8.C.R.

SUPREME COURT REPORTS 1129

of taxation by.the 1:-itate of Bombay. Eal'h party \rill bear and pay its own costs throughout.

Appeal allowed:

RAM PRASAD NARAYAN SABI AND ANOTHER

THE STATE OF BIHAR AND OTHERS

[PATANJALI SASTRI C. J., MuKHERJEA, VrnAN BosE,

GHULAM HASAN and BHAGWATI JJ.]

Constitution of India, 1950, arts. 13, 14-Sathi Lands (llestoralion) Art, 1950-Law dcclarinu "ltlcment of land with partimlm individtial void-Validity-Infrinuement of fundamental riuht to cq1wl prntection of the laws - Di.1cri111ination-Pre.1mn1>tion of rea8onablencss.

The Court of Waras granted to the appellants a large area ol land belonging to the Bettiah Raj which was then under the management of the Court of Wards, on the recommendation of the Board of Revenue, at half the usual rates. A few years later, \lie Working Committee of the Indian National Congress expressed the opinion that the settlement of the lands was against public interest, and in 1950, the Bihar Legislature passed an Act called the Sathi Lands (Restoration) Act, 1950, which declared that, notwithstanding anything contained in any law for the time being in force the settlement granted to the appellants shall be null and void and that no party to the settlement or his successors in interest shall be deemed to have acquired any right or incurred any liability thereunder, and empowered the Collector to eject the appellants if they refused to restore the lands. The appellants, alleging that the Act was unconstitutional, applied under article 226 of the Constitution for a writ of mandamus against the State of Bihar restraining it from taking any action under the Act. It was found that there were several other settlements of lands belonging to the Bettiah Raj on similar terms against which the Government had taken no action: Held, that the dispute between the appellants and the Stale was really a private dispute and a matter to be determined by a judicial tribunal in accordance with the law applicable to the case, and, as the Legislature had, in passing the impugll'ed enactment singled out the appellants and deprived them of their right to

'l.'he State of Bonibay and A not.her

v. 'llftc United ,\{ otors (India) Ltd. and Others.

Bhagwari J.

1130 SUPREiIE COURT REPORTS (1953]

1953 have this dispute adjudicated upon by a duly coostitubed Court, the enactment contravened the provisions of article 14 of the Ram Pr<Uad Constitution which guarantees to every citizen the equal protec- Narayan Salii tion of the laws, and was void. and Another Legislation which singles out a particular individual from his v.

Tiu, Rtalp, of Bihar and

Other8.

fellow subjects and visits him with a disability which is not imposed upon the others and against which even the right of complaint is taken away is highly discriminatory.

Though the presumption is in favour of the constitutionality - of a legislative enactment and it has to be presumed tbat a Legis- Patan.iaJi Sa.tri lature understands and correctly appreciates tbe needs of its own

0. J. people, yet when on the face of a statute tbere is no classification at all, and no attempt has been made to select any individual or group with reference to any differentiating attribute peculiar to that individual or group and not possessed by others, this presumption is of little or no assistance to the State.

Amecr1lnnissa Beu nm v. Jlfah/Joob Begum [1953] S.C.R. 404 and Gnlf of Colorado etc. Co. v. Ellis [165 U.S. 150] referred to.

CIVIL

APPELLATE

JURISDICTION: Civil Appeal No. 59 of 1952.

Appeal from the Judgment and Order dated 3rd January, 1952, of the High Court of Judicature at Patna (Ramaswami and Sarjoo Prosad JJ). in an application under article 226 of the Constitution registered as Miscellaneous Judicial Case No. 204 of 1950.

Original Petition No. 20 of 1952 under article 32 of the Constitution was also heard along with this appea.

P. R. Das (B. Sen, with him) for the appellants.

JV!. C. Setalvad, Attorney-General for India, and Jliahabir Prasad, Advocate-General of Bihar (G. N.

Joshi, with them) for the respondents.

1953. February 20. The court delivered judgment as follows :- p ATANJALI SASTRI c. J.-I concur in the judgment which my learned brother Mukherjea is about to deliver, but I wish to add a few words in view of the important constitutional issue involved.

The facts are simple. The appellants obtained a settlement Bf about 200 bikhas of land in a village known as Sathi Farm in Bettiah Estate, in Bihar,

then and ever since in the management of the Court 19;3 of Wards on behalf of the disqualified proprietress who is the second respondent in this appeal. The lands Ram Prasad Narayan Saki were settled at the prevailing rate of rent but the and Another salami or premium payable was fixed at half the usual v. rate as a concession to the appellants who are said to ~'he State af be distant relations of the proprietress. The appel- Bihar and ]ants paid the salami and entered into possession of Others. the lands on the 2nd November, 1946, and P t -:-

1. 8 . h , b . h ] ] O aania i astri ave smce een paymg t e rents regu ar y. n the o. J. 13th June, 1950, the Bihar Legislature passed an Act called the Sathi Lands (Restoration) Act, 1950. The genesis of this legislation is thus explained in the counter-affidavit filed on behalf of the State of Bihar, the first respondent herein.

Report against the settlement of these lands with the petitioners as well as some other lands to Sri Prajapa ti Mishra and the nnlawful manner in which these settlements were brought abont, was carried to the Working Committee of the Indian National Congress,

which body, after making such enquiry as it thought fit, came to the conclusion that the settlement of these lands with the petitioners was contrary to the pro visions of law and public policy and recommended that steps should be to taken by the State of Bihar to have these lands restored to the Bettiah Estate. In pursuance thereof a request was made to the petitioners and to the said Prajapati Mishra to return the lands to Bettiah Estate. \Vhile Sri Prajapati Mishra returned the land settled with him, the petitioners refused to do so.

The Statement of Objects and Reasons of the Sathi Lands (Restoration) Bill runs thus :

"As it has been held that the settlement of Sathi lands in the District of Champaran under the Court of Wards with Sri Ram Prasad Narayan Sahl and Shri Ram Rekha Prasad Narayan Sahi is contrary to the provisions of the law and as Sri Ram Prasad Narayan Sahi and Sri Ram Rekha Narayan Sahi havtl refused to return the lands to the Bettiah Estate, Government

SUPREME COURT REPORTS [1953)

have decided to enact a law to restora these lands to the Bettiah Estate." Ram Prasad Narayan sahi The impugned Act consists of three sections. Secand Another tion 2(1) declares that "notwithstanding anything v.

The State of Bihar and

Others.

contained in any law for the time being in force", the settlement obtained by the appellants is "null and void", and that "no party to the settlement or his successor in interest shall be deemed to have Potanjali Sastri acquired any right or incurred any liability therea. J, under". Sub-section (2) provides that the appellants and their successors in interest "shall quit possession of the said land from the date of commencement of this Act and if they fail to do so, the Collector of Champaran shall eject them and restore the lands to the possession of the Bettiah vVards Estate". Subsection (3) provides for the refund of the amount of salami money and the cost of improvement, if any, to the lessees by the estrtte on restomtion to it of the fands in question.

In the "case" lodged in this court for the State of Bihrtr, the legislrttion is sought to be justified and its validity maintained on the following grounds :

" It is well settled thrtt a Legislature with ph>nary powers so long as it enacts faws within the ambit of its powers, is competent to enrtct a law which may be applicable generally to society or to an individual or a class of individuals only ... It is submitted that grants of the lands belonging to the Bettiah Estate made by the Court of Wards were of doubtful validity; hence they have been dealt with by the impugned Act ... No evidence has been adduced by the appellants, except a bare allegation, which has not been substantiated, that about 2000 acres of land were settled to show that persons in similar circumstances with whom similar settlements were made, were treated differently. It is submitted that in the context the impugned Act has a reasonable basis of classification."

