Amjad Khan v.

The State.

Boil /,

Feb. 27.

SUPREME COURT REPORTS [1952]

on the doors were not the isolated acts of a few scattered individuals. It was the mob that was doing it .and in the High Court's words,

"The very fact that in the town of Katni two shots should have struck four Sindhis and none else shows that the rival community was on the move in that area."

In our opinion, the appellant did not use than was necessary. Indeed, the firing, acting as a deterrent, spurred them on ransacked and looted the place.

more force far from and they

We have confined our attention to the right of private defence of the person though in this case the question about the defence of property happens to be bound up with it.

The appeal is allowed. The convictions and sentences are set aside and the appellant will be released.

Agent for the appellant: 0. P. Verma.

Agent for the respondent: P. A. Mehta.

MOHAMMAD YASIN

THE TOWN AREA COMMITTEE,

JALALABAD AND ANOTHER.

[PATANJALI SASTRI C.J., MEHR CHAND MAHAJAN, MUKHERJEE, DAs and

CHANDRASEKHARA AIYAR JJ. )

Constitution of India. 1950, Arts. 19(l)(g), 32-U. P. Municipalities Act, 1916, ss. 293(1), 298(2) (g)(d)-Municipal byc-laws- Bye-law imposing fee for carrying on wholesale trade in vegetables and fruits within municipal area-Validity-Restraint on fundamental right to carry on trade-Licence and tqx, difference.

There is a difference between a tax like the income-tax and a licence fee for carrying on an occupation, trade or business.

A licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his fundamental

. '

f '

...

right to carry on his business.· Therefore if the imposition of a 19'2: licence fee is without authority of law it can be challenged by way of an application under Art., 32.

Mohammal

Yasin Under Art. 19(1)(g) of the Constitution a citizen has the right v. to carry on any occupation, trade or business and the only The Town Area restriction on this unfettered right is the authority of the State Committtl!, to make a law relating to the carrying on of such occupation, /alalabad trade or business as mentioned in cl. ( 6) of that article as mendand AntlJer, ed by the Constitution (First Amendment) Act, 1951. If therefore a licence fee imposed for carrying on an occupation, trade or business cannot be justified on the basis of any valid law, no question of its reasonableness can arise, for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupation, trade or business under Art. 19( 1) (g), and such infringement can properly be made the subject matter of a challenge under Art. 32 of the Constitution.

Bye-law No. 1 of the Bye-laws of the Town Area Committee of Jalalabad (in the United Provinces) provided that no person shall sell or purchase any vegetables or fruit within the prescribed limits of the Town Area Committee by wholesale or auction, without paying the fees fixed by these bye-laws to the licensee appointed by the Town Magistrate.

Bye-law No. 4(b) provided that any person can sell in wholesale at any place in the town area provided he pays the prescribed fees to the licensee.

A person who had been carrying on the business of wholesale dealer in vegetables and fruits in his own shop at Jalalabad for a period e>f seven years applied for protection under Art. 32 contending tl\.at these bye-laws infringed his fundamental right to carry on his trade guaranteed by Art. 19( I) (g) and were therefore void.

Held, thats. 293(1) and s. 298(2) (J) (d) of the U. P. Municipalities Act, 1916, as amended at the time they were extended to the town areas in the United Provinces did not empower the Town Area Committee to make any bye-law authorising it to charge any fees otherwise than. for the use and occupation of any property vested in or entrusted to the management of the Town Area Committee including any public street.

The bye-laws in question which imposed a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immovable property vested in or entrusted to the management of the Town Are; t Committee inch; ding any public street, are obviously ultra vires the powers of the Committee and, therefore, the bye-laws cannot be said to constitute a valid law which alone may, under Art. 19( 6) of the Constitution, impose ai restriction on the right , conferred by Art. 19(1) (g). In the absence of any valid law authorising it, such illegal imposition must undoubtedly operate as an illegal restraint and must

ifringe the unfettered right of the wholesale dealer to carry oIJ& ., .

Mohammad

his occupation, trade or hu!; iness which is guaranteed to him by Art. 19 (1) (g) of our Constitution.

Yasin Kairana case [1950] S.C.R. 566 and Ramji Lal v. !ncome-ta1t v.

Officer, Mohindargarh [ 1951] S.C.R. 127 distinguished.

The Town Ar<a ..

Committee

ORIGINAL JURISDICTION : Petition No. 132 of 1951. /a/a/abad' Petition under Art. 32 of the Constitution for a writ •nd Anoth<r, in the nature of mandamus. The material facts are

Das/. set out in the judgment.

Nuruddin Ahmad for the petitioner.

K. N. Aggarwal for .the respondents.

1952. February 27; The Judgment of the Court - was delivered by

DAs J.-This i& an application under article 32 of the Constitution made by Mohammad Yasin for the protection of his fundamental right of carrying on his business which, according to him, is being infringed by the respondent.

The case sought to be made out in the petition may be shortly stated as follows:- The petitioner is a whole11ale dealer in fresh vegetables and fruits at 1alalabad in the district of Muzaffarnagar in the State of Uttar Pradesh and claims to have been carrying on such business for the last 7 years or so at his shop situated in the town of

Jalalabad. The vegetable and fruit growers used to bring their goods to the town and get them auctioned through any of , the vegetable dealers of their choice ' who used to charge one anna in the rupee as and by way of commission.

The respondent Committee which is a Town Area Committee has framed certain bye-laws under which all right and power to levy oc collect commission on sale or purchase of vegetables and fruits within the limits of the town vt in the respondent Committee or any other agency appointed by the Committee and no one except the respondent Committee is authorised to deal in wholesale vegetables and fruits and collect the commission thereof in any place and in any event. The respondent committee has by auction given the contract for sale of

, ..

vegetables and fruits and for collecting the commis- -sion for the current year to the respondent Bishambcr who, it is alleged, has never dealt in vegetables and fruits. The respondent Committee has not set up any market nor has it framed any bye-laws for issue of licences to the vegetable and fruit merchants. The bye-laws also provide for prosecution for the breach of

any of the provisions of these bye-laws.

Although, in ierms, there is no absolute prohibition against carrying on business as wholesale dealer in vegetables and fruits, the result of the bye-laws requiring the wholesale dealers to pay the prescribed fee of one anna in the rupee to the contractor who holds the monopoly is, in effect, to bring about a total prohibition of the business of the wholesale dealers in vegetables and 'fruits. The petitioner contends that by granting a monopoly of the right to do wholesale business in vegetables and friuts to the respondent Bishambcr the . .respondent Committee has in effect totally prevented the petitioner from carrying on his business and has 'thereby infringed his fundamental right under article 19(1) (g) of the Constitution.

In the alternative, .the petitioner contends that the respondent Committee has no legal authority to impose a tax of the kind it has sought to do, that the imposition of a tax calculated at one anna in the rupee is in the nature .of a sale-tax and cannot be regarded as a licence fee . and such unauthorised impost constitutes an illegal res-

.traint on his fundamental right under article 19 (1) (g).

The notice of motion has been served Oil the rea- pondent Committee as welll as on respondent Bish- .amber.

The respondents have entered appearance and filed an affidavit in opposition to the present :application affirmed by their agent on record.

Paragraph 4 of that affidavit is as follows:-

"4. Paragraphs 4, 5, 6 and 7 of the petition arc wrong and misleading and do not convey the correct l<lea. If the bye-laws are read from beginning to end, <the correct position is that the Town Aiea. Committee !has lawfully impooed certain taxes on the purchase

Mohammad

Yasin

The Town Are11

Committee,

/11Wabatl 11nd Another.

Das /.

Mohammad

YaSin

The Town Area Committee, falalabad and Another.

Das J.

and sale of fruits and vegetables within the ambit of the Town Area; and instead of collecting the aforesaid taxes departmentally the Committee finds it more convenient and less expensive to auction the 'right to collect the taxes' and give the contract to the highest bidder or whomsoever it thinks fit and proper. There is absolutely no restriction on anybody who wants to purchase or anybody who wants to ell; only he must pay the prescribed tax to the Town Area Committee through the Contractor.

The market is open, and writ large throughout the territory of the Town Area Committee and anybody can purchase from anybody and anybody can sell to anybody, without any control or intervention by the Contractor, whose position is simply that of a taxcollector on behalf of the Town Area Committee. Instead of getting the pay, he gets the profits, if any, and runs the risk of incurring losses if his gross realisations are less than what he paid. This is clearly the position, and it is submitted, there is nothing wrong with it legally and no interference of the petitioner's rights.'"

The petitioner has to his petition annexed copies of a set of bye-laws dated June 24, 1942, and a copy of a resolution of the respondent Committee dated March 16, 1950, recommending the addition of several bye-laws to the previous bye-laws. At the hearing . of the petition before us it was agreed by and between counsel on both sides that the petition has to be disposed of on the basis of the bye-laws of 1942 only and learned counsel for the respondent Committee has. produced the original bye-laws of 1942 before us ..

Bye-law 1 only provides that no person shall sell or- . purchase any vegetable or fruit within the prescribed

limits of the Town Area Committee, Jalalabad, by wholesale or auction, without paying the fee fixed under , the51e lie-Laws to the li, censee appointed by the Town Magistrate. Bye-law 4 (b) expressly provides that any person can sell in wholesale at any place in the Town Area provided he pays the prescribed fees. to the licensee. It is, therefore, clear that these bye-- laws do not, in terms, prohibit anybody from dealing~ . in veget!ables and fruits as alleged by the petitioner:

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...

and in this respect they materially differ from the bye-laws which this Court had to consider in the Kairana case(1) which consequently does not govern this case.

