article 359(1) and the Presidential Order issued under it.
Section 491 (1) (b), inter alia, provides that any High Court may, whenever it thinks fit, direct that a person illegally or improperly detained in public custody be set at liberty.
It has been strenuously urged before us that the proceedings for obtaining directions of the nature of habeas corpus which are taken under section 491 (1) (b) are outside article 359(1), and so, the Presidential Order cannot create a bar against a citizen asking the High Court to issue a writ in the nature of habeas corpus under the said provision.
It is necessary to examine this argument very carefully.
It is well known that after section 491 was enacted in the Code of Criminal Procedure in the present form in 1923, the right to obtain a direction in the nature of a habeas corpus became a statutory right in India.
After 1923, it was not open to any party to ask for a writ of habeas corpus as a matter of common law.
This question was elaborately considered by Rankin, C. J., in Girindra Nath Banerjee vs Birendra Nath Pal(1), where the learned C.J. considered the history of the development of the law on this point and came to the conclusion that the relief of a writ in the nature of a habeas corpus could be claimed (1) I.L.R. 819 after 1923 solely under Cr. P. C.
The same view was taken by a full Bench of the Madras High Court in District Magistrate, Trivandrum vs K. C. Mammen Mappillal(1), where the said High Court held that it had no power to issue a writ of habeas corpus as known to the English Common Law.
Its powers are confined in that respect to those conferred by section 491 of the Code of Criminal Procedure which gives authority to issue directions of the nature of habeas corpus.
When this point was raised before the Privy Council in Matthen vs District Magistrate of Trivandrum (2), their Lordships observed that the reasoning of Rankin C.J. in the case of Girindra Nath Banerjee(3) was so clear and convincing that they were content to adopt it, as also to state that they were in entire agreement with the views expressed by him.
The same view was expressed by the Privy Council in King Emperor vs Sibnath Banerji(4).
Basing himself on these decisions, Mr. Setalvad contends that the statutory right to obtain relief under section 491 (1) (b) is a right which is separate and distinct from the Constitutional right guaranteed by the relevant Articles of the Constitution, and so, article 359(1) cannot be said to apply to the proceedings under section 491 (1) (b).
In support of the same contention, Mr. Setalvad has also pressed into service the provisions of article 372 by which the existing laws are continued and he has invited our attention to the provisions of article 225 and 375 to show that the jurisdiction conferred on the High Courts by section 491 Cr. P. C. continues unless it is expressly taken away by a competent piece of legislation.
In this connection, reliance has also been placed on the fact that in the past whenever the operation of section 491 was intended to be suspended, the legislature made a specific provision in that behalf and as an illustration, reference is made to section 10 of the Restriction and Detention Ordinance, 1944 (No, III of 1944).
Section 10 specifically refers to section 491 of the Code and provides that no Court shall have power to make any order under the said section in respect of any order made under or having, effect under the Ordinance, or in respect of any person the subject of such an order.
It is urged that the Presidential Order is con (1) I.L.R. 66 I.A. 222.
(3) I.L.R. :54 Cal, 727.(4) 72 I.A. 241.
820 fined only to proceedings taken for enforcement of consti tutional rights and if it was intended that the proceedings under section 491(1)(b) should also be prohibited, it was essen tial that the said provision should, in terms, have been suspended by a competent piece of legislation.
Mr. Setalvad has also emphasised the fact that the approach in dealing with a proceeding under section 491(1)(b) is different from the approach which the courts adopt in dealing with proceedings under article 226 or article 32.
In invoking the Jurisdiction of the High Courts under article 226(1), or that of the Supreme Court under article 32(1), the Courts always enquire whether the party concerned is aggrieved by the order against which complaint is made.
Under section 491(1)(b), however, the court can take action suo motu and that brings out the difference in the character of the two respective categories of proceedings.
That, broadly stated, is the manner in which Mr. Setalvad has raised his contention that proceedings under section 491 (1) (b) are outside the purview of the Presidential Order and do not fall within the mischief of article 359(1).
There is no doubt that the right to ask for a writ in the nature of habeas corpus which could once have been treated as a matter of Common Law has become a statutory right after 1923, and as we have already seen after section 491 was introduced in the Cr. P. C., it was not open to any citizen in India to claim the writ of habeas corpus on grounds recognised by Common Law apart from the provisions of section 491(1)(b) itself.
It has, however, been suggested by the learned Attorney General that just as the common law right to obtain a writ of habeas corpus became a statutory right in 1923, a part of the said statutory .tight has now become a part of the fundamental rights guaranteed by the Constitution, and so, after the Constitution came into force, whenever a detenu claims to be released from illegal or improper ' detention, his claim can, in some cases, be sustained on the ground that illegal or improper detention affects his fundamental rights guaranteed by articles 19, or 21 or 23 as the case may be.
If that be so, it would not be easy to accede to the argument that the said part of the statutory right recognised by section 491(1)(b) retains its distinctive and independent character even after 821 the Constitution came into force to such an extent that it cannot be said to form part of the fundamental rights guaranteed by the Constitution.
It is true that there are two remedies open to a party whose right of personal freedom has been infringed; he may move the Court for a writ under article 226(1) or article 32(1) of the Constitution, or he may take a proceeding under s.491(1)(b) of the Code.
But it seems to us that despite the fact that either of the two remedies can be adopted by a citizen who has been detained improperly or illegally, the right which he claims is the same if the remedy sought for is based on the ground that there has been a breach of his fundamental rights; and that is a right guaranteed to the citizen by the Constitution, and so, whatever is the form of the remedy adopted by the detenu, the right which he is seeking to enforce is the same.
It is no doubt urged that under section 491 (1) (b) a stranger can apply for the release of a detenu improperly or illegally detained, or the Court itself can act suo motu.
This argument is based on the provision that the High Court may, whenever it thinks fit, issue the appropriate direction.
The learned Attorney General contended that the clause "whenever it thinks fit" postulates that some application or petition has been filed before the Court and on perusing the application or petition it appears to the Court fit to take the appropriate action.
In other words, his argument is that the Court cannot take suo motu action under section 491(1)(b).
He has also urged that a third person may apply, but he must show that he has been duly authorised to act on behalf of the detenu or he must at least purport to act on his behalf.
We do not think it necessary to express any opinion on this part of the controversy between the parties.
We are prepared to assume that the court can, in a proper case, exercise its power under section 491(1)(b) suo motu, but that, in our opinion, does not affect the decision of the question with which we are concerned.
If article 359(1) and the Presidential Order issued under it govern the proceedings taken under section 491 (1) (b), the fact that the court can act suo motu will not make any difference to the legal position for the simple reason that if a party is precluded from claiming his release on the ground set out by him in his petition, the 822 Court cannot, purporting to act suo motu, pass any order inconsistent with the provisions of article 359(1) and the Presidential Order issued under it.
Similarly, if the pro ceedings under section 491(1)(b) are hit by article 359(1) and the Presidential Order, the arguments based on the provisions of article 372 as well as articles 225 and 375 have no validity.
The obvious and the necessary implication of the suspension of the right of the citizen to move any Court for enforcing his specified fundamental right. , is to suspend the Jurisdiction of the Court pro tanto in that behalf.
Let us take a concrete case which will clearly bring.
out the character of the proceedings taken by the detenues in the present cases.
An application is made on behalf of the detenu that he is illegally or improperly detained.
The State in its return pleads that the detention is neither illegal nor improper because it has been effected under rule 30(1) (b), and in support of this return reliance is placed on the provisions of section 3(2)(15)(i) of the Act.
On receiving this return, it is urged on behalf of the detenu that the provisions of section 3(2)(15)(i) as well as Rule 30(1)(b) are invalid because they contravene the fundamental rights guaranteed to the citizens under articles 14, 21 and 22 and so, the sole issue which falls to be determined between the parties relates to the validity of the relevant statutory provisions and Rules.
If the impugned provisions in the Act and the Rules are ultra Vires the detention is illegal and improper, but if, on the other hand, the said provisions are valid, the detention is legal and proper.
In deciding this point, the Court will naturally have to take into account the provisions of section 45(1) of the Act.
Section 45(1) provides that no order made in exercise of any power conferred by or under this Act shall be called in question in any Court; and the reply of the detenu inevitably would be that notwithstanding this provision, the validity of the impugned legislation must be tested.
This clearly brings out the true nature and character of the dispute which is raised before the Court by the detenu in asking for the issue of a writ of habeas corpus in the present proceedings.
The question which thus arises for our decision is, can it be said that the proceedings taken under section 491 (1) (b) are 823 of such a distinctly separate character that they cannot fall under article 359(1) ? Under section 491 as it stood before the date of the Constitution, it would have been open to the detenu to contend that the law under which he was detained was invalid, because it was passed by a legislature without legislative competence.
The validity of the law might also have been challenged on the ground that the operative provision in the law suffered from the vice of excessive.delegation.
The detenu might also have urged that in detaining him the mandatory provisions under the Act had not been complied with.
But before the Constitution was adopted, it would not have been open to the detenu to claim that the impugned law was invalid because it contravened his fundamental rights guranteed by the relevant Articles of the Constitution.
The right to challenge the validity of a statute on the ground that it contravenes the fundamental rights of the citizens has accrued to the citizens of this country only after and as a result of the provisions of the Constitution itself, and SO, there can be no doubt that when in the present proceedings the detenues seek to challenge the validity of the impugned statutory provision and the Rule, they are invoking their fundamental rights under the Constitution.
If section 491.
is treated as standing by itself and apart from the provisions of the Constitution, the plea raised by the detenues cannot be entertained in the proceedings taken under that section ; it is only when the proceedings taken under the said section are dealt with not only in the light of section 491 and of the rights which were available to the citizens before 1950, but when they are considered also in the light of the fundamental rights guaranteed by the Constitution that the relevant plea can be raised.
In other words, it is clear that the content of the detenu 's right to challenge the legality of his detention which was available to him under section 491(1)(b) prior to the Constitution, has been enlarged by the fundamental rights guaranteed to the citizens by the Constitution, and so, whenever a detenu relies upon his fundamental rights even in support of his petition made under section 491(1)(b) he is really enforcing the said rights and in that sense, the proceedings inevitably partake of the character of proceedings taken by the detenu for enforcing these rights; that is why the argument that article 359(1) 824 and the Presidential Order issued under it do not apply to the proceedings under section 491(1)(b) cannot be sustained.
The prohibition contained in the said Article and the Presidential Order will apply as much to proceedings under section 491(1)(b) as to those under article 226(1) & article 32(1).
In this connection, it is hardly necessary to emphasise that in deciding the present question, we must take into account the substance of the matter and not attach undue or exaggerated importance to the form of the proceedings.
If the form which the proceedings take is held to be decisive in the matter, it would lead to this irrational position that an application containing the requisite averments in support of a plea for the release of the detenu, would be thrown out by the High Court if in form it purports to be made under article 226, whereas it would be entertained and may indeed succeed if it purports to be made under section 491(1)(b).
Indeed, this argument seems to suggest that when the Constitution makers drafted article 359, they intended that whenever an emergency arises and a Presidential Order is issued under article 359(1) in regard to the fundamental rights guaranteed by articles 21 and 22, it would be necessary to pass another piece of legislation providing for an appropriate change or repeal of a part of the provision of section 491(1)(b), Cr. P. C.; and since the legislature has through oversight omitted to pass the necessary Act in that behalf, proceedings under section 491(1)(b) must be allowed to be continued free from the bar created by the Presidential Order.
In our opinion, this position is wholly untenable.
Whether or not the proceedings taken under section 491(1)(b) fall within the purview of the Presidential Order, must depend upon the construction of article 359(1) and the Order, and in dealing with this point, we must look at the substance of the matter and not its form.
Before giving relief to the detenu who alleges that he has been illegally and impropely detained, is the High Court required to consider the validity of the operative provisions of the impugned Act on the ground that they infringe the specified fundamental rights? If yes, the bar created by article 359(1) and the Presidential Order must inevitably step in even though the proceedings in form may have been taken under section 49t(1)(b) of the Code.
