DAMYANTI NARANGA v.

THE UNION OF INDIA AND OTHERS

February 23; 1971 cs. M. SIKRI, C.J., G. K. MITTER, K. s. HEGDE, P. JAGANMOHAN

REDDY AND V.BIIARGAVA, JJ.]

Fundamental Rights-Freedom of Association-Hindi Sahitya Sammelan, a registered society-Parliament enacting /egislgtion declaring S.mmelan as of national importance-Power (o frame rules to admit new

members . without consent of original members of Society-I/ infringes right to f.orm Association of original members oj Society-Transfe"ing C properties of Society to Samme/an while Society kept in existence-If infringes right tp hold propertyonstitution of India Article 19(1)(c) and (f) els. (4) and (5)-Hindi Sahitya Samme/an Act, 1962.

The Hindi Sahitya Sammelan (hereinafter referred to as the Society) was a registered society . founded for the development and propagation of Hindi. After a number of years of its successful working differences arose between its members and this resulted in litigation. In 1956 the Uttar Pradesh legislature passed the U.P. Sahi_tya Sammelan Act, under which a statutory body was created under the name of Hindi Sahitya Sammelan. Tbis act was declared void by the Allahabad High Court as violating the freedom of association guaranteed under article !9(1)(c) of the COnstitution.

Thereafter, Parliament enacted the Hindi S.hltya .samrrelan Act, 1962 legislating uncle'r entry 63, list I of the Seventh Schedule declaring that "the institution known as the Hindi Sahitya Sammelan is an institution of national importance". By the Act a statutory sammelan was constituted as a body corporate by. the name of the Hindi Sahitya. Sammelan.

Under s. 4( !) of the Act the Sammr!.n was to consist of the first members of the Society and all persons who might become members thereafter in accordance with the rules made in that behalf by the first Governing Body to be constituted by the Central Government by notification. The Act provided for vesting in the Sammelan

of all property movable or immovable, of or belonging to the society. F.

Petitioru under Article 226 in the High Court and under Article 32 in this Court were filed challenging the constitutionality of the Act mainly on the ground . !hat the Act interfered with the right of the petitioners to form aSSQCi.ati91q1Dder Article 19(1)(c) of the Constitution. The High Colil:t held that since all the members of the society had also become members pf th.e Sammelan under the Act, there was no infringement of the right to form association. In the appeal and in the petition )lnder G Article 32, the respondent contended that having declared the old Hindi Sahitya Sammelan, which was a society registered under the Societies Registration Act, 1860 as an institution of n.ational impohance, Parliament has proceeded to le, islate .in respct of it under entcy 63 of List I of the Seventh Schedule m order .that its administration may not suffer

as a result of the quarrels that were aolng tnttr 16 between the members of the society; it was for this purpose that a tlrat Governing Body Wfts HI constituted to take over the mil:nllgement temporarily; t!ie Act was deal1111ed to recon1tit11te the Sammelan in such a manner that it could wcl'k successfully and without difficulties; and in making provis.ions for thi• pUl'PO•e all members of the old society were Included as members of the Sammelan

DAMYANT!"NARANGA v. UNION (Bhargava, J.) 841

so that their right to form association may not be taken away from them.

Alternatively the respondent took uo the position that the , Act nowhe're specifically laid down that the society shall stand dissolved while it con stituted a new Sammelan and thelrefore, it should be inferred that while the society still continued to exist in its original form .the law has brought into existence a new Sammelan to whicl\ all the functions and the properties etc. of the society have been passed.

Allowing the petition and the appeal,

HELD : Under s. Ji(!) (a) very wide powers are given•to the first governing body to make rules in respect of matters relating to member ship including qualifications and disqualifications for membership of the Sammelan.

Under this power the rules framed could make provisions for admission of persohs as members whom the original members of society may never have liked to .admit in their Society. The number of such new members could even be so large as to leave the original members in a small minority with the result that those members could become totally ineffective in the society. Thus the Sammelan which has come into existence is not identical_-With the Sammelan which was a registered society under the Societies Registration Act. This is clear interference with the right form a society which has been exercised by the members of the Society by forming the Society with its constitution under which they were members. The Act does not merely regulate the admi· nistration of the affairs of the Society; what it does is to alter the com position of the society itself.

The result of this change in composition 1s that the members, who voluntarily formed the society are now compelled to act in that Association with other members who have been im posed as members by the Act and in whose admission to membe'rship they had no say.

The right to form association necessarily implies that the persons forming the society have also the right to continue to be associated with only those whom they voluntarily admit in the association.

Any law by which members are introduced in the volµ11tary association with out any option being given t, o the members to keep them out or any law which takes away the membership of those who have voluntarily joined it will be a law violating the right to form association. [847 H; 849 C-EJ

The right guaranteed by Article 19 ( !) ( c) cannot be confined to the initial stage of forming an association. If it were to be so confined, the right would be meaningless bec.ame as soon as an association is formed, a law may be passed interfering with its composition so that the association formed may not be able to function at all.

The right can be effective only if it is held to include within it the right to continue the association with its compasition as voluntarily agreed upon by the persons forming the association.

And, Article 19(4), on the face of it, cannot be called in aid to claim validity for the Act. .Therefore the provision contained in the Act for reconstituting the society into the Sammclan is void.

The whole Act becomes ineffecive in as much as the formation of the new Sammelan is the very basis for all the other provisions in the Act. '[849 F-H; 851 E]

0. K. Ghash and Another v. E. X. Joseph, [1963] Suppl. 3 S.C.R. 789; Stale of Madrasv. V. G. Row, [1952] S.C.R. 597 and V. G. Rowv.

The State of Madras, A.LR. 1951 Mad. 147, referred to.

The alternative submission cannot be accepted as ensuring the validity of tile Act.

First, . the specific ase taken by the respondent has been that the Act recontitutes. the Society and does not create a separate and mdependent body m the 'form of a new Sammelan. Secondly, even if it be accep• 'd that a new Sammelan has been constituted, the question of

. legislative competence of Parliament to . pass such a Jaw will arise.

The A Sammelan is itself. a body corporate and th!\! Sammelan has never been declared as an institution of national importance.

The only institution that was so declared was the society which, of course, earlier carried the same name as the new Sammelan.

Parliament was, therefore, not com- . petent to leg; s!ate in respect of this newly constituted Sammelan which at no stage has 'oeen declared as an institution of national importance.

Thirdly, if it were to be held that Parliament passed this Act so as to B transfer all the properties and assets of the Society to the Sammelan, the Act would contravene Article 19(1) (f) of the Constitution. The Sammelan is a new, separate and distinct legal entity from the Society.

The Society is thus deprived of all its properties by the Act and such a law <lepriv'ng the Society of its properties altogether cannot be held to be a rcasoneble restriction in the public interest on the right of the society to hold the property. The applicability of Article 19(1 (f) is on the assump- .tion that the old Society still exists as it was and yet its properties have C been transferred to the Sammelan. If the Society still exists, so does its Governing Body in whom the property of the Society vested.

The Act thus deprives the members of the Governing Body of the property which still continued to vest in them in spite of the passing of the Act. This total deprivation of property instead of regulating the management of the affairs of the Society. or its property cannot clearly ne justified as a reasonable restriction in public interest. If the law is passed not merely for ensuring proper management and administration of the property, b~ D for totally depriving the persons, in whom the property vested, of their

riht to hold the property, the law cannot be justitldd as reasonable restriction under Article 19(S), [852 BH: 8S3 E854 A]

Tht Bot1rd of Trustees, Ayurvtdlci and Unanl Tibia College, Dtlhl v. rile State of Del/ti di Am. [19621 Suppl. I S.C.R. 156; referred to.

ORIGINAL JURISDICTION : Writ Petition No, 91 of 1964.

Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights and Civil Appeal No. 358 of 1966.

Appeal by special leave from the judgment aind order dated F September 9, 1963 cif the Allahabad High Court in Civil Writ Petition No. 1885 of 1962. .

J. P. Goyal and Raghunath Singh, for the petitioner (in W.P.

No. 91 of 1964).

A. K. Sen, J. P. Goyal and Raghunath Singh, for the appellants (in C.A. No. 358/66).

B. Sen a; nd S. P. Nayar, for respondent No, 1 (in W.P. No. 91 of 1964) and respondents Nos. 3 and 4 (in C.A. No. 358 of

1966).

N. N. Sharma, for respondent No. 2 (in W.P. No. 91/64) and respondents Nos. 16 and 17 (in C.A. No. 358/66).

The Judgment of the Court was delivered by

Bbargava, J.-This writ petition and the appeal challenge the validiiy of the Hindli Sahitya Sammelan Act No. 13 of 1962 (hereinafter referred to as "the Act"). The facts leading up to the passing of this enactment are that, in the year 1910, some eminent educationists assembled at Banaras and founded an Association for the development of Hindi and its propagation throughout the country.