The decision of the majority of this Court in Ohiranjit Lal v. The Union of India(') is relied on in support of these contentions.

In that case, however, the

(1) [1950] S, C.R; 869,

majority felt• justified in upholding the legislation,

195J

though it adversely affected the rights and interest of Ram Pra.ad the shareholders of a particular joint stock company, Narayan SaM

because the mismanagement of the company's affairs and Another prejudicially affected the production of an essential v. commodity and caused serious unemployment amongst The State 0! .._, Bihar and a section of the community. Mr.Justice Das and I took Others. the view that legislation directed against a particular _ named person or corporation was obviously discri- Potan, ialiSastri minatory and could not constitutionally be justified a. J. even if such legislation resulted in some benefit to the public. In a system of government by political parties, I was apprehensive of the danger inherent in special enactments which deprive particular named persons of their liberty or property because the Legislature thinks them guilty of misconduct, and I said in my dissenting opinion:

"Legislation based upon mismanagement or other misconduct as the differentia and made n, pplicable to a specified individ1ml 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 judicial encouragement."

My apprehensions have come true. Recently we had before us a case from Hyderabad (Civil Appeal No. 63 of 1952~Ameerunnissa Begum v. Mahboob Begum)' where the duly constituted legislative authority of that State intervened in a succession dispute between two sets of rival claimants to the estate of a deceased person and " dismissed " the claim of the one and adjudged the property to the other by making a special "law" to that effect. And now comes this case from Bihar of an essentially similar type. The appellants assert title to certain lands in Bettiah Estate under a settlement which they claim to have lawfully obtained from the Court of Wards, while it is now alleged on behalf of the Estate that the settlement was not for the benefit of the Estate and was contrary to law, as the Court of Wards did not then ".apply its

(r) Since reported as [1953) S.C.R. 401.

!47

1963 mind " to that question. This is purely.a dispute between private parties and a matter for determination Ram Prasad by duly constituted courts to which is entrusted, in Narayan Sahi f and Another every free and civilised society, the important unction v. of adjudicating on disputed legal rights, after ob.

The State of serving the well established procedural safeguards Bihar and which include the right to be heard, the right to Others. produce witnesses and so forth. This is the protection

Patanjali Sastii which the .law. guaranes equally o all persons, and

c. J. our Constitut10n proh1b1ts by artwle 14 every State from denying such protection to anyone. The app ellants before us have been denied this protection. A polihical organisation of the party in power decides after making such enquiry as it thought fit, that the settlement in question was " contrary to the provisions of law and public policy" and the State Legislature, basing itself on such decison, purports to declare the settlement "null and void " and directs the eviction of the appellants and the restoration of the lands to the Estate. The reasons given for this extraordinary procedure are indeed remarkable for their disturbing implications. It is said that "there was agitation amongst the tenantry of the locality and opposition on the part of persons living in the locality against the appellants' possession of the lands which led to breach of the peace and institution of criminal cases". Whenever, then, a section of the people in a locality, in assertion of an adverse claim, disturb a person in the quiet enjoyment of his property, the Bihar Government would seem to think that it. is not necessary for the police to step in to protect him in his enjoyment until he is evicted in due course of law, but the Legislature could intervene by making a "law " to oust the person from his possession. Legislation such as we have now before us is calculated to drain the vitality from the rule of law which our Constitution so unmistakably proclaims, and it is to be hoped that the democratic process in this country will not function along these lines.

MuKHEaJEA J.-This appeal, which has come before us on a certificate granted by the High Court of

Patna under article 132 (1) of the Constitution, is directed agaimt a judgment of a Division Bench of that court, dated 3rd January, 1952, by which the learned Judges dismissed a petition of the appellants under article 226 of the Constitution. The prayer in the petition was for a writ in the nature of mandamus, directing the opposite party, not to take any action, under an Act passed by the Bihar Legislative Assembly in 1950 and known as The Sathi Lands (Restoration) Act which was challenged as void and unconstitutional.

To appreciate the points in controversy between the parties to the proceeding, it may be necessary to nar. rate the material facts briefly. Maharani Janki Koer, the respondent No. 2 in the appeal, is the present proprietress of an extensive Estate in Bihar known by the name of Bettiah Raj, which is held and managed on her behalf by the Court of Wards, Bihar, constituted under Bengal Act IX of 1879. On 19th July, 1946, the appellants, who are two brothers and are distantly related to the Maharani, made a representation to the Government of Bihar through the Manager of the Estate, praying for settlement in raiyati right, of 200 bighas of land preferably in Sathi farm or Materia farm along with a certain quantity of waste lands. On 20th July, 1946, the then Manager of the Wards Estate wrote a letter to the Collector of Champaran recommending that the applicants might be given settlement of the lands as prayed for, without payment of any selami. The Collector, however, did not agree to this proposal, nor did the Commissioner of the Tirhut Division, and the matter then came up for consideration before the Board of Revenue which recommended that settlement might be made with the applicants provided they were agreeable to pay selami at half the usual rates. On 14th October, 1946, the recommendation of the Revenue Board was accepted by the Provincial Government and six days later the Court of Wards accepted a cheque for Rs. 5,000 from one of the lessees, towards payment of the selami money and rent for the year 1354 1''.S. On the 2nd November, 1946., possession

191J3

Ram Prasad Narayan Sahi

and Another v.

The State of Bihar and

Others.

Mukherjea J.

Ram Prasad Narayan Sahi

and Another v.

The State of Bihar and

Others.

Mukherjea J.

of the lands was given to the appellants and on the 18th of November following, the Manager of the Court of Wards recorded a formal order fixing the selami of the land at Rs. 3,988 annas odd and rent at Rs. 797 annas odd per year.

On the same day, a Hisab Bandobasti form, which is the usual form employed in the Estate for raiyati settlements, was signed by the Circle Officer on behalf of the Court of Wards and bv one of the lessees for himself as well as the constituted attorney of the other lessees. It is not disputed that the lessees continued to possess the lands since then on payment of the stipulated rent.

On the 3rd June, 1950, the Bihar Legislative Assembly passed an Act known as The Sathi Lands (Restoration) Act which received the assent of the Governor on the 13th IJune, 1950.

The object of the Act, as stated in the preamble, is to provide for restoration of certain lands belonging to the Bettiah Wards Estate which were settled contrary to the provisions of law in favour of certain individuafa. Section 2, which is the only material section in the Act, enacts in the first sub-section that the settlement of Sathi lands (described in the schedule to the Act) on behalf of the Bettiah Court of Wards Estate with the appellants, as per order of the Manager of the Estate dated the 18th November, 1946, is declared null and void and no party to the settlement or his successor-in-interest shall be deemed to have acquired any right or incur any liability under the same.

The second sub-section em bodies a direction to the effect that the said lessees and their successor-in-interest shall quit possession of the lands from the date of the commencement of the Act and if they fail to do so, the Collector of Champaran shall eject them and restore the lands to the possession of the Bettiah Estate. The third and the last sub-section provides that the Bettiah Wards Estate shall on restoration to it of the lands pay to the lessees the selami money paid by them and also such amount as might have been spent by them in making improvements on the lands prior to the commencemen~ of the Act.

In substance, therefore, the Act declared the lease granted by the Bettiah Wards Estate to the appellants on the 18th November, 1946, to be illegal and inoperative and prescribed the mode in which this declaration was to be given effect to and the lessees evicted from the lands.

On the 28th August, 1950, the appellants filed the petition, out of which this appeal arises, under article 226 of the Constitution in the High Court of Patna, challenging the validity of The Sathi Lands Act and praying for a writ upon the respondents restraining them from taking any steps under the said Act, or from interfering with the possession of the appellants in respect of the lands comprised in the lease. It was asserted by the petitioners that in passing the impugned legislation the Bihar Legislature actually usurped the power of the judiciary and the enactment was not a law at all in the proper sense of the expression. The other material contentions raised were that the legislation was void as it conflicted with the fundamental rights of the petitioners guaranteed under articles 14, 19(1) (f) and 31 of the Constitution.