In our opinion, therefore, once it is shown that the proceedings under 825 s.491(1)(b) cannot make a substantial progress unless the validity of the impugned law is examined on the ground of the contravention of the specified fundamental rights, it must follow that the bar created by the Presidential Order operates against them as much as it operates against proceedings taken under article 226(1) or article 32(1).
Thus, the true legal position, in substance, is that the clause "the right to move any court" used in article 359(1) and the Presidential Order takes in all legal actions intended to be filed, or filed, in which the specified rights are sought to be enforced, and it covers all relevant categories of Jurisdictions of competent courts under which the said actions would otherwise normally have been entertained and tried.
At this stage, we may conveniently refer to the recent decision of this Court in Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura(1), wherein this Court rejected the detenu 's petition on the ground that it was barred by the Presidential Order and it refused to entertain the argument that the Ordinance and the Act and the Rules framed thereunder were void for the reason that they contravened articles 14, 21 & 22, with the observation that the challenge made by the petitioner in that behalf really amounted to "arguing in the circle".
If the Presidential Order precludes a citizen from moving the Court for the enforcement of the specified fundamental rights, it would not be open to the citizen to urge that the Act is void for the reason that it offends against the said fundamental rights.
It is in order to prevent the citizen from making such a claim that the Presidential Order has been issued, and so, during the period of its operation, the challenge to the validity of the Act cannot be entertained.
Incidentally, it may be observed that a petition for a writ of habeas corpus made by Mohan Chowdhury which was rejected by this Court on the ground that it was barred under the Presidential Order would, on the view for which the appellants contend, be competent if it is presented before the appropriate High Court under section 491(1)(b) of the Code; and that incidentally illustrates how exaggerated importance to the form of the petition would lead to extremely anomalous and irrational consequences.
Therefore, our conclusion is that the proceedings (1) [1964] 3 S.C.R.412.
53 2 SC India/64 826 taken on behalf of the appellants before the respective High Courts challenging their detention on the ground that the impugned Act and the Rules arc void because they contravene articles 14, 21 and 22, arc incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified in the Presidential Order and all citizens ire precluded from moving any Court for the enforcement of the said specified rights.
The next question to consider is the validity of tile Presidential Order itself which was issued on the 3rd November, 1962.
This is how the Order reads: "G.S.R. 1464.
In exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspends for the period during which the Proclamation of Emergency issued under clause (1) of article 352 thereof on ,lie 26th October, 1962 is in force, if such person has been delivered of any such rights under the Defence of India Ordanance, 1962 (4 of 1.962) or any rule or order made thereunder.
" We have already stated that this Order was subsequently modified on the 11th November, 1962, by the addition of article 14.
The first argument which has been urged against the validity of this Order is that it is inconsistent with the provisions of article 359(1).
It is argued that the Order which the President is authorised to issue under this Article must be an Order of general application; in fact, the Order purports to be confined to persons who have been deprived of any of the specified rights under the Defence of India Ordinance, 1962, or any Rule or Order made thereunder.
In other words, there is no doubt that this Order does not apply to persons who have been detained under the provisions of the earlier No. 4 of 1950, and so, in limiting the application of the Order to persons who have been detained under the Ordinance, the President has acted outside the powers conferred on him by article 359(1).
In our opinion, this argument cannot be sustained.
The power conferred on the President is wide enough to enable him to make an Order applicable to all parts of the country and to all 827 citizens and in respect of any of the rights conferred by Part 111.
This wide power obviously includes the power to issue a limited order.
What the Order purports to do is to provide that all persons wherever they reside who have been detained under the Ordinance or the Act, will be precluded from moving any court for the enforcement of the rights specified in the Order.
It is not easy to see how this Order can be said to contravene or be otherwise inconsistent with the powers conferred on the President by article 359(1).
It is then argued that the said Order is invalid because it seeks to give effect to the Ordinance which is void.
It will be recalled that Ordinance No. 4 of 1962 was promul gated on the 26th October, 1962, whereas the Order was issued under article 359(1) on the 3rd November, 1962.
The argument is that during the period between the 26th October and the 3rd November the validity of the said Ordinance could have been challenged on the ground that it contravened articles 14, 21 and 22, and so, the said Ordinance can be held to have been a still born piece of legislation and yet detentions effected under such a void law are sought to be protected by the Presidential Order by depriving the the detenues of their right to move any court to challenge the validity of the orders of detention passed against them.
In our opinion, this argument is wholly misconceived.
We have already stated that for the purpose 'of these appeals, we are prepared to assume that despite the issue of the Order under article 359(1), the fundamental rights guaranteed by articles 14, 21 and 22 are not suspended; what is suspended is the enforcement of the said rights during the prescribed period, and so, what is said about the invalidity of the Ordinance during the period between 26th October and 3rd November is true even after the Order was issued on the 3rd November.
If the detenues are justified in contending that the Ordinance and the Act which took its place contravened the fundamental rights guaranteed by articles 14, 21 and 22, the said Ordinance and the Act would be and would continue to be invalid; but the effect of the Presidential Order is that their invalidity cannot be tested during the prescribed period.
Therefore, the argument that since the Ordinance or the Act is invalid, the Presidential Order cannot preclude a citizen from test 828 ing its validity, must be rejected.
The same argument is put in another form.
It is urged that we have merely to examine the Ordinance and Act to be satisfied that articles 14, 21 and 22 (4), (5) and (7) have been contravened and it is suggested that if these infirmities in the Ordinance and the Act are glaring, it would not be open to the President to issue an Order pre venting the detenues from challenging the validity of the said statutory provisions.
That, in substance, is what is described by this Court in Mohan Choudhury 's case(1) as arguing in the circle".
Therefore, we are satisfied that the challenge to the validity of the Presidential Order is not well founded.
It still remains to consider what are the pleas which are now open to the citizens to take in challenging the legality or the propriety of their detentions either under section 491(1)(b) of the Code, or article 226(1) of the Constitution.
We have already seen that the right to move any court which is suspended by article 359(1) and the Presidential Order issued under it is the right for the enforcement of such of the rights conferred by Part III as may be mentioned in the Order.
If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the Order, his right to move any court in that behalf is not suspended, because it is outside article 359(1) and consequently outside the Presidential Order itself.
Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act.
In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened.
Such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential Order.
Take also a case where the detenu moves the Court for a writ of habeas corpus on the ground that his detention has been ordered malafide.
It is hardly necessary to emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged.
It is true that a mere allegation that the detention is malafide would not be (1) ; 829 enough; the detenu will have to prove the malafides.
But if the malafides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by article 359(1) and the Presidential Order.
That is another kind of plea which is outside the purview of article 359(1).
Section 491(1) deals with the power of the High Court to issue directions in the nature of the habeas corpus, and it covers six categories of cases in which such a direction ,can be issued.
It is only in regard to that class of cases falling under section 491(1)(b) where the legality of the deten tion is challenged on grounds which fall under article 359(1) and Presidential Order that the bar would operate.
In all other cases falling under section 491(1) the bar would be inap plicable and proceedings taken on behalf of the detenu will have to be tried in accordance with law.
We ought to add that these categories of pleas have been mentioned by us by way of illustration, and so, they should not be read as exhausting all the pleas which do not fall within the purview of the Presidential Order.
There is yet another ground on which the validity of the detention may be open to challenge.
If a detenu contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and is, therefore, invalid, the plea thus raised by the detenu cannot at the threshold be said to be barred by the Presi dential Order.
In terms, it is not a plea which is relatable to the fundamental rights specified in the said Order.
It is a plea which is independent of the said rights and its validity must be examined.
Mr. Chatterjee has urged before us that section 3(2) (15) (i) as well as section 40 of the Act are invalid, because they confer oil the rule making authoritypower which is often described as excessive delegation.
It is,therefore, necessary to consider this point.
The Actwhich took the place of the Ordinance was passed, because it was thought necessary to provide for special measures to ensure the public safety and interest, the defence of India and civil defence and for the trial of certain offences and for matters connected therewith.
Section 3(2)(15)(i) whose validity is challenged purports to confer on the Central Government power to make Rules.
Section 3(1) reads thus : 830 "The Central Government may, by notification in the Official Gazette, make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community." Section 3(2) provides that without prejudice to the gene rality of the powers conferred by sub section
(1) the rules may provide for, and may empower any authority to make orders providing for, all or any of the following matters; then follow clauses (1) to (57), including several subclauses which provide for the matters that may be covered by the Rules.
Amongst them is cl.
(15)(i) which reads as under: "Notwithstanding anything in any other law for the time being in force, the rules to be made may provide for the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate) suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or of having acted, acting, being about to act or being likely to act in a manncr prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India 's relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner.
" The argument is that in conferring power on the Central Government to make rules, the legislature has abdicated its essentially legislative function in favour of the Central Government.
In our opinion, this argument is wholly un tenable.
Right up from the time when this Court dealt with Special References in 1951, In re The etc.(1) the question about the limits within which (1) ; 831 the legislature can legitimately confer powers on its dele gate has been examined on several occasions and it has been consistently held that what the legislature is prohibited from doing is to delegate its essentially legislative func tion and power.
If it appears from the relevant provisions of the impugned statute that powers which have been delegated include powers which can legitimately be regarded as essentially legislative powers, then the legislation is bad and it introduces a serious infirmity in the Act itself.
On the other hand, if the legislature lays down its legislative policy in clear and unambiguous terms and leaves it to the delegate to execute that policy by means of making appropriate rules, then such delegation is not impermissible.
In Harishanker Bagla vs The State of Madhya Pradesh(1) where the validity of section 3 of the Essential Supplies (Temporary Powers) Act, 1946, was challenged, this Court in upholding the validity of the impugned statute held that the preamble and the body of the relevant sections of the said Act sufficiently formulate the legislative policy and observed that the ambit and the character of the Act is such that the details of that policy can only be worked out by delegating that power to a subordinate authority within the framework of that policy.
The same view has been expressed in Bhatnagars and Co., Ltd., vs The Union of India( ).
In the present cases, one has merely to read section 3(1) and the detailed provisions contained in the several clauses of section 3(2) to be satisfied that the attack against the validity of the said section on the ground of excessive delegation is patently unsustainable.
Not only is the legislative policy broadly indicated in the preamble to the Act, but the relevant provisions of the impugned section itself give such detailed and specific guidance to the rule making authority that it would be idle to contend that the Act has delegated essentially legislative function to the rule making authority.
In our opinion, therefore, the contention that section 3(2)(15)(i) of the Act suffers from the vice of excessive delegation must be rejected.
What we have said about this section applies with equal force to section 40.
If the impugned sections of the Act are valid, it follows that Rule 30(1)(b) which is challenged by the appellants must be (1) (2) ; 832 held to be valid since it is consistent with the operative provisions of the Act and in making it, the Central Gov ernment has acted within its delegated authority.
This conclusion is, of course, confined to the challenge of the appellants based on the ground that the impugned provisions and the Rule suffer from the vice of excessive delegation.
If we had held that the impugned provision in the Act suffered from the vice of excessive delegation, it would have become necessary to consider what the effect of that conclusion would have been on the merits of the controversy between the parties in the present proceedings.
If we had reached the conclusion that the impugned sections were invalid because they conferred power on the rule making authority which suffers from the vice of excessive delegation, the question would have arisen whether in challenging the validity of the Order of detention passed against him the detenu is enforcing his fundamental right under article 21 of the Constitution.
article 21 is one of the articles specified in the Presidential Order and if at any stage of the proceedings, the detenu seeks to enforce his right under the said Article, that would be barred.
It may be urged that if the detenues had been able to show that the impugned provisions of the Act were invalid because they suffered from the infirmity of excessive delegation, the next step which they would have been entitled to take was to urge that their detention under such an Act is void under article 21, because the law referred to in that Article must be a valid law; and that would raise the question as to whether this latter plea falls within the ambit of article 359(1) and the Presidential Order issued under it.