This Association was named as the Hindi Sahitya Sammelan.

On the 8th January, 1914, it was registered as a Society under the Societies Registration Act No. 21 of 1860, with Head Office at Allahabad, under the name of Hindi Sahitya Sammelan. The rules and bye-laws of the Society laid down the objects of this Association and the manner of its working. It had three classes of members, viz., special members (Vishisht Sadasya), permanent members (Sthayi Sadasya), and ordi- 11ary members (Sadharnn Sadasya). Under the bye-laws, apart from the original members constituting the Society, further members could be admitted under these three classifications on being elected by the workinp; committee of the Society.

Under the Rules and bye-laws of the Society, other bodies could be constituted for carrying on activities of the Society. These Included a Governing Body, a Working Committee, a Hindi University Council, Literary Council (Sah!tya Samit!), Library Committee, Parchar Samit! and Rashtriaya Bhasha Prachar Samit!, Through the ap; encies of these various Committees, the Society carried on the work of development and propagation of Hindi, of spreading the use of Devnagri script, of holding examinations, and of conferring Degrees for proficiency in Hindi. The Society owned lande.d properties and buildings at Allahabad as well as at some other places such as Wardha, and was holding considerable funds for

Call'Ying on its activities. The Society worked very successfully for a number of years. It appears that in the year 1950, some differences ar~ between the members of the Society, and attempt was made to . alter the constitution of the Society.

While one sec?on want~ the: :Ute!ations, anothe.r section was opposed to it.

This resulted m ht1gat1on. Three different suits were instituted in the civil Courts at .Allahabad in this connection and injunctions were sought by one party against the other.

Ultimately 'the Court appointed a Receiver. '

In view of these circumstances, the U.P. Legislature passed an Act known as the U.P. Hindi Sahitya Sammelan Act No. 36 of 1956, under which a statutory body was created under tty> name of Hindi Sahiya Sammelan, anif the word "Sammelan'; was defined as referrmg to the Hindi Sahitya Sammelan constituted under the Act. Under that Act. Under that Act, the mana-·

gement and properties of the original Hindi Sahitya Sammelan, A which was a registered Society, were to be taken over by the new statutory Sammelan.

That Act was, however, declared void by the Allahabad High Court on the ground that that Act had made the original Sammelan cease to exist and had provided for the constitution of a new Sammelan under its terms in which the members of the original Sammelan had no say,''so that that Act B infringed the right of the members of the criginal Sammelan of forming an association guaranteed by Art. 19 ( 1) ( c) of the Constitution. It was further held that that Act was not saved under Art. 19( 4) of the Constitution. Thereafter, the present Act, now challenged , in this writ petition and the appeal, was. passed by Parliament under Entry 63 of List I of the Seventh Schedule C to the Constitution. The Act itself, in section 2, contained the necessary declaration to give legislative competence to Parliament under that Entry.

The Act first contained in section 2 a declaration in the following words :-

"Whereas the objects of the institution known as the Hindi Sahitya Sammelan which has its head office at Allahabad are such as to make the instituaiion one of. national importance, it is hereby declared that the institution known as the Hindi Sahitya Sammelan is an institution of national importance."

Having declared this institution as an institution of national importance, the Act proceeded to define "Sammelan" as meaning the institution known as the Hindi Sahitya Sammelan incorporated under this Act, while the word "Society" was defined to mean "the Hindi Sahitya Sammelan which has its head office at Allahabad and is registered under the Societies Registration Act, 1860." Under section 4 ( 1 ) of the Act, the Sammelan was constituted which was to consist of the first members of the Sammelan lljlld all persons who may hereafter become members thereof in accordance with the rules made in that behalf. This statutory Sammelan was

constituted as a body corporate by t.1ie name of the Hindi Sahitya Sammelan, and under sub-section (2) of section 4, it was to h_ave perpetual succession and a common seal with power, subject to the provision of the Act, to acquire, hold and dispose of property and to contract and to sue and be sued by that name.

The Head Office of the Sammelan was to be at Allahabad.

Under sub-s. ( 4) of section 4, the first members of the Sammelan were to consist of persons who, immediately before the appointed day.-

(a) were special members (Vishisht Sadasya) of the Society;

(b)(were life members (Sthayi , Sadasya) of the Society.

( c) had been Presidents of the Society; or

(d) were awarded the Mangla Prasad Paritoshik by the Society. ·

This sub-s. ( 4) of section 4 was amended retrospectively with effect from the date that the Act came into force by the Hindi

Sahitya Sammelan (Amendment) Act No. I of 1963, and the first members of the Sammelan were, under this amendment, declared to be- '

(a) all persons who, immediately before the appointed day, were members of the Society;

(b) all persons who, before that day, had been Presidents

of the Society; and

( c) all persons who, before that day, were awarded the Mangla Prasad Paritoshik by the Society.

It is not necessary to give in detail the other provisions of the Act, except that it may be mentioned that the Act provided for vesting of an proper1y, movable or immovable, or :belonging

to the Society in the Sammelan, transferring all rights and Liabilities of the Society to the Sammelan, converting reference to the Society in any law to the Sammelan, and other similar necessary provisions. The Act itself did not make any provision for the future membership of the Sammelan; but, under section 12(1) (a), the first Governing Body of the Sammelan was directed to make rules in respect of matters relating to membership, including qualifications and disqualifications for membership of the Sammelan. The first Governing Body was to be constituted under section 8 and was to consist of a Chairman, a Secretary and 13 other members. This Governing Body was to be constituted by a

notifiction in the Official Gazette by the Central Government.

The thirteen members were to be chosen as follows :-

(i) b one mem er to represent . the Ministry of the Central Government deahng with education;

(ii) one member to represent the Ministry of the Central Government dealing with finance;

(iii) not more th.an three members from among the former Presidents of the Society; and

(iv) the remining nll!ll?er from among persons who are, 10 the op1mon of the Central Government, eminent in the field of Hindi language or Hindi literature.

It was this first Governing Body which was to make rules on all matters relating to membership of the Sammelan under section 12(1)(a) of the Act .. These rules were riot have effect until they were approved by the Central Government and were published by the first Governing Body in such manner as the Central Government may,. by order, direct. A copy of the rules was also to be laid before each House of Parliament.

Counsel for respondent No. 1 placed before us a copy of the rules which, according to him, have been made by the first Governing Body with the approval of the Government and have been published as required. The Rules come into force pn 1st of February, 1971. The petition under Art. 32, and the petition under Art. 226, out of which the civil appeal arises, were both moved much earlier and long before these Rules were framed. These. petitions challenged the validity of the Act, without taking into account the actu~I Rules framed, mainly on the ground that he Act had interfered with the right of the p-etitioners to form association under Art. 19 (1 )( c) of the Constitution and was not protected by Art. 19 ( 4). In the petition before the Allahabad High Court, the Court held that, since all the members of the Society had also become members of the Sammelan under the Act, there was no infringement of the right to form association, so that the Act could not be declared invalid on that ground. The writ petition in this Court has been filed by only one member of the Society, while the petition in the High Court and the appeal against the judgment of the High Court, which is before us, were fhed by the original Hindi Sahitya Sammelan as one party and 72 members of that Sammelan joining as other petitioning parties.

In the civil appeal, thus,. the grievance that the Act has infringed the fundamental right has been put forward both by the Society itself as well as by 72 of its members, including members of the Working Committee and the Governing. Body of the Society.

They have all come up to this Court against the decision of the High Court in this appeal by special leave.

In the counter-affidavits filed on behalf of the respondents in the writ petition before the High Court as well as in the writ petition in this Court, the position taken up was that the Act, in fact, does not deprive the Society and its members of any rights which they had under the constitution of the Society and did not interfere with their right of association inasmuch as all the members of the Society have been included as members of the Sammelan under the Act. The High Court, in fact, dismissed the writ petition on accepting this submission put forward on behalf of the respondents. In the arguments before us, learned counsel for

"' B

DAMYANTl NARANGA v. UNION (Bhargava, J.) 847

repondent No. 1, however, took up. a different position and urged that the Act keeps the Society in-tact as it was_, while a new Sainmelan is constituted under the Act for the piirpose of managing the institution which has been declared as an institution of national importance.

He put this aspect of the case in the forefront, but, in the alternative, he also argued the case on the basis of the position taken up in the counter-affidavits in the High Court and in this Court as mentioned above. We consider it convenient .to first deal with the case as was specifically put forward in the ceounter-affidavits.

In these counter-affidavits, the position taken up is that, having declared the old Hindi Sahitya Sammelan, which was a Society registered under the Societies Registration Act,

1860, as an institution of national importance, Parliament has proceeded to legislate in respect of it under Entry 63 of List I of the Seventh Schedule in order that its administration may not suffer as a result of the quarrels that were going on inter-se between the members of the Society.

