:S.C.R.

SUPREME COURT REPORTS 919

Also,

"to give the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt or illegal practice and the nature of that practice."

Their duty does not end by declaring an election to be void or not because section 99 provides that in addition to that

"at the time of making an order under section 98 the tribunal shall also make an order etc ...... "

A number of allegations were made in the petition about corruption and illegal practices, undue influence and bribery.

It was the duty of the tribunal not only to enquire into those allegations, as it did, but also to complete the enquiry by recording findings about those allegations and either condemn or clear the candidate of the charges made.

We make no order about costs.

BosE J.-I agree on all but one point. I have :some doubt about the reason given by my learned brother which is based on the d<:hnition of "candidate" in the Act. I prefer not to express any opinion on :that one point.

Case remanded.

Agent for the appellant: Ratnaparkhi Anant Govind.

Agent for respondent No. 1. .-1.. D. Mathur.

SRI SRI SRI KISHORE CHANDRA SINGH DEO

'BABU GANESH PRASAD BHAGAT AND OTHERS.

[MuKHERJEA,

VIVIAN BosE,

GHULAM

HASAN and

VENKAIARAMA

AYYAR TJ.)

Indian Registration Act (XVI of 1908), ss. 32, 33-"Resides", .1neaning -of-Pou•er-of-attorney containing mistaken endorsement, .effect of-Applicability of ss. 32 and 33 to such a case-Legal .effect of decision under s. 33(1), proviso (i).

Kaj Krus/ma

Bose

Binod Kanungo

and Others,

la.r J.

Marth 9.

Sri Sri Sri Kishore Chandra

Singh Dto

Babu Ganesh Prasad Bhagat and Othrrs.

The word "resides" in s. 33( 1) (a) of the Indian Registration Act, 1908, is not defined in the statute.

It contemplates not only permanent residence but also temporary residence.

Residence only connotes that a person eats, drinks and sleeps at that place and it is not ~:ecessary that he should own it.

For purposes of s. 32( c) of the Act, a power-of-attorney needs, in vie\v of the provisions of s. 33 of the Act, no registration but is only required to be execcted before and authenticated by the Registrar.

Hence an endorse1nent mistakenly 1nad::: on such power-of-attorney that it was presented for registration must be ignored and does not affect the validity of subsequent authentication by the Registrar \vhich \Vas an independent act complete in itself and valid under s. 33.

A decision of the Registrar under s. 33( 1) proviso (i) of the Indian llegistration Act that an applicant is suffering from bodily infirmity and is unable to attend the Registration Office or court without risk or serious inconvenience relates to a matter of mere procedure and even if erroneous does not affect his jurisdiction ..

The finding is on a matter which is within his exclusive jurisdiction, and cannot be questioned in a court of la\v.

fambu Prasad v. Maham mad Aftar Ali Khan ( 42 I.A. 22), Sharat Chandar Basu v. Bijay Chand Mahtab (64 I.A. 77), Ma Pwa May v. Chettiar Firm (56 I.A. 379) and Mujibunnissa v.

Abdul' Rahim (28 I.A. 15) referred to.

CML

APPELLATE JuRrsmcTION : Civil Appeals Nos. 1 and 2 of 1949.

Appeals from the Judgment and Decree dated the 22nd December, 1942, of the High Court of Judicature at Patna in First Appeals Nos. 10 and 11 of 1939 ansmg out of the Judgment and Decree dated the 23rd November, 1936, of the Court of the Subordinate Judge of Berhampore in Original Suit No. 11 of 1935 ..

D. V. Narasinga Rao and M. S. K. Sastri for the appellant.

S. L. Chhibber and R. C. Prasad for respondents Nos. 1-4, 6-9, 11 and 12.

1954. March 9.

The Judgment of the Court was delivered by

VENKATARAMA AYYAR J.-These appeals anse out of a suit instituted by the respondents to enforce a mortgage deed, Exhibit A, dated 5th April, 1923, executed by the defendant in favour of one Radha.

Prasad Bhagat.

The subject-matter of the mortgage is an estate called the Bodogodo Zemin situated in

what was the District of Ganjam in the Province of Madras and now comprised in the State of Orissa, and governed by the provisions of the Madras Impartible Estates Act II of 1904.

The mortgage is for Rs. 1,25,000 and the deed recites that a sum of Rs. 12,500 was advanced to the mortgagor on a promissory note executed on 30th March, 1923, that the balance of Rs. 1,12,500 was paid to him in cash, and that the entire amount was borrowed for meeting the expenses of the marriage of his second daughter with the eldest son of the Rajah of Talcher.