Learned counsel, however, contends-and we think with considerable force and cogency-that although, in form, there is no prohibition against carrying on any wholesale business by anybody, in effect and in substance the bye-laws have brought about a total stoppage of the wholesale dealers' business in a commercial sense.

The wholesale dealers, who will have to pay the prescribed fee , to the contractor appointed by auction, will necessarily have to charge the growers of vegetables and fruits something over and above the prescribed fee so as to keep a margin of profit for themselves but in such circumstances no grower of vegetables and fruits will have his produce sold to or auctioned by the wholesale dealers at a higher rate of commission but all of them will flock to the contractor who will only charge them the prescribed commission. On the other hand, if the wholesale dealers charge the growers of vegetables and fruits only the commission prescribed by the bye-laws they will have to make over the whole of it to the contractor without keeping any profit themselves. In other words, the wholesale dealers will be converted into mere tax collectors for the contractor or the rpondent Committee without any remuneration from either of them.

In effect, therefore, the bye-laws, it is said, have brought about a total prohibition of the business of the wholesale dealers in a commercial sense and from a p_ractical point of view. We are not of opinion that this contention is unsound or untenable.

Learned counsel for the petitioner, however, does not leave the matter there. He goes further and urges that the respondent Comm~tee has no legaL authority to impose this fee of one anna in the rupee on the value of goods sold or auctioned and that such imposition is in the nature of a sale tax rather than a licence fee.

(') {1950] S.C.R. 566.

Mohammad Yasin v.

The Town Ared

Committee, /alalabad and Another.

Das/.

Mohammad

Yasin

v. 0'1.'he Town Area

Committee,

falalabad end Another.

Das./.

Learned counsel for the respondent in reply takes a preliminary objection to this line of argument. He points out that as the levying of a tax without authority of law is specifically prohibited under article 265 of the Constitution, article 31(1) must be construed as referring to deprivation of property otherwise than by levying of a tax and that levying of a tax in contravention of article 265 does not amount to a breach of a fundamental right. He contends, on the authority of 'the decision of this Court in Ramjilal v. Income-tax

Officer, Mohindargarh('), that while an illegal imposition of tax may be challenged in a properly constituted suit, it cannot be questioned by an application under article 32. This argument overlooks the difference between a tax like the income-tax and a licence tee for carrying on a business. A licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his right to carry on his business, for without payment of such fee the business cannot be carried on at all. This aspect of the matter was not Ta\ised or oonsidered in the case relied on by the learned counsel, and that case, , therefore, has no application to .the facts of this case.

Under article 19(1) (g) the citizen has the right to carry on any occupation, trade or business which right under that clause is apparently to be unfettered. The only restriction to this unfettered right is the authority of the State to make a law relating to the carrying on of such occupation, trade or business as mentioned in clause ( 6) of that

article :as amended by the Consttuon (Fi.t\st Amendment) Act, 1951. If therefore, the licence fee cannot be justified on the basis of any valid law no question of its reasonableness can arise, for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupation, trade or business under article 19

(1) (g) and such infringement can properly be made the subject-matter of a challenge under article 32 of the Constitution.

(1) [1951] S.C.R. 127

. .,

Learned counsd for the respondents then refers. us 1952

Mohammaa:

Yasin

to the U.P. Town Areas Act (No. II of 1914) which governs the respondent Committee.

Section 14 of this Act requires the Committee to annually determine and report to the District Magtrate the amount required to be raised in any town area for the purposes

The Town Are1i

Committee, /alalabad of this Act and provides that the amount so determined shall be raised by the imposition of a taX to be assessed on the occupiers of houses or lands within the limits of the town area according either to their

general circumstances or to the annual rental value of the houses or lands so occupied by them as the Committee may determine. There were, at the time when the bye-laws of the respondent Committee were framed, five provisps to this section none of which authorised the imposition of any tax on any business and, therefore, they have no bearing on the question now under consideration. Learned counsel for the respondents, however, draws our attention to section 38 of the Act which authorises the Provincial Government by notification in the Official Gazette to extend to all or any or any part of any town area any enactment for the time being in force in any municipality in.

the United Provinces and to declare its extension to. be ubject to such restria11ions and modifications, if any, as it thinks fit. Then he proceeds to draw oiir attention to Notification No. 397/XI-871-E, dated the 6th February, 1929, whereby in supersession of all

previous notifica, tions, the Provincial Government, in exercise of the powers conferred by section 38(1) of the

United Provinces Town Areas Act, 1914, extended the provisions of sections 293(1) and 298(2) (J) (d) of the

United Provinces Municipalities Act (II of 1916) to, all the town area in the United Provinces. in the modified form set forth therein. The original bye-laws produced by learned counsel purport, however, to,

have been framed by the respondent Committee under

sections 298 (2) (F) (a) and 294 of the United Provinces Municipalities Act (II of 1916). We have not been referred to any notification whereby: section 2941

ond Another •.

Das/.

Mohammad Yasin v.

The Town At-ea

Committee,

/alalabad , and Another.

])as].

of the United Provinces Municipalities Act was extended to the respondent Committee. It appears, however, that the bye-laws of the respondent Committee were revised in September 1942 and were then said to have en made under section 298 (2) (J) (d). It will have, therefore, to be seen whether these bye-laws come within the purview of section 298 (2) (J) ( d) as modified in their application to the respondent Committee.

It_}:\'ill be noticed that under section 298 (2) (J) ( d) as modified as aforesaid the respondent Committee is authorised only to make bye-laws fixing any charges or fees or any scale of charges or fees to be paid under section 293(1) and prescribing the .times at which such charges -0r fees shall be payable and designating the persons authorised to receive payment thereof. Section 293 ( 1 ), as modified, authorises the respondent Committee to charge fees to be fixed by bye-laws or by public auction or by agreement for the use or occupation ( etherwise than under a lease) of any immovable property vested in, or entrusted to the management -0f the T-0wn Area Committee, including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise. Bye-law 1 of the respondent Committee to which a reference has already been made forbids a person from 1using any land within the limits of the town area for the sale or purchase of fruits and vegetables without -paying the prescribed fee.

Bye-law 4 (b), however, allows any person to sell in wholesale at any place in the town area, provided he pay~ the prescribed fees to the licensee. Th'8C bye-laws do not purport to fix a fee for the use or occupation of any immovable pr<> perty vested in or entrusted to the management of the Town Area Committee including any public street -0r place of which it allows the use or occupation whether by allowing a projection thereon or otherwise . . Sections 293(1) and 298(2) (J) (d) of the United Province ~Ml!lnicipalities Act, 1916, as amended at the time they .were extended to the town areas in the United Provinces do not empower the Town Area Committet .t::> make any bye-law authorising it to

' --

'charge any fees otherwise than for the use or occupation of any property vested in or entrusted to the management of the Town Area Committee including .any public street. Therefore, the bye-laws prima facie go much beyond the powers conferred on the respondent Committee by the sections mentioned above and the petitioner complains agairu, t the enforcement of these bye-laws against him as he carries on business in his own shop and not in or on any immoveable property vested in the Town Area Committee or entrusted to their management. Learned counsel for the respondent Committee, however, urges that the growers of vegetables and fruits come on foot or in carts or on horses along the public street and stand outside the petitioner's shop and for such use of the public street the respondent Committee is well within its powers to charge the fees. From the way the case was formulated by the learned counsel, it is quite clear that if anybody uses the public street it is the growers of vegetables and fruits who come to the petitioner's shop to get their produce auctioned by the petitioner and the petitioner cannot be charged with fees for use of the public street by those persons.

In our opinion, the bye-laws which imp~ a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or oc.cupation by him of immoveable property vested in or entrusted to the management of the Town Area Committee including

any; public street, are obviously ultra vires the powers of the respondent Committee and, therefore, the bye-

Iaws cannot be said to constitute a valid law which alone may, under article 19(16) of the Constitution,

ime a restriction on the right conferred by article 19(1) (g). In the absence of any valid law authorising it, such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation, trade or business which is guaranteed to him by article 19(1) (g) of our Constitution.

A{ohammad

Yasin

The Town Arca

Committee,

Jalalabad and Another.

Das/.

Mollammtul

Yasin

The To""' Area

Committee.

/altdtlbail

v .. 1.

In this view of the matter the petitioner is entitled, to a suitable order for protection of his fundamental right. The prayer in the petition, however, has been, expressed in language much too wide and cannot be granted in that form. The proper order would be to direct the respondent Committee not to prohibit the petitioner from carrying on the business of a wholesale dealer in vegetables and fruits within the limits of the Jalalabad Town Area Committee until proper and valid bye-laws are framed and tl1ereafter except in accordance with a licence to be obtained by the petitioner under the b)ie-laws to be so framed. The . respondent Committee will pay tlie costs of thj.g application to the petitioner.

Agent for the petitioner: Nan nit Lal.

Agent for the respondent: P. C. Aggarwal-

~ '

GIPN-S3--6 S.C. India/71-12-10-72-700.

Katni

. P. Verma

P. A. Mehta

MOHAMMAD YASIN

PATANJALI SASTRI C.J.