We do not propose to express any opinion on this question in these appeals.
Since we have held that the Act does not suffer from the vice of excessive delegation as alleged, it is unnecessary to pursue the enquiry as to whether if the challenge had been upheld, the detenu would have been precluded from urging the said invalidity in support of his plea that his detention was illegal.
We must now turn to some other arguments which were urged before us at the hearing of these appeals.
Mr. Sule contends that part of the Act containing the im 833 pugned sections was a colourable piece of legislation.
His argument was that since the No. 4 of 1950 was already on the statute book, it was hardly necessary for the Legislature to have passed the impugned Act, and he urges that since the sole object of the Legislature in passing the impugned Act was to deprive the citizens of their fundamental rights under articles 21 and 22, it should be deemed to be a colourable piece of legislation.
The legislative competence of the Parliament to pass this Act is not disputed.
Entry No. 9 in List I in the Seventh Schedule confers on the Parliament jurisdiction to make laws in regard to the preventive detention for reasons connected with defence, foreign affairs, or the security of India as well as in regard to persons subjected to such detention.
If the Legislature thought that having regard to the grave threat to the security of India posed by the Chinese aggression, it was necessary to pass the impugned Act notwithstanding the fact that another Act had already been passed in that behalf, it would be difficult to hold that the Legislature had acted malafide and that the Act must, therefore, be struck down as a colourable exercise of legislative power.
It is hardly necessary to emphasise that a plea that an Act passed by a legislature competent to pass it is a colourable piece of legislation, cannot succeed on such flimsy grounds.
Whether or not it was wise that this part of the Act should have been passed, is a matter which is wholly irrelevant in dealing with the plea that the Act is a colourable piece of legislation.
In this connection, we may refer to another aspect of the same argument which has been pressed before us.
Before doing so, however, let us briefly indicate the effect of the relevant Articles.
Article 14 guarantees equality before law.
Article 21 provides, inter alia, that no person shall be deprived of his personal liberty, except according to procedure established by law, and article 22(4), (5) (6) & (7) lay down Constitutional safeguards for the protection of the citizen whose personal liberty may be affected by an order of detention passed against him.
Article 22(4) requires that an Advisory Board should be constituted and that cases of detenues should be referred to the Advisory Board for its opinion as provided therein.
Article 22(5) 834 imposes an obligation on the detaining authority to commu nicate to the detenu grounds on which the order of detention has been passed against him with a view to afford him the earliest opportunity of making a representation against the order.
Article 22(6) provides that in giving notice to the detenu under article 22(5), facts need not be disclosed which the detaining authority considers to be against public interest to disclose, and article 22(7) prescribes certain conditions which have to be satisfied by any law which the Parliament may pass empowering the detention of citizens.
It is thus clear that the Constitution empowers the Parliament to make a law providing for the detention of citizens, but this power has to be exercised subject to the mandatory conditions specified in article 22(4), (5) & (7).
It is common ground that the of 1950 complies with these requirements inasmuch as it has enacted sections 7 to 13 in that behalf.
It is also clear that these Constitutional safeguards have not been provided for by the impugned Act.
The argument is that even if the Parliament thought that during the period of emergency, citizens reasonably suspected to be engaged in prejudicial activities should be detained without affording them the benefit of the Con stitutional safeguards guaranteed by article 22(4), (5) & (7), the Parliament need not have enacted the Act and might well have left the executive to take action under the of 1950, and since Parliament has chosen to pass the Act under challenge and has disregarded the Constitutional provisions of Articles 14 and 22, the exercise of legislative power by Parliament must, in the context, be held to be a colourable exercise of legislative power.
This argument seems to assume that if the Parliament had expected the executive to detain citizens under the of 1950 without giving them the benefit of the Constitutional safeguards prescribed by article 22, their cases could have been covered if a Presidential Order had been issued under article 359(1) in respect of such detentions.
The question is: is this assumption well founded? Assuming that the Presidential Order had suspended the citizens ' right to move any court for enforcing their fundamental rights under articles 14, 21 and 22 and had made 835 the said Order applicable to persons detained under the of 1950, could that Order have effectively prevented the detenues from contending that their detention was illegal and void? In such a case, if the detenu was detained under the of 1950 and he challenged the validity of his detention on the ground that the relevant provisions of the said Act had not been complied with, would his challenge be covered by article 359(1) and the Presidential Order issued under it? In other words, can it be said that in making the said challenge, he was enforcing his fundamental rights specified in the Presidential Order? If it is held that he was challenging the validity of his detention because the mandatory provisions of the Act had not been complied with, his challenge may be outside article 359(1) and the Presidential Order.
If, on the other hand, it is held that, in substance, the challenge is to enforce his aforesaid fundamental rights, though he makes the challenge by reference to the relevant statutory provisions of the Act themselves that would have brought Ills challenge within the prohibition of the Presidential Order.
Normally, as we have already held, a challenge against the validity of the detention on the ground that the statutory provisions of the Act under which the detention is ordered have not been complied with, would fall outside article 359(1) and the Presidential Order, but the complication in the hypothetical case under discussion arises because unlike other provisions of the Act, the mandatory provisions in question essentially represent the fundamental rights guaranteed by article 22 and it is open to argument that the challenge in question sub stantially seeks to enforce the said fundamental rights.
In the context of the alternative argument with which we arc dealing at this stage, it is unnecessary for us to decide whether the challengein question would have attracted the provisions ofArt.
359(1) and the Order or not.
We are referringto this matter only for the purpose of showing thatthe Parliament may have thought that the executive would not be able to detain citizens reasonably suspected of prejudicial activities by taking recourse to the of 1950, and that may be the genesis of the impugned Act.
If that 836 be so, it would not be permissible to suggest that in passing the Act, Parliament was acting malafide.
It is quite true that if the Act has contravened the citizens ' fundamental rights under articles 14 and 22, it would be void and the detentions effected under the relevant provisions of the said Act would be equally inoperative; but it must be remembered that it is precisely in this set of circumstances that article 359(1) and the Presidential Order issued under it step in and preclude the citizen from enforcing his fundamental rights in any court.
The said Article as well as the Presidential Order issued under it indicate that there may be cases in which the specified fundamental rights of citizens have been contravened by executive action and the impugned executive action may be invalid on that account.
That is precisely why the said Article and the Presidential Order impose a ban against the investigation of the merits of the challenge during the period prescribed by the Order.
Therefore, the alternative argument urged in support of the plea that the impugned provisions of the Act amount to a colourable piece of legislation fails.
Mr. Parulekar who argued his own case before us with remarkable ability, contended that a detenu cannot be prevented from disputing the validity of the Ordinance, Act and the Rules under the Presidential Order if he did not ask for any consequential relief.
His argument was that the prayer made in his petition under section 491(1)(b) consists of two parts; the first prayer is to declare that the impugned Act and the Order are invalid, and the second prayer is that his detention should be held to be illegal and his release should accordingly be ordered.
The first prayer, says Mr. Parulekar, cannot fall within the mischief of the Order because he is not enforcing any of his rights when he asks merely for a declaration that the law is invalid, and he suggested that even if we take the view that he is precluded from challenging the validity of his detention by virtue of the said Order, we should not preclude him from challenging the validity of the law merely with a view to obtain a declaration in that behalf.
In our opinion, this argument cannot be accepted.
What section 359(1) purports to do is to empower the President to make an Order by which the right of the detenue to move the Court 437 to challenge the validity of his detention on the ground that any of his fundamental rights specified in the Order have been contravened, is suspended, and so, it would be unreasonable to suggest that what the detenu cannot do in order to secure his release, he should be allowed to do merely for the purpose of obtaining an academic declaration.
A proceeding taken under section 491(1)(b) like a petition filed under article 226(1) or article 32(1) is intended to obtain relief, and the relief in such cases means the order for the release of the detenu.
If the detenu is prohibited from asking for an order of release on the ground that the challenge to the validity of his order of detention cannot be made during the pendency of the Presidential Order, we do not see how it would be open to the same detenu to claim a mere declaration either under s.491, Cr.
P.C. or article 226(1) or article 32(1) of the Constitution.
We do not think that it was open to the High Court to consider the validity of the impugned Act without relation to the prayer made by the detenu in his petition.
The proceedings commenced by the detenu by means of his petition under section 491(1)(b) constitute one proceeding and if the sole relief which the detenu seeks to obtain cannot be claimed by him by virtue of the Presidential Order, it would be unreasonable to hold that he can claim a different relief, VI Z., a mere declaration; such a relief is clearly outside the purview of the proceedings under section 491(1)(b) and articles 226(1) and 32(1).
During the course of the hearing of these appeals, it has been strenuously pressed before us by Mr. Setalvad that the emergency created by the Chinese act of aggression may last long and in consequence, the citizens would be precluded from enforcing their fundamental rights specified in the Presidential Order during the period that the Order is in operation.
That, however, has no material bearing on the points with which we are concerned.
How long the Proclamation of Emergency should continue and what restrictions should be imposed on the fundamental rights of citizens during the pendency of the emergency, are matters which must inevitably be left to the executive because the executive knows the requirements of the situation and the effect of compulsive factors which operate during periods of grave crisis, such as our country is facing 838 today.
As Lord Wright observed in the case of Liver sidge(1), "the safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved.
If extra ordinary powers are here given, they are given because the emergency is extraordinary and are limited to the period of the, emergency.
" The other aspect of Mr. Setalvad 's argument was that during Operation the Presidential Order, the executive may abuse.
Its powers and the citizens would have no remedy.
This argument is essentially political and its impact on the constitutional question with which we are concerned is at best indirect.
Even so, it may be permissible to observe that in a democratic State, the effective safeguard against abuse of executive powers whether in peace or in emergency, is ultimately to be found in the existence of enlightened, vigilant and vocal public opinion.
The appellants have also relied upon the made by Lord Atkin in the case of Eshuqbavi Elecko vs Officer Administering the Government of Nigeria (2). "In accordance with British jurisprudence," said Lord Atkin, "no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice.
And it is the tradition of British Justice that Judges should not shrink from deciding such issues in the face of the executive.
" These noble sentiments so eloquently expressed by Lord Atkin as well as his classic minority speech in the case of Liversidge evoke a spontaneous response in the minds of all of us who have taken the oath to administer law in accordance with our Constitution and to uphold the fundamental rights of citizens guaranteed by the Constitution.
This Court is fully conscious of the solemn duty imposed on it by article 32 which constitutes it the Custodian and Guardian of the citizens ' fundamental rights.
But we must remember that the democratic faith in the inviolable character of individual liberty and freedom and the majesty of law which sustains it must ultimately be governed by the Constitution itself.
The Constitution is the law of laws the paramount (1) ; (2) 839 and supreme law of the country.
It has itself enshrined the fundamental rights of the citizens in the relevant Articles of Part III and it is no doubt the duty of this Court as the Custodian of those rights to see that they are not contravened contrary to the provisions of the Constitution.
But the Constitution itself has made certain emergency provisions in Chapter XVIII with a view to en ,Able the na tion to meet grave emergencies like the present, and so, in dealing with the question about the citizen 's right to chal lenge the validity of his detention, we will have to give effect to the plain words of article 359(1) and the Presidential Order issued under it.
As we have already indicated, the only reasonable construction which can be placed upon article 359)(1) is to hold that the citizen 's right to take any legal proceeding for the enforcement of his fun damental rights which have been specified in the Presi dential Order is suspended during the prescribed period.
It is, in our opinion, plain that the right specified in article 35)(1) includes the relevant right, whether it is statutory, Constitutional or Constitutionally guaranteed, and the words "any court" refer to all courts of competent jurisdiction and naturally include the Supreme Court and the High Courts.