The marriage, in fact, took place on 27th April, 1923. Though the deed recites that Rs. 1,12,500 was paid iri cash, the case of the plaintiffs is that it was, in fact, paid on 14th April, 1923, on the authority of the defendant to his manager, one Mr. Henry Tapp, after the mortgage bond was registered, which was on 10th April, 1923.

In 1926 and 1927 the defendant made several payments towards the mortgage, in all aggregating to Rs. 42,000.

The mortgagee died on 18th November, 1933, and thereafter his legal representatives filed the suit, out of which these appeals arise, for recovery of the balance due under the mortgage by sale of the hypothecated property.

The defendant resisted the suit on several grounds.

He pleaded that the mortgage was supported by consideration only to the extent of Rs. 25,000, and that it had become discharged by the payments made in 1926 and 1927.

He also contended that the mortgage bond was not duly attested or validly registered, and that it was therefore void and unenforceable.

The Subordinate Judge of Berhampur who heard the suit held that no consideration passed for the promissory note for Rs. 12,500 dated 30th March, 1923,.

Exhibit J, and that it was really a salami; but that the balance of Rs. 1,12,500 was paid to Mr. Tapp unJer the authority of the defendant.

He also held t11at the mortgage bond was duly attested and validly registered, and a decree was passed in accordance with these findings.

Roth the parties took up the matter in appeal to the High Court of Patna.

The plaintiffs filed A. S.

Sri S•i Sti Kish.ore Chandro.c

Singh .Veo

Babu.Ganesh Prasad Bhagat

and Others.

Venkatarama Ayyar J.

1954-

Sri Sri S1i

Jlis:'.cr~ Ci:andru

Singh Dee>

Babu Cants.·:

Pruad Bhagt1.t and Ot/, crs.

.i:tnkaiarau; a

Ay)"ar ].

No. 10 of 1937 claiming that Exhibit J was supported by consideration, and the defendant filed A. S.

No. 11 of 1937 pleading that the alleged payment of Rs. 1,12,500 to Mr.

Tapp was unauthorised, and that the mortgage bond was void, as it was neither duly attested nor properly registered. The High Court concurred with the Subordinate Judge in finding that that Rs. 1,12,500 was paid to Mr. Tapp under the authority of the defendant, and that the bond was duly attested and registered.

But as regards the promissory note, Exhibit J, it held differing from the Subordinate Judge that it was also supported by consideration.

Against this decision, the defendant appeals, and repeats all the contentions urged by him in the courts below.

• • • :t(c [The court held on a consideration of the evidence that the mortgage bond was supported by consideration and that it was duly attested.] The last contention of the appellant was that the deed was not validly registered in accordance with the provisions of sections 32 and 33 of the Registration Act, and that it was therefore void. Section 32 enacts that,

"Except in the cases mentioned ;11 sections 31, 88 and 89 every document to be registered under this Act ............ shall be presented ..... .

(a) by some person executing or claiming under the saITle, ........ or

(b) by the representative or assign of such person, or ( c) by the agent or such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinatter mentioned."

Section 33, so far as is material for the present purpose, runs as follows: • 33(1) "For the purposes of section 32, the following powers-of-attorney shall alone be recognized, namelv:-

(;) if the principal at the time of executing the power-of-attorney resides in any part of (the Provinces) in which this Act is for the time being in force, a

pover-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides; ....

Provided that the following persons shall not be required to attend at any registration office or court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, name! v:-

(i) persons who by reason of bodily infirmity arc unable without risk or serious inconvenience so to attend;

(ii) persons who are in jail under civil or criminal proces.s; and

(iii) persons exempt c y law from personal appearance in court.

(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been volunta rily executed by the person purporting to be the principal, rr:.oy attest the sJme without requiring his personal attengance at the office or court aforesaid.

(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination." The substance of these provisions is that a document must be presented for registration either by a party to it or his legal representative or assign or by his agent 11olding a power-of-attorney executed and authenticated in accordance with section 33 of the Act.

In Jambu Prasad

v. Muhammad Aftar Ali Khan(') it was observed by the Judicial Committee approving: of the decision in Ishri Prasad v. Baijnat!z(2) that,

" .... the terms of sections 32 and 33 of Act III of 1877 are imperative, and that n presentation of a document for registration by agent ...... ., who has not been duly authorized in accordance with those

(r) 4' I.A. 22. ·

(2) I.L.R. 2B All. 707.

!954

Sri S1i Sri !1' is ho re Liiandrs

Singh Deo , .• Babu Ganesh

Praad BJ; agat

an.i Ot/; ef', f.