The respondents opposite parties in resisting the petitioners' prayer stated inter alia in their counteraffidavit that the settlement of the lands in question with the appellants by the Court of Wards, was not for the benefit of the estate or advantage of the ward and that the transaction was entered into by the Wards Estate without properly applying their mind to it. It was stated further that after the settlement was made, there was a good deal of agitation among the tenants in the locality which led to the institution of certain criminal proceedings.

In these circumstances, the matter was brought to the notice of the Working Committee of the Indian National Congress and the Working Committee was of opinion that t, he settlement of these lands was against public interest. The lessees, therefore, were asked to vacate the lands and on their refusal the legislation in question was passed.

The petition was heard by a Division Benclj consisting of Ramaswami and Sarjoo PershadJJ. Ramaswami J .

Ra1n Prasad Narayan Sa hi and Another

The State of Bihar and

Others.

M ukherjea J.

Ram Prasad Narayan Sahi

and Another v.

The State of Bihar and Others.

Mukherjea J.

decided all the points raised by the petitioners against them and held that the Act wa~ neither ultra vires the Bihar Legislature nor was void under article 13(1) of the Constitution. The learned Judge was further of opinion that it was not a fit case for interference by the High Court under article 226 of the Constitution.

The other learned Judge expressed considerable doubts as to whether a legislation of this type, which in form and substance was a decree of a court of law, was within the competence of the legis lature and warranted by the Constitution. He agreed, however, with his learned colleague that the case was not such as to justify an interference of the High Court in exercise of its discretionary powers under article 226 of the Constitution. The remedy of the petitioners might lie, according to him, in a regularly constituted suit. The result, therefore, was that the appellants' petition was dismissed and it is the pro priety of this judgment that has been assailed before us in this appeal.

Mr. P.R. Das, who appeared in support of the appeal, put forward at the forefront of his arguments, the contention raised on behalf of his client in the court below that the impugned legislation was void by reason of its violating the fundamental rights of the appellants under article 14 of the Constitution. The point appeared to us to be of substance and after hearing the learned Attorney.General on this point we were satisfied that the contention of Mr. Das was well founded and entitled to prevail, irrespective of any other ground that might be raised in this appeal.

There have been a number of decisions by this court where the question regarding the nature and scope of the guarantee implied in the equal protection clause of the Constitution came up for consideration and the general principles can be taken to be fairly well settled.

What this clause aims at is to strike down hostile dis crimination or oppression or inequality. As the guarantee applies to all persons similarly situated, it is certainly open to the legislature to classify persons and things to achieve particular legislative objects;

1963 but such selection or differentiation must not be arbitrary and should rest upon a rational basis, having regard to the object which the legislature has in /lam Prasad Narayan Sahi view. It cannot be disputed that the legislation in and Another the present case has singled out two individuals and v. one solitary transaction entered into between them The State of and another private party, namely, the Bettiah Wards Bihar and Estate and has declared the transaction to be a nullity Others. on the ground that it is contrary to the provisions of Mukherjea J. law, although there has been no adjudication on this point by any judicial tribunal. It is not necessary for our present purpose to embark upon a discussion as to how far the doctrine of 'separation of powers has been recognised in our Constitution and whether the legislature can arrogate to itself the powers of the judiciary and proceed to decide disputes between private parties by making a declaration of the rights of one against the other. It is also unnecessary to attempt to specify the limits within which any legislation, dealing with private rights, is possible within the purview of our Constitution. On one point our Constitution is clear and explicit, namely, that no law is valid which takes away or abridges the fundamental rights guaranteed under Part III of the Constitution.

There can be no question, therefore, that if the legislation in the present case comes within the mischief of article 14 of the Constitution, it has got to be declared invalid. This leads us to the question as to whether the impugned enactment is, in fact, discriminatory and if so, whether the discrimination made by it can be justified on any principle of reasonable classification ?

The appellants, it is not disputed, are only two amongst numerous leaseholders who hold lands in raiyati right under the Bettiah Wards Estate. It cannot also be disputed that the lands were settled with them on the recommendation of the Board of Revenue after due consideration of the respective views put forward by the Manager of the Estate on the one hand •

and the Collector and the Divisional Commissioner on the other. The appellants are admitteqly paying rents which lj.re l!Ormall! assessed on lands 9f imilar

SUPREME COURT REPORTS [1953]

1953 description in the locality. The leaooed Attorney-

R P d General referred in this connection to the provisions am rasa .

Narayan Sahi of section 18 of the Court of Wards Act and argued that and Anather the lease in dispute was granted in contravention of

v. that section. Section 18 of the Court of Wards Act The State of provides as follows :

BombC!Ji. and r Others. "The Court may sanction the giving of leases or farms of any property under its charge ... and may Mukherjea J. direct the doing of all such other acts as it may judge to be most for the benefit of the property and the advantage of the Ward".

Apparently it makes the Court of Wards the sole judge of the benefit to the estate or advantage of the ward.

But it is said that the Court of Wards did not apply its mind properly to this matter when it granted lease to the appellants at half the usual rate of selami.

The Wards Estate thus suffered loss to the extent of nearly Rs. 4,000 which could legitimately have been recovered from any other lessee.

This contention does not impress us much; the utmost that can be said is that this could have been put forward, for what it is worth and with what result, nobody can say, as a ground for setting aside the lease in a court of law.

But that is not the question which is relevant for our present purpose at all; we were not called upon to decide whether or not the lease was a proper one or beneficial to the estate. The question for our decision is, whether the statute .contains discriminatory provisions so far as the appellants are concerned and if so, whether these discriminations could be reasonably justified ? It is clearly stated in paragraph 9 of the affidavit made by the appellants in support of their petition that there are numerous other persons to whom leases on similar terms were granted by the Bettiah Wards Estate. Clauses (b), (c) and (d) of paragraph 9 of the affidavit E:tand thus:

"(b) In this long course of management by the Court of Wards, leases or settlement of lands used to be made without any selami, on proper rent. This state of affairs continued down to recent times during

which period. thousands of bighas were so settled with 1953 numerous persons;

(c) in 1945 the authorities decided to make settlements on large scale with war returned soldiers on a selami equal to 5 times the average rent prevailing in the locality for similar lands ;

(d) in 1946, 1947, 1948 and 1949 a good number of settlements covering about 2000 acres of lands were settled on the basis of 10 years' rental obtaining in the locality and in some cases for good reasons, at five years' rental."

In paragraph 12 of the counter-affidavit put in on behalf of the respondents, these statements are not denied. In fact, they are admitted and the only thing said is, that these leases were granted in due course of management.

Ramaswami J. has dismissed this part of the case by simply remarking that no details of these settlements were furnished by the appellants; but no details were at all necessary when the correctness of the statements was not challenged by the respondents. It will be interesting to note that the respondents themselves in paragraph 10 of their counter-affidavit mentioned the name of Shri Prajapati Mishra as one of the persons with whom similar settlement of lands was made by the Bettiah Estate. It is stated in that paragraph that the cases of the appellants as well as of Prajapati Mishra were brought to the notice of the \Vorking Committee of the Indian National Congress and the Committee came to the conclusion that both the settlements were contrary to the provisions of law. Thereupon a request was made to both these sets of lessees to restore their lands to the Estate, but whereas Prajapati Mishra returned his lands to the Bettiah Estate, the appellants refused to do so. In reply to this statement, the appellants stated in their rejoinder that the said PrajapatiMishra did not vacate the lands but created a trust in respect of the same, he being the chairman of the board of trustees and the lands were still in possession of the board of trustees. Strangely, as it eeins, the State of Bihar raked up this matter again in a

,,~

Ram Pra11ad Narayan Sahi

and Another v.