If that be so, it would be singularly inappropriate for this Court to entertain an argument which seeks to circumvent this provision by suggesting that the right of the detenu to challenge the legality of his detention under section 491(1)(b) does not fall within the scope of the said Article.
The said argument concentrates attention on the mere form of the petition and ignores the substance of the matter altogether.
In the context, we think, such a sophisticated approach which leans solely on unrealistic and artificial subtlety is out of place and is illogical, unreasonable and unsound.
We must, therefore, hold that the Punjab and the Bombay High Courts were right in coming to the conclusion that the detenues before them were not entitled to contend that the impugned Act and the statutory Rule under which they were deained were void for the reason that they contravened articles 14, 21 and 22(4), (5) & (7).
Before we part with these appeals, we ought to mention one more point.
At the commencement of the hearing of these appeals when Mr. Setalvad began to argue about 840 the validity of the impugned provisions of the Act and the Rules, the learned Attorney General raised a preliminary contention that logically, the appellants should satisfy this Court that it was open to them to move the High Courts on the grounds set out by them before the validity of the said grounds is examined.
He suggested that, logically, the first point to consider would be whether the detenues can challenge the validity of the impugned Act on the ground that they arc illegally detained.
If they succeed in showing that the applications made by them under section 491(1)(b) are competent and do not fall within the purview of article 359(1) and the Presidential Order, then the stage would be reached to examine the merits of their complaint that the said statutory provisions are invalid.
If, however, they fail on the first point, the second Point would not fall to be considered.
We then took the view that since a large number of appeals were placed for hearing before us and they raised important issues of Constitutional Law, it would be better to allow Mr. Setalvad to argue the case in the manner he thought best, and so, Mr. Setalvad addressed us on the validity of the Act in the first instance and then dealt with the question about the competence of the applications made under section 491 (1) (b) of the Code.
In the main, the same method was adopted by the learned Advocates who followed Mr. Setalvad on the appellants ' side.
Naturally, when the learned Attorney General made his reply, he also had to address us on both the points.
It appeared that as regards the validity of the impugned provisions of the Act and the Rules he was not in a position to challenge the contention of the appellants that the Act contravened articles 14, 21 and 22(4), (5) & (7).
Even so, he strongly pressed before us his original contention that we would not reach the stage of expressing our opinion on the validity of the Act if we were to uphold the preliminary objection that the applications made by the detenues were incompetent.
In our opinion, the learned Attorney General is right when he contends that we should not and cannot pronounce any opinion on the validity of the impugned Act if we come to the conclusion that the bar created by the Presidential Order operates against the detenues in the present cases.
In fact, that is the course which this Court 841 adopted in dealing with Mohan Choudhury 's case(1), and we are satisfied that that is the only course which this Court can logically and with propriety adopt.
In the result, we hold that the Punjab and the Bombay High Court are right in coming to the conclusion that the applications made by the detenues for their release under section 491 (1) (b), Cr. P. C. are incompetent in so far as they seek to challenge the validity of their detentions on the ground that the Act and the Rule under which they are detained suffer from the vice that they contravene the fundamental rights guaranteed by articles 14, 21 and 22(4), (5) and (7).
Since these appeals were placed before the Special Bench for the decision of the common questions of law raised by them, we do not propose to examine the other contentions which each one of the appellants seeks to raise in his appeal.
Therefore, we direct that all the appeals included in the present group should now be set down before a Constitution Bench and each one of them should be dealt with in accordance with law.
SUBBA RAO J. I have had the advantage of reading the judgment of my learned brother, Gajendragadkar J.
I regret my inability to agree with him wholly.
I agree with his conclusion in regard to the applicability of article 359 of the Constitution to a right to move a court both under article 32(1) and article 226 thereof, but not with his conclusion in regard to the exercise of power by the High Court under s.491 of the Code of Criminal Procedure.
These appeals raise questions of great importance touching apparently conflicting, but really harmonious, concepts of individual liberty and security of the State, for the former cannot exist without the latter.
My only Justification for a separate treatment of the subject even on questions on which ,here is general agreement is my conviction that on important questions I should express my thoughts in my own way.
Broadly, two questions are posed for the consideration of this Court, namely (i) whether section 3(2) (15) (i) of the Defence of India Act, 1962 (51 of 1962), hereinafter called the Act, and r. 30(1)(b) of the Rules made in exercise of the power conferred under the Act are constitutionally void; and (ii) whether the Order made by the President in exercise of the power conferred on 'him under article 359(1) of the Constitution would be a (1) ; 54 2 section C. India/64 842 bar against the maintainability.of any action in any court to question the validity of the detention order made under the Act.
I shall deal with the two questions in the said order.
Before dealing with the first question it would be conveni ent to quote the impugned provisions of the Act.
Section 3. ( 1) The.
Central Government may by notification in the Official Gazette, make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community.
(2)Without prejudice to the generality of the powers conferred by sub section (1), the rules may provide for, and may empower any authority to make orders providing for, all or any of the following matters, namely.
(15)notwithstanding anything in any other law for the time being in force, (i) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate) suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or of having acted, acting, being about to act or being likely to act in a manner prejudical to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India 's relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner, * * * * Rule 30. (1) The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from 843 acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India 's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community, it is necessary so to do, may, make an order * * * * (b)directing that he be detained.
Rule30A. (2) Every detention order shall be reviewedin accordance with the provisions hereinafter contained.
(3)A detention order made by the Central Government Or the State Government or the Administrator shall be reviewed by the Central Government or the State Government or the Administrator, as the case may be.
(4)A detention order made by an officer (who shall in no case be lower in rank than that of a District Magistrate) empowered by the State Government or the Administrator shall be reviewed : (a) in the case of an order made by an officer empowered by the State Government, by a reviewing authority consisting of any such two officers from among the following officers of that Government, that is to say, the Chief Secretary, a mem ber of the Board of Revenue, a Financial Commissioner and a Commissioner of a Division, as may be specified by that Government by notification in the Official Gazette ; (b) in the case of an order made by an officer empowered by the Administrator, by the Administrator himself.
Under the said provisions the Central Government or the State Government or an officer on whom the power to detain is delegated can direct the detention of any person if the detaining authority is satisfied that his detention is necessary for one or other of the reasons mentioned in r. 30.
No grounds of detention need be served upon the detenu; no opportunity need be given to him to make representations or establish his innocence.
The period of detention can be indefinite.
The Central Government or the 844 State Government or the Administrator of a Union Territory, as the case may be, is authorised to review the order of detention made by them.
So too, a detention order made by an officer empowered by the State Government in that behalf can be reviewed by one or other of the officers mentioned in r. 30A (4) It is contended that the said provisions infringe article 22(4) and (5) of the Constitution and, therefore, void.
This Court in Deepchand vs The State of Uttar Pradesh(1) laid down the effect of a law made in infringement of fundamental rights; and observed : "The result of the aforesaid discussion may be summarized in the following propositions; (i) whether the Constitution affirmatively confers powers on the legislature to make laws subject wise or negatively prohibits it from infringing any fundamental right, they represent only, two aspects of want of legislative power; (ii) the Constitution in express terms makes the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other provisions of the Constituion and thereby circumscribes or reduces the said power by the limitations laid down in Part III of the Constitution; (iii) it follows from the premises that a law made in derogation or in excess of that power would be ab initio void wholly or to the extent of the contravention, as the case may be;. . . . " This view was accepted by a later decision of this Court in Mahandra Lal vs State of U.P.(2).
It is, therefore, manifest that if the Act and the rules framed thereunder infringed the provisions of article 22(4) and (5) of the Constitution, they would be ab initio void they would be stillborn law and any detention made thereunder would be an illegal detention.
Articles 21 and 22 enshrine fundamental rights relating to personal liberty,.
Clauses (4) to (6) of article 22 specifically deal with preventive detention.
This Court has held in A. K .
Gopalan vs State of Madras(3) that the word '.,law" in article 21 means State made law or enacted law and that article 22 lays down only the minimum procedural conditions which such a (1) [1959] Supp. 2 S.C.R. 8, 40.
(2 ) ; (3) ; 845 a statutory law cannot infringe in the matter of pre ventive detention.
The minimum conditions arc as follows: (1) Parliament may make a law prescribing the maximum period for which any person may be detained; (2) he shall not be detained for a period more than 3 months unless an Advisory Board constituted for that purpose reports before the expiry of three months that there is sufficient cause for detention ; and (3) the authority making the order shall communicate to such person the grounds on which the order has been made and afford him the earliest opportunity of making representations against the order.
At the same time cl.
(7) enables Parliament to make a law prescribing the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of the Advisory Board.
Clause (6) of article 22 enables an authority not to disclose facts to the detenu which it considers to be against the public interest to disclose.
While cls.
(4) to (6) of article 22 provide for the minimum safeguards for a dctenu in the matter of preventive detention, cl.
(7) removes them enabling Parliament to make a law for preventive detention ignoring practically the said safeguards.
The only outstanding safeguard, therefore, is that Parliament can only make a law in derogation of the said safeguards by defining the circumstances under which and the class or classes of cases in which a person may be so detained.
Parliament did not make such a law.
Neither the Act nor the rules made thereunder satisfy the conditions laid down in that clause.
The Act and the rules do not provide for the maximum period of detention, for the communication to the detenu of the grounds of detention, for affording him an opportunity of making representations against his detention, or for an Advisory Board consisting of persons with the requisite qualifications.
The power to review given to the detaining authority cannot conceivably satisfy the condition of an Advisory Board provided for under cl.
(4)(a) of article 22.
It is, therefore, a clear case of Parliament making a law in direct infringment of the relevant provisions of article 22 of the Constitution, and therefore the law so made is void under the said Article., 846 In this context a relevant aspect of the argument advanced by the learned Attorney General may be noticed.
He contends that, on a true construction of article 359(1) of the Constitution, if the requisite order is made by the President, a law can be made in infringement of article 22 of the Constitution.
Under article 359, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order shall remain suspended for the period during which a Proclamation of Emergency is in force or for such shorter period as may be specified in the order.
It is contended that when remedy is suspended in respect of infringement of article 22, the right thereunder also falls with it.
It is said that right and remedy are reciprocal; and if there cannot be a right without a remedy, there cannot also be a remedy without a right.
In "Salmond on jurisprudence", 11th Edn., the following interesting passage is found, at p. 531, under the heading "Ubi jus Ibi Remedium"; "Whenever there is a right, there should also be an action for its enforcement.
That is to say, the substantive law should determine the scope of the law of procedure, and not vice versa.
Legal procedure should be sufficiently elastic and comprehensive to afford the requisite means for the protection of all rights which the substantive law sees fit to recognize.
In early systems this is far from being the case.
We there find remedies and forms of action determining rights than rights determining remedies.
The maxim of primitive law is rather, Ubi remedium ibi jus.
" I understand this passage to mean that a right pertains to the substantive law and the remedy, to procedural law; that where a right is provided by a statute a remedy, though not expressly provided for, may necessarily be implied.
But the converse, though obtained in primitive law, cannot be invoked in modern times.
To put it in other words, the suspension of a remedy cannot abrogate the right itself.
Indeed, a comparative study of articles 358 and 359 of the Constitution indicates that it could not have been the intention of the makers of the Constitution, for article 358 expressly suspends the right whereas article 359 suspends the remedy.
If the contention of the learned Attorney 847 General be accepted, both have the same effect: if that was the intention of the makers of the Constitution, they would not have expressed themselves in different ways in the two articles.
Where they intended to suspend the right, they expressly said so, and where they intended only to suspend the remedy, they stated so.
We cannot, therefore, accept this contention.
At this stage I may also notice the argument of the learned Attorney General that article 359, by enabling the President to suspend the right to move for the enforcement of the fundamental rights mentioned therein, impliedly permitted Parliament to make laws in violation of those fundamental rights in respect whereof the right to move the court is suspended.
I cannot appreciate this argument.