T/'enkataramo:

~);'rnr.J.

Sri Sri Sri KishiJre Clandra

Sing.'i Deo v.

Babu 'Ganesh Prasad Bhagat and Others.

Venkatarama AY.yar J.

sections, does not give to indispensable foundation the document."

the Registering Officer the of his authority to register

Vi'here, therefore, a document is presented for registration by a person other than a part to it or his legal representative or assign or by a person who is not an agent authorized in the manner prescribed in section 33, such presentation is wholly inoperative, an the registration of such a document is void.

In the present case, Exhibit A was presented for registration by Mr. Tapp as the agent of the defendant under a power-of-attorney executed by him, Exhibit B, and the question is whether that power satisfies the requirements of section 33.

Exhibit B was executed by the defendant before the Registrar at the residence of the Chief of Hindol at Cuttack and was authenticated by him. It was argued for the appellant that the authentication was invalid on three grounds: (1) that the defendant was not residing at Cuttack at the time of the execution of Exhibit B, and consequently the Registrar at Cuttack had no jurisdiction to authenticate the deed under section 33 (1) (a); (2) that Exhibit B was presented for registration by one Sundaram who described himself as the personal assistant of the defendant, but was, in fact, a person not authorised to present the document as required by section 32, and therefore the authentication of the power based on such presentation was void; and (3) that the authentication of the power under the proviso to section 33 (1) at the residence of the defendant was bad, as he was, in fact not suffering from any bodily infirmity at that time, and that in consequence the registration of Exhibit A pursuant thereto was void.

With reference to the first contention that the defendant was not residing at Cuttack at the date of Exhibit B, and that consequently the Registrar of that place had no jurisdiction to register it under section 33 (1) (a), the finding of the courts below is that the defendant had been resi :ling at Cuttack for a week prior to the date of Exhibit B, and that that was sufficient for the purposes of section 33 ( 1) (a).

Sharat Chandra Basu v. Bijay Chand Mahtab (1) the Privy Council, observed:

"The expression 'resides', as used in section 33, is not defined in the statute; but there is no reason for assuming that it contemplates only permanent residence and excludes temporary residence."

It must therefore be taken as settled that even temporary residence at a place j5 sufficient to clothe the Registrar of that place with jurisdiction under section 33 ( 1) (a). It was argued for the appellant that his permanent place of residence was at Bodogodo, that he owned no house at Cuttack, that the house

here Exhibit B was registered belonged to his brother-in-law, the Chief of Hindol, and that he stayed there on! y for the purpose of registering the power, and that on these facts, it cou 1.d not be held that there was residence even of a temporary character at Cuttack.

The fact that the house did not belong to the appellant is not material for this purpose; because residence only connotes that a person eats, drinks and sleeps at that place, and not that he owns it. Whether the stay of the appellant at Cuttack was of a casual nature, or whether it amounted to residence must <lepend on all the circumstances proved, and is essenti.- a.lly a question of fact.

The appellant described himself in Exhibit B as temporarily residing at Cuttack, and there is no reason why his words should not be accepted as indicating the true position. Then there is the endorsement of the Registrar on Exhibit B, and that runs as follows:

"Having visited and examined at his residence the principal Sri Sri Sri Kishore Chandra Singh Deo, son of Durga Mahtab Singh Deo, of at present Hindol House .... by profession Zamindar, who is personally .known to me, I am satisfied that this power-of-attorney has been voluntarily executed by him and I ac- <:ordingly authenticate it under section 33 of Act XVI of 1908."

In Sharat Chandra the endorsement on follows:

Basu v. Bijay Chand Mahtab(') the power-of-attorney was as

Sri Sri Sri Kis!iore Chandra

SingkDeo

Babu Ganesh Prasad Bhagat

and Others.

Venkatarama

A; yar].

Sri Sri Sri Kishore Chandra

Sing:i Deo v.

BabuGamsh Prasad Bhagat

and Others.

V enkatarama

Ay)'Of J.

"Executed in my presence at the Hazaribagh Registration Office on krgust 8, 1916, by Sharat Chandra Basu, son of Nalinaksha Basu of Burdwan, at present of Hazaribagh in Hazaribagh, who is personally known to me and I accordingly authenticate it under s.:ction 33. <\ct XVI of 1908 .... " In accepting this endc:sement as evidence of residence. the Privy Council ob<erved:

"It ts true that he (the principal) ordinarily resided at Burdwan, but the endorsement of the Sub- Registrar on the document expressly states that he was living, at that time, at Hazaribagh. The endorsement also shows th"t he was personally known to the Sub-Registrar, and it is not likely that a mistake would be made about his piaee of residence."