The State of Bihar and

Others.

Mu.kherjea J,

Rani Prasad Narayan Sahi

and Another v. 'l'he State of Bihar and

Others.

Muk/lerjea J.

further affidavit where it was admitted that the said Prajapati Mishra did execute a trust and that the trustees took possession of the property.

It was stated, however, that Prajapati Mishra, who was one of the trustees, did actually surrender the lands in two instalments but the other trustees did not, and hence legal advice was being taken to find out ways and means of recovering the property from them.

The whole thing smacks of disingenuousness and the State of Bihar, it seems, was not well advised in relying upon facts like these in their attempt to repel the appellants' attack on the legislation on the ground of discrimination.

Be that as it may, there is no doubt that the appellants were not the only lessees under the Bettiah Estate who got settlement of lands at a selami of five years' rental. On the sworn statements of the appellants, which are not challenged by the other side, it appears that there are numerous persons occupying the same position as the appellants, who however were not subjected to this expropriatory legislation. But the vice in this legislation goes much deeper than this. It is not merely a question of treating the appellants differently from the other lessees under the Wards Estate, with whom settlements of land have been made on similar or identical terms. If a lease has been given by a Court of Wards, which is not for the benefit of the estate or advantage of the ward, it is for a court of law to decide whether it is warranted by the terms of the Court of Wards Act. If the lessor proceeds to cancel the lease, the lessee has a legal right to defend his claim and satisfy the court that the lease is not in contravention of law. If, on the other hand, the lessee i~ actually dispossessed, he has a right to sue in court for recovery of possession of the property on establishing that he has been illegally turned out. The dispute here, is a legal dispute pure and simple between two private parties. What the Legislature has done is to single out these two individuals and di; ny them the right which every Indian citizen possesses to have his rights adjudicated upon by a judicial tribunal in accordance with

the law whir.Ii applies to his case. The meanest of citizens has a right of access to a court of law for the redress of his just grievances and it is of this right that the appellants have been deprived by this Act.

It is impossible to conceive of a worse form of discrimination than the one which differentiates a particular individual from all his fellow subjects and visits him with a disability which is not imposed upon anybody else and against which even the right of complaint is taken away. The learned Attorney-General, who placed his case with his usual fairness and ability, could not put forward any convincing or satisfactory reason upon which this legislation could be justified. It is true that the presumption is in favour of the constitution ality of a legislative enactment and it has to be presumed that a Legislature understands and correctly appreciates the needs of its own people.

But when on the face of a statute there is no classification at all, and no attempt has been made to select any individual or group with reference to any differentiating attribute peculiar to that individual or group and not possessed by others, this presumption is of little or no assistance. to the State. We may repeat with profit what was said by Mr. Justice Brewer in Gulf Colorailo etc. Co. v.

Ellis(') that "to carry the presumption to the extent of holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory legislation is to make the protection clauses of the Fourteenth Amendment a mere rope of sand". In our opinion, the present case comes directly within the principle enunciated by this court in Arneerunnissa Begurn v.

Jlfahboob Begurn(').

The result is that we allow the appeal and set aside the judgment of the High Court. A writ in the nature of mandamus shall issue directing the respondents not to take any steps in pursuance of The Sathi Lands (Restoration) Act of 1950 or to interfere with the possession of the appellants in respect to the lands

(1) 165 U.S. 150 •

(2) [1953] S.C.R.•404,

19/i3

Rain Pra8ad Narayan Sahi

and Another v.

'1. 1he State of Bo11ibay and

OtlilrB.

Mukherjea J.

. Rani Praaad Narayan Sahi

and Another

The State of Bihar and

Other".

M nkherjea J.

ii44 StJPREl\fE . COURT REPORTS [1953]

comprised in the lease referred to in that Act.

The appellants will have their costs in both c"ourts .

VIVIAN BosE J.-I am in entire agreement with my Lord the Chief Justice and with my learned brother Mukherjea.

GHULAM HASAN J.--1 agree with my Lord the Chief Justice and with my brother Mukherjea.

BHAGWATI J.-1 entirely agree with the judgment just delivered by my Lord the Chief Justice and my brother Mukherjea and there is nothing which I can usefully add.

Appenl allowed.

Agent for the appellants: I. N. Shroff.

Agent for the respondents: G. H. Rajadhyaksha.

ELECTION COMMISSION, INDIA v.

SAKA VENKATA SUBBA RAO UNION OF INDIA-Intervener. [PATANJALI SAS'l'RI C. J., MuKHERJEA, VIVIAN BosE,

GHULAM HASAN and BHAGWA'rI JJ.]

Gonstitntion of India, 1950, a.rts. 132, 102, 2211-High Court -Poiver to issue writs-Liniitatio1u1-Po1oer to issue iurit on persons residinu outside territorial fttrisdiction-Election to 11Iad1'as

Assembly-Reference to l!Jlection Commission, New Dclhi-Jllrisdiction of .iliarlras High Conrt to issue ivrit a{]ainst 00111.rnission-Dis qiwlification before election-Effect of-Appeals from Sin17le Judge,

The respondent, who had been convicted and sentenced to rigorous imprisonment for seven years, was elected a member of the Madras Legislative Assembly. At the instance of the Speaker of the Assembly, the Governor of Madras referred to the Election Commission, which had its offices permanently located at New Delhi, the question whether the respondent was disqualified and could be allowed to sit and vote in the Assembly, The respondent thereupon applied to the High Court of Madras under article 226 of the Constitution for a writ restraining the Election Commission from enquiring into bis alleged disqualification for membership of the Assembly :

Held, thJ>t the power of the High Court to issue writs under article 226 of the Constitution is subject to the twofold limitation

RAM PRASAD NARAYAN SABI AND ANOTHER

THE STATE OF BIHAR AND OTHERS

PATANJALI SASTRI

MuKHERJEA

VrnAN BosE

GHULAM HASAN

BHAGWATI JJ.

Constitution of India

arts. 13, 14

Indian National Congress

Bihar Legislature

article 226

State of Bihar

Bettiah Raj

State of Bonibay

Bhagwari

article 14

S. 150

High Court of Judicature at Patna

Ramaswami

Sarjoo Prosad

article 226

article 32

P. R. Das

B. Sen

C. Setalvad

Jliahabir Prasad

G. N.

Joshi

ATANJALI SASTRI

Mukherjea

Bihar

Ram Prasad Narayan Saki

2nd November, 1946

Prajapa ti Mishra

Prajapati Mishra

Champaran

Ram Prasad Narayan Sahl

Ram Rekha Prasad Narayan Sahi

Ram Prasad Narayan Sahi

Ram Rekha Narayan Sahi

State of Bihar

Potanjali Sastri

State of Bihrtr

Ram Pra.ad

In that case, however, the

(1) [1950] S, C.R; 869,

majority felt• justified in upholding the legislation,

195J

though it adversely affected the rights and interest of Ram Pra.ad the shareholders of a particular joint stock company, Narayan SaM

because the mismanagement of the company's affairs and Another prejudicially affected the production of an essential v. commodity and caused serious unemployment amongst The State 0! ..,

Das

Britain

Hyderabad

Narayan Sahi

Patanjali Sastii

Bihar Government

MuKHEaJEA

High Court of

Patna

article 132

3rd January, 1952

article 226

Bihar Legislative Assembly

Maharani Janki Koer

Bengal Act IX of 1879

19th July, 1946

Government of Bihar

20th July, 1946

14th October, 1946

Ram Prasad Narayan Sahi

Mukherjea

3rd June, 1950

13th IJune, 1950

Section 2

18th November, 1946

28th August, 1950

article 226

High Court of Patna

articles 14, 19(1)

Sarjoo PershadJJ

Ra1n Prasad Narayan Sa

Mukherjea

article 13(1)

article 226

article 226

P.R. Das

article 14

Das

Prasad Narayan Sahi

article 14

section 18

Section 18

BombC!Ji

Bettiah Wards Estate

PrajapatiMishra

Ram Pra11ad Narayan Sahi

Mu.kherjea

Rani Prasad Narayan Sahi

Muk

lerjea

Brewer

S. 150

Rain Pra8ad Narayan Sahi

State of Bo11ibay

Rani Praaad Narayan Sahi

VIVIAN BosE

Mukherjea.