It is one thing to suggest that in view of the amplitude of the phraseology used in article 359, the right to move for the enforcement of fundamental rights infringed by a void law, even deliberately made by Parliament, is suspended but it is a different thing to visualize a situation when the Constitution permitted Parliament under the shelter of executive fiat to make void laws.
Indeed, a comparison of article 358 and article 359 I shall deal with them in detail later on indicates the contrary.
I cannot for a moment attribute to the august body, the Parliament, the intention to make solemnly void laws.
It may have made the present impugned Act bona fide thinking that it is sanctioned by the provisions of the Constitution.
Whatever it may be, the result is, we have now a void Act on the statute book and under that Act the appellants before us have been detained illegally.
To use the felicitous language of Lord Atkin, in this country "amid the clash of arms, the laws are not silent; they may be chanced, but they speak the same language in war as in peace".
The tendency to ignore the rule of law is contagious, and, if our Parliament, which unwittingly made a void law, not only allows it to remain on the statute book, but also permits it to be administered by the executive, the contagion may spread to the people, and the habit of lawlessness, like other habits, dies hard.
Though it is not my province, I venture to suggest, if I may, that the Act can be amended in conformity with our Constitution without it losing its effectiveness.
This leads us to the question whether the appellants, 948 who are illegally detained, can move this Court under article 32 of the Constitution or the High Court under article 226 thereof or under section 491 of the Code of Criminal Procedure, hereinafter called the Code.
It would be convenient at this stage to read the relevant provisions of the Constitution.
Article 32.(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
* * * * (3)Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4)The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
Article.
226 (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, ' quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2)The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
Article 358.
While a Proclamation of Emergency is in operation nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in the Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, 849 except as respects things done or omitted to be done before the law so ceases to have effect.
Article 359 (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
Article 33 confers power on Parliament to modify the rights conferred by Part III in their application to Armed Forces or the Forces charged with the maintenance of public order; article 34 enables Parliament to impose restrictions an the rights conferred by Part III while martial law is in force in any area.
The contention of learned counsel for the appellants on the construction of the said provisions may be classified under the following heads: (1) article 358 permits the State to make laws only in infringement of article 19 of the Constitution, and article 359 suspends only the right to move the enforcement of the fundamental rights specified in the President 's Order and, therefore, article 359 cannot be so construed as to enlarge the legislative power of Parliament beyond the limits sanctioned by article 358 and, therefore, it should be confined only to executive infringements of the said rights.
(2) Article 359 does not permit the executive to commit fraud on the Constitution by doing indirectly what Parliament cannot do directly under article 358 and article 13(2) of the Constitution.
(3) For invoking article 359 two conditions must be complied with, namely, (i) the party shall have a right to move any court, and (ii) only for the enforcement of the rights conferred by Part III.
Such a right to move for such a relief is expressly conferred by the Constitution under article 32.
Therefore, the President 's order under article 359 would only suspend the right to move under article 32 and not for approaching the Court under article 226 of the Constitution.
In any view, those words are inappropriate to a pre existing statutory right under section 491 of the Code.
850 To appreciate the contentions from a correct perspective it is necessary at the outset to notice the nature of the fundamental rights enshrined in the Constitution and the remedy or remedies provided for their enforcement.
It would be pedantic to go into the question whether fundamental rights provided for under our Constitution are natural rights or primordial rights : whatever their origin might have been and from whatever source they might have been extracted, they are enshrined in our Constitution in Part III and described as fundamental rights.
The constitution declared under article 13(2) that the State shall not make any law taking away or abridging the said rights and any law made in contravention of this clause shall be void to the extent of the contravention.
After declaring such a law void, it proceeds to provide for the mode of enforcement of the said rights.
Article 32(1) makes the right to move the Supreme Court by appropriate proceedings for the enforcement of the said rights a guaranteed right.
Appropriate proceedings are described in cl.
(2) thereof, that is to say, a person can move the said Court for directions, orders, or writs in the nature described thereunder for the enforcement of any of the said rights.
The right to move, therefore, is regulated by the procedure prescribed thereunder.
Article 226, though it does not find a place in Part III of the Constitution, confers a power on every High Court throughout the territories in relation to which it exercises jurisdiction to issue such directions, orders, or writs in the nature described thereunder for the enforcement of any of the rights conferred by Part III.
There is a material difference between article 32 and article 226 of the Constitution, namely, while in article 32 the right to move the court is guaranteed, under article 226 no such guarantee is given.
But a fair construction of the provisions of article 226 indicates that the right to move, though not guaranteed, is necessarily implied therein.
As I have pointed out, under article 32 the right to move the Court is given a practical content by the provision indicating the different modes open to the person who has the said right to approach the Supreme Court.
Article 226 employs the same procedure for approaching the High Court and that procedure must necessarily be for the exercise of the right to move that 851 court.
When a power is conferred upon the High Court and a procedure is prescribed for a party to approach that court, it is reasonable to imply that the person has a right to move that court in the manner prescribed thereunder.
The only difference between article 32 and article 226 is that the Supreme Court cannot say, if it is moved in the manner prescribed, that it will not decide on merits, but the High Court, in exercise of its jurisdiction can do so.
The decision on merits is left to its discretion, though the exercise of that discretion is regulated by convention and precedent.
Further, article 32(3) also enables Parliament to make a law empowering any other court to exercise within the local limits of itsjurisdiction all or any of the powers exercisable by theSupreme Court under cl.
(2) thereof.
One thing to benoticed is that Parliament can only empower any othercourt to exercise any of the powers exercisable under cl.(2) ; it cannot confer the guaranteed right mentioned in cl.
(1) on any person to move that court.
That is to say, the court or courts to which such powers are given would be in the same position as the High Court in respect of the enforcement of the fundamental rights.
To put it shortly, no person will have a guaranteed right to move any such other court for the enforcement of fundamental rights.
A discretionary jurisdiction similar to that of the High Court can only be conferred on them.
For the same reason given in the case of the High Court, an aggrieved party will also have a right to move those courts in the manner prescribed.
This analysis leads us to the following position Under the Constitution every person has a right to move, for the enforcement of a fundamental right, the Supreme Court, the High Courts or any other court or courts constituted by Parliament by law in the manner prescribed i.e., by one or other of the procedural writs or directions or orders described thereunder.
With this background let me have a close look at the provisions of article 359.
The expressions used in article 359 are clear and unambiguous.
Three expressions stand out in bold relief, namely, (i) "right to move", (ii) "any Court", and (iii) "for the enforcement of such of the rights conferred by Part III".
"Any Court" implies more 852 than one court, but it cannot obviously be any court in India, for it must be a court where a person has a right to move for the enforcement of the fundamental rights.
It can, therefore, be only the Supreme Court, High Court or the courts or courts constituted by Parliament under article 32(3).
If the contention of learned counsel for the appellants be accepted, the expression "court" should be confined to the Supreme Court.
But the Article does .not say either Supreme Court or that the right to move is the guaranteed one under article 32(1).
The next question is, what do the words "right to move" mean? The right to move is qualified by the expression "for the enforcement of such of the rights conferred by Part 111".
Therefore, the right to move must be a right to move the Supreme Court or the High Court in the manner prescribed by article 32(2) or article 226(1) of the Constitution for the enforcement of the fundamental rights.
The words in the second limb of the Article viz., that "all proceeding.s pending in any court for the enforcement of the rights so mentioned shall remain suspended" only relate to the proceedings instituted in exercise of the said right : they do not throw any light on the scope of the "right to move '.
This construction gives full meaning to every expression used in the Article.
if so construed, it can only mean that the temporary bar that can be imposed by an order of the President is not confined only to the guaranteed right of a person to move the Supreme Court for the enforcement of his fundamental rights, but also extends to the right of a person to move the High Court or the Court or Courts constituted by Parliament for the enforcement of such of the fundamental rights as mentioned in the order.
I would, therefore, hold that the President 's order under article 359 suspending the right to move any court in respect of specified fundamental rights includes not only the right to move under article 32 but also that under article 226.
The more difficult question is whether article 359 can be so construed as to empower the President to suspend all actions which a person may take under a statute or common law, if he seeks thereby to protect his liberty against unlawful encroachment by State or its officers.
To put it in other words, can a person, who is illegally 853 detained under a void law, approach the High Court under section 491 of the Code or file a suit in a civil court for damages for illegal confinement or take any other legal proceedings open to him? Learned Attorney General contends that "any court" in article 359 means any court in India and that the expression "enforcement of fundamental rights" implies any relief asked for by a party if the granting of such relief involves directly or indirectly a decision on the question whether any of the fundamental rights specified in the President 's order has been infringed.
This argument, if I may say so, completely ignores the scheme of the Constitution.
Under the Constitution, a person may have three kinds of rights, namely, (i) fundamental rights, (ii) constitutional rights, and (iii) statutory or common law rights.
Under article 32(1) a person has a fundamental right to move the Supreme Court for enforcement of his fundamental rights; under article 226, a person has a constitutional right to move the High Court for the enforcement of the said rights.
Parliament, by law, in exercise of its powers conferred on it under article 245, may confer a right on a person to move any court for a relief wider in scope than that provided by article 32 or article 226 of the Constitution.
Though Parliament may not have power, except in the cases specified to circumscribe the fundamental rights enshrined in Part III it can certainly make a law enlarging the content of the substantive and procedural rights of parties beyond those conferred by Part III.
Under this category there may also be laws made by competent authority before the commencement of the Constitution, but continued under article 372, which do not any way infringe the fundamental rights created by the Constitution.
Section 491 of the Code is one of the pre Constitution statutory provisions continued under article 372 of the Constitution.
It does not in terms posit any right to move the High Court for the enforcement of fundamental rights.
Therefore, the argument of the learned Attorney General involves considerable strain on the express language of article 359, for, he in effect asks us to equate the expression "a right to move for the enforcement of fundamental rights" with any relief asked for in any proceedings in any court, whether initiated at the instance of the party affected or not, 854 or whether started suo motu by the court, if it involves a decision on the question whether a particular law was void for the reason that it infringed the fundamental rights mentioned in the President 's order.
In support of this contention he presses on us to hold that in days of stress and strain i.e., when there is a threat of war and conse quently an emergency is declared, a court has to adopt the principle of "strained construction" which will achieve the object behind article 359 of the Constitution and the order issued by the President.
I shall briefly examine the decisions cited by him to ascertain whether any such novel doctrine of construction of statutes exists.
Rex vs Halliday(1) is a decision of the House of Lords made in 1917 i.e., during the First World War.
Regulation 14B of the Defence of the Realm (Consolidation) Regulation, 1914, empowered the Secretary of State to order the internment of any person of hostile origin or associations, where on the recommendation of a competent naval or military authority it appeared to him expedient for securing the public safety or the defence of the realm.
This regulation was authorized by the Defence of the Realm Consolidation Act, 1914, section 1, sub section 1.
The House of Lords, by a majority, held that the Act conferred upon , the King In Council power, during the continuance of the war, to issue regulations for securing the public safety and the defence of the realm and, there fore, the regulation was valid.
It was urged there that no such restraint of personal liberty should be imposed except as a result of judicial enquiry.
It was also contended that if the Legislature intended to interfere with personal liberty it should have provided for suspending the right of the subject as to the writ of heabeas corpus.
The argument was negatived.
Lord Atkin observed "The subject retains every right which those statutes confer upon him to have tested and determined in a Court of law, by means of a writ of Habeas Corpus,, addressed to the person in whose custody he may be, the legality of the order or warrant by virtue of which he is given into or kept in that custody.
If the Legislature chooses to enact that he can be deprived of his liberty and incarcerated or (1) ; , 272. 855 interned for certain things for which he could not have been heretofore incarcerated or interned, that enactment and the orders made under it, if intra vires, do not infringe upon the Habeas Corpus Acts in any way whatever, to take away any rights conferred by Magna Charta, for the simple reason that the Act and these Orders become part of the law of the land.
" This decision does not lay down any new rule of cons truction.