MEHR CHAND MAHAJAN

DAs

CHANDRASEKHARA AIYAR JJ.

Constitution of India

Arts. 19(l)(g), 32

Municipalities Act, 1916

ss. 293(1), 298(2)

Mohammal

Art. 19(1)(g)

Art. 19( 1)

Art. 32

Jalalabad

Art. 32

Art. 19( I)

s. 298(2)

Municipalities Act, 1916

Art. 19( 6)

Art. 19(1)

Mohammad

Art. 19

Art. 32

Nuruddin Ahmad

K. N. Aggarwal

article 32

Mohammad Yasin

Muzaffarnagar

Uttar Pradesh

Bishambcr

article 19(1)

article 19

June 24, 1942

March 16, 1950

Kairana

article 265

article 31(1)

article 265

article 32

article 19(1)

article 19

article 32

Mohammaa

Yasin

Town Areas Act

Section 14

section 38

6th February, 1929

section 38(1)

United Provinces Town Areas Act, 1914

sections 293(1) and 298(2)

sections 298

section 2941

section 298

section 298

section 298

section 293(1)

Section 293

Sections 293(1) and 298(2)

United Province

article 19(16)

article 19(1)

article 19(1)

Jalalabad Town Area Committee

Nan nit Lal

P. C. Aggarwal-


_ ..

( -.

S.C.E,.

SUPREME COURT REPORTS

VEERAPPA PILLAI

"· RAMAN & RAMAN LTD. and OTHERS.

[PATANJALI SASTRI c. J., MEHR CHAND MAHAJAN,

MuKHERJEA, DAs and CHANDRASEKHARA

AIYAR JJ.]

Constitution of India, Art. 226--0rder of Traffic Board grant ing permit to run motor buses to particular person-Application to High Court by rival claimant under Art. 226 for quashing the order and for a direction to grant permits to him-Maintainabilityjurisdiction of High Court to interfere-Motor Vehicles Act, 1939 -Grant of permit-Whether depends on ownership of bus-Discretion of Traffic Board.

The writs referred to in Art. 226 are intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without judisdiction , or in excess of it:, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission or error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.

The Motor Vehicles Act contains a complete and precise schr"me for regulating the issue of permits, providing what matters are to be taken into consideration as relevant and prescribing appeals and revisions from subordinate bodies to higher authorities, and the issue or refusal of permits is solely within the discretion of the transport authorities; it is not a matter of right.

Where, in a dispute between two rival claimants for running through a particular route five buses, which each of them alleged he had purchased from a third person, the Central Road Traffic Board, Madras, after calling for a report from the Regional Transport Officer and considering several circumstances that had a material bearing on the case, restored the permanent permits which had been granted to one of the claimants, but on an application by the other claimant under Art. 226 of the Constitution td the High Court of Madras for a writ of certiorari quashing the orders of the Regional Transport Authority, the Central Road Traffic Board and the State of Madras and for a: writ of mandamus to the respondents to transfer, is:ue or grant

Mflt'Ch 17.

1952 permanent permits to the petitioner', the High Court set aside . . the order of the Central Traffic Board, relying mainly on the Veerapp• .Pillai fact that the petitioner's title to. the five buses had been cstav. blished and directed the Regional Traffic Authority to grant to Raman & Raman the petitioner permits in respect of the five buses : Ltd. & Others.

Held, that under the Motor Vehicles Act, the issue of -- a permit for a bus was not dependent on the ownership of the Chantfrasekhara bus but on other considerations also, and as the Central Traffic

Aiyar ].

Board had issued an order granting permits to one of the claimants after considering all circumstances the High Court acted erroneously in interfering with the Order 0£ Traffic Board on an application under Art. 226 ; and in any event the order of the High Court issuing a direction to the Regional Transport Authority to grant permits to the other party was clearly in excess of its powers and jurisdiction.

The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribes an elaborate procedure for their regulation.

No one is entitled to a permit as of right even if he satisfies all the prescribed conditions. The grant of a permit is entirely within the discretion of the transport autho~ rities and naturally depends on several circumstances which have .to be taken into account.

CML

APPELLATE JuRismCTION Civil Appeal No. 159 of 1951. Appeal by special leave from the judgment and order dated 13th of April, 1951, of . the High Court of Judicature at Madras (Rajamannar C. J. and Somasundaram J.) in C.M.P. No. 122/15 of 1950.

M. C. Setalvad (C. R. Pattabhi Raman, with him) for the appellant.

C. K. Daphtary (M. Natesan, with him) for the respondent No. 1.

V. K. T. Chari, Advocate-General of Madras

(R. '.

Ganapathi Iyer, with him) for respondent No. 4.

1952. March 17. . The Judgment of the Court was delivered by

CHANDRASEKHARA ArYAR J.-This appeal arises as the result of special leave to appeal granted by this Court on the 1st of May, 1951, against an order of the Madras High Court dated 13th April, 1951, quash- . iµg i::ertain proceedings of the Regional Transport Authority, Tanjore, and the Central Traffic Board, Madras, dated 19th January, 1950, and 3rd March,

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y • -.

1950, respectively, and an order of the first respondent (the State of Madras) dated 7th November, 1950, and directing the issue to Messrs. Raman and Raman Ltd. (Petitioners before the High Court) of permits for the five buses in respect of which a joint application had been made originally by them and one T. D. Balasubramania Pillai.

The present appellant, G. Veerappa Pillai, was the fourth respondent in the High Court. The present first respondents (Messrs. Raman and Raman Ltd.) were the petitioners before the High Court. Present respondents Nos. 2, 3 and 4 were respectively respondents Nos. 1, 2 and 3 before the High Court.

The dispute is between the appellant and Messrs.

Raman and Raman Ltd., who were competing bus pro- -prietors in the Tanjore District; and it is over the issues of five permanent permits for buses Nos. M.D.O. 81, M.D.O. 230, M.D.O. 6, M.D.O. 7 and M.D.O. 759 on the route between Kumbakonam and Karaikal. It has been a long-drawn game with many moves, counter-moves, advances and checkmates, both sides displaying unusual assiduity and skill in their manoeuvres for position.

But it is unnecessary to set out in great detail all the steps taken, as they have been narrated in the order of High Court and many of them are of insignificant relevance for disposal of this appeal. I shall state here only what is material.

The 'C' permits for the five buses stood originally in the name of Balasubramania Pillai. The buses were agreed to be purchased from him by Messrs.

Raman and Raman Ltd., and there was a joint application by the transferor and transferee on 10th March, 1944, for transfer of the ownership and of the 'C' permits in the name of the purchasers. Two days later, Veerappa Pillai, proprietor of the Sri Sathi Vilas Bus Service, who is the appellant before us, applied for temporary permits to ply two of his own vehicles over the same route, stating that the vehicles of the two agencies which held the permits were mostly out of action.

It was a fact that out of the five buses sold.

V eerappa Pillai v.

Raman & Rama"

Ltd. & Others.

Chandrasekhara

Aiyar /.

V eerappa Pillai

Raman & Raman Ltd. & 0 thers.

Chandrasekhara Aiyar ].

by Balasubramania Pillai, only two were then running; the other three were under repairs. The permanent .permits for the sold buses were suspended by order of the Secretary dated 28th March,

1944. Temporary permits for buses M.D.0. 920, 894, 918, M.S.C. 7632 and 7482 had been issued to Veerappa Pillai during the same month.

Now we come to another chapter in the story. Balasubramania Pillai resiled from the joint application and repudiated it as having been got from him by fraud. The Secretary, Road Traffic Board, thereupon refused to transfer the ownership on the 19th March, 1944, and this order was confirmed by the Board on 29th May, 1944.

Balasubramania Pillai and Veerappa Pillai made a joint application on 10th April, 1944, for transfer of the buses and the original permits in favour of Veerappa Pillai who had on the same date agreed to purchase the vehicles. The Secretary granted this application on the same date. Messrs. Raman and Raman Ltd., took the matter before the Central Road Traffic Board and they made an order on 16th August, 1944, upholding the issue of temporary permits to V eerappa Pillai for his buses M.D.O. 920, 894, 918, M.S.C. 7632 and 7482, but setting aside the transfer of registry of the original buses and the transfer of the permits relating to the same.

On an application by Veerappa Pillai to review its order dated 16th August, 1944, the Central Road Traffic Board allowed on 27th November, 1944, only the transfer of the ownership of the buses but not a transfer of the permits.

Yet another move in the game was this. Veerappa Pillai filed a suit in the court of the Subordinate Judge, Kumbakonam, on 3rd October, 1944, for recovery of possession of the original five buses from Messrs.

Raman and Raman Ltd., on the strength of his purchase from Balasubramania Pillai.

The Subordinate Judge appointed Veerappa. Pillai as Receiver on 17th March, 1945, and the five disputed buses were delivered to him on 26th April, 1945.

Two of the buses M.D.O. 6 and 7 were repaired by him and put on the route under his temporary permits. The suit was decreed in

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...

' \

his favour on 2nd May, 1946.

Later, he repaired the other three buses M.D.O. 759, 230 and 81 and began to run them on the same route under the temporary permits he held.

Veerappa Pillai was discharged from receivership on 18th September, 1946.

On the strength of the Sub-Court decree, Veerappa Pillai again applied for a permanent transfer of the permits, and on 22nd July, 1946, the Central Road Traffic Board transferred the petition to the Regional Transport Authority with an intimation that it saw no objection to the issue of regular permits to Veerappa Pillai for the disputed buses or to their transfer in his name, provided there were valid permits in existence.