The cp<lorsement in the present ease is even more positive, in that it rders expressly to the residence of the executant.

It is also not correct to say that the defendant came to Cuttack only for the purpose of executing the power, Exhibit B. He came there to complete the negotiations for raising a loan from Radha Prasad, and the execution of the power was only one and not a major incident in the business for which he came to Cuttack.

As already mentioned, he also borrowed a sum of Rs. 12,500 under Exhibit J on 30th March, 1923, while at Cuttaek. It is also in evidence that the defendant's son was studying at Cuttack at that time, and was residing in the house of the Chief of Hindol.

Under the circumstances there were ample materials to support the finding of the conrts below that the appellant was residing at Cuttack at the time of Exhibit B, and that must be affirmed.

It was next contended that as Exhibit B was present-· ed for registration by one Sundaram, who was neither a party to it nor an agent holding a power-of-attorney duly registered or authenticated, and as such presentation was void under section 32, the registration of Exhibit A under the authority contained in Exhibit n must also be held to be void.

The answer to this contention is that section 32. would apply only if a powerof-attorney is presented for registration, and not when

it is produced merely for authentication, in which case, the only requirements that have to be complied with are those set out in section 33.

The endorsements in Exhibit B sj:iow that the Registrar examined the principal at his residence and satisfied himself that he had executed it voluntarily.

Then there was the authentication which was made expressly under section 33, and then the defendant signed in the presence of the Registrar.

The defendant also admits in his evidence that the Registrar questioned him about the . execution of the power, and then authenticated it, and that he thereafter signed before him.

If the matter had stood there, there would have been no question but that Exhibit B was validly authenticated under section 33.

But then, there is an earlier endorsement on Exhibit B that it was "presented for registration at 11

A.M. on the 5th day of April, 1923, at the Sadar Sub-Registrar's Office, Cuttack, by P. Sundaram." The contention of the appellant based on this endorsement is that as Exhibit B was presented for registration, section 32 applied, and as Sundaram was not authorised to presenr ir, it was rnoperative.

But the endorsement in question is clearly based on a misapprehension of the true position.

Exhibit B was obviously produced before the Registrar along with the application for attendance at the residence for authentication and not for the purpose of registration.

Rule 148 of the Bihar and Orissa Registration Manual provides both for registration and for authentication of a power-of-attorney, and prescribes separate endorsements for them.

It also requires that \hey should be separately charged.

Rule 157 pr0\1des that any person can present a document for authentication. Exhibit B was, in fact, not registered but only authenticated.

It contains only an endorsement of authentication, and the charges collected were only for authentication.

The enc, lorsement therefore that Exhibit B was presented for registration is clearly a mistake, and must be ignored.

Morover, even if there had been a presentation of Exhibit B for registration and that was UP.authorised, that does not detract from the validity of the subsequent authentication befor~ the Registrar, which was an

8-96 S.C. India/59.

Sri Sri Sri Kishore Chandra

Singh Deo v.

Babu Ganesh Prasad Bhagat and Others.

Venkatarama Ayyar ].

Sri Sri Sri Kishore Chandra

Singh Dea

Babu Ganesh Prasad Bhagat and Others.

Venkatarama Ayyar J.

independent act complete in itself and valid under section 33.

In Bharat lndu v. Hamid Ali Khan('), a power-of-attorney executed by a mortgagor was presented for registration by his servan~ but actually the Registrar registered it at the residence of the principal under section 33.

In a suit to enforce the mortgage, the contention was raised that the registration of the mortgage deed was bad as the power-of-attorney in pursuance of which it was registered was presented for registration by a person not authorised.

In overruling this contention, the Privy Council observed that even though the presentation of the power for registration by the servant of the principal was bad, when it was subsequently registered at the residence of the executant in accordance with section 33 it should be deemed to have been presented by him to the Registrar, and that in that view the registration would be valid.

On the same reasoning, Exhibit B should be deemed to have been presented for authentication by the defendant when the Registrar attended at his residence, and the requirements of section 33 were fully satisfied.

This objection must, therefore, be rejected.

It was finallv contended that the defendant was, in fact, not sufferig from any bodily infirmity at the time of Exhibit B, that the authentication of the power by the Registrar at the residence under the proviso to section 33(1) was therefore bad, and that the registration of Exhibit A pursuant thereto was void; and reference was made to the evidence in the case that the defendant was not ill at the time.