Parliament is supreme in England.
It its wisdom it did not take away the habeas corpus, but empowered the executive to issue regulations for public safety and defence of the nation.
The regulation made did not exceed the power conferred by the Parliament.
The House of Lords held that the detention was in accordance with law.
Nor does the controversial decision in Liverside vs Sir John Anderson(1), which was the subject of servere criticism in later years, lay down any such new rule of construction.
There, the Secretary of State, acting in good faith under reg.
18B of the Defence (General) Regulations, 1939, made an order in which he recited that he bad reasonable cause to believe a person to be of hostile associations and that by reason thereof it was necessary to exercise control over him and directed that that person be detained.
The validity of the detention turned upon the construction of the express provisions of reg.
18B of the said Regulations.
In that regulation the expression used was "reasonable cause to believe any person to be of hostile origin".
The House of Lords, by a majority, held that the expression meant that "the Secretary of State thinks fit to be reasonable".
There was a powerful dissent by Lord Atkin on the question of construction.
With the correctness of the construction put upon by the majority on the said provision we are not concerned ; but none of the learned law Lords laid down in their speeches any new rule of construction peculiar to war conditions.
Viscount Maugham observed : "My Lords, I think we should approach the construction of reg.
18B of the Defence (General) Regulations without any general presumption as to its (1) ; , 219, 251.
856 meaning except the universal presumption, applicable to Orders in Council and other like instruments, that, if there is a reasonable doubt as to the meaning of the words used, we should prefer a construction which will carry into effect the plain intention of those responsible for the Order in Council rather than one which will defeat that intention." Lord Atkin, in his dissenting judgment, protested against the strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.
Then he proceeded to observe : "The words have only one meaning.
They arc used with that meaning in statements of the common law and in statutes.
They have never been used in the sense now imputed to them." These observations by the dissenting Lord may at the most indicate that the majority in fact put a strained cons truction on the express words used in the regulation; but they do not show that they have laid down any such rule of construction.
This is made clear by Lord Macmillan when he stated: "In the first place, it is important to have in mind that the regulation in question is a war measure.
This is not to say that the courts ought to adopt in wartime canons of construction different from those Which they follow in peace time.
The fact that the nation is at war is no Justification for any relaxation of the vigilance of the courts in seeing that the law is duly observed,.
especially in a matter so fundamental as the liberty of the subject matter the contrary.
But in a time of emergency when the life of the whole nation is at stake it may well be that a regulation for the defence of the realm may quite properly have a meaning which because of its drastic invasion of the liberty of the subject the courts would be slow to attribute to a peace time measure.
The purpose of the regulation is to ensure public safety, and it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm.
That is in accordance with a general rule applicable to the interpretation of 857 all statutes or statutory regulations in peace time as well as in war time.
" These observations should be understood in the background of the earlier observation : "I do not agree that the critical phrase in the context in which I find it is susceptible only of one meaning, namely that for which the appellant contends.
Were it so it would be strange that several learned judges should have found it to possess quite a different meaning." This judgment, therefore, is no authority for the position for which it is relied upon.
The decision in substance says that the rule of construction of a statute is the same both in peace time and in war time and that when there is an ambiguity in the expressions used, the court may give such meaning to the words used which are capable of bearing that meaning as would promote rather than defeat the object of the legislation.
Indeed, the Privy Council, in Nakkuda Ali vs Jayaratna(1), confined the interpretation put upon reg.
18B of the Defence (General) Regulations, 1939, by a majority of the House of Lords to the particular cricumstances of that case and they did not accept that construction when similar words were used in the Regulation 62 of the Defence (Control of Textiles) Regulations, 1945.
I cannot, therefore, hold that the said decisions suggested a new rule of construction peculiar to war measures.
The rules of construction are the same in war time as well as in peace time.
The fundamental rule of construction is that the courts have to find out the expressed intention of the Legislature from the words of the enactment itself.
Where the language is unambiguous, no more is necessary than to expound those words in their natural and ordinary sense.
But where the words are ambiguous and reasonably capable of bearing two meanings, the court may be justified in adopting that meaning which would further the intention of the Legislature rather than that which would defeat it.
In the present case we are not dealing with a war measure, but a constitutional provision which was designed to govern the affairs of our country for all times so (1) L.R. 1 55 2 S C India/64.
858 long the Constitution remains in force ; and it cannot certainly be strained to meet a passing phase in a country 's life.
A strained construction put upon a statutory provison to meet a particular emergency may be rectified by a subsequent enactment.
But such a construction put upon a constitutional provision might entail serious consequences.
Even if Liversidge 's case(1) had laid down a new rule of construction, that construction cannot be invoked in the case of a constitutional provision.
In Gibbons vs Ogden(2) the following rule of construction of a constitutional provision is stated : "That which the words declare is the meaning of an instrument ; and neither Courts nor legislatures have the right to add or to take away from that meaning.
This is true of every instrument, but when we arc speaking of the most solemn and deliberate of all human writings those which ordain the fundamental law of states, the rule rises to a very high degree of significance.
It must ' be very plain, nay absolutely certain, that the people did not intend what the language they have employed in its natural signifi cation, imports, before a Court will feel itself at liberty to depart from the plain reading of a constitutional pro vision.
" No doubt a constitution should receive a fair, liberal and progressive construction so that the true objects of the instrument may be promoted ; but such a construction could not do violence to the natural meaning of the words used in particular provision of the Constitution.
The relevant provisions of section 491 of the Code read (1) Any High Court may, whenever it thinks fit, direct (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law ; (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty * * * * Bearing in mind the said rules of construction, I ask myself the question whether the exercise of the power un (1) ; (2) ; 859 der section 491 of the.
Code can be equated with a right to move the High Court to enforce such of the fundamental rights conferred by Part III of the Constitution as may be mentioned in the order of the President.
It is necessary to ascertain the correct scope of the section to answer the question raised before us.
The section is framed in wide terms and a discretionary power is conferred on the High Court to direct one or other of the things mentioned therein "whenever it thinks fit".
Unlike article 32 and article 226, the exercise of the power is not channelled through well recognized procedural writs or orders.
With the result the technicalities of such procedural writs do not govern or circumscribe the court 's discretion.
A short history of this section reinforces the said view.
Originally, the Supreme Courts in India purported to exercise the power to issue a writ of habeas corpus which the Kings ' Bench Division in England exercised.
In 1861 Parliament passed Acts 24 25 Vict.
104 authorising the establishment of High Courts of judicature in India.
The Letters Patents issued under that Act in 1865 were expressly made subject to the legislative powers of the Governor General in Council.
The courts were given the same jurisdiction, power and authority which the Supreme Courts possessed but subject to the legislative power of the Governor General in Council.
Pursuant to the power so conferred, the Governor General in Council passed successive Codes of Criminal Procedure in the years 1872, 1875, 1882;and,1898, and in 1923 by the Criminal Law (Amendment) Act, some of the provisions of the Code of 1898 were amended.
The High Courts Act of 1861 authorized the Legislature, if it thought fit, to take away the powers which the High Courts exercised as successor to the Supreme Courts, and Acts of Legislatures passed in 1872 and subsequent years had taken away the power of the High Courts to issue prerogative writs ; and instead a statutory power precisely defined was conferred upon the High Courts.
That statutory power underwent various changes and finally took the form of section 491 of the Code, as at present it stands.
The attempt to resuscitate the prerogative writs was rejected by the Calcutta High Court in Girindra Nath Banerjee vs Birendra Nath Pal(1) and (1) Cal.
727. 860 by the Madras High Court in District Magistrate, Trivandrum vs Mammen Mappillai(1).
The Privy Council in Matten vs District Magistrate, Trivandrum(2) approved the said decisions and held that the said Act.
,, have taken away the power of the High Courts to issue prerogative writs and thereafter the only power left in the High Court was that conferred by the statute.
By reason of article 372 of the Constitution, the Code of Criminal Procedure, including section 491 thereof, continued to be in force until altered, repealed or amended by the competent Legislature or other competent authority.
Article 225 of the Constitution expressly preserved the High Courts ' powers and jurisdiction, subject to other provisions thereof.
Admittedly, Parliament has not made any law repealing section 491 of the Code.
The statutory power conferred on the High Courts under that section is not inconsistent either article 32 or with article 226 or with any other Article in Part III or any other Chapter of the Constitution.
So, it cannot be held that section 491 of the Code has been impliedly superseded by article 226 even to the extent it empowers the High Court to give relief to persons illegally detained by the State.
Now what is the scope of that section? Though section 491 of the Code is remedial in form, it postulates the existence of the substantive right.
In India, as in England, the rule of law was the accepted principle.
No person can be deprived of his liberty except in the manner prescribed by the law of the land.
If a person is illegally or improperly detained in violation of the law of the land, the High Court can direct his release "whenever it thinks fit" so to do.
The section prima facie does not predicate a formal application ; nor does it insist that any particular person shall approach it.
The phraseology used is wide enough for the exercise of the power suo motu by the High Court.
Nor does the section introduce an antithesis between the exercise of jurisdiction on application and that exercised suo motu ; that is to say, even if an application was filed before the High Court and for one reason or other, no orders could be passed thereon, either because of procedural defect or because it was not pressed, (1) L.I.R. (2) L.R. (1939) 66 I.A. 222.
861 nothing prevents the High Court from acting suo motu ,on the basis of the information brought to its notice.
It is said that various High Courts framed rules regulating the procedure of the respective High Courts, but that fact is not much relevance in the matter of construing the section.
Shortly stated, the High Court is given an absolute discretion to direct a person, who has been illegally detained, to be released, whenever that fact is brought to its notice through whatever source it may be.
This juris diction existed long before the Constitution was made and long before the fundamental rights were conferred upon the people under the Constitution.
The rights, substantive as well as procedural, conferred under Part III and article 226 on the one hand and under section 491 of the Code on the other, are different.
Under articles 32 and 226, an affected party can approach the Supreme Court or the High Court, as the case may be, only in the manner prescribed under article 32(2) or article 226 i.e., by way of writs and orders mentioned therein : he must ask the court for the enforcement of this fundamental right.
The relief implies that he must establish that he has a fundamental right, that his fundamental right has been infringed by the State and, therefore, the Court should give the appropriate relief for the enforcement of that right.
Both the right as well as the procedure are the creatures of the Constitution.
Whereas section 491 of the Code assumes the existence of the "rule of law" and confers a power on the High Court to direct persons in illegal detention to be set at liberty.
It is not bound by any technical procedures envisaged by the Constitution.
If a person approaches the High Court alleging that he or some other person has been illegally detained, the Court calls upon the detaining authority to sustain the validity of the action.
The onus of proof lies on the custodian to establish that the person is detained under a legal process ; but if it fails to establish that the person is detained under law, the said person may be released.
It is true that the detaining authority will have to satisfy the court that the law under which the detention is made is a valid one.
It may also be true that in scrutinizing the validity of that law the court has to go into the question whether the law offends any of the fundamental rights mentioned 862 in Part III of the Constitution.
But that circumstance does not by any process of involved reasoning make the said proceeding one initiated in exercise of the right to move the High Court for the enforcement of the petitioner 's fundamental right.
The distinction between the two lies in the fact that one is an enforcement of a petitioner 's fundamental right and the other, a decision on the unconstitutionality of a law because of its infringement of fundamental rights generally.
Further, the right and the relief have a technical and specific significance given to them by the Constitution.
They cannot be equated with the mode of approach to the High Court under section 491 of the Code or with the expression"whenever it thinks fit" confers an absolute discretionon the court to exercise its power thereunder or not todo so, having regard to the circumstances of each case.
While the word "may" used in a statute was sometimes construed as imposing a duty on the authority concerned on whom a power is conferred to exercise the.
same if the circumstances necessitated its exercise, the expression "whenever it thinks fit" does Rot warrant any such limitation on its absolute discretion.