This view appears to have been modified later and on 2nd September, 1946, the Regional Transport Officer directed the issue of temporary permits to the buses for the period from 3rd September, 1946, to 31st October, 1946, subject to the condition that the issue of the permits did not affect the rights of either party in the matter under dispute. Thereupon, the Government was moved by V eerappa Pillai and also by Messrs. Raman and Raman Ltd., but the Government declined to interfere and the result was an order on 30th June, 1947, by the Regional Transport Authoritv to the following effect :- ·

"Since the subject-matter 1s on appeal before the High Court, the matter will lie over pending the decision of the High Court.

The temporary permits are continued as i~ being done."

A fresh petition by Veerappa Pillai to the Central Road Traffic Board, Madras, was unsuccessful, but a further appeal to the Government of Madras ended in his favour in an order dated 29th March, 1949.

The order is in these terms :-

"Shri Sathi Vilas Bus Service, Porayar, Tanjore district, have been permitted by the Regional Transport Authority, Tanjore, to run their buses M.D.O. 6, 7, 81, 230 and 759 on the Kumbakonam-Karaikal route on temporary permits from 1944 pending

Veerappa Pillai

Raman & Ramar>

Ltd. & Othtrs.

Chandrasekhara Aiyar /.

Veerappa Pillai v.

Raman & Raman Ltd. & Others.

Chandrasekhara Aiyar /.

the High Court's decision on the question of permanent ownership of the buses.

Government consider it undesirable to keep these buses running on temporary permits for a long and indefinite period.

Further Sri Sathi Vilas Bus Service have secured the decision of the Sub-Court, Kumbakonam, in their favour about the permanent ownership of the buses.

In the circumstances the Regional Transport Authority, Tanjore, is directed to grant permanent permits for the buses of Sri Sathi Vilas Bus Service, Porayar, referred to above in lieu of the existing temporary permits."

On the basis of this Government order, permanent permits were issued in favour of Veerappa Pillai on 18th April, 1949.

Getting to know of this last order, Messrs.

Raman and Raman Ltd., approached the Government of Madras with a petition praying for clarlfication of the order by making it expressly subject to the decision of the High Court regarding the title to the said five buses and that in the event of the High Court deciding the appeal in favour of Messrs.

Raman and Raman Ltd. "the above said five permanent permits will be taken away from Veerappa Pillai and given to them." The Minister of Transport, who dealt with the matter, stated on the petition "that was my intention also."

The High Court reversed the decree of the Sub-Court on 2nd September, 1949, and came to the conclusion that the title of Messs. Raman and Raman Ltd., to the five buses prevailed over that of Veerappa Pillai.

On 19th September, 1949, they applied to the Government . for cancellation of the five permits issued to Veerappa Pillai and for grant of the same to them.

The Government declined to interfere as the Regional Transport Authority was the comptent authority, vide order dated 16th November, 1949.

In their application to the Regional Transport Authority dated 28th November, 1949, Messrs. Raman and Raman Ltd .• asked for withdrawal of the permits. In the meantime, that is -on 14th October, 1949, Veerappa Pillai applied for renewal of his permanent permits held for his own

. -

....

- .

buses Nos. M.D.O. 1357, 20, 1366, 1110, 1077, M.D.O. 1368 and M.S.C. 7632, which had been substituted for the .disputed buses as they had become unroadworthy and useless. The application for renewal has under section 58, sub-clause (2), of the Act to be treated as a fresh application for new permits. Tlus procedure was followed and on 22nd October, 1949, a notification was issued inviting objections against the renewal and giving 30th November, 1949, as the date of hearing.

No objections were received and the Secretary renewed the permits for two years from 1st January, 1950.

This order was dated 3rd January, 1950.

The Regional Transport Authority dealing with the application of Messrs. Raman and Raman Ltd., dated 28th November, 1949, resolved on 19th January, 1950, that the permanent permits issued to Veerappa Pillai should be cancelled, that the route should be declared vacant in respect of the five buses and fresh applications should be invited and dealt with on the merits. The order further stated that "in the meanwhi:le Sri G. V eerappa Pillai and Raman and Raman will be given temporary permits for running two and three buses respectively on the route.

The permanent permits will be cancelled with immediate effect. Raman and Raman should put in the buses as quickly as possible.

Till then Sri Veerappa Pillai will be given temporary permits so as not to dislocate public traffic."

Both the parties were dissatisfied with this order and preferred appeals to the Central Road Traffic Board, Madras, which dismissed the appeal of Messrs.

Raman and Raman Ltd., and restored the permanent permits of Veerappa Pillai by order dated the 3rd March, 1950.

Messrs. Raman and Raman Ltd., moved the Government, but it declined to interfere by G.O., dated 7th November, 1950.

Thereupon, Messrs.

Raman and Raman Ltd., moved the High Court on 4th December, 1950, under article 226 of the Constitution in Civil Mi:Scellaneous Petition No. 12215 of 1950 for a writ of certiorari for quashing the orders and the proceedings of the

V eerappa Pillai v.

Raman & Raman

Ltd. & Othel's.

Chandrasekhara

11.iyar ;.

V eerappa Pillai

Raman & RamatJ

Ltd. & Others.

Chandrasekhara Aiyar /.

Regional Transport Authority, the Central Road Traffic Board, Madras, and the State of Madras dated 19th January, 1950, 3rd March, 1950, and 7th November, 1950, respectively, and for the sue of a writ of mandamus or other such appropriate directions to the first respondent to transfer, issue or grant "the five pucca permits in respect of the route Kumbakonam to Karaikkal to the petitioner herein" (Messrs. Raman and Raman Ltd.) It is on this petition that the order challenged in this appeal was made by the High Court.

The High Court took the view that throughout all the stages prior to the High Court's decree, the parties, the transport authorities vested with the power to issue permits, and the Government also proceeded upon the footing that the transfer of the perm!ts was dependent on the title to the buses and that Veerappa Pillai obtained the temporary and permanent permits only in his capacity as transferee and not in his individual right. To quote the learned Chief Justice :- "the conduct of the parties, the attitude of the transport authorities including the Government are all explicable only on the assumption that the rights of parties were consequent on the ownership of the five vehicles in question.

The fourth respondent having obtained the benefit of temporary and permanent permits as a transferee from Balasubramania Pillai all this ti1me cannot be heard now to say after the decision of this Court which has negatived his claim and upheld the claim of the applicant that the applicant should not enjoy the fruits of his success." He further points out that the procedure laid down by the Motor Vehicles Act and the rule• for grant of fresh permits was not followed and that long before the application for renewal was allowed, the Regional Transport Authority had been informed of the decision of the High Court. The order of the Central Road Traffic Board was in his opinion most unsatisfactory, as it was based on a quibbling distinction between "withdrawal" and "cancellation" of the permits. In his view, the orders complained against deprived Messrs. Raman and Raman Ltd., of the fruits of the

. -

-- .

decree obtained by them at the hands of the High Court after much expenditure of time and money.

An examination of the relevant sections of the Motor Vehicles Act does not support the view that the issue of a permit for a bus-which falls within the definition of a "stage carriage"-is necessarily dependent on the ownership of vehicle.

All that is required for obtaining a permit is possession of the bus.

As ownership is not a condition precedent for the grant of permits and as a person can get a permit provided he is in possession of a vehicle which satisfies the requirements of the statute or the rules framed thereunder, we have to hold that the partiesi and the authorities were labouring under a misconception if they entertained a contrary view.

But the assumption on which they proceeded may perhaps be explained, if not justified, on the ground that it was supposed that the question of ownership of vehicles had an important or material bearing on the question as to which of them had a preferential claim for the permits.

It may well be it was one of the factors to be taken into account and it seems to us that this was apparently the reason why the question of issue of permanent permits was postponed from time to time till we come to the order of the Government dated 29th March, 1949, on petitions presented by both the contestants.

If ina.tters, had stood as they were till the Government had made this order, something could have been said in favour of Messrs. Raman and Raman Ltd., in the event of their ultimate success rn the High Court as regards the title to the five buses. But the said order altered the situation. In the order, the direction for the grant of permanent permits is not rested solely on the decision of the Sub-Court in favour of Veerappa Pillai but another reason was also given, namely, that Government considered it undesirable to keep the buses running on temporary permits for a long and indefinite period.

In giving this reason, they were stating a policy.

Veerappa Pillai v.

Raman & Ramafl"

Ltd. & Others.

Chandrasekhara Aiyar /.

V ecrappa Pillai

v. Raman& Raman • Ltd. & Others.

Chandrasekhara

Aiyar ].

As observed already, the High Court by their judgment dated 2nd September, 1949, reversed the decree of the Subordinate Judge and dismissed Veerappa Pillai'& suit for possession of the buses based on his

title~ If it were the law that the question of possession based on ownership was decisive as regards the grant of permits, and if no other circumstances were available to be taken into account when the question of the issue of permanent permits again came up for consideration, it would have been easy to hold that Messrs.

Raman and Raman Ltd., had at least a preferential claim.

But unfortunately for them, both these reqms1tes are not satisfied. It has been pointed out already that nowhere do we find in the Act anything to indicate that the issue of permits depends on ownership. Other circumstances which had a material bearing as to which of them was entitled to the permits had come into existence since the date of the original . joint application and were taken :lnto account by the transport authorities and by the Government. The order of 19th January, 1950, of the Regional Transport Authority sought to render rough and ready justice between the parties by the adoption of what may be called a middle course.