It was for this purpose that a first Governing Body was constituted to take over the management temporarily.

The Act was designed to reconstitute the Sammelan in such manner that it could work successfully and without difficulties and, in making provision for this purpose, all members of the old Society were included as members of the Sammelan, so that their right of forming association may not be taken away from them. The Society was never dissolved; instead of the Society remaining a body rej!istered under the Societies Registration Act, it was converted into a statutory Sammelan under the Act.

It, however, appears on examination of the provisions of the Act that the Sammelan under the Act is composed not only of persons, who were members. of the Society, but of others who have been given the right to be members of the Sammelan without the consent of the pre-existing members. Under sectio11 4( 4) itself, as retrospectively amended in 1963, apart from persons, who were members of the Society, others, who have been made members of the Sammelan, are all persons who, before that day had been Presidents of the Society and all persons who, before that

day, were awarded the Mangla Prasad l!llritoshik by the Society. 1hese members have been added without any option bein" available to the existing members of the Society to elect or refuse to eleet them as members which was the right they possessed under the constitution of the Society itself.

Further under section 12(1)(a-'), very wide powers were given to the' first Go\-erning !3ody !o make.rule~ in respect. of mtters relating to membership, mcludmg qualifications and disqualifications for membership of the Sammelan. Under this power, the rules framed could make 10--Ll 100 Sup Cl 7l

provision for admission of persons as members whom the original members of the Society may never have liked to admit in their Society. , The number of such new members could even be so large as to leave the original members in a small minority with the result that those members could become totally ineffective in the Society. Even in the Rules actually framed, there is provision for admission of members under various classes. In addition to the persons mentioned in section 4 ( 4) of the Act, Rule 6 . pro• vides for membership of persons who may become Sabhapatis of the Sammelan for any annual session subsequent to the Act com ing into force, and persons who may be awarded Mangala Prasad Paritoshik subsequent to the Act coming into force. Under Rules 7, 8, and 9, new Vishisht Sadasyas, Sthayi Sadasyas, and Sadharan Sadasyas can be admitted to the membership of the Sammelan on payment of Rs. 1,000/ - or Rs. 300/:, as the case may be. This admission to membership, according to the Rules, will be made by the new Kdrya Samiti to be elected under the Rules and-not by the Working Committee of the original members . of the Association. Further, under section 7(2) of the Act, the Governing Body of the new Sammelan is to consist of such number of persons, not exceeding 55, as the Central Government may from time to time determine; and out of these, a number not exceeding 7 are to be nominated by the Central Government from among educationists of repute and eminent Hindi scholars. These 7 nominees are to be chosen by the Central Government and on becoming members of the Governing Body, under Rule 11 they become members of the Sammelan. Under Rule 10, educational institutions can also be admitted as Sanstha Sadasya~ of the Sammelan by the new Karya Samiti and, thereupon, a representative of each of such institution has a right to participate in the proceedings of the Sammelan, exercising all the rights of a member. It will, thus, be seen that the Sammelan, which has come into existence under the Act, is not identical with the Sammelan which was registered as a Society under the Societies Registration Act. 1860. Certain persons have been added as members by the Act and by the Rules. Admission of future members is no longer at the choice of the original members who had formed the Association.

Persons, in whose admission as members the members of the Society had no hand, can become members and get the right of associating wiih them in the Sammelan, without the original members having any right to object. This is clear interference with the right to form an association which had been exercised by the members of the Society by forming the Society with its constitution, under which they were members and future members could only come in as a result of their choice by being elected by their WorkinJ! Committee. We are unable to agree with the High Court that the new Sammelan, as constituted under the Act,

A is identical with the Society and that all the rights of formg an

association, which were being exercised by members of the Society, have been kept in-tact under the Act.

It was argued that the right guaranteed by Article 19 ( 1) c) is only to form an association and, consequently, any reglat10n

of the affairs of the Association, after it has been formed, will not amount to a breach of that right. It is true that it has been held by thi~ Court that, after an Association has been formed and the right under Art. 19 ( 1 )( c) has been exercised by the members. forming it, they have no right to claim that its activities must also be prmitted to be carried on in the manner they desire. Those cases are, however, inapplicable to the present case. The Act does not merely regulate the administration of the affairs of the Society, what it does is to alter the composition of the Society itself as we have indicated . above. The result of this change in" composition is that the memhers, who voluntarily formed the: Association, are now compelled to act in that Association with: other members who have been imposed as members by the Act: and in whose admission to membership they had no say. Such alteration in the composiiion of the Association itself clearly interferes with the right to continue to function as members of the Association which was voluntarily formed by thci original founders. The right to form an association, in our opinion, necessarily implies that the persons forming the Association have also the right to coniinue to be associated with only those whom they voluntarily admit in the Association. Any law, by which members are introduced in the voluntary Association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association.

If we were to accept the submission that the right guaranteed by Art. 19 ( 1) ( c) is confined to the initial stage of forming an Association and does not protect the right to continue the Association with the membership either chosen by the founders or regulated

y rules made by the Association itself, the right would be meanmgless because, as soon as an Association is formed a law may be passed interfering with its composition, so that th; Association formed may not be able to function at all. The right can be eff.ective O!li}'. if !t !s hld to inclu~7 within it the right to continue the Association with its composition as voluntarily agreed upon by the persons forming the Association. This aspect was recognised by this Court though not in plai? words, in the case of O. K. Ghosh and :4n£?ther v. E .• ~· Joseph( ). The Court, in that case, was cons1dermg the val1d1ty of Rule 4 (B) of the Central Civil Services (Conduct) Rules, 1955, which laid down that:

(l} [1963] Supp 3 S.C.R. 789.

"No Government servant shall join or continue to be a member of any Servioo Association of Government servants :

(a) which has not, within a period of six months froin its formation, obtained the recognition of the Government under the Rules prescribed in that behalf; or

( b) recognition in respect of which has been refused or withdrawn by the Govemmnt under the said Rules." ·

This Court held :-

"It is not disputed that the fundamental rights guaranteed by Art. 19 can be claimed by Government servants.

Art. 33 which comers power on the Parliament to modify the rights in their application to the Am1ed Forces, clearly brings out the fact that all citizens, including Government servants, are entitled to claim the rights guaranteed by Art. 19. 'Thus, the validity of the impugned rule has to be judged on the basis that the respondent and his co-e.nployees are entitled to fonn Associations or Unions. It is clear that Rule 4-B imposes a restriction on this right.

It virtually compels a Government servant to withdraw his membership of the Service Association of Government Servants as soon as recognition accorded to the said Asso:

ciation is withdrawn or if, after the Association is fanned, no recognition is accorded to it within six ; nonths. In other words, the right to form an Association is conditioned by the existence of the recognition of the said Association by the Governni.ent. If the Association obtains the recognition and continues to enjoy it, Government servants can become members of the said Association; if the Association does not secure recognition from the Government or recognition granted to it is withdrawn, Government servants must cease to be the members of the said Association.

That is the plain effect of the impugned rule."

The Court in the above passage, thus, accepted the principle that the Government servants, who may have formed an AssociatiQ!l. could not be compelled to resign from it by imposition of a condition of recognition of this Association by the Government and that if the Government servants are required to cease to be members that would be a violation of the right under Art. 19 (l) ( c).

irhe Court, of course, in that case, further proceeded lo examine

whether such a restriction on' the right could be justified under

E -

¥· 19 ( 4) or not. That case, thus, supports oitr view that the nght to form an Association includes the right to its continuance

an~ any. law altering the composition of the Association compulsorily will be a breach of the right to form the Association.

This Court had also proceeded on the same basis in the case of State of Madras v. V. G. Row(1). Though this as.Peet was not clearly brought out in the judgment, the pomt, which came up for consideration, was decided on the basis that persons forming an Association had a right under Art. 19 ( 1 )( c) to. see that the composition of the Association continues as voluntarily agreed to by them. That decision was given illl an appeal from a judgment of the High Court of Madras reported-1.n V. G. Row v. The State of Madras( 2). In the "High Court, this principle was clearly for• mulated by Rajamannar, C.J., in the following words :-

"The word "form" therefore, must refer not only to the initial commencement of the association, but also to the continuance of the association as such."

The Act, insofar as it interferes with the composition of the Society in constituting the Sanimelan, therefore, violates the right of the original members of the Society to form an a8sociation guaranteed under Art. 19(1) (c).

Article 19 ( 4), on the face of it, cannot be called in aid t<> claim validity for the Act.

Under Art. 19 ( 4), reasonable restrictions can be imposed only in the interests of the sovereignty

and integrity of India, or in the interests of public order or morality.

It has not been contended on behalf of the respondent, nor could it be contended that this alteration of the constitution of the Society in the manner laid down by the Acl was in the interests of the sovereignty and iniegrity of India, or in the interests of public order or morality.