I. N. Shroff

G. H. Rajadhyaksha

ELECTION COMMISSION, INDIA

SAKA VENKATA SUBBA RAO UNION OF INDIA

PATANJALI SAS'l'RI C. J.

BHAGWA'rI

Election Commission

New Delhi

High Court of Madras

article 226

article 226


. Rani Praaad Narayan Sahi

and Another

The State of Bihar and

Other".

M nkherjea J.

ii44 StJPREl\fE . COURT REPORTS [1953]

comprised in the lease referred to in that Act.

The appellants will have their costs in both c"ourts .

VIVIAN BosE J.-I am in entire agreement with my Lord the Chief Justice and with my learned brother Mukherjea.

GHULAM HASAN J.--1 agree with my Lord the Chief Justice and with my brother Mukherjea.

BHAGWATI J.-1 entirely agree with the judgment just delivered by my Lord the Chief Justice and my brother Mukherjea and there is nothing which I can usefully add.

Appenl allowed.

Agent for the appellants: I. N. Shroff.

Agent for the respondents: G. H. Rajadhyaksha.

ELECTION COMMISSION, INDIA v.

SAKA VENKATA SUBBA RAO UNION OF INDIA-Intervener. [PATANJALI SAS'l'RI C. J., MuKHERJEA, VIVIAN BosE,

GHULAM HASAN and BHAGWA'rI JJ.]

Gonstitntion of India, 1950, a.rts. 132, 102, 2211-High Court -Poiver to issue writs-Liniitatio1u1-Po1oer to issue iurit on persons residinu outside territorial fttrisdiction-Election to 11Iad1'as

Assembly-Reference to l!Jlection Commission, New Dclhi-Jllrisdiction of .iliarlras High Conrt to issue ivrit a{]ainst 00111.rnission-Dis qiwlification before election-Effect of-Appeals from Sin17le Judge,

The respondent, who had been convicted and sentenced to rigorous imprisonment for seven years, was elected a member of the Madras Legislative Assembly. At the instance of the Speaker of the Assembly, the Governor of Madras referred to the Election Commission, which had its offices permanently located at New Delhi, the question whether the respondent was disqualified and could be allowed to sit and vote in the Assembly, The respondent thereupon applied to the High Court of Madras under article 226 of the Constitution for a writ restraining the Election Commission from enquiring into bis alleged disqualification for membership of the Assembly :

Held, thJ>t the power of the High Court to issue writs under article 226 of the Constitution is subject to the twofold limitation

that such writs cannot run beyond the territories subject to its 1953 jurisdiction and th& person or authority to whom the High Court is empOVi'ered to issue such \Vrits must be amenable to the juris- Election Com-- diction of the High Court either hy residence or location "rithin niission, India the territories subject to its jurisdiction.

The High Court of Saka ~; nkata liladras bad therefore no jurisdiction to issue a writ unc1er article Subba. Rao 226 of the Constitution against the Election Commission.

Held f!!rther, that articles 190(3) and 192(1) are applicable l'alanjali Sastri only to disqualifications to which a member becomes subject after o. J. heis elected as such, and neither the Governor nor the Election Commission had jurisdiction to enquire into the respondent's disqualification which arose long before his election.

A tribunal or authority permanently located and normally carrying on its activities outside the territorial limits of a High Court cannot be regarded as functioning within those territorial limits and therefore amenable to the jurisdiction of that High Court, , merely because it exercises jurisdiction within those territorial limits so as to affect the rights of parties therein.

The fact that the matter referred to it for decision related to the opposite party's right to sit and vote in the Legislative Assembly at Madras and the parties to the dispute resided in the State of Madras could not give jurisdiction to the High Court of ?i.iadras to issue such a writ against the Election Commission.

An appeal lies to the Supreme Court under article 132 of the Constitution even from a judgment, decree or final order of a Single Judge of a High Court, provided the requisite certificate is given.

Crvn, APPELLATE JumsDH"rlON: Civil Appm1l No. 205 of 1952.

Appeal from the Judgment and Order elated the 16th September, 1952, of the High Court of Judicature at Madras (Subba Rao J.) in Writ Petition No. 599 of 1952 filed under the Special Original Jurisdiction of the High Court under article 226 of the" Constitution of India.

M. C. Setalvad, Attoi•ney-Genernl for Indict (G. N.

Joshi, with him) for the appellant and Intervener.

Mohan Kumaramangalam, for the respondent.

1953. February 27. The judgment of the court was delivered by

PATANJALI SASTRI C.J,.-'l'his is an appeal from an order of a Single Judge of the High Court of Judicature at Madras issuing a writ of prohibition restraining the

19.;3 Election Commission, a statutory authority corntituted by the President and having its offices permanent- Election Com,- mission India ly located at New Delhi, from enquiring into the allegv. ed disqualification of the respondent for membership Saka Venkata of the Madras Legislative Assembly.

Subba Rao Th d t . d b th S .

J d . _ e respon en was convwte y e ess10ns u ge Patanjali Scrntri of East Godavari and sentenced to a term of seven

c. J. years' rigorous imprisonment in 1942, and he was released on the occasion of the celebration of the Independence Day on 15th August, 1947. In June, 1952, there was to be a by-election to a reserved seat in the Kakinada constituency of the Madras Legislative Assembly, and the respondent, desiring to offer himself as a candidate but finding himself disqualified under section 7 (b) of the Representation of the People Act, 1951, as five years had not elapsed from his release, applied to the Commission on 2nd April, 1952, for exemption so as to enable him to contest the election. No reply to the application having been received till 5th May, 1952, the last day for filing nominations, the respondent filed his nomination on that day, but no exception was taken to it either by the Returning Officer or any other candidate at the scrutiny of the nomination papers. The election was held on 14th June, 1952, and the respondent, who secured the largest number of votes, was declared elected on 16th June, 1952. The result of the election was published in the Fort St.

George Gazette (Extraordinary) on 19th June, 1952, and the respondent took his seat as a member of the Assembly on 27th June, 1952. Meanwhile, the Commission rejected the respondent's application for exemp tion and communicated such rejection to the respond. ent by its letter dated 13th May, 1952, which however was not received by him. On 3rd July, 1952, the Speaker of the Assembly read out to the House a communication received from the Commission bringing to his notice "for such action as he may think fit to take", the fact that the respondent's application for exemption had been rejected. A question as to the respondent's disqualification having thus been raised, the Speaker referred the question to the Governor of

' •

Madras who forwarded the case to the Commission for 19153 its "opinion" as' required bv article 192 of the Constitu-

J Election Oo1n tion. The respondent having thereupon challenged the mission, India competency of the reference and the action taken there- 8 k vv. k b h G h C . . 'fi d h a a en at• on y t e overnor, t e omn11ss10n not1. e t e res Snbba Rao pondent that his case would be heard on 21st August, - 1952.