Though ordi narily a High Court may safely be relied upon to exercise its powers when the liberty of a citizen is illegally violated by any authority, the said unlimited discretion certainly enables it in extraordinary circumstances to refuse to come to his rescue.
The absolute discretionary jurisdiction conferred under section 491 of the Code cannot be put on a par with the jurisdiction conferred under article 226 of the Constitution hedged in by constitutional limitations ' A brief reference to decided cases on the scope of section 491 of the Code will make my meaning clear.
In Alam Khan vs The Crown(1), the Full Bench of the Lahore High Court has defined the scope of section 491 of the Code.
Ram Lall, J., who spoke for the majority, stated, after quoting the relevant part of the section "The language of the section places no limit on the class of person or persons who can move a High Court with relation to a person in custody and if the (1) Lahore 274, 303.
863 High Court on hearing the petition thinks fit.
to do so, may make an order that he be dealt with according to law.
" In Ramji Lal vs The Crown(1), a Full Bench decision of the East Punjab High Court, Mahajan, J., as he then was, defined the wide scope of the section thus "Whatever may be the state of English law on the subject so far as section 491 of the Criminal Procedure Code is concerned it has been very widely worded and confers Jurisdiction on the Court to issue directions whenever it thinks fit.
The Court may be moved by the prisoner or by some relation of his, or it may act suo motu if it acquires knowledge that a certain person has been illegally detained.
The mode and manner in which the judge has to be satisfied cannot affect the Jurisdiction conferred on him under section 491 of the Criminal Procedure Code.
" In King Emperor vs Vimlabai Deshpande(2), a police officer made an arrest of the respondents under sub rule I of r. 129 of the Defence of India Rules, 1939, which read : "Any police officer. . may arrest without warrant any person whom he reasonably suspects of having acted. . (a) in a manner prejudicial to the public safety or to the efficient prosecution of the war." ' The Judicial Committee held that the burden was upon the police officer to prove to the satisfaction of a court before whom the arrest was challenged that he had reasonable grounds of suspicion and that if he failed to discharge that burden, an order made by the Provincial Government under sub rule 4 of r. 129 for the temporary custody of the detenu was invalid.
As the police officer failed to discharge the onus, the Privy Council held that the High Court was right in ordering the release of the person from custody under section 491 of the Code of Criminal Procedure.
This shows that when a person is detained by a police officer, the burden of establishing that the detention is valid is on him.
These authorities well establish that section 491 of the Code does not contemplate any right to move a court by any affected party, but the court can exercise the (1) I.L.R. (1949).
II E.P. 28, 54.
(2) (1946) L.R. 73 I.A. 144.
864 statutory power whenever it thinks fit, if the fact of illegal detention of a person is brought to its notice.
The problem may be approached from a slightly different perspective.
Three questions may be posed, namely, (1) has any person the right to move the High Court under section 491 of the Code to enforce his fundamental right? (2) would it be necessary for a person detained or any other on his behalf to allege that the detenu has a fundamental right and that it has been infringed by State action and seek a relief for enforcement of that right? (3) would it be obligatory on the Court to enforce the right if the said right had been established? All the questions must be answered in the negative.
Under section 491 of the Code there is neither a right in the person detained to move the High Court for the enforcement of the fundamental right nor there is an obligation on the part of the High Court to give the said relief.
It is only a discretionary jurisdiction conceived as a check on arbitrary action.
There is another aspect of the question.
Article 359 has nothing to do with statutory powers conferred by Parliament.
Article 359 expressly deals with the constitutional right to move a court and the constitutional enforcement of that right.
So far as ordinary laws are concerned, Parliament can always amend the law, having regard to the circumstances obtaining at a particular point of time ; for instance, Parliament could have amended section 491 of the Code by repealing that section altogether or by suitably amending it.
Briefly stated, article 359 provides for the suspension of some constitutional rights in the manner prescribed thereunder.
The statutory rights are left to be dealt with by the appropriate Legislature in exercise of the powers conferred on them.
The argument that the intention of the makers of the Constitution in enacting article 359 would be defeated, if section 491 of the Code was salvaged, does not appeal to me.
If Parliament had amended section 491 of the Code, which it should have done if it intended to do so, this alleged anomaly pointed outby the learned Attorney General could not have arisen.
I would, therefore, hold that the expression "rightto move any Court for the enforcement of such of the rights conferred by Part III" could legitimately refer 865 only to the right to move under article 32 or article 226 of the Constitution for the said specific relief and could not be applied without doing violence to the language used to the exercise of the statutory power conferred on the High Courts under section 491 of the Code.
If that be so, the expression "all proceedings pending in any Court for the enforcement of the rights" used in the second limb of article 359 must also necessarily refer to proceedings initiated in exercise of the right to move envisaged in the first limb of the article.
I shall now proceed to consider some of the minor points raised at the Bar.
Another argument advanced on behalf of the respondents may also be briefly noticed.
It is said that while article 358 maintains the legislative incompetency to make laws in derogation of fundamental rights other than those enshrined in article 19, Art, 359 enables the President by an indirect process to enlarge the said legislative competency and, therefore, article 359 must be so read as to confine its scope only to executive acts.
I cannot agree.
Article 359 does not ex facie enlarge the legislative competency of Parliament or a State Legislature.
It does not enable them to make laws during the period covered by the order of the President infringing the fundamental rights mentioned therein.
It does not empower the Legislatures to make void laws ; it only enables the President to suspend the right to move the Court during the period indicated in his order.
Once that period expires, the affected party can move the Court in the manner prescribed by the Constitution.
Despite article 358 it may happen that void laws are made and executive actions are taken inadvertently or otherwise ; and article 359 is really intended to put off the enforcement of the rights of the people affected by those laws and actions till the expiry of the President 's order.
The invalidity of the argument would be clear if it was borne in mind that article 358 also saved executive acts infringing article 19, but nonetheless article 359 gave protection against the exercise of the right to move any court in respect of such acts not saved by article 358.
If the infringement of fundamental rights by executive action not saved by article 358 could not be a basis for the exercise of a right to move during the period of suspension, 866 by the same token, laws not saved by article 358 could not equally be the basis for such an action during the said.
period.
Be it as it may, the phraseology of article 359 is wide enough to comprehend laws made in violation of the specified fundamental rights.
Another argument advanced is, while article 358 read with article 13(1) and (2), maintained the constitutional position that all laws infringing fundamental rights other than that enshrined in article 19 would be void during the emergency, the President by issuing the order he did, indirectly, in effect and substance, validated the laws infringing Arts.14, 21 and 22, and, therefore, the issuing of the said order must be held to be a fraud on hi s powers.
This argument has no merits.
It is based upon a misapprehension of the doctrine of fraud on powers.
In the context of the application of the doctrine to a statutory law, this Court observed in Gullapally Nageswara Rao vs Andhra Pradesh Road Transport Corporation(1) thus : "The legislature can only make laws within its legislative competence.
Its legislative field may be circumscribed by specific legislative entries or limited by fundamental rights created by the Constitution.
The legislature can not overstep the field of its competency, directly or indirectly.
The Court will scrutinize the law to ascertain whether the legislature by device purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it.
If, in fact it has power to make the law, its motives in making the law are irrelevant.
" To the same effect are the observations in Gajapati Narayan Deo vs The State of Orissa(2).
On the same analogy, the President cannot overstep the limits of his power defined under article 359 of the Constitution.
So long as he does not exceed his power, the effect of his order made within bounds could not conceivably sustain the plea of fraud on powers.
Fraud on power implies that a power not conferred is exercised under the cloak of a power conferred.
But if an act can legitimately be referred to a power conferred the intention of the person exercising (1) [1959] Supp. 1 S.C.R. 319, 329.
(2 ) ; 867 the power or the effect of his exercise of the power is ir relevant.
Now, on the construction placed by me on article 359, the President has clearly the constitutional power ' to suspend the aforesaid right.
The fact that Parliament by taking shelter under that order may enforce void laws cannot make a valid exercise of a power of the President one in fraud of his power.
The next argument is that the order issued by the President is in excess of the powers conferred under article 359 of the Constitution.
Under article 359, the argument proceeds, the order made by the President can relate to a period or the whole or a part of the territory of India and cannot be confined to a class of persons.
As the order is restricted to persons that have.
been deprived of their rights under the Defence of India Ordinance, it is said that it is not sanctioned by the provisions of article 359.
There are no merits in this contention.
Under the order the right to move for the enforcement of the rights mentioned therein is suspended during the period of emergency and it applies to the entire country.
The fact that only persons, who are deprived of their rights under the Defence of India Ordinance, cannot exercise their right to move the Court does not make the order one confined to a class of persons.
The Ordinance has force throughout India and ex hypothesis only persons affected would move the Court.
That does not mean that the order is confined only to a class of persons.
The next contention is that the impugned section suffers from the vice of excessive delegation and that in any view the relevant rules framed are in excess of the power conferred upon the Government by the said Act.
I cannot agree with either of the two contentions.
On this aspect I have nothing more to add to that found in the judgment of my learned brother.
But the order made by the President still leaves the door open for deciding some, questions even under article 32 or article 226 of the Constitution.
The order is a conditional one.
, In effect it says that the right remains suspended if such person has been deprived of any such right under the Defence of India Ordinance, 1962, or under any rule or order made thereunder.
The condition is that the person should have been deprived of a right under the 868 Defence of India Ordinance or under any rule or order made thereunder.
If a person was deprived of such a right not under the Ordinance or a rule or order made thereunder, his right would not be suspended.
If the order was made in excess of the power conferred upon the Government by the said Ordinance, it would not be covered by that order.
If the detention was made mala fide, it would equally be not an order made under the Ordinance.
My view on the basis of the aforesaid discussion may be stated thus : (1) The detenus cannot exercise their right to enforce their fundamental rights under articles 21, 22 and 14 of the Constitution, during the period for which the said right was suspended by the President 's order.
(2) This does not preclude the High Court to release the detenus in exercise of its power under section 491 of the Code of Criminal Procedure, if they were imprisoned under a void law, though the voidness of the law arose out of infringement of their fundamental rights under articles 14, 21 and 22 of the Constitution.
(3) The President 's order does not preclude, even under article 32(1) and article 226 of the Constitution, the petitioners from proving that the orders of detention were not made under the Defence of India Ordinance or the Act either because they were made, (i) outside the provisions of the Ordinance of the Act, or (ii) in excess of the power conferred under them, or (iii) the detention were made mala fide or due to a fraudulent exercise of power.
I would close with a few observations.
In the view I have taken.
there are three courses open to Parliament : either it can make a valid law without infringing the fundamental rights other than those enshrined in article 19 or amend section 491 of the Code in order to maintain the enforcement of void laws, or do both.
It is not for me to suggest the right course.
In the result, the petitions will now go to the Constitution Bench for disposal on the said questions.
ORDER BY COURT In accordance with the opinion of the majority the constitutional points raised in the Appeals are dismissed.
Appeals to be set down individually before a Constitution Bench for dealing with the other contentions raised in each one of them.
| The appellants were detained under r. 30(l) of the Defence of India Rules made by the Central Government under section 3 of the Defence of India Ordinance, 1962.
They applied to the Punjab and Bombay High Courts under section 491(1)(b) of the Code of Criminal Procedure and their case was that sections 3(2)(15)(i) and 40 of the Defence of India Act, 1962, and r. 30(1)(b) of the Defence of India Rules, which were continued under the Act, were unconstitutional and invalid inasmuch as they contravened their fundamental rights under articles 14, 21, 22(4), (5) and (7) of the Constitution and that, therefore, they should be set at liberty.
The High Courts held that the Presidential Order which had been issued on November 3, 1962, under article 359(1) of the Constitution, after a declaration of emergency under article 352, consequent on the Chinese invasion of India, barred their right to move the said petitions and dismissed them.
These appeals raised two common questions in this Court, (1) what was the true scope and effect of the Presidential Order issued under article 359(1), and (2) did the bar created by the Order operate in respect of the applications under section 491(1)(b) of the Code.