Not being protected under Art. 19 ( 4), ii must be held that the provision contained in the Act for reconstituting the Society into the Sammelan is void. Once that section is declared void, the whole Act becomes ineffective inasmuch as the formation of the new Sammelan is the very basis for all the other provisions contained in the Act.

In view of this position emerging in the course of arguments, Mr. B. Sen put forward an entirely different and alternative case before us which we have mentioned earlier.

The p05ition he took up was that the Act nowhere specifically lays. down that the Society shall stand dissolved, while it does constitute a new Sammelan. According to him, therefore, it should

(1) [1952] S.C.R. 597.

(2) A.I.R.1951 Mad.147.

be inferred that, while the Society still continues to exist in its original form, the law has brought into existence a new Sanunelan to which all the functions, properties, etc. of the Society have passed under the Act.

There are three reasons why this 1lternative submission cannot be accepted as ensuring the validity .of the Act.

The first is that the specific case taken by the respondents has been that the Act recol\stitutes the Society and does not create a separate and indepedent body in the form .of a new Sarnmelan. Secondly, even if it be accepted that a new Sammelan bas been constituted by the Act, the question will arise of the legislative competence of Parliament to pass such a law.

Constitution of Societies is under List II of the Seventh Schedule.

Parliament purportei.: to exercise legislative power under Entry 63 of List I on the basis of a declaration that the.

Hindi Sahity;1 Sammelan, AJlahabad was an institution of national importance.

The institution that was declared was the Society itself.

It was not a case where the Society could be distinguished from some other institution which might have been declared as an institution of national importance There can, of course, be cases where a Society may be running. a college, a school or some other like institution, in which case Parliament may declare that particular institution as of national importance. without declaring the Society as such In the present case, what section 2 of the Act did was to declare the Society itself as an institution of national importance and, consequently, Parliament became competent to legislate in respect of the Society. On the interpretation now sought to be put forward, the Act keeps that Society in-tact, but deprives it of all i'ts functions and properties and transfers them to a newly constituted body, viz .. the Sammelan, as defined under the Ac't.

This Sammelan is itself a body corporate, and that Sammelan has never been declared as an institution of national importance.

The only institutaion that was declared as of national importance w11s the Society which, of course, earlier, carried the same name as the new Sammelan.

Parliament was, therefore, not competent to legislate in respect of this newly .constituted Sammelan which, at no stage, had been declared as an institution of national importance.

The third reason why this submission must be rejected is that, if we were to bold that Parliament pased this Act so as to transfer all the properties and assets of. the Society to the Sammelan, the Act would contravene Art. 19(1)(f) of the Constitution.

On this interpretation, what the Act purporis to do is to take away all the properties of the Society, leaving the Society

as an existing body, and give them to the new Sammelan. Thh Sammelan is a new, separate and distinct legal entity from the Society.

The Society is, thus, deprived of all itS properties by the Act.

Such a law depriving the Society of its properties al-

A .

together cannot be held to be a reasonable restriction in the public interest on the right of the Society to hold the property.

The property, under section 5 of the Societies Registration Act, 1860, vested in the Governing Body of the Society. The members of the Governing Body, therefore had the right to hold the property under Art. 19(1)(f) and they having been deprived of that property have rightly approached the Courts for redress of their grievance ..

In this connection counsel for the respondents relied on decision , of this Court in The Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. The State of Delhi and Another(1), where the Board of Trustees of the Ayurvedic and Unani Tibbia College, Delhi was dissolved by the Tibbia College Act, 1952, and the property, which had vested in the Board of Trustees, passed to the newly constituted Board under the impugned Act.

The Court held that there was no violation of the fundamental rights .guaranteed by Art. 19(l)(f) or Art. 31 That decision, however, proceed->..<! on the basis that the property of the original Society registered under the Societies Registration Act had vested in the Board of Trustees which had been dissolved and the property, thereafter, did not vest in the members of the Society in view of the provisions of the Act of

1860. In these circumstances, it was held that no one could complain that his right to property under Art. 31 or his right to hold the property under Art. 19(1)(f) had been violated by the impugned Act. In the present case, the applicability of Art. 19 (1 )(f) is being considered by us on the assumption that the old Society still exists as it was and, yet all its properties have been transferred to the Sammelan. If the Society still exists, so does its Governing Body in whom the property of the Society vested. The Act, thus, deprives the members of the Governing Body of the property which still continued to vest in them in spite of the passing of the Act.

This total deprivation of property, instead of regulating the management of the affairs of the Society or its properties, cannot clearly be justified as a reasO!!lable restriction in public interest.

It is true that, at the time when the Act was passed, litigation was going on between the members of the Society, and the affairs of the Society were probably in a mess.

The remedy, however, could not lie in depriving the Society of its property altogether.

Reasonable restrictions could have been imposed so as to ensure the proper preservation of the property of the Society and its proper management. If the law is passed not merely for ensuring proper management and administration of the property, but for totally deprivinJ? the persons,,. in whom the property vested, of their

(I) [1962] Suppl. I S.C.R. 156.

right to ho)d the property, the law cannot be justified as a reasonable restriction under Art. 19(5). Consequently, even on this alternative position taken up by counsel for the respondents,. the Act cannot be held to be valid.

As a result, the petition and the appeal are both allowed with costs.

The Act is declaredto be invalid, so that there will be restraint on the concerned bodies, including the Union Go vernrnent, from takjng or continuing any action. under the Act.

There will be one hearing fee.

R.K.P.S.

Petition and Appeal a/lowed.

DAMYANTI NARANGA

THE UNION OF INDIA AND OTHERS

1971 cs. M. SIKRI, C.J.

G. K. MITTER

K. s. HEGDE

REDDY

Article 19(1)(c)

Uttar Pradesh legislature

Allahabad High Court

Parliament

Seventh Schedule

s. 4( !)

Central Government

Article 226

Article 32

Article 19(1)(c)

Article 32

Societies Registration Act, 1860

Seventh Schedule

Article 19

Article 19(4)

V. G. Rowv

State of Madras

Article 19(1)

Article 19(1 (f)

Article 19(S)

Art. 32

Constitution of India

J. P. Goyal

Raghunath Singh

A. K. Sen

J. P. Goyal

B. Sen

S. P. Nayar

N. N. Sharma

Bbargava

Banaras

8th January, 1914

Vishisht Sadasya

Sthayi Sadasya

Sadharnn Sadasya

Parchar Samit

Rashtriaya Bhasha Prachar Samit

Allahabad

Wardha

U.P. Legislature

Hindi Sahitya Sammelan Act

Art. 19

Art. 19( 4)

Seventh Schedule

section 2

section 2

Societies Registration Act, 1860

section 4

section 4

section 4

Mangla Prasad Paritoshik

section 4

section 12(1)

section 8

section 12(1)(a)

1st of February, 1971

Art. 32

Art. 226

Art. 19

Art. 19

Seventh Schedule

Societies Registration Act

section 12(1)(a-')

Cl 7

section 4

Vishisht Sadasyas

Sthayi Sadasyas

Sadharan Sadasyas

section 7(2)

Societies Registration Act

Article 19

Art. 19

Art. 19

Art. 19

Art. 33

Art. 19

Art. 19

Art. 19

High Court of Madras

Rajamannar

Art. 19(1)

Article 19

Art. 19

India

Art. 19

B. Sen

Seventh Schedule

section 2

Art. 19(1)(f)

section 5

Societies Registration Act, 1860

Art. 19(1)(f)

Art. 19(l)(f)

Art. 31

Art. 31

Art. 19(1)(f)

Art. 19

Art. 19(5)


CHHOTE LAL

SHRI KEWAL KRISHAN MEHTA

February 25, 1971

[!. D. DUA AND V. BHARGAVA, JJ.)

East Ptmjc.b Urban Rem Restriction Act III of 1949-Application under s. 13 for ejectJnent of tenant-Electricit, v charges lvhetilcr part of rent for the pzupose of detennining arrears.

c The appellant was the tenant of premises owned by respondent.

""a~ ordered to be ejected from the premises on the ground that he was in arrears of rent for more than three months and did not tender them even at the first hearing hy the Rent Controller of the application for tjectment presented by the landlord under s. 13 of' the East Punjab Urban Rent Restriction Act III of 1949.

The District Judge dismissed the tenams appeal. ln revision the High Court of Punjab and Haryana pro

ceeded on the basis that on the date of application which was made on 22nd Septmber, 1964, the total arrears due from the tenant including interest and electricity charges amounted to Rs. 497.33 P.

The High Court was of the view that electricity charges would form part of the rent. The amount in deposit accordin¥ to the tenant, came to R•. 469.

At this amount did not cover the entire arrears of rent due tho tenant

wua held llnblc to ejectment by the High Court. The present appcul w1" flied by spcciul leave.