Accordingly, the Chief Election Commissioner Patan{!l~ Sastri (who was the sole Member of the Commission for the time · being) went down to Madras and heard the respondent's counsel and the Advocate-General of Madras on 21th August, 1952, when it was agreed that, in case the petitioner's counsel desired to put forward any further representations or arguments, the same should be sent in writing so as to reach the Commission in Delhi by 28th August, 1952, and the Commission should take them into consideration before giving its opinion to the Governor.

On the same day (21st August, 1952) the respondent applied to the High Court under article 226 of the Constitution contending that article 192 thereof was applicable only where a member became subject to a disqualification after he was elected but not where, as here, the disqualification arose long before the election, in which case the only remedy was to challenge the validity of the election before an Election Tribunal.

He accordingly prayed for the issue of a writ of mandamus or of prohibition directing the Commission to forbear irom proceeding with the reference made by the Governor of Madras who was not, how@ver, made a party to the proceeding. On receipt of the rule nisi issued by the High Court, the Commission demurred to the jurisdiction of the court to issue the writs asked for, on the ground that the Commission was not "within the territory in relation to which the High Court exercised jurisdiction". A further objection to the maintainability of the application was also raised to the effect that the action of the Governor in seeking the opinion of the Commission could not be challenged in view of the immunity provided under article 361 (1), and that the Commission itself, which had not to "decide" the question of disqualification, but had merely to give its

196J "opinion", could not be proceeded aglj-inst under article 226. On the merits, the Commission contended that Election Oonimission, India article 192 was, on its true construction, applicable to v. cases of disqualification arismg both before and after Saka Venkata the election and that both the reference of the ques-

Subba Rao tion as to the respondent's disqualification to the

P -. ,-. s. . Governor of Madras and the latter's reference of the

atanb~ ;,' "''" same to the Commission for its opinion were competent and valid.

The application was heard by Subba Rao J. who overruled the preliminary objections and held that article 192 on its true construction applied only to cases of supervening disqualifications and that the Commission had, therefore, no jurisdiction to deal with the respondent's disqualification which arose long before the election took place.

He accordingly issued a writ prohibiting the Commission from proceeding with the enquiry in regard to the question referred to it by the Governor under article 192. The learned Judge, however, granted a certificate under article 132 that the case involved substantial questions of law as to the interpretation of the Constitution, and the Commission has accordingly preferred this appeal.

A preliminary objection was raised by Mr. Mohan Kumaramangalam, who argued the case for the respond-. ent with marked ability, that the appeal brought from the judgment of a single Judge was baned under article 133(3) of the Constitution despite the certificate granted by the learned Judge ovenuling the same objection which was also raised before him. It has been urged that, so far as civi, l matters are concerned, the more comprehensive provisions in article 133(1) (c) for the grant of a certificate of fitness for appeal to the Supreme Court completely overlap article 132(1) which relates only to one specific ground, namely, a substantial question of law being involved as to the interpretation of the Constitution, and that the court's power, therefore, to grant a certificate of fitness on any ground including the ground referred to above, must be deemed to arise under iirticle 133(1) (c), with the result that the CJ\Prcfae of su0h power is eirn\mjed by the o_penmg

• ' •

words of clause (3) of that article which bars an 19.;3 appeal from the judgment, decree or final order of one J d f H, l C Th t h Election Com,. u ge o a 1g 1 ourt. e argumen was song t to mission, India be reinforced by reference to clause (2) of that article v. and the proviso to article 145(3) both of which con- Saka Venkata template appeals involving substantial questions of

Subba Rao

law as to the interpretation of the Constitution being Patanjali sa., tri brought without a certificate having been obtained o. J. under article 132. The argument has no force. 'While it is true that constitutional questions could be raised in appeals filed without a certificate under article 132, the terms of that article make it clear that an appeal is allowed from "any judgment, decree or final order of a High Court" provided, of course, the requisite certificate is given, and no restriction is placed on the right of appeal having reference to the number of Judges by whom such judgment, decree or final order was passed.

Had it been intended lo exclude the right of appeal iu the case of a judgment etc., by one Judge, it would have been easy to include a reference to article 132 also in the opening words of article 133(3), as in the immediately preceding clause. If the respondent's contention were accepted, not only wonld article 132 become redundant so far as it relates to civil proceedings, but the object of the Explanation to that article, which was designed to supersede the decision of the Federal Court in S. Kuppuswami Rao

v. The King (1) and thus to secure a speedy determination of constitutional issues going to the root of a case, would be defeated, as the Explanation is not made applicable to the same expression "final order" used in article 133(1 ).

The whole scheme of the appellate jurisdiction of the Supreme Court clearly indicates that questions relating to the interpretation of the Constitution are placed in a special category irrespective of the nature of the proceedings in which they may arise, and a right of appeal of the widest amplitude is allowed in cases involving such questions. We accordingly overrule the preliminary objection and hold that the appeal is maintainable,

(1) [1947] F.C.R r8o,

ll50

SUPREME COURT REPORTS [1953]

195a Turning now to the question as to the powers of a

Election Cow- High Court under article 226, it will be noticed that mission, India article 225 continues to the existing High Courts the

saka vnkata same jurisdiction and powers as they possessed, imme-

Subba Rao diately Lefore the commencement of the Constitution.

l'at, mjali Sastri Though there had been some conflict of judicial opio. J. nion on the point, it was authoritatively decided by the Privy Council in the Parlakimerli case(') that the High Court of Madrasthe High Courts of Bombay and Calcutta were in the same po8ition-had no power to issue what were known as high prerogative writs beyond the local limits of its original civil jurisdiction, and tho power to issue such writs within those limits was derived by the court as successor of the Supreme Court which had been exercising jurisdiction over the Presidency Town of Madras and was replaced by the High Court established in pursuance of the Charter Act of 1861. The other High Courts in India had no power to issue such writs at all. In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people m the new set up, which they called fundamental right.s, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisiYe interposition, were peculiarly suited for the purpose, they conferred, in the States' sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc., "for any other purpose" being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England. But wide as were the powers thus conferred, a two-fold limitation was placed upon their exercise. In the first place, the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction", that is to say, the writs issued

(1) 70 1.A. 129:

S.C.R.

SUPREME COURT R8l'OR1'S 1151

by the court cannot run beyond the territories subject 1903 to its jurisdictibn. Secondly, the person or authority Election Oum to whom the High Court is empowered to issue such mi.ssiou, bulin v. writs must be "within those territories'', which clearly suka Venka1a implies that they must be amenable to its jurisdiction Subba Rau either by residence or location within those te1Ti- Patan.iali sa.,1ri tories. o. J.

Such limitation is indeed a logical consequence of the origin and development of the power to issue prerogative writs as a special remedy in England. Such power formed no part of the original or the appellate jurisdiction of the Court of King's Bench. As pointed out by Prof. Holdsworth (History of English Law, Vol. I, p. 212 et seq.) these writs had their origin in the exercise of the King's prerogative power of superintendence over the due observance of the law by his officials and tribunals, and were issued by the Court of King's Bench-haheas corpus, that the King may know whether his subjects were lawfully imprisoned or not; certiorari, that he may know whether any proceedings commenced against them are conformable to the law; mandamus, to ensure that his officials did such acts as they were bound to do under the law, and prohibition, to oblige tho inferior tribunals in his realm to function within the limits of their respective jurisdiction. See also the introductory remarks in the judgment in the Parlakimedi case(').

These writs were thus specifically directed to the persons or authorities against whom redress was sought and were made returnable in the court issuing them and, in case of disobedience, were enforceable by attachment for contempt. These characteristics of the special form of remedy rendered it neces sary for its effective use that the persons or authorities to whom the court was asked to issue these writs should be within the limits of its tetTitorial jurisdiction.

We are unable to agree with the learned Judge below that if a tribunal or authority permanently located and normally carrying on its a9tivities elsewhere exercises jurisdiction within those territorial

(1) 70 I.A. 129, 140 .