The terms of the order have already been set out.

Before disposing of the appeals ()f both the parties, the Central Traffic Board appears to have called for a report from the Regional Transport Officer. In this report, attention was drawn to the fact that all the five buses had been replaced by new vehicles and that the registration certificates had been cancelled as a result of the replacement. After Balasubramania Pillai, it was Veerappa Pillai who was running the buses continuously on this route for nearly 5 years and he also obtained the privilege of securing the permanent permits. The Central Traffic Board's order of 3rd March, 1950, restoring the permanent permits of Veerappa Pillai was based on the fact that Messrs. Raman and Raman Ltd. asked for withdrawal of the permits and not th_eir cancellation and that no opportunity had been given to Veerappa Pillai to show cause why his permits should not be cancelled~ and

. -

f •

~·.

the procedure followed. prescribed for cancellation was

not

When the Government was moved by Messrs. Raman and Raman Ltd., under section 64 (a) of the Motor Vehicles Act, they had before them a petition for withdrawal of the permanent permits issued to Vei:rappa Pillai and for transfer or grant of five 'pucca permits' relating to the five buses. The Government granted stay of the appellate order of the Central Road Traffic Board pending disposal of the revision petition and called for a report from the subordinate transport authorities.

Two important facts were brought to the notice of the Government in the report. Messrs. Raman and Raman Ltd. did not file any objections to the renewal of the permits sought by Veerappa Piillai. What is more important, they had no permits from the Fr.ench authorities enabling them to run any buses on the portion of the route which lay in French territory. It was further pointed out that there was no subsisting joint application to support the request for transfer and that the original permits in the 'name of Balasubramanian had ceased to exist after 31st December,

1944. The Government had also before them two petitions dated 8th March, 1950, and 25th October, 1950, from Messrs Raman and Raman Ltd., and two petitions dated 29th March, 1950, and 8th June, 1950, from Veerappa Pillai. It is on the bm.s of all these materials that the Government declined to interfere with the decision of the Central Road Traffic Board.

It IS contended for the appellant that m this state of affairs the High Court acting under Article 226 of the Constitution had no right to interfere with the orders of the transport authorities.

It is unnecessary for the disposal of this appeal to consider and decide on the exact scope and extent of the jurisdiction of the High Court under Article 226.

Whether the writs it can issue must be analogous to the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari specified therein and the power is subject to all the limitations, or restrictions

V urappa Pillai v.

Raman & Raman

.Ltd .. & Others.

Chandrasekhara Aiyar/.

Veerappa Pillai

Raman & Raman Ltd. (Jr Others.

Chandrasekhara Aiyar f.

imposed on the exercise of this jurisdiction, or whether the High Court is at liberty to issue any suitable directions or orders or writs untramelled by any conditions, whenever the interests of justice so requie, is a large and somewhat difficult problem which does not arise for solution now. Mr. Setalvad appearing for the appellant urged two narrower grounds as sufficient for his purposes.

Firstly, he urged that however wide the jurisdiction of the High Court might be under Article 226, it could never exercise its powers under the article in such a manner as to convert itself into a court of appeal sitting in judgment over every tribunal or authority in the State discharging administrative or quasi-judicial functions.

Secondly, he maintained that the Motor Vehicles Act with the rules framed thereunder dealing with the grant of permits is a self-contained code and that in re_wect of the rights and liabilities created by such a statute the manner of enforcement must be sought within the statute itself.. It was further urged by him that in any event, the High Court could not substitute its own view or discretion for the view taken or discretion exercised by the specified authorities, even if it was erroneous or unsound.

Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice.

However extensive the juridiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper vilow to be tafoen or the order to be made.

Mr. Daphtary, who appeared for the respondent, said nothing to controvert this position. His argument

v •

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• -

• •

was that if all along the authorities and the Government had proceeded upon a particular footing and dealt with the rights of the parties on that basis, it was not open to them afterwards to change front and give the go-by altogether to the conception of the rights of parties entertained by them till then. According to him, there was manifest injustice to his client in allowing them to do so and this was the reason whkh impelled the High Court to make the order which is the subject-matter of challenge in this appeal.

The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribes an elaborate procedure for their regulation. No one is entitled to a permit as of right even if he satisfies all the prescribed conditions. The grant of a permit is entirely within the discretion of the transport authorities and naturally depends on several circumstances which have to be taken into account. The Regional Transport Authority and the Provincial Tranport Authority are entrusted under section 42 with this power. They may be described as administrative bodies exercising quasijudicial functions in the matter of the grant or permits.

Under rule 3 of the Madras Motor Vehicles Rules, the Regional Transport Authority is called the Road Traffic Board and the Provincial Transport Authority is called the Central Road Traffic Board.

These bodies or authorities are constituted by the Provincial Government. The matters which are to be taken foto account in granting or refusing a stage carriage permit are specified in section 47.

By delegation under rule 134A, the Secretary of the Road Traffic Board may exercise certain powers as regards the grant or refusal of stage carriage permits and under rule 136 there is an appeal to the Board from these orders.

Similar Powers of delegation are vested in the Secretary to the Central Board and an appeal lies to the Central Board under rule 148(1). From an origiinal order of the Road Traffic Board there is an appeal to the Central Board and from the original orders of the Central Board to the Government, vide rules 147 and 148. An amendment introduced by the Madras Act XX of 1948

V eerappa Pillai v.

Raman & Raman Ltd. & Others.

Chandrasek_hara

Aiyar /.

Veerappa Pillai

and found as section 64A in the Act vests a power of revision in the Provincial Government.

Besides this specific provision, there is a general provision in section 43A that the Provincial Government may issue such orders and directions of a general character as it may consider necessary to the Provincial Transport Authority or a Regional Transport Authority in resv.

Raman & Raman Ltd. & Othm.

Chandrasekhara

Aiyar /. pect of any matter relating to road transport; and such transport authority shall give effect to all such orders and directions. There is, therefore, a regular hierarchy of administrative bodies established to deal with the regulation of transport by means of motor vehicles.

Thus we have before us a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities. The remedies for the redress of grievances or the correction of errors are found in the statute itself and i~ is to these remedies that resort must generally be had. As observed already, the issue or refusal of permits is solely within the discretion of the transport authorities and it is not a matter of right.

We are accordingly of opinion that this was not a case for interference with the discretion that was exercised by the Trans port Authorities paying regard to all the facts and the surrounding circumstances.

Further, it will be noticed that the High Court here did not content itself with merely quashing the proceedings, it went further and directed the Regional Transport Authority, Tanjore, "to grant to the petitioner permits in respect of the five buses in respect of which a joint application was made originally by the petitioner and Balasubramania Pi1llai and that in case the above buses have been condemned, the petitioner shall be at liberty to provide substitutes within such time as may be prescribed by the authorities." Such a diirection was clearly in excess of its powers and jurisdiction.

..... -

> •

For the reasons given above, the appeal is allowed and the order of the High Court set aside. Each party will bear their own costs of these proceedings throughout.

Appeal allowed.

Agent for the appellant : S. Subrahmanyam.

Agent for respondent No. 1 : M. S. K. Sastri.

Agent for respondent No. 4 : P. A. Mehta.

STATE OF MADRAS v.

V. G. ROW

UNION OF INDIA & STATE I OF TRA VAN CORE-COCHIN. J lnterveners

[PATANJALI SASTRI c. J., MEHER CHAND MAHAJAN,

- MuKHERJEA, DAs and CHANDRASEKHARA

AlYAR JJ.)

Indian Criminal Law Amendment Act (XIV of 1908) as amended by Indian Criminal Law Amendment (Madras) Act, 1950, ss. 15 (2) (b), 16-Law empowering State to declare associations illegal by notification-No provision for judicial inquiry or for service of notification on association or office-bearers-Validity of law-Unreasonable restriction on right to form associations-Constitution of India, art. 19 (1) (c), (4).

Section 15 (2) (b) of the Indian Criminal Law Amendment Act, 1908, .is amended by the Indian Criminal Law Amendment (Madras) Act, 1950, included within the definition of an "unlawful association"· an association "which has been declared by the State by notification in the Official Gazette to be unlawful on the ground (to be specified in the notification) that such association ( i) constitutes a danger to the public peace, or (ii) has interfered or interferes with the maintenance of public order or has such interference for its object, or (iii) has interfered or interferes with the administration of the law, or has such interference for its object." Section 16 of the Act as amended provided that a notification under s. 15 (2) (b) shall (i) specify the ground on which it is issued and such other particulars, if any, as may have bearing on the 2-7 S. C. India/71

Veci:appa Pillai.

Raman & Raman

Ltd. & Otlzerr.

Chandrasek ham

Aiyar /.

March 31

VEERAPPA PILLAI

RAMAN & RAMAN LTD. and OTHERS

PATANJALI SASTRI

MEHR CHAND MAHAJAN

MuKHERJEA

DAs

AIYAR JJ.