HELD : In the 11pplic11tion flied by the Jundlord It wu nohere !lated thnt the arrenrs of electl'icitv churgcs formed part of the rent.

Conie quently no issue was frnmcd by the trial court whether the electricity charges formed part of the tent.

On the face of it, there was no justi lication for accepting this new point when it was not pleaded at all in the original application. [857 DJ

Read correctly even the rent note made it clear that the electricity charges could not possibly form part of the rent.

Further the amount , Jue for consumption of electricity each month could only be known at the end of that month, while. under the ag'reement the rent had to be paid in advance.

The charges were variable and would depend on the amount of electricity consumed. If the electric charges were held to be part of the rent it would lead to the inference that even the rent of the building was variable and was different each month. In view of these circumstances it was clear that the District Judge and the High Court vJent wrong in proceeding on the basis that the electric c..harge formed pllfl of the rent and that non-payment of electric charges due amounted to non-payment of arrears of rent. [857 E-858 DJ

Hari Ram Jaggi v. Des Raj Sethi (1966) PL.R. 431, distinguished.

The High Court had accepted that the amount in deposit was enough.· to cover arrears of :r:ent, in case the electric charges were not treated as H part of the rent. On this finding, the decision of the High Court uphold ing the order of eviction could not be justified.

Further, according to the District Judge there was no deposit or tender even of the amount of Rs. 469 as claimed by the tenant. In , the revision before the High,

Court thil!. finding of the District Judge was assailed by the tenant. The A High Court did not examine the propriety or correctness of this finding.

The case, therefore, must be remanded to the High Court for determina tion of the question whether the tenant had made a proper deposit or tender of sum of Rs. 469. In case he had done so he was not in arrears of rent and was not liable to ejectment. [858E-H]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1947 of- B 1967.

Appeal by special leave from the judgment ainid order dated November 20, 1967 of the Punjab and Haryana High Court in Civil Revision No. 1058 of 1966.

R. V. Pillai, M. L. Aggarwal and N. K. Aggµrwal, for the C appellant.

S. P. Sinha and M. V. Goswami, for the respondent.

The Judgment of the Court was delivered by-

Bhargava, J.-This appeal by special leave is by a tenant who has been ordered to be ejected on the ground that he was in arrears of rent for more than three months and did not tender them even :at the first hearing by the .Rent Controller o.f the application for ejectment presented by the 111indlord under section 13 of the East

Punjab Urban Rent Restriction Act III of 1~49. The High Court of Punjab and Haryana in its judgment stated that, admittedly, the 'rent of the premises was fixed at Rs. 20 per month and was to be paid in advnnce each month. In addition, the rent of the electricity was to be paid separately; In dealing with the case, the High Court proceeded on the basis that, on the date of the application which was made on 22nd September, 1964, the rent that was in arrears amounted to Rs. 400 calculated @ Rs. 20 per mensem.

In addition, Rs. 22.0SP. were due as interest on this amount up F to that date, and the costs due could be taken at the figure of Rs. 25. This totals to a sum of Rs. 447.0SP. It was argued that, .fa .addition,· a sum of Rs. 50.28P. was due as electricity charges.

The amount in deposit, according to the tenant, came to Rs. 469. while the various amounts due, mentioned above, made up a total of Rs. 497.33P. Qn these facts, the High Court further was of the view that the amount due in respect of electricity charges will

certainly form part of the rent 'and, relying on an earlier decision of the same Court in Hari Ram Jaggi v. Des Raj Sethi('), it held that the deposit of Rs. 469 did not cover the entire arrears of rent due. so that the tenant was liable to ejectment. On this view, the High Court upheld the order of the District Judge directing evic- 1ion of the tenant-appellant. This appeal is directed against this order of the High Court.

(I) 1966 P.L.B. 431.

CHHOTE LAL v. K. K. MEHTA (Bhargava, J.) 857

A In deciding this case, neither the District Judge nor the High Court took care to examine the pleadings in the applcation for eviction put forward by the landlord-respondent, nor did they try to properly interpret the rent-note containing the terms of the

tency. In para, 1 of the application presented by the landlor~. it was clearly stated that "the respondent is a tenant of the petitioner at a monthly rent of Rs. 20." There was no mention at this stage that there was any. other amount which fonned part of the rent. In clause ( c) of para. 2, it was stated that "the respondent has installed a separate meter without the consent of the petitioner thereby causing dama_ge to the property and has failed to pay the electricity charges ftom January, 1963 to November, 1963 (when he got a new meter) which come to Rs. S0.28nP." In this pleading, C alJ that was claimed was that the landlord was entitled to receive electricity charges from the tenant. lt was nowhere stated that these arrears of electricity charges fonned part of the rent. Consequently, no issue was framed in the trial Court on the question whether the electricity charges formed part of the rent or not. For

the first time, the appellate Court tuok this point into consideration and held that the electricity charges formed part of the rent. On the face of it, there was no justification for accepting this new point when it was not pleaded at all in the original application. Further. even the rent note itself makes it clear that the electricity charges could not possibly form part of the rent. The rent note first mentions that the appellant is taking on rent the premises "on a monthly rent of Rs. 20, douhle of Rs. 10, for residential purposes, for a period of five months commencing from 1st May, 1954." Thereafter, the rent note, as translated in the paper book. shows that there was a further agreement as under :- ·

"I shall pay one month's rent in advance and shall remain paying rent every month in advance. I shall not sub-let the entire or any portion thereof. I shall pay the electric charges separately. I shali not make any alteration ..... "

The .agreement to pay the electric charges was, thus, separately me!11ioned.

In Urd!1, the language in which the rent !IlOte was •G scrib4. the wrd which has been translated as charges was "Kiraya

(. [,)" ) It is because of the use of this word that the High Court seems to have held that the electric charges payable . here Prt ot the ent. It failed to notice that the clause itself said t at this amount 1n respect of electric charges was to be paid shparately. Further, .this was not rent for electric fittings, but was H ! e amount payable m respect of actual electric energy consumed

in each month. The amount due for consumption of electricity each month culd only be known at the end of that month, while. under the earher. clause of the agreement, the rent had to be paid

in adva:nce. On the face of it, therefore, the electric charges for a month could not possibly be paid with the rent.

These electric charges could not,· consequently, form part of the rent. The charges were further variable and would depend on the amount of electricity consumed. No fixed amount was payable in respect of electricity chages. If electric charges were to be held to be parf Df the rent, it would lead to the inference that even the rent of building was variable and was different each month. In view of these circumstanq:s, it is clear that the District Judge and the High Court went wrong in proceeding on the g; isis that the electric charges formed part of the rent and that non-payment of electric charges dur amounted to non-payment of arrears of rent.

As we have mentioned earlier, the High Court followed the decisiop of the same Court in the earlier case of Hari Ram Jaggi(' ). The High Court failed to notice that, in that case, there was a fixed amount payable every month as electric charges. We do not consider it necessary to express any opinion whether, in such a case, the electric charges could or could not form part of the rent. On the face of it, where the electric charge~ are not fixed and can only be ascertained at the end of each month, after t11e electricity consumed is known, while the rent is payable in advance. it is clear th.at te electric eharges cannot be held to form part of the rent. The l; iasis, on which that earlier case was decided, does not, therefore, exist in the present case.

The High Court has accepted that the. amount in deposit was enough to cover arrears of rent, in case the electric charges are not treated as part of the rent. On this finding, the decision of the High Court upholding the order of eviction cannot be justified. It, however, appears that the District Judge had recorded another finding against the tenant. According to the District Judge, there was no deposit or tender even of the amount of Rs. 469. In the revision before the High Court, this finding of the District Judge was also assailed by the tenant. The High Court did not examine the propriety or correctness of this finding. Consequently, it is necessary that this aspect of the case should be examined by the High Court.

As a result, we.set aside the order of the High Court dismissing the revision, and hold that, in case there was a proper deposit or tender of the sum of Rs. 469 by the tenant, the tenant was not in arrears of rent and was not liable to ejectment. The case will now go bac1c to tjle High Court for re-bearing of the revision on the question whether this sum of Rs. 469 had been te:ndered or deposited in accordance with law so as to satisfy the requirements of section 13 of Act m of 1949 The costs of this appeal will abide the result.

G.C.

Case remanded.

1(1) (1966] PLR 431.

CHHOTE LAL

KEWAL KRISHAN MEHTA

February 25, 1971

D. DUA

V. BHARGAVA, JJ.

Urban Rem Restriction Act

s. 13

s. 13

Restriction Act III of 1949

High Court of Punjab and Haryana

22nd Septmber, 1964

Hari Ram Jaggi

M. L. Aggarwal

N. K. Aggµrwal

S. P. Sinha

M. V. Goswami

Bhargava

section 13

22nd September, 1964

section 13


ASSTI. REGISTRAR OF COMPANJES, WEST BENGAL v.