The Presidential Order was as follows: "G.S.R. 1464 In exercise of the powers conferred by cl.
(1) of article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the right conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of article 352 thereof on the 26th October 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder.
" By a later amendment of the Order article 14 was incorporated into it.
798 Held:(per Gajendragadkar, Sarkar, Wanchoo, Hidayatullah, Das Gupta and Shah, JJ.) that the proceedings taken by the appellants in the High Courts under section 491(1)(b) of the Code were hit by the Presidential Order and must be held to be incompetent.
Article 359 of the Constitution was not capable of two interpretations and it was, therefore not necessary to decide the controversy raised by the parties as to whether that Article should be interpreted in favour of the President 's power granted by it or the fundamental rights of the citizens.
The King (At the Prosecution of Arthur Zadig) vs Halliday, ; , Liversidge vs Sir John Anderson, ; , Keshav Talpade vs The King Emperor, [1943] F.C.R. 49, Nakkuda Ali vs M. F. De section Jayaratne, and King Emperor vs Vimalabal Deshpande, L.R. 73 1. A. 144, considered.
The words 'any court ' in article 359(1), construed in their plain grammatical meaning, must mean any court of competent jurisdiction including ' the Supreme Court and the High Courts before which the rights specified in the Presidential Order can be enforced.
It was not correct to say that the use of the words was necessary so as to include such other courts as might be empowered in terms of article 32(3).
Nor was it correct to say that the words could not include a High Court as its power to issue a writ under article 226(1) was discretionary.
In judging whether a particular proceeding fell within the purview of the Presidential Order the determining factor was not its form nor the words in which the relief was couched but the substance of it.
If in granting the relief the court had to consider whether any of the fundamental rights mentioned in the Presidential Order, had been contravened, the proceeding was within the Order, whether it was under article 32(l) or 226(1) of the Constitution.
The right to move the court for writ of habeas corpus under section 491(1)(b) of the Code of Criminal Procedure was now a statutory right and could no longer be claimed under the common law.
Girindra Nath Banerjee vs Birendra Nath Pal I.L.R. 54 Cal.
727, District Magistrate, Trivandrum vs K. C. Mammen Map pillai, I.L.R. , Matthen vs District Magistrate, Trivandrum L.R. 66 I.A. 222 and King Emperor vs Sibnath Banerji, L.R. 72 I.A. 241, referred to.
Since the promulgation of the Constitution the two methods by which a citizen could enforce his right of personal freedom were (i) by a writ under article 226(1) or article 32(l), or (ii) under section 491(1)(b) of the Code of Criminal Procedure.
Whichever method he adopted if the right he sought to enforce was a fundamental right guaranteed by the Constitution the matter must, come within article 359(1) of the Constitution.
That the court could exercise its power under section 491(1)(b) suo motu could make no 799 difference and articles 372, 225 or 375 could provide no valid ground of attack.
The suspension of the right to move any court, as under the Presidential Order, must necessarily suspend the Court 's jurisdiction accordingly.
The right to challenge a detention order under section 491(1)(b) of the Code had been enlarged by the fundamental rights guaranteed by the Constitution and when a detenu relied upon such rights in his petition under that section he was in substance seeking to enforce his fundamental rights.
The prohibition contained in article 359(1) and the Presidential Order must, therefore, apply.
The expression "right to move any court" in article 359(1) and the Presidential Order takes in all legal actions, filed or to be filed, in which the specified rights are sought to be enforced and covers all relevant categories of jurisdictions of competent courts under which the said actions would other wise have been normally entertained and tried.
Sree Mohan Chowdhury vs Chief Commissioner Union Territory of Tripura, ; , referred to.
Even though the impugned Act may be invalid by reason of contravention of articles 14, 21 and 22, as contended by the appellants, that invalidity could not be challenged during the period prescribed by the Presidential Order and it could not be said that the President could not because of such invalidity issue the order.
Where, however, the challenge to the validity of the detention order was based on any right other than those mentioned in the Presidential Order, the detenu 's right to move any court could not be suspended by the Presidential Order because the right was outside article 359(1).
Where again the detention was challenged on the ground that it contravened the mandatory provisions of the relevant act or that it was malafide and was proved to be so and in all cases falling under the other categories of section 491(1) of the Code excepting those under section 491(1)(b), the bar of the Presidential Order could have no application.
So also the plea that the operative provision of the law under which the order of detention was made suffered from the vice of excessive delegation, was an independent plea not relatable to the fundamental rights mentioned in the Presidential Order and its validity had to be examined.
The plea that section 3(2)(15)(i) and section 40 of the impugned Act suffered from excessive delegation must fail.
The legislative policy was broad stated in the preamble and the relevant provisions of sections 3(1) and 3(2) gave detailed and specific guidance to the rule making authority and it was not correct to say that the Act had by the impugned sections delegated essentially legislative function to that authority.
Rule 30(1)(b) which was consistent with the operative provisions of the Act could not also be challenged on that ground.
800 In " The etc.
; , Harishankar Bagla vs The State of Madhya Pradesh, , Bhatanagars and Co. Ltd., vs The Union of India, ; , relied on.
The impugned Act could not also he struck down as a piece of colourable legislation because the , was already on the Statute book.
The Parliament had power under Entry 9, List I of the Seventh Schedule to the Constitution and if in view of the grave threat to the security of India it passed the Act, it could not be said to have acted malafide.
If the Parliament thought that the executive would not be able to detain citizens reasonably suspected of prejudicial activities by a recourse to the , which provided for the required constitutional safeguards and the impugned Act which it enacted did not, it could not be suggested that it was acting malafide.
Even if the impugned Act contravened articles 14 and 22 and the detentions thereunder were invalid, article 359(1) and the Presidential Order, which were precisely meant to meet such a situation, barred investigation on the merits during the period prescribed by the Order.
The proceeding under section 491(1)(b) of the Code is one pro ceeding and the sole relief that can be claimed under it is release from the detention.
If that could not be claimed because of the Presidential Order it was unreasonable to say that a mere declaration that the impugned Act and the detention thereunder were invalid could be made.
Such a declaration is clearly outside the purview of section 491(1)(b) of the Code as also of articles 226(1) and 32(l) of the Constitution.
The period for which the emergency should continue and the restrictions that should be imposed during its continuance are matters that must inevitably be left to the executive.
In a democratic state the effective safeguard against any abuse of power in peace as also in emergency is the existence of enlightened, vigilant and vocal public opinion.
Liversidge vs Sir John Anderson, [19421 A.C. 206, referred to.
The inviolability of individual freedom and the majesty of law that sustains it are equally governed by the Constitution which has made this Court the custodian of the fundamental rights on the one hand and, on the other, provided for the declaration of the emergency.
Consequently, in dealing with the right of a citizen to challenge the validity of his detention, effect must be given to article 359(1) and the Presidential Order issued under it.
The right specified in that Article must be held to include such right whether constitutional or constitutionally guaranteed and the words "any court" must include the Supreme Court and the High Court.
The Punjab and the Bombay High Courts were, therefore right in their decision that the applications under section 491(1)(b) of 801 the Code were incompetent in so far as they sought to challenge the validity of the detentions on the ground that the Act and the Rules under which the orders were made contravened articles 14, 21 and 22(4)(5) and (7) of the Constitution.
Per Subba Rao, J. It was clear that section 3(2)(15)(i) of the Defence of India Act, 1962, and r. 30(1)(b) made under the Act contravened the relevant provisions of article 22 of the Constitution and were, therefore, void.
Deep Chand vs The State of Uttar Pradesh, [1959] Supp. 2 S.C.R. 840, Mahendra Lal vs State of U.P., A.I.R. 1963 S.C. 1019, A. K. Gopalan vs State of Madras, ; , referred to.
Under the Constitution, every person has a right to move the Supreme Court, the High Courts or any other court or courts constituted by the Parliament under article 32(3) for the enforcement of fundamental rights in the manner prescribed.
But while the right to move the Supreme Court is a guaranteed right, the right to move the others is not so.
Article 359, properly construed, meant that the bar imposed by the Presidential Order applied not only to the guaranteed right to move the Supreme Court but also the rights to move the other courts under article 32 and article 226 of the Constitution.
There is no new rule of construction peculiar to war measures.
It is always the same, whether in peace or in war.
The fundamental rule is that the courts have to find out the expressed intention of the Legislature from the words of the enactment itself.
Words must be given their natural and ordinary meaning unless there is ambiguity in the language in which case the court has to adopt that meaning which furthers the intention of the Legislature.
A constitutional provision such as article 359, however, cannot be given a strained construction to meet a passing phase such as the present emergency.
Rex vs Halliday, L.R. [19171 A.C. 260, Liversidge vs Sir John Anderson; , , Nakkuda A1i vs jayaratna, , Gibbon vs Ogden, (1824) 6 L. Ed. 23, discussed.
Section 491 of the Code of Criminal Procedure is wide in its terms and gives a discretionary power to the High Courts.
Unlike articles 32 and 226, the exercise of the power is not channelled through procedural writs or orders and their technicalities cannot circumscribe the court 's discretion.
Girindra Nath Banerjee vs Birendra Nath Pal, (1927) I.L.R. , District Magistrate, Trivandrum vs Mammen Mappillai, I.L.R. , Matten vs District Magistrate, Trivandrum, L.R. (1939) 66 I.A. 222, referred to.
Section 491 is continued by article 372 and article
225 preserves 802 the jurisdiction of the High Court.
The power it confers on the High Court is not inconsistent either with article 32 or article 226 or any other Article of the Constitution and the section cannot, therefore, be said to have been impliedly superseded even to the extent article 226 empowers the High Court to give relief in cases of illegal detention.
Though remedial in form the section postulates the existence of the substantive right that no person can be deprived of his liberty except in the manner prescribed by law.
It assumes the existence of the rule of law and empowers High Court to act suo motu.
The rights, substantive and procedural conferred by it arc different from those under articles 32 or 226 of the Constitution.
It places the onus on the custodian to prove that the detention is legal and although in scrutinising the legality of the detention the court may have to consider whether the law offends any fundamental rights, that cannot make the proceeding one for the enforcement of fundamental rights or the decision anything but one on the unconstitutionality of a law because of infringement of fundamental rights generally.
The mode of approach to the High Court under section 491 of the Code or the nature of the relief given thereunder cannot be equated with those under the Constitution.
The absolute discretionary jurisdiction under it cannot be put on a par with the jurisdiction under article 226 which is hedged in by constitutional limitations.
Alam Khan vs The Crown, Lahore 274, Ramji Lal vs The Crown, I.L.R. (1949) 11 E.P. 28, King Emperor vs Vimlabai Deshpande, (1946) L.R. 73 I.A. 144, referred to.
While section 491 gives no right to enforce fundamental rights, operating as it does as a check on arbitrary action, article 359 is concerned not with statutory powers but deals with the constitutional right and the constitutional enforcement of it.
It was not, therefore, correct to say that article 359 would be frustrated if section 491 was allowed to stand for Parliament might amend that section any time it liked.
The expression "right to move any court for enforcement of such of the rights conferred by Part 111" in article 359 must refer only to the right to move under article 32 or article 226 for the said specific relief and could not be applied to the exercise of the statutory power of the High Courts under section 491 of the Code and, consequently, the expression "all proceedings pending in any court for the enforcement of the rights" must refer to the proceedings initiated in exercise of that right.
The detenus could not, therefore, enforce their fundamental rights under articles 21, 32 and 14 while the Presidential Order lasted, but that did not affect the High Court 's power under section 491 of the Code.
The President 's Order cannot bar the detenus from proving even under articles 32(l) and 226 that the detentions were not made 803 under the Defence of India Ordinance or the Act as they were outside the Ordinance or the Act or in excess of the power conferred by them or that the detentions were made malafide or in fraudulent exercise of power.
|
Subsets and Splits