Constitution of India

Art. 226

Art. 226

Art. 226

Motor Vehicles Act

Central Road Traffic Board, Madras

Art. 226

High Court of Madras

State of Madras

Raman

Motor Vehicles Act

Art. 226

Motor Vehicles Act

13th of April, 1951

High Court of Judicature at Madras

Rajamannar

Somasundaram

M. C. Setalvad

R. Pattabhi Raman

C. K. Daphtary

M. Natesan

V. K. T. Chari

R. '.

Ganapathi Iyer

CHANDRASEKHARA ArYAR

State of Madras

Raman and Raman Ltd.

T. D. Balasubramania Pillai

G. Veerappa Pillai

Raman and Raman Ltd.

Raman

Raman Ltd.

Tanjore District

Kumbakonam

Karaikal

Balasubramania Pillai

Raman and Raman Ltd.

10th March, 1944

Veerappa Pillai

Sri Sathi Vilas Bus Service

V eerappa Pillai

Chandrasekhara Aiyar

19th March, 1944

29th May, 1944

10th April, 1944

Central Road Traffic Board

16th August, 1944

V eerappa Pillai

27th November, 1944

Subordinate Judge, Kumbakonam

3rd October, 1944

Veerappa. Pillai

The Subordinate Judge appointed Veerappa.

17th March, 1945

26th April, 1945

2nd May, 1946

18th September, 1946

22nd July, 1946

2nd September, 1946

3rd September, 1946

31st October, 1946

30th June, 1947

Madras

29th March, 1949

Sathi Vilas Bus Service

Sathi Vilas Bus Service

Regional Transport Authority, Tanjore

Sri Sathi Vilas Bus Service, Porayar

18th April, 1949

Government of Madras

2nd September, 1949

19th September, 1949

16th November, 1949

28th November, 1949

Raman and Raman Ltd

14th October, 1949

section 58

22nd October, 1949

1st January, 1950

3rd January, 1950

19th January, 1950

G. V eerappa Pillai

Raman Ltd.

3rd March, 1950

7th November, 1950

article 226

V eerappa Pillai

Karaikkal

Motor Vehicles Act

Veerappa Pillai

Raman & Ramafl"

Ltd.

Central Traffic Board

section 64

Motor Vehicles Act

Vei:rappa Pillai

Veerappa Piillai

Balasubramanian

31st December,

1944

8th March, 1950

25th October, 1950

29th March, 1950

8th June, 1950

Article 226

Article 226

Chandrasekhara Aiyar/.

Raman & Raman Ltd.

Setalvad

Article 226

Motor Vehicles Act

Article 226

Daphtary

Motor Vehicles Act

section 42

section 47

Madras Act XX of 1948

section 64A

section 43A

Balasubramania Pi1llai

S. Subrahmanyam

Agent for the appellant : S. Subrahmanyam.

M. S. K. Sastri

P. A. Mehta

MEHER CHAND MAHAJAN

J lnterveners

[PATANJALI SASTRI c. J., MEHER CHAND MAHAJAN,
MuKHERJEA, DAs and CHANDRASEKHARA

AlYAR JJ.)

CHANDRASEKHARA

AlYAR

Indian Criminal Law Amendment Act

ss. 15

Constitution of India

art. 19

Section 15

Indian Criminal Law Amendment Act, 1908

Section 16

the Indian Criminal Law Amendment Act, 1908

s. 15

Chandrasek ham


> •

S.C.R.

SUPREME COURT REPORTS 597

For the reasons given above, the appeal is allowed and the order of the High Court set aside. Each party will bear their own costs of these proceedings throughout.

Appeal allowed.

Agent for the appellant : S. Subrahmanyam.

Agent for respondent No. 1 : M. S. K. Sastri.

Agent for respondent No. 4 : P. A. Mehta.

STATE OF MADRAS v.

V. G. ROW

UNION OF INDIA & STATE I OF TRA VAN CORE-COCHIN. J lnterveners

[PATANJALI SASTRI c. J., MEHER CHAND MAHAJAN,

- MuKHERJEA, DAs and CHANDRASEKHARA

AlYAR JJ.)

Indian Criminal Law Amendment Act (XIV of 1908) as amended by Indian Criminal Law Amendment (Madras) Act, 1950, ss. 15 (2) (b), 16-Law empowering State to declare associations illegal by notification-No provision for judicial inquiry or for service of notification on association or office-bearers-Validity of law-Unreasonable restriction on right to form associations-Constitution of India, art. 19 (1) (c), (4).

Section 15 (2) (b) of the Indian Criminal Law Amendment Act, 1908, .is amended by the Indian Criminal Law Amendment (Madras) Act, 1950, included within the definition of an "unlawful association"· an association "which has been declared by the State by notification in the Official Gazette to be unlawful on the ground (to be specified in the notification) that such association ( i) constitutes a danger to the public peace, or (ii) has interfered or interferes with the maintenance of public order or has such interference for its object, or (iii) has interfered or interferes with the administration of the law, or has such interference for its object." Section 16 of the Act as amended provided that a notification under s. 15 (2) (b) shall (i) specify the ground on which it is issued and such other particulars, if any, as may have bearing on the 2-7 S. C. India/71

Veci:appa Pillai.

Raman & Raman

Ltd. & Otlzerr.

Chandrasek ham

Aiyar /.

March 31

S111te of Madras

v • • V. G. Row.

necessity therefor and (ii) fix a reasonable period .for any office. bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification. Under s. 16A the Government was required after the expiry of the time fixed in the notification for making representation to place the matter before an Advisory Board and to cancel the notification if the Board finds that there was no sufficient cause for the issue of such noti6.cation.

There was however no provision for adequate communicatiori of the notification to the association and its members or office bearers.

It was conceded that the test under s. 15(2)(b) as amended was, as it was under s. 16 as it stood before the amendment, a subjective one and the factual existence or otherwise of the grounds was not a justiciable issue and the question was whether s. 15(2)(b) was unconstitutional and void : Held, (for reasons stated below) that s. 15(2)(b) in; psed restrictions on the fundamental right to form assoc1at.J.ons guaranteed by art. 19 (I) ( c ), which were not reasonable within the meaning of art. 19( 4) and was therefore unconstitutional and void. The fundamental right to form associations or unions guaranteed by art. 19 (!) ( c) of the Constitution has such a wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fields, that. the vesting of the authority in the executive Government to impose restrictions on such right, without allowing the grounds of such imposition, both in their factual and legal aspects to be duly tested in a judicial inquiry, is a strong element which should be taken into account in judging the reasonableness of restrictions imposed on the fundamental right under art. 19(l)(c). The absence of a provision for adequate communication of the Government's notification under s. 15(2)(b) by personal service or service by affixture to the association and its members and office-bearers was also a serious defect.

The formula of subjective satisfaction of the Government or of its officers with an advisory Board to review the materials on which the Government seeks to override a basic freedom gu~.ran teed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits.

In considering the reasonableness of laws imposing restric tions on fundamental right, both the substantive and procedural aspects of the impunged la\V should be examined from the point of view of reasonableness and the test of reasonableness, wherever prescribed, should be applied to each individual statute impunged and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases.

The nature of the right alleged to have been infringed, the underly ing purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all

. -

-enter into the judicial verdict.

In evaluating such elusive 1952 factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the Stare of Madras social philosophy and the scale of values of the judges particiv. -pating in the decision should play an important part, and the V. G. Row. limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.

A. K. Gopalan v. The State ([1950] S.C.R. 88) and Dr. Khare

v. The State of Punjab ([1950] S.C.R. 519) distinguished.

C. Setalvad, Attorney-General for India,

(S.

Govind Swaminathan and R.

Ganapathi Iyer , with [" him) for the appellant (State of Madras).

C. R. Pattabhi Raman for the respondent.

M. C. Setalvad, Attorney-General for India ( G. N.

Joshi, with him) for the Union of India.

Subrahmanya Iyer, Advoerate-General of Travancore-Cochin (M. R. Krishna Pillai, with him) for the State of Travancore-Cochin.

1952. March 31. The Judgment of the Court was delivered by

PATANJALI SAsTRI C. J.-This is an appeal from an order of the High Court of Judicature at Madras adjudging section 15 (2) (b) of the Indian Criminal Law Amendment Act, 1908 (Act No. XIV of 1908) as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, (hereinafter referred to as the impugned Act) as unconstitutional and void, and quashing Government Order No. 1517, Public (General) Department, dated 10th March, 1950, whereby the State Government declared a Society called the People's Education Society an unlawful association.

The respondent, who was the general secretary of the Society, which was registered under the Societies' Registration Act, 1860, applied to the High Court on

State Uf Madras

"· V. G. Row.

Pfltanjali &stri C. {.

10th April, 1950, under article 226 of the Constitution complaining that the impugned Act and the Order

dated 10th March, 1950, purporting to be issued thereunder infringed the fundamental right conferred on him by article 19 ( 1) ( c) of the Constitution to form associations or unions and .seeking . appropriate reliefs.

The High Court, by a full bench of three Judges (Rajamannar C.

J ., Satyanarayana Rao and Viswanatha Sastri JJ.) allowed the application on 14th September,

1950, and granted a certificate under article 132. The State of Madras has brought this appeal.

The Government Order referred to above runs as follows:-

"WHEREAS in the opinion of the State Government, rhe Association known as the People's Education Society, Madras, has for its object interference with the administration of the law and the maintenance of law and order, and constitutes a danger to the public peace;

NOW, therefore, His Excellency the Governor of Madras, in exercise of the powers conferred by Section 16 of the Indian Criminal Law Amendment Act, 1908

(Central Act XIV of 1908) hereby declares the said association to be an unlawful association within the meaning of the said Act."