STANDARD PAINT WORKS (P) LTD. & ORS.

March I, 1971

(C. A. VAIDIALINGAM AND A. N. RAY, JJ.J

Code of Criminal Procedure (Act 5 of 1898), s. 417 and Companies Act (I a/ 1956), s. 6248-Scope of.

The appellant filed complaints before the Chief Presidency Magisrrate alleg.ng that the officers of the respondent had committed an offence under the Companies Act, 1956. They were acquitted on April 4, 1968. . On July 1, 1968, appeals were filed in the High Court by the appellant (com

plainant) but the High urt held that taey were barred by art •. 114 of the Limitation Act, 1~63. In appeal to this Court, it was contended that t.'le appeals were filed not under s. 417 Cr.P.C. but under s. 6248 of the Companies Act.

D HELD: (I) Section 404. Cr.P.C .. provides that no 3ppeal shall lie from any order of a criminal court except as provided )\v the Code or by any other Jaw for the time being in force.

But s. 6248 does not confer any right of appeal from an order of acquittal passed by a criminal

court in respect of an offence under the Companies Act. It only empowers the Central Government to present appeals through persons mentioned in that section. (861 E-G]

(2) Section 417, Cr.P.C .. provides right of appeal in cases of acquittal, and, if the order of acquittal is passed in a case instituted upon complaint, an application for special leave to appeal from such order should be filed within 60 days from the date of the order of acquittal, and under art. 114 of the Limiration Act, 1963, the appeal should filed within 30 days from the date of the grant of special leave.

The appeals were not rightly entertained in the present case, because (a) there was no application for grant of special leave under s. 417(3), Cr.P.C., (b) the appeals were incompetent without grant of special leave; and (c) they were barred by limitation. [860 G-H; 861 H; 862 A-DJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 248 to 251 of 1%8.

Appeals from the judgment an ordei; dated August 13, 1968 of the Calcutta High Court iin Criminal Appeals Nos. 425. to 428 G of 1968.

L. M. Singhvi and S. P. Nayar, for the appepant (in all the appeals).

The respondent did not appear.

H The Judgment of the Court was 4etivered by

Ray, J. These appeals are by certificate from the jugment dated 13 August, 1968 of the High Court at Calcutta holdtng that

the memorandum of appeals from an order ofl acquittal were barred by Article 114 of the Limitation Act, 1963.

~ The appeals were directed against orders of acquittal passed by the Presidency Magistrate, Calcutta on 4 April, 1968. The four petitions of appeal were presented in the High Court on 1 July, 1968 by the learned Advocate authorised by the Vakalatnama executed by the Assistant Registrar of Companies, West Bengal described as the appeJlant in all the petitions.

The Assistant Registrar pf Companies, West Bengal filed petitions of complaint before the Chief Presidency Magistrate, Calcutta aJleging that the certain officers/ directors of the Standard

Paint Works (P) Ltd.' of 44 Beadon Row, Calcutta mentioned

C " therein were guilty of offence for non-compliance with provisions contained in' the Companies Act, 1956 by reason of default in filing Annual Return of the Company together with the Annual Accounts and Balance sheet. Section 210 of the Companies Act requires annual accounts and balance sheet of the company to be filed within the time mentioned in the section. If any person being D a direct< r of the company fails to take all reasonable steps to comply with the provisions of section 210, he shall, in respect of each offence, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

The complainant in filing the petitions of complaint prayed for exemption of personal appearance under proviso to section 24 7 of the Code of Criminal Pro- E cedure read with section 621 ( 1) A of the Companies Act.

The Presidency Magistrate passed the orders of acquittal in all the cases.

Section 417 of the Code of Criminal Procedure speaks of appeal in case of acquittal. Sub-section ( 3) of that section is as follows :- ·

"If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court".

Section' 417 ( 4) of the Code of Criminal Procedure states that no application under sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertamed by the IDgh Court after the' expiry of 60 days from the date of the order of acquittal. No application was made to the High Court in compliance with section 417 ( 3) of the Code of Criminal Procedure.

ASSTT. REGISTRAR COMPANIES V, STANDARD PAINT WORKS 861 (Ray, J.) On behalf of the appellant it was contended both in the. High Court and in this Court that the appeals were prefrred under section 624B of the Companies Act,. 1956. Section 624B is as follows:-

"Notwithstanding anything contained in the Code of Criminal Procedure, 1898, the Central Government may, in any case arising out of this Act, direct any company prosecutor or authorise any other person either by name or by virtue of his office, to. present an appeal from an order of acquittal passed by any Court other than.a High Court and an appeal presented by such prosecutor or other person shall be deemed to have been validly pre- .

sented to the appellate Court".

The contention on behalf of the appellant that the right of appeal is conferred by section 624B of the Companies Act iS unacceptable.

Section 624B only speaks of the Central Government directing or authorising any person to present an appeal from the order of acquittal.

Section 417 (1) of the Code of Criminal Procedure enacts that in case of acquittal the State Government may direct the Public Prosecutor to present an appeal to the High Court. Section 624B of the Companies Act empowers the Central Government to present appeals through persons mentioned in that section. Presentation of appeal by the Central Government is a similar provision to section 417 ( 1 ) of the Code of Criminal Procedure.

Chapter XXXI of the Code of Criminal Procedure rates to appeals. Appeal is a creature of statute. The right to appeal is governed by the Coae of Criminal Procedure .. Section 404 of the Code of Criminal Procedure states that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by the Code of Criminal Procedi:ire or by any other law for the time being in force. Section 624B of the Companies Act does not confer any right of appeal from any order passed by a Criminal Court in respect of any offence under the provisions of the Companies Act. The right to appeal to the High Court in the present cases of acquittal is governed by section 417 of the Code of Criminal Procedure.

Article 114 of the Limitation Act, 1963 requires appeal under sub-section (3) of section 417 of the Code of Criminal Procedure to be filed within 30 days from the date of the grant of special leave. No application for the grant of special leave to appeal from

an order of acquittal was made within 60 days from that order of acquittal. The orders of acquittal were passed on 4 April, 1968.

The petitions of appeal were presented on 1 July, 1968. The A appeals were rightly riot entertained by the High Court because first th re was no application for grant of special leave under section 417(3) of the Code of Criminal Procedure; seco11dly, the .appeals were incompetent without grant of special leave, and thirdly these were barred by limitation. An appeal under section 417 ( 3) against acquittal is competent only when there is special B leave granted by the High Court. On obtaining special leave the appeal is thereafter filed within 30 days of the grant of leave to escage the mischief of the period of limitation under Article 114 of the Limitation Act, 1963.

A. provision in the Companies Act which cfers right of appeal is section 483.

It speaks of appeals from orders made and the decisions given in the matter of winding up of the companies by the Court and it enacts that such appeals shall lie to t)le same Court to which, in the same manner in which, and subjec1 to the same conditions under which, appeals lie from any order or decision of the Court in cases within its ordinary jurisdiction. Section 624B is not such a section which can be said to be conferring a right of appeal. Section 624B only mentions as to the person through whom appeal is presented.

The appals therefore fail and are dismissed.

V:P.S.

Appeals dismissed.

ASSTI. REGISTRAR OF COMPANIES, WEST BENGAL

STANDARD PAINT WORKS (P) LTD. & ORS

A. N. RAY, JJ

Code of Criminal Procedure

s. 417

Companies Act

s. 6248

Companies Act, 1956

Limitation Act

s. 417

Cr.P.C

s. 6248

Companies Act

Section 404

Cr.P.C

s. 6248

Companies Act

Central Government

Section 417

Cr.P.C

art. 114

Limiration Act, 1963

s. 417(3)

Cr.P.C

Calcutta High Court

L. M. Singhvi

S. P. Nayar

Ray

Article 114

Limitation Act, 1963

Vakalatnama

Chief Presidency Magistrate, Calcutta

Companies Act, 1956

Section 210

Companies Act

section 210

section 24

section 621

Companies Act

Section 417

Code of Criminal Procedure

Code of Criminal Procedure

section 417

Code of Criminal Procedure

section 624B

Companies Act

Section 624B

Code of Criminal Procedure, 1898

section 624B

Companies Act

Section 624B

Section 417

Code of Criminal Procedure

Section 624B

Companies Act

section 417

Code of Criminal Procedure

Chapter XXXI of the Code

Section 404

Code of Criminal Procedure

Section 624B

Companies Act

Companies Act

section 417

Code of Criminal Procedure

Article 114

Limitation Act, 1963

section 417

Code of Criminal Procedure

1 July, 1968

section 417(3)

Code of Criminal Procedure

section 417

Article 114

Limitation Act, 1963

Companies Act

section 483

Section 624B

Section 624B


MAKESHWAR NATH SRIVASTAVA

STATE OF BIHAR & ORS.