Election Comniis8ion, Ind1'.a

Salca V cnkata Subba lfao

SUPREME COURT R.EPORTS [1953]

limits so as to affect the rights of parties therein, such tribunal or authority must be regarded as ;'functioning" within the territorial limits of the High Court and being therefore amenable to its jurisdiction under article 226.

It was, however, urged by the respondent's counsel Patanjali SaBtri that the High Court had jurisdiction to issue a writ to

c. J. the Commission at New Delhi because the question referred to it for decision related to the respondent's right to sit and vote in the Legislative Assembly at Madras and the parties to the dispute also resided in the State of Madras. The position, it was claimed, was analogous to the court exercising jurisdiction over persons outside the limits of its jurisdiction, provided the cause of action arose within those limits. Reliance was placed upon the following observations of the Privy Council in the Parlakimedi case( 1 ): "The question of jurisdiction must be regarded as one of substance and that it would not have been within the competence of the Supreme Court to claim juisdiction over such a matter as the present of issuing certiorari to the Board of Revenue on the strength of its location in the town.

Such a view would give jurisdiction to the Supreme Court in the matter of the settlement of rents of ryoti holdings in Ganjam bet\veen parties not otherwise subject to its jurisdiction, which it would not have had over the Revenue Officer who dealt with the matter at first instance." We cannot accede to this argument.

The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority "within the territories" in relation to which the High Court exercises jurisdiction. Nor is much assistance to be derived from the observations quoted above.

That case arose out of proueedings before a special Revenue Officer for settlement of fair rent for certain holdings within the zemindary estate of Parlakimedi situated beyond the local limits of the original civil jurisdiction of the Madras High Court.

Dissatisfied

(I) 70 !, A, 129.

with the settlement made by the Revenue Officer, the 1953 ryots appealed" to the Board of Revenue which had its Election 00111 _ offices at Madras. The appeal was accepted by a mission, India single member of the Board who reduced the rent as v, desired by the ryots. The zemindar appealed by way of revision to the Collective Board which sanctioned an enhancement. Thereupon the ryots applied to the Patanjali Sastri High Court for the issue of a writ of certiorari to bring

0 J.

Saka Venkata

Subba Rao

up and quash the proceedings of the Collective Board which passed the order complained of in the town of Madras. The Privy Council considered the question of jurisdiction from two separate standpoints:--

"(a) independently of the local civil jurisdiction which the High Court exercises over the Presidency town; or

(b) solely by reason thereof, as au incident of the location of the Board of Revenue within the town."

On question (a), they examined the powers of the Supreme Court at Madras to issue certiomri beyond the Presidency Town under clause 8 of the Charter of

1800, as it was suggested that the High Court succeeded to the jurisdiction and powers of the Supreme Court which had been granted the same powers of issuing prerogative writs as the Court of King's Bench in England throughout the Province, and they recorded their conclusion thus:

"Their Lordships are not of opinion that the Supreme Court would have had any jurisdiction to correct or control a country court of the company deciding a dispute between Indian inhabitants of Ganjam about the rent payable for land in that district."

Then, dealing with question ( b) and referring to their decision in Besant' s case(') that the High Courts of Calcutta, l\fadras and Bombay had power to issue certiorari in the exercise of their local jurisdiction, they held that the principle could not be applied

"to the settlement of rent for land in Ganjam merely on the basis of the location of the Board of Revenue as a body which is ordinarily resident or locl), t<'d within

(1) 46 LA. 176 .

ii54 SUPREME cot:R'r REPORTS [l953j

19.53 the town of Madras, or on the basis that the order

Election 00111• complained of was made within the to\\rn. If so, it mi,.ion, India would seem to follow that the jurisdiction of the High

Court would be avoided by the removal of the Board of Saka T"enlcrtta Revenue beyond the outskrits of the town and that it Subba Rau

would never attach but for the circumstance that an

Patanjali Sastri appeal is brought to, or proceedings in revision taken o. J. by, the Board of Revenue."

Then followed the passage already quoted on which the respondent's counsel laid special stress. It will thus be seen that the decision is no authority for dispensing with th.e necessity of the presence or location, within the local limits of the court's jurisdiction, of the person or authority to whom the writ is to be issued, as the basis of its power to issue it. Their Lordships considered, in the peculiar situation they were dealing with, that the mere location of the appellate authority alone in the town of l\fadrns was not a sufficient basis for the exercise of jurisdiction whereas both the subject-matter, viz., the settlement of rent for la.nds in Ganjarn, and the Revenue Officer authorised to make the settlement at first instance were outside the loc>tl limits of the jurisdiction of the High Court. , If the court in Madras were recognised as having jurisdiction to issue the writ of certiorari to the appellate authority iu Madras, it would practically be recognising the court's jurisdiction over the Revenue Officer in Ganjarn and the settlement of rents for hmds there, which their Lordships held it never had. That w:i, s the "whstance" of the matter they were looking :i, t, and their observations lend no support to the view that if the subject-matter or the cause of action :tnd the parties eoncerned were within the territorial limits of the jurisdiction, the High Court could issue prerogative writs to persons or authorities who are not within those limits. In any case, the decision did not turn on the construction of a statutory provision similar in scope, purpose or wording to article 226 of the Constitution, and is not of much assistance in the construction of that article.

It was said .that it could not have been contem- 19;3 plated that an inh11bitant of the f':ltate of Madras, f. l' d b d c h Electio1i Ooni.· ee mg aggrieve y a threatene mterierence wit mission, India the exercise of his rights in that State by an authority , v. 1 ] D !h' d 'th · d' h ld .Saka Venkata ocatec m e 1 an actmg wt out Jllrts JCt10n, s ou sbba Rao seek his remedy under article 226 in the Punjab - High Court. It is a sufficient answer to this argument Patanbl~ 0 -' 1" of inconvenience to say that, the language of the article being reasonably plain, it is idle to speculate as to what was or was not contemplated.

Our 11ttcntiu11 has been called to certain decisions of High Courts dealing with the situation where the authority claiming to exercise jurisdiction over a matter at first instance is located in one State and the a ppellate authoritv is locatecl in another State. It is not necessary for" the purposes of this appeal to decide which High Court would have jurisdiction in such

circunrntances to issue prerogative writs under article 226.

In the view we have expressed above as to the applicability of article 2-26 to the present case, it is unnecessary to enter upon a discussion of the question whether article 192(1) applies only to members who, having been already elected, have become subject to a disqualification by re11son of events happening after their election; but having heard the point fully argued before us, we think it right to express our opinion thereon, especially as both sides have invited us to do so in view of its general importance.

The relevant provisions of the Constitution on which the determination of the question turns are as follows:

190. (3) If a member of a House of the Legislature ofa State-

(a) becomes subject to any of the disqualifications mentioned in clause (1) of article 191; or

(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant,

SUPREME COL'RT REPORTS [1953]

J.?53

191. ( l) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Election Ooni- 1

L ' 1 r< 'l f St t Assemb y or egrs atrve ,, ouncr o a , a e- 11iission, India

(a) if he holds any office of profit under the Saka Jlwkata Government of India or the Government of any State,

Subba Rao specified in the First Schedule, other than an office

Patanjali Sastr1 declared by the Legislature of the State by law not to o. J. disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court; ( c) if he is an undischarged insolvent ; ( d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any Jaw made by Parliament.

192. (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause ( 1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.

(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.

193. If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State ............ when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State.