No copy of. this order was served on the respondent or any other office-bearer of the society but it was notified in the official Gazette as required by the impugned Act.

The declared objects of the Society as set out in the affidavit of the respondent are :

(a) to encourage, promote, diffuse and popularise useful knowledge in all sciences and more specially social science ;

(b) to encourage, promote, diffuse and popularise political education among people ; ( c) to encourage, promote and popularise the study and understanding of all social and political problems and bring about social and political reforms ; and

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- ( d) to promote, encourage and popularise art, literature and drama.

It was however, stated in a counter-affidavit £led on behalf of the appellant by the Deputy Secretary to Government, Public Department, that, according to inforniation received by the Government, the Society was actively helpip.g the Communist Party in Madras which had been declared unlawful in August 1949 by utilising its funds through "its Secretary for carrying on propaganda on behalf of the Party, and that the declared objects of the Society were intended to camouflage its real activities.

As the Madras Amendment Act (No. XI of 1950) was passed on the 12th August, 1950, during the pendency of the petition, which was taken up for hearing on the 21st August, 1950, the issues involved had to be determined in the light of the original Act as amended. In order to appreciate the issues it is necessary to refer to the relevant provisions. Before amendment by the Madras Act; the material provisions were as follows:-

"15. In this Part-

(1) "association" means any combrnation or body of persons whether the same be known by any distinctive name or not ; and

(2) "unlawful association" means an association-

(a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or

(b) which has been declared to be unlawful by the Provincial Government under the .powers hereby conferred.

16. If the Provincial Government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the Provincial Government may by notification in the offidal Gazette declare such association to be unlawful."

- The amending Act substituted for clause (b) in Section 15(2) the following clause :- •

1'952

State: of Madras

.v • . v. G. Row.

Patrmjali Sa; tri C. /.

Stale If/ Madras

V. G. Row.

Patania/i StlSll'i C. /.

"(b) which has been declared by the State Government by notification in the official Gazette to be unlawful on the ground (to be specified in the notification) that such association-

(i) constitutes a danger to the public peace, or

(ii) has interfered or interferes with the maintenance of public order or has such interference for its object, or

(iii) has interfered or interferes with the administration of the law, or has such interference for its object".

For the old section 16, sections 16 and 16A were substituted as follows :

"16. (1) A notification issued under clause (b) of subsection (2) of section 15 in respect of any association shall- ( a) specify the ground on which it is - issued, the reasons for its issue, and such other particulars, if any, as may have a bearing on the necessity therefor ; and

(b) fix a reasonable period for any office-bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification.

(2) Nothing in sub-section (1) shall require the State Government to disclose any facts which it considers to be against the public interest to disclose."

Under section 16A the Government is required, after the expiry of the time-fixed in the notification for making representations, to place before an Advisory Board constituted by it a copy of the notification and of the representations, if any, received before such expiry, and the Board is to consider the materials placed before it, after calling for such further information as it may deem necessary from the State Government or from any office-bearer or member of the association concerned or any other person, and submit its report to the Government.

If it is found by the Board that there is no sufficient cause for the issue of the notification in respect of the association"

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S.C.R.

SUPREME COURT REPORTS 603 ' concerned, the Government is required to cancel the notification.

There is no amendment of section 17 which prescribes penalties by way of imprisonment or fine or both for membership or management of an unlawful association and for taking part in meetings of such association or making, receiving or soliciting contributions for purposes thereof.

Section 17 A, which confers power on the Government to notify and take possession of places used for the purposes of an unlawful association, was amended by the addition of subclauses 2(a) and 2(b) providing for a remedy, where such power was exercised, by way of application, within thirty days of the notification in the official Gazette, to the Chief Judge of the Small Cause Court or the District Judge according as the place notified is situated in the Presidency Town or outside, for "a declaration that the place has not been used for the purposes of any unlawful association". If such declaration is made, the Government is to cancel the notification in respect of the place. Section 17B empowers the officer taking possession of a notified place to forfeit movable property found therein if, in his opinion, such property "is, or may be used for the purposes of the unlawful association" after following the procedure indicated.

Section 17E similarly empowers the Government to forfeit funds of an unlawful association "if it is satisfied after such enquiry as it may think fit that such funds are being used or intended to be used for the purposes of an unlawful association".

The procedure to be followed in such cases is also prescribed.

By section

17F jurisdiction of civil courts, save as expressly provided, is barred in respect of proceedings taken under sections 17 A to 17E.

By section 6 of the amending Act notifications already issued and not cancelled before the amendment are to have effect as if they had been issued under section 15 (2) (b) as, amended, and it is provided in such cases a supplementary notification should also be issued as required in section 16 (1) (a) and (b) as amended and thereafter the procedure provided by

State of M11dr111

V. G. Row.

Pataniali Sastri C. /.

State of Madras v.

V. G .. Row.

Patanjali Sastri C. J.

604 SUl'REME COURT REPORTS [1952]

I the new. section 16-A should be followed. It was under this provision that the validity of the notification issued on the 10th March, 1950, under old section 16 fell to be cons, ideted in the light of the provisions of the amended Act when the petition came up for hear-. ing in the High Court on 21st August, 1950.

It will be seen that while old section 16 expressly conferred on the Provincial Government power to declare associations unlawful if, in its opinion, there existed cert.ain pecified grounds in relation to them, those grolinds are now incorporated in section 15(2) (b) as amended, and the reference to the "opinion" of the Government is . dropped.

This led to some .discussion befor.e' us as io whether or not the grounds referred to in section 15(2) (b)' as amended are justidable issues.

If the factual existence of those grounds could be made the subject of inquiry in a court of law, the . restrictions sought to be imposed on. the right of association would not be open to . exception, but then the Government would. 'apparently have no use for section 15

(2) (b).

For, it was strenuously contended on its behalf by the Attorney-General that the incorporation of these grounds in a definition clause, which made a declaration by Government the test of unlawfulness, rendered the insertion of ,, the .words ''.in. its opinion". unnecessary and, indeed, inappropriate and that ' ' the omission of those words could not lead to any inference that the grounds on which the declaration was to be based were intended to be any more justiciable than under the old section 16 ; more especially as the "opinion" or the ."satisfaction" of the Government or of its oflicer:s is still the. determining factor in notifying a place under section 17 A(l) and in forfi:iting the movables found therein under section 17B(l) or the funds of an unlawful association under section

17E (1). The provision for an inquiry as to the existence or otherwise ' of such grounds before an Advisory Board and for: cancellation of the notilicatidn in case the Board found there was no sufficient cause for declaring the assoeiation as unlawful also pointed; it was

urged to . the same conclusion.. The contention is not

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without force, and the position wa:s not contested for ?952! the respondent. It may, accordingly, be taken that State,'of.M'{llras. the test under section 15(2) (b) is as it was under the .l'. old section 16, a subjective one, and the factual exist- .V. G. Raw. ence or otherwist of the grounds is not a justiciable issue.

. It is on this basis, then, that the question has to be determined as to whether section 15 (2) (b) as amended falls within the limits of constitutionally permissible legislative abridgement of the fundamental right conferred on the citizen by article 19(1)(c). Those limits are defined in clause ( 4) of the same article.

" ( 4) Nothing in sub-clause ( c) of the said clause shall affect the operation of any existing law in so far as it iinposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause."

It wasi not disputed that the restrictions in question were imposed "in the interests of public order". But, are they "reasonable" restrictions within the meaning or article 19 ( 4) ?

Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted "due process" clause in the Fifth and Fourteenth Amendments.

If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution.• This is especially true as regards the "fundamental rights", as to which this Court has been assigned the' role of a sentinel on the qui vive. While the Court naturally . attaches great weight to the legislative judg- ment, it cannot desert its own.·, ducy: : to' : determine

Patanjali. .!/alt.ri C. /.

State of Mlldr111

V. G. Row.

Pataniali Sastri C. f.

.finally the constitutionality of an impugned statute.

We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with legislatures in the country.

The learned Judges of the High Court unanimously held that the restrictions under section 15 (2) (b) were not reasonable on the ground of (1), the inadequacy of the publication of the notification, (2) the omission to fix a time-limit for the Government sending the papers to the Advisory Board or for the latter to make its report, no safeguards being provided against the Government enforcing the penalties in the meantime, and (3) the denial to the aggrieved person of the right to appear either in person or Ly pleader before the Advisory Board to make good his representation.

In addition to these grounds one of the learned Judges (Satyanarayana Rao J.) held that the impugned Act offended against article 14 of the Constitution in that there was no reasonable basis for the differentiation in treatment between the two classes of unlawful associations mentioned in section 15(2) (a) and (b ) •.

The oher learned Judges did not, however, agree with this vi, ew.

Viswanatha Sastri J. further held that the provisions for forfeiture of property contained in the impugned Act were void as they had no reasonable relation to the maintenance of public order. The other two Judges expressed no opinion on this point. While agreeimg with the cpnclusion of the learned Judges that section 15 (2) (b) is unconstitutional and void, we are of opinion that the decision can be rested on a broader and more fundamental ground.

This Court had occasion in Dr. Khare's case (1 ) tO define the scope of the judicial review under clause

(5) of article 19 where the phrase "imposing reasonable restrictions on the exercise of the right" also. occurs, and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive

( 1) [1950] S.C.R. 519.