March 2, 1971 n

[S. M. S!KRI, C.J., J. M. SHELAT, C. A. VAIDIALINGAM,

A. N. GROVER AND A. N. RAY, JJ.]

Police Act 5 of 1861-Rules under s. 46 of Act embodied in Bihar .nd Orissa Police Manual 1930-0rder by Inspector-General under , s, 7 of Act-Appellate powers of Government under r. 851(b)-Revfsio11<1l

Powers under s. 853-Power of Suverintendence under s. 3-Scop~ oj.

. At the releva.nt time the appellant. ws in the service of the State of B1har as officiating Inspector of police: After a departmental inquiry against him the report of the enquiry officer was submitted to the Inspector

General of Police with the recommendation that the appellant should be given exemplary punishment. Under s. 7 of the Police Act, 1861 the Inspector General had power to impose in sqitable cases penalty of dis-

D missal, suspension and reduction. The Inspector General exonerated the appellant from the charges laid against him but on the basis of certain adverse remarks in the confidential character roll of the appellant he passed an order reverting the appellant to the substantive rank of subinspector of police for a period of one year. These adverse remarks had neve'r been notified to the appellant nor was any opportunity to explain them ever offered to him before the order of reversion was passed. In appeal the State Government set aside the order of reversion passed by E the Inspector General on the ground that no opportunity had been given to the appellant to explain the adverse remarks, but the Government instead passed an order of dismissal disagreeing with the findings of the Inspector General and agreeing with the findings given by the enquiry officer by whom the appellant had been found guilty. On further appeal to the Governor having been dismissed by the Government the appellant filed a writ petition in the High Court. "I:he High Court allowed the writ petition but directed that the appellant's appeal should go back io the F government for disposal accdrding to law.

The Government thereupon senoed notices on the appellant to show cause why he should not be dismissed from service. The notice was issued on the strength of rr. 851 (b) and 853 of the Bihar and Orissa Police Manual, 1930.

The appellant thereupon gave his reply.

About a yea~ after the High Coui; t's drder quashing the Government's order of d1sm1ssal, te Governm.ent tsued an order reinstating the appellant but at the same tune suspendmg him from service.

This was followed by an drder qimising the. appellant fr';'m G service The appellant once more filed a pel!tion Ill\ the High Court which was dlsmissed in limine.

By special leave the. present appeal was filed.

The question for consideration was, whether 1t was ompetent tgr the Government in an appeal filed by the appellant against te or er of .:version pased by the Inspectdr General of Police to set aside the find- . of that officer" by which he exonerated the appellant from charges ::';.inst him which findings were not appealed against by. the depame':J,

and then pass an order of dismissal accepting the findings of t e e • H quiry officer.

HELD . (I) The Act itself confers on the Inspector-ene'ral power

10 impose in suitable cases the penalty of dismissal, suspension and reduc-

11-LllOOSup.CI/71

tion, subject to the provisions of Art. 311 arid the rules made under the A Act.

The power of superintendence conferred on the State Government by .s. 3 must, !herefore, be read in the light of the provisions of s. 7 under bich the lgislature has conferred specified powers to the officers men tione.d thei:em.

Further, an appeal before the Government having been proV1ded for. under r. 851 (b), presumably both by the delinquent police cer, as also the department, if aggrieved by an order passed by the

Inctor•'9eneral, there would also be no question of the Government B exercising its general power of superintendence under s. 3 of the Act The exereise of such a power is ordinarily possible when there is no provision for an appeal unless there are other provisions providing for it.

[867 D-869 A]

(ii) Under r. 85~(b) the only question before the Government was whether the order of 'reversion_ should be sustained or not.

There was no other matter by way of an appeal before-the Government by the C department or by anyone else being aggrieved against the order of .the Inspector-General by which be held that the charges against the appellant had not been established. That being so, the Government could pass in exercise of its appellate power under r. 85l(b) such an order as it'thougbt fit in the appeal filed by the appellant i.e., either upholding the order -of reversion or setting it asipe. In the absence of any other appeal, the Government rould not sit ill judgment over the findings of the Inspector General given by him under the. power conferred on him by s. 7 of the D Act (868 E-G]

(iii) .The ol'der of the Government could not also lie defended under r. 853.

Assuming that under t. 853 the Government could suo moto revise 'the order of the Inspector-General, on appeal having been filed before it. it could not so act.

The fact that the power of l:evision is conferred on the authority possessed of appellate power indicates that the power of revision is intended to be used when an appeal could not E for some reason be filed and the appellate authority felt that the order was so unjust or unreasonable that it should act under its revisional power. That wae not the case of the Government in the present case.

[869 D-B]

[Whether the order of the Government_ coqld be defended under r. 853Acould not be considered because the existence of the rule was not proved.I p

CIVIL APPELLATE JURISDICTION : CiVl1 Appeal No. 23 ot 1967.

Appeal by special leave from the judgment and order dated October 9, 1963 of the Patna High Court in M.J.C. No. 824 of 1963. . ..

S. N. Prasad and R. B. Datar, for the appellant.

B. P. Iha, for respondents Nos. 1 and 2.

The Judgment of the Court was delivered by ·

Shelat, J.-This !\ppeal, by special leave, is against the judgment of the IDgh Court of Patna dismissing in limine the writ petition filed by the appellant challenging the order of his dismissal from service passed by the Government of Bihar. ·

M. N. SRIVASTAVA v. BIHAR (She/at, I.) 865

A The appellant was first appointed as a stenographer, Sub-Inspector of Police in 1940 in the Police Service of the State.

After the requisite training in the Police Training College at Hazaribagh, he was posted as a Sub-Inspector in 1950 in Champaran District.

In 1954, he was promoted to officiate as an Inspector. of Police.

In June 1955, he worked in Saharsa District as an officiating Ins-

~ B pector of Police.

\ In July 1955, he received a notice to show cause why disciplinary proceedings should not be taken against him in a matter relating to certain cloth recovered at Katihar Police Station in a Police Case under ss. 379 and 414 of the Penal Code. The appellant c submitted his reply denying any misappropriation by him.

On September 26, 1955, he was served with a charge-sheet alleging misappropriation and connivance by him of misappropriation by two constables named therein. This was followed by an enquiry held by the Deputy Superintendent of Railway Police at Samastipur.

The appellant alleged that the enquiry was held at partially behind his back and was, therefore, bad. In April 1956, the Deputy D Superintendent of Police submitted his findings to the Superinteniii

dent of Railway Police, Samastipur holding that the charges against the appellant had been established. These findings were than submitted to the. Inspect.or General of Police with a recommendation that the appellant should be awarded exemplary punishment. In September 1957, the Inspector-General served a second show

E cause notice on the appellant to show cause why he should not be

ismissed. The appellant submitted his reply and also appeared m person.

By his order-dated September 30, 1958, the Inspector-General exonerated the appellant from the said charges. But on the basis

:;, ii, of certain adverse remarks in the confidential character roll of the n; F appellant, he passed an order reverting the appellant to his subs- ~

tantive rank of Sub-Inspector of Police for a period of one year.

·~- This order clearly was one of penalty. Admittedly, there was no

~ charge against the appellant founded' on the said adverse remarks. ''i' The adverse remarks on the basis of which the order of reversion if° i; was passed were, as the said order itself pointed out, never notified G to the appellant. Nor wa8liny opportunity to explain those remarks ever afforded to the appellant before the order of reversion was I

passed.

Aggrieved by the said order the appellant filed an appeal be- 'i}-

"'f'

fore the Government. On November 7, 1959, the Government ' H set aside the order of reversion passed by the Inspector-General. ' That was the relief prayed for by the appellant in his said appeal: The order was set aside on the ground that no opportunity had been given to the appellant to explain the said adverse remarks,

and that therefore, it was legally unsustainable. But the Governmet passed instead an order of dismissal disagreeing with the findmgs of the Inspector-General and agreeing with the findin"s given by the enqairy officer, by whom the appellant had been fomi'd guilty.

On a further appeal to the Governor having been dismissed by the Goveril!l1lent, the appellant filed a writ petition in the High Court. On January 18, 1962, the High Court allowed the writ petition setting aside the Government's order of dismissal, but

directe<i that the appellant's appeal should go back to the Government for disposal according to law. The Government thereupon served a notice on the appellant to show cause why he should not be dismissed from service. That notice was issued on the strength of rr. 851(b) and 853-A of the Bihar & Orissa Manual, 1930.

The appellant thereupon 8ave his reply and requested for a per- sonal hearing.

The request for personal hearing was rejected.

About a year after the High Court's order quashing the Government's order of dismissal, the Government issued an order dated March 5, 1963 reinstating the appellant, but at the same time suspending him from service. On June 15, 1963, the Government passed the order dismissing the appellant from service.