But there is the fact that the Registrar did, in fact, attend at the residence and authenticate the document, and that could have been only on the application of the defendant.

In his evidence the defendant stated:

"Perhaps an application was filed by me for private attendance of the Sub-Registrar at Cuttack.

I do not remember what reasons were given for Sub- Registrar's private attendance." ., , .

(t! 47 I.A. 177.

No application has been produced in court, and it must be presumed that when the Registrar authenticated Exhibit B under section 33 of the Act, he did so on an application setting out the proper ground, and that he satisfied himself that that ground did exist.

Whether he was right in his conclusion that the defendant was suffering from bodily infirmity is not a matter which can be gone into in a court of law. It is a matter exclusively within his jurisdiction, and any error which he might have committed would not affect his jurisdiction to register the document.

In Ma Pwa May v. Chettiar Firm(') Lord Atkin observed:

"In seeking to apply this section (section 87), it is important to distinguish between defects in the procedure of the Registrar and lack of jurisdiction. Where the Registrar has no jurisdiction to register, as where a person not entitled to do so presents for registration, or where there is lack of territorial jurisdiction," or where the presentation is out of time, the section is inoperative: see Mujibunnissa v. Abdul Rahim(2 ). On

the other hand, if the registrar having jurisdiction has made a mistake in the exercise of it, the section (section 33) takes effect."

A decision of the Registrar that an applicant was suffering from bodily infirmity . for the purposes of section 33 ( 1), proviso, clause ( i), relates to a mere matter of procedure not affecting his jurisdiction, and even if erroneous, would not affect the validity of the registration.

Moreover, there is the fact already mentioned that when the Registrar came to the residence for authenticating Exhibit B, the defendant signed it once again before him, and that would, in any case, be sufficient.

There is no substance in this contention and it must be overruled.

In the result, the appeals fail and are dismis; ed. As for costs, it must be mentioned that the defendanit died while the appeals were pending, and that it is his legal

(1) (1929) 56 !. A. 379

(2) (1901) 28 !. A. 15

Sri Sri Sri Kishore Chandra

S£ngh Deo

Babu Ganesh Prasad Bhagat

and Others.

Venkatarama

Ay; ar J.

Sri Sri Sri Kishore Chandra

Singh Deo v.

Babu Ganesh Prasad Bhagat and Others.

Venkatarama Ayyar J.

March 10.

representatives who are prosecuting them.

The property mortgaged is an estate governed by the Madras Impartible Estates Act II of 1904.

The plaintiffs alleged in their plaint that the mortgage was binding on the estate under section 4 of the Act.

Issue 6 was framed with reference to this allegation, and the finding of the trial court was that it was not binding on the estate.

But on appeal, the High Court held that the questior, could not be gone into in a suit laid against the mortgagor.

It accordingly discharged the finding, an<'1 left the question open to be determined in other Jud appropriate proceedings.

In view of this, we direct that the parties do bear their own costs in this court.

Appeals dismissed

YUSUF ABDUL AZIZ

THE STATE OF BOMBAY AND

HUSSEINBHOY LALJEE.

[MEHR

CHAND

MAHAJAN C.

J., MuKHERJEA, S. R. DAs, VIVIAN BosE and GHULAM

HASAN. JT.] Constitution of India, arts. 14 and 15-Section 497 of the Indian Penal Code (Act XLV of 1860)-Whether ultra vires the Constitution.

Held, that s. 497 of the Indian Penal Code does not offend arts. 14 and 15 of the Constitution.

CRIMINAL

APPELLATE JuR1sn1cnoN : Case No. 349 of 195 l.

Appeal under article 132 ( 1) of the Constitution of India from the Judgment and Order dated the 26th June, 1951, of the High Court of . Judicature at Bombay (Chagla c. J. and Gajendragadkar

J.) m Criminal Application No. 345 of 1951.

A. A Peerbhoy, Jindra Lal and I. N. Shroff for the appellant.

M. C. Setalvad, Attorney-General for India, and C.

K. Daphtary, Solicitor-General for India (Porus A. Mehta, with them) for respondent No. 1.

section 99

section 98

BosE J.

Ratnaparkhi Anant Govind

D. Mathur

SRI SRI SRI KISHORE CHANDRA SINGH DEO

BABU GANESH PRASAD BHAGAT AND OTHERS

MuKHERJEA

VIVIAN BosE

HASAN

Indian Registration Act

ss. 32, 33

ss. 32 and 33

s. 33(1)

Kishore Chandra

s. 33( 1)

Indian Registration Act, 1908