As has been stated already, the respondent's conviction and sentence in 1942 disqualified him both for being chosen as, and for being, a member of the Legislative Asseµrbly under article 191(1) (e) read with section 7 of the Representation of the People Act, 1951,

passed by Pa!liament, the period of five years since 1953 his release on 15th August, 194 7, not having elapsed El . 0 b I! h f h 1 Th d J , eclton u.ne1ore t e date o t e e eotion. e respon ent iavmg mission India thus been under a disqualification since before his v'. nomination on 15th March, 1952, could he be said to Saka Venkata have "become" subject to that disqualification within Subba Raa the meaning of article 192? The rival contentions of P 7s . the parties centred round the true interpretation to be atani;_ 'J. astri placed on that word in the context of the provisions quoted above.

The Attorney-General argued that the whole fasciculus of the provisions dealing with "disqualifications of members", viz., articles 190 to 193, should be read together, and as articles 191 and 193 clearly cover both pre-existing and supervening disqualifications, articles 190 and 192 should also be similarly understood as relating to both kinds of disqualification. According to him all these provisions together constitute an integral scheme whereby disqualifications are laid down and machinery for determining questions arising in regard to them is also provided. The use of the word

"become" in articles 190 (3) and 192 (1) is not inapt, in the context, to include within its scope preexisting disqualifications also, as becoming subject to a disqualification is predicated of "a member of a House of Legislature", and a person who, being already disqualified, gets elected, can, not inappropriately, be said to "become" subject to the disqualification as a member as soon as he is elected. The argument is more ingenious than sound. Article 191, which lays down the same set of disqualifications for election as well as for continuing as a member, and article 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both pre-existing and supervening disqualifications ; but it does not necessarily follow that articles 190 (3) and 192 (1) must also be taken to cover both. Their meaning must depend on the language used which, we think, is reasonably plain.

In our opinion these two articles go together and

1158 Sl'PREME COURT REPORTS [1953]

1953 provide a remedy when a member incurs 11 disqualifica-

E . 0 tion after he is elected asamernbrr. Not only do the lection •Omd . b b. ,. - . 1 190(3) d "h wis., ion India WOl' S '' eCOlllCS SU Ject . lll al'tlC e an as v'. become subject" in article 192(1) indicate a change in the

Saka Venkata position of the member after be was elected, but the

Subba Rao provision that his seat is to become thereiipon vacant, -. that is to say, the seat which the member was filling Palanjal1 Sa8/ri h c b h' b d'

c. J t eretQ1ore ecomes vacant on is ecommg is- . qualified, further reinforces the view that the article contemplates only a sitting member incurring the disability while so sitting.

The suggestion that the language used in article 190(3) can equally be applied to a pre-existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and farfotched construction and cannot be accepted. The Attorney-General admitted that if the word " is" were substituted for "becomes" or "has become", it would more appropriately convey the the meaning contended for by him, but he was unable to say why it was not used.

It was said that on the view that articles 190(3) and 192(1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for, such a disqualification is no ground for challenging the election by an election petition under article 329 of the Constitution read with section 100 of the Representation of the People Act, 1951. If this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondent's construction of the constitutional provisions. On the other hand, the Attorney-General's contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under article 192 and by the Election Tribunal inquiring into an election petition under section 100 of the Parliamentary statute referrred to above.

For the easons indicated we agree with the learned Judge below in holding that articles 190(3) and 192(1)

' •

are applicable only to disqualifications to which a 1953 member beccrmes subject after he is elected as such, Election 0 01,.. and that neither the Governor nor the Commission mission, India has jurisdiction to enquire into the respondent's disv. qualification which arose long before his election.

8 ~",;, h~';!:ta As, however, we have held that the High Court was , . . . not competent under article 226 to issue any pre- 1 ata.nJali 808"' rogative writ to the appellant Commission, the appeal is allowed and thewrit of prohibition issued by the learned Judge is quashed. We make no order as to costs.

Appeal allowed.

Agent for the appellant and the Intervener : G. H. Rajadhyaksha.

Agent for the respondent: S. Siibramaniam.

ASRUMATI DEBI v.

KUMAit ItUPENDRA DEB RAIKOT

AND OTHERS.

[PATANJALI SASTRI C. J., MUKHERJEA,

VIVIAN BOSE and BHAGWATI JJ.]

Letters Patent (Calcntta High Court), els. 18, 15-0rder for tmnsfer of suit 1mde>· cl. 18-Whetlier "jiul, gment"-Appealability -Meaning of "judgment".

An order for transfer of a suit, made under clause 13 of the Letters Patent of the Calcutta High Court is not a "judgment" within the meaning of clause 15 of the Letters Patent and no appeal lies therefrom under the Letters Patent, as it neither affects the merits of the controversy between the parties in the suit itself, nor terminates or disposes of the suit on any ground.

[Meaning of the word "judgment" rliscussed].

Khatizan v. Sonairam (I.L.R. 4 7 Cal. 1104), Jttstices of the Peace for Calcutta v. Oriental Gas Co. (8 Beng. L.R. 433), Dayabhai v. Muiugappa Chettiar (I.L.R. 13 Rang. 457), 'l'uljarain

v. Alagappa (I.L.R. 35 l\fad. 1), Matlmra Sundari v. Haranchandra (I.L.R. 48 Cal. 857), Chandicharan v. Jnanendra (29 C.L.J. 225), £e,, Badin v. Upendra l'>fohan RmJ Chowdhry (39 C.W .N. 155), Kunwar Lal Singh v. Uina Devi (A.I.R. 1945 Nag. 156), Smikrw Deo v. Kalyani (A.LR. 1948 Nag. 85), Sha/lzadi Begum v. Alaknath (I.L.H. 57 All. 983), Shaw Bari "· Sonalwwl Beli R"m (I.hR. 23

a.J.

li'eb. 27

VIVIAN BosE J.

with my learned brother Mukherjea

GHULAM HASAN J.

BHAGWATI J.

I. N. Shroff

G. H. Rajadhyaksha

ELECTION COMMISSION, INDIA

SAKA VENKATA SUBBA RAO

Madras

High Court of Madras

article 226

article 226

High Court of Saka

Election Commission

articles 190(3) and 192(1)

High Court of ?i.iadras to

Supreme Court

article 132

Subba Rao

article 226

Constitution of India

M. C. Setalvad

G. N.

Joshi

Mohan Kumaramangalam

PATANJALI SASTRI

High Court of Judicature at Madras

Election Commission

Saka Venkata

Subba Rao

15th August, 1947

section 7

Representation of the People Act, 1951

2nd April, 1952

5th May, 1952

14th June, 1952

16th June, 1952

19th June, 1952

27th June, 1952

13th May, 1952

3rd July, 1952

article 192

Snbba Rao

Patan{!l~ Sastri

Delhi

28th August, 1952

21st August, 1952

article 226

article 192

article 361

article 226

article 192

Governor of Madras

article 192

article 192

article 132

Mohan Kumaramangalam

article 133(3)

article 133(1)

article 132(1)

article 145(3)

article 132

article 132

article 132

article 133(3)

article 132

article 133(1 )

article 226

article 225

India

England

S 1151

Holdsworth

Parlakimedi

article 226

Patanjali SaBtri

Ganjam

article 226

Madras High Court

Patanjali Sastri High Court

Supreme Court at Madras

clause 8

Besant

Patanjali Sastri

Ganjarn

article 226

.Saka Venkata

article 226

Punjab - High Court

article 226

article 2

article 192(1)

article 191

First Schedule

Patanjali Sastr1

Parliament

article 191

article 191(1)

section 7

Representation of the People Act, 1951

article 192

articles 190 to 193

articles 191 and 193

articles 190 and 192

articles 190

Article 191

article 193

articles 190

article 192(1)

article 190(3)

articles 190(3) and 192(1)

article 329

section 100

Representation of the People Act, 1951

article 192

section 100

articles 190(3) and 192(1)

article 226

S. Siibramaniam

MUKHERJEA

VIVIAN BOSE

cl. 18

clause 13

clause 15

Shaw Bari