Hence, the appellant filed once more the present petition which the High Court dismissed in limine.

The question is whether it was competent for the Government, in an appeal filed by the appellant against the said order of reversion passed by the Inspector-General Police, to set aside the findings of that officer by which he exonerated the appdlant from the said charges against him, which findings were not appealed against by the department, and then pass an order of dismissal accepting the findings of the enquiry officer.

The appellant was governed by the Police Act, 5 of 1861.

Sec. 2 of the Act deals with the constitution of the police force and provides that the entire police establishment under a State Government shall, for the purposes of the Act, be deemed to be one police force, and shall be constituted is such manner as shall from time to time be ordered by the State Government.

Sec. 3 provides that "The superintendence of the police thoughout a general police district shall vest in and, shall be exercised by the State Government to which such district is subordinate." Under s. 4, the admistration of the police throughout general. police district is vested in the Inspector-General of Pohce, and m such Deputy Inspectors-General of Police and Assistant Inspectors-

General as the State Government shall deem fit.

Sec. 7 runs as follows :

"Subject to the provisions of article 311 of the Constitution and to such rules as the State Government may '

H I

M. N. SRIVASTAVA v. BIHAR (Shelat, J.) 867

from time to time make under this Act, the Inspector- 9eneral, Deputy Inspectors-General, Assistant Inspectors-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the sub-ordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same, or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely:''

The section then sets out the punishmepts which the said officers can impose, namely, fine, confinemnt to quarters, deprivation of good-conduct pay and removal from any office of distinction or special emolument.

It is clear that the Act itself confers on the Inspector-General power to impose in suitable cases the penalty of dismissal, suspension and reduction, subject of course, to.the provisions of Art. 311

and the rules made under the Act. The power of superintendence conferred on the State Government by s. 3 must, therefore, be read in the light of the provisions of s. 7 under which the Legislature has conferred specific powers to the officers mentioned therein.

Therefore, the State Government cannot interfere with, under the purported exercise of-the general power of superintendence. under s. 3 with an order passed by any one of the officers mentioned in s. 7 in exercise of the power conferred on them by that section, unless there is some provision which authorises or e, nvisages such interference.

Under. s. 46(2), the State Government has been given the power to make rules from time to time by notification in tbe official gazette consistent with the Act, Inter a/ia :

 " (a) to regulate the procedure to be followed by Magistrates and police-officers in tb.e discharge of any duty imposed upon them by or under this Act;

and

( c) generally, for giving effect to the provisions of this Act."

It would seem that in pursuance of the rule making power under s. 46(2) rules have been made which are to be found in the Biliar

& Orissa Police Manual, 1930. The Manual has not been produced before us.

But we find r. 851 set out by the High Court

in its judgment in the first writ petition filed by the appellant, reported in Makes/nrar Nath vs. Bihar(').

The rule so set 011t reads as follows :

"General rules as to appeals :

(a) ........... . ( b) Against an order of dismissal, removal, reduction, withholding of promotion or periodical increment. . . . . . there shall be one appeal in each case as follows; Against an order passed by a Superintendent, to the Deputy Inspector-General;

Against an original order passed by a Deputy Inspector-General, to the Inspector- General;

Against an original order passed by the Inspector-General, to the Local Government.

.( c) The order of the appellate authority on any such appeal shall be final."

Under this rule an appeal would lie before the Government against the order of the Inspector-General reverting the appellant to his substantive post of Sub-Inspector for one year. Such an appeal was in fact filed by the appellant. But no appeal was filed by the department against the order of the Inspector-General exonerating the appellant of the charges of mis; ippropriation and connivance of misappropriation by the two constables. Under r. 85l(b), therefore, the only question before the Government was whether the order of reversion should be sustained or not. There was no other matter by way of an appeaf before the Government by the department or by any one else being aggrieved against the order 9f the Inspector-General by which he held that the charges against the appellant had not been established. That being so, the Government could pass in exercise of its appellate power under r. 851 (b) such an order as it thought fit in the appeal filed by the appellant, i.e. either upholding the order of reversion or . setting it aside. In the absence of any other appeal, the Government could not sit in judgment over the findings of the Inspector-General given by him under the power conferred upon him by s. 7 of the Act. An appeal before the Government having been provided for under r. 851(b), presumably both by the delinquent police officer, as also by the department, if aggrieved by an or?er passed by the Inspectore?e .ral, there would also be no question of the Government exerc1smg its general power of superintendence under s. 3 of the Act. The

(1) A.T.R. 1962 Pat. 276.

M. N. SRIVASTAVA v. B!HAR (She/at, J.) ssg

exercise of such a power is ordinarily possible when there is no provision for an appeal unless there are other provisions providing for it. The order of dismissal passed by the Government in the appeal filed by the appellant therefore, was not sustainable.

We are, however, informed by counsel that the Government of Bihar has framed two rules, r. 853 and r. 853-A. Rule 853, a copy of which has been furnished to us, provides :

"Memorials and Revision.-No petition or memorial which is a representation against an order passed iu a disciplinary case shall be submitted to any authority other than the authority which under the rule for the time being in force is empowered to ntertailll the appeal.

No memorial or revision was filed. either by the appellant or any one else before the Government, which was the appellate authority which co11ld entertain such a memorial or revision.

Assuming that und.er r. 853 the Government could suo moto revise the orlr of the Inspector-General, an appeal having been filed before t, it cou1d .not so act. The fact that the power of revision is co - ferredon the authority possessed of appellate power indicates that the power of revision is intended to be used when an appeal could not for some reason be filed and the appellate authonty felt that the order\ras so unjust or unreasonable that it should act under its revisional power. That was not the case of the Government before us.

Nor did the Government say so in the impugned order. Therefore, there was no occasion for the Government to revise the order passed by the Inspector-General exonerating the appellant of the charges preferred against him.

In its order, dated January 31, 1963, the Government, no doubt, has referred to rr. 851 (b) and 853-A as being the rules under which it purported to act for the purpose of malting the impugned order of dismissal. Rule 851 (b), as already pointed out, however, confers no such power. As regards r. 853-A, it is neither set out in the impugned order, nor in the statement of case of the respondent-State.

We called for its production, or even its copy, but counsel for the State expressed his inability to produce the same.

Further, counsel for the appellant told us that even if r. 853-A had been framed, it cannot operate because so far it has not been published in the official gazette as required by s. 46(2).

Counsel for the State was not in a position to throw. any light whether the said rule has been framed or not and if framed whether it was notified in the Gazette.

In these circumstances, he could not rely upon that rule to sustain the order of dismissal passed by the Government.

We have, therefore, to go upon r. 851 (b), which clearly does not empower the Government to pass an order such as the one impugned by the appellant on the ground

of its revisional power or any such similar power under s. 3 of the Act.

In the absence of any other provision o.f law or any rule conferring on the State Government the power to pass an order of dismissal in exercise of its revisional power or power of general superintendence, the general principle must prevail, namely, that an appellate authority in an appeal by an aggrieved party may either dismiss his appeal or allow it either wholly or partly and uphold or set aside or modify the order challenged in such appeal. It cannot surely impose on such an appellant a higher penalty and condemn him to a position worse than the one he would. be in if he had not hazarded to file an appeal. Since under r. 85l(b) an appeal to the Government has been provided for and the Government had under that rule the appellate authority to dispose of appeals filed before it against the original order passed by the Ins-· pector-General, it could not resort to any general power of superintendence except in cases where there is a provision conferring such a power in addition to its appellate authority and in the manner envisaged by such a pr9vision.

In our view, the High Court was not right in dismissing the appellant's writ petition .. The appeal has, therefore, to be allowed and the order of the State Government quashed as being without jurisdiction. The consequence is as if the appellant was never dismissed and continued to remain in the police force to which he was attached. The resoondent-Sta1e will pay to the appellan_t the costs both of this appeal and also of the writ petition filed by him in the High Court.

G.C.

Appeal allowed ..

I A

MAKESHWAR NATH SRIVASTAVA

STATE OF BIHAR & ORS

M. SHELAT

A. N. GROVER

A. N. RAY, JJ.

Police Act

s. 46

s. 853

s. 3

s. 7

Police Act, 1861

Art. 311

s. 3

s. 7

s. 3

s. 7

S. N. Prasad

R. B. Datar

B. P. Iha

Shelat

Champaran District

Saharsa District

Katihar Police Station

ss. 379 and 414

Penal Code

September 26, 1955

Samastipur

November 7, 1959

January 18, 1962

March 5, 1963

June 15, 1963

Police Act

Sec. 2

Sec. 3

s. 4

Sec. 7

article 311

Art. 311

s. 3

s. 7

s. 3

s. 7

s. 46(2)

s. 46(2)

s. 7

s. 3

Government of Bihar

January 31, 1963

s. 46(2)

s. 3