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law should be .f.Xamined from the point of view of rearonableness ; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this; context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases.

The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter mto the judicial verdict.

In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.

Giving due weight to all the considerations indicated above, we have come to the conclusion that section 15 (2) (b) cannot be upheld as falling within the limits of authorised restrictions on the right conferred by article 19 (1) (c).

The right to form associations or unions has such wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fileds, that the vesting of authority m the executive government to impose restrictions on such right, without allowing the grounds of such imposition, both in their factual and legal as, pects, to be

State of MadraJ

V. G. Row.

Patanjali Sastri C. /.

State of Mat/ros' ·:

'°Y• V. G. Rql/!.

Patanjali .Sastri C. /.

duly tested in a judicial inquiry, is a strong element' which, in our opinion, must be taken into account in. judging the reasonableness of the restrictions imposed. by section 15 (2) (b) on the exercise of the fundamental right under article 19 ( 1) ( c) ; for, no summary and what is bound to be a largely one-sided review by an Ach•L, ory Board, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry.

The formula of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override a basic free-· dom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and, within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. In the case of preventive• detention, no doubt, this Court upheld in Gopalan' s case(') deprivation of personal liberty by such means,- but that was because the Constitution itself sanctions laws providing for preventive detention, as to which no question of reasonableness could arise in view of the language of article 21.

As pointed out by Kania C. J ." at page 121, quoting Lord Finlay in Rex v. Halliday('); "the court was the least appropriate tlribunal 'to investigate into circumstances: of suspicion on which such anticipatory action must be largely based".

The Attorney-General placed strong reliance on the decision in Dr. Khare' s cas~(') where the subjective satisfaction of the Government regarding the necessity for the externment of a person, coupled with a reference of the matter to an Advisory Board whose opinion, however, had no binding force, was considered by a majority to be "reasonable" procedure for reStricting the right to move freely conferred by article 19 ( 1) (b). The Attorney-General claimed that the reasoning of that decision applied a fortiori to the present case, as the impugned Act provided that the Advisory Board's report was binding on the Government. We cannot agree.

We consider that. that case

( 1 ) [19501 S.C.R. 88. (2 ) [1917] A:c. 260, 269,

: . ( 8 ) [1950] S.C.R. 519. . . .

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is distinguishable in several essential particulars. For 19~2 one thing. externment of individuals, like preventive 8 >f M detention; is largely precautionary and based on sus- '"'"°v. adra• picion. In fact, section A (1), of the EastPunjab v.0:11owc Public Safety Act, which was the subject of.considera~ tion in Dr; Kha re's case('), authorised both preventive Palanjali detention and. externmenL for. the same purpose and

80"'' 0 • J. on the same ground namely, "with a view to prevent. ing him from acting in any manner prejudicial to the public safety or the maintenance of public -0rder it. is necessary; etc.".· Besides, both involve an element of emergency requiring prompt steps to be taken. to prevent apprehended danger to public tranquillity;:· and , authority has.to be vested in the Government and its. officers to take appropriate action on. theii: own res" ponsibility. . These features. are; , however, absent in the grounds on which the Government is. authorised, under section 15 (2) (b), to declare associations unlaw • ful. These grounds; taken by themselves, are factual and not anticipatory or based on suspicion. An association is allowed to . be declared unlawful because it "constitutes" a danger or "has interfered or .interferes" with the maintenance .of public.order or "has such interference fore its object",. etc.· ... The factual existence of .-these grounds is :amenable to objective d_etermination by the court;: quite as: much as the grounds mentioned in clause {a) of sub-section (2) of section 15; as to which the Attorney-Generalconceded that it . would be . .incumbent : f on, the Government to establish, as, a fact, that the association, which it a!leged, to •be unlawful, "encouraged" or .'.'aided"· persons to commit acts of violence,· etc;: \Ve :are unable to discover any.reasonableness in the claim. of the Government in seeking,.by its mere , declaration, to shut.out judicial enquiry into the underlying facts under clause (b). Secondly, the East Punjab Public .

Safety Act.was a temporary enactmentwhich, was to be in force only for a year, and any order made there-' under wasJo. expire at. the. termination ofthe Act. \Vhat. may be_ regarded as a. reasonable restriction

(1) [1950) S.C.R. si9. :

State of Madras v.

V. G. Row.

Patanjali Sastri C. /.

imposed under such a statute will not necessarily be considered reasonable under the impugned Act, as the latter is a permanent measure, and any declaration made thereunder would continue in operation for an indefinite period until the Government should think fit to cancel it. Thirdly, while, no doubt, the Advisory Board procedure under the impugned Act provides a better safeguard than the one under the East Punjab Public Safety Act, under which the report of such body is not binding on the Government, the impugned Act suffers from a far more serious defect in the absence of any provision for adequate communication of the Government's notification under section 15(2)(b) to the association and its members or office-bearers.

The Government has to fix a reasonable period in the notification for the aggrieved person to make a representation to the Government. But, as stated already, no personal service on any office-bearer or member of the association concerned or service by aflixture at the office, if any, of such association is prescribed. Nor is any other mode of proclamation of the notification at the place where such association arries on its activities provided for.

Publication in the official Gazette, whose publicity value is by no means great, may not reach the members of the association declared unlawful, and if the time fixed expired before they knew of such declaration, their right of making a representation, which is the only opportunity of presenting their case, would be lost. Yet, the consequences to the members which the notification involves are most serious, for, their very member.iliip thereafter is made an offence under section 17.

There was some discussion at the bar as to whether want of knowledge of the notification would be a valid defence in a prosecution under that section.

But it is not necessary to enter upon that question, as the very risk of prosecution involved in declaring an association unlawful with penal consequences, without providing for adequate communication of such declaration to the

association and its members or office-bearers, may well be considered sufficient to rendc; r the imposition of

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restrictions by such means unreasonable.

In this respect an externment order stands on a different footing, as provision is made for personal or other adequate mode of service on the individual concerned, who is thus assured of an opportunity of putting forward his case. For all these reasons the decision in Dr. Khare' s case(1) is distinguishable and cannot rule the present case as claimed by the learned Attorney- General. Indeed, as we have observed earlier, decision dealing with the validity of restrictions imposed on one of the rights conferred by article 19 (1) cannot have much value as a precedent for adjudging the validity of the restrictions imposed on another right, even when the constitutional criterion is the same, namely, reasonableness, as the conclusion must depend on the cumulative effect of the varying facts and circumstances of each case.

Having given the case our best and most anxious consideration, we have arrived at the conclusion, in agreement with the learned Judges of the High Court, that, having regard to the peculiar features to which reference has been made, section 15 (2) (b) of the Criminal Law Amendment Act, 1908, as amended by the Criminal Law Amendment (Madras) Act, 1950, falls outside the scope of authorised restrictions under clause ( 4) of article 19 and is, therefore, unconstitutional and void.

The appeal fails and is accordingly dismissed with costs.

Appeal dismissed.

Agent for the appellant : P.A. Mehta. ' Agent for the respondent : S. Subrahmanyan.

Agent for the Union of India and the State of Travancore-Cochin : P. A. Mehta.

(1) [1950] S.C.R. 519.

State of Madras

V. G. Row.

Patanjali Sastri C. /.

S. Subrahmanyam

P. A. Mehta

STATE OF MADRAS

V. G. ROW

MEHER CHAND MAHAJAN

MuKHERJEA

DAs

Indian Criminal Law Amendment Act

ss. 15

Constitution of India

art. 19

Section 15

Indian Criminal Law Amendment Act, 1908

Section 16

s. 15

Raman

s. 16A

s. 15(2)(b)

s. 16

s. 15(2)(b)

s. 15(2)(b)

art. 19

art. 19( 4)

art. 19

art. 19(l)(c)

s. 15(2)(b)

C. Setalvad

S.

Govind Swaminathan

R.

Ganapathi Iyer

C. R. Pattabhi Raman

M. C. Setalvad

G. N.

Joshi

Subrahmanya Iyer

M. R. Krishna Pillai

PATANJALI SAsTRI

High Court of Judicature at Madras

section 15

Indian Criminal Law Amendment Act, 1908

Registration Act, 1860

article 226

article 19

Rajamannar C.

Satyanarayana Rao

Viswanatha Sastri

14th September,

1950

article 132

State of Madras

People's Education Society, Madras

Section 16

Indian Criminal Law Amendment Act, 1908

Central Act XIV of 1908

12th August, 1950

21st August, 1950

Before amendment by the Madras Act

Section 15(2)

section 16

sections 16 and 16A

section 15

section 16A

section 17

Section 17

Section 17B

Section 17E

section

17F

sections 17

section 6

section 15

section 16

Pataniali Sastri

section 16

section 16

section 16

section 15(2)

section 15(2)

section 15

section 16

section 17

section 17B(l)

section

17E

section 15(2)

section 16

section 15

article 19(1)(c)

article 19

America

Supreme Court

section 15

article 14

section 15(2)

section 15

Khare

article 19

section 15

article 19

State of MadraJ

Patanjali Sastri

State of Mat

Patanjali .Sastri

section 15

article 19

Gopalan

article 21

Kania

Finlay

article 19

Public Safety Act

section 15

section 15

East Punjab Public

section 15(2)(b)

section 17

article 19

section 15

Criminal Law Amendment Act, 1908

article 19

P.A. Mehta

S. Subrahmanyan

State of Travancore-Cochin

State of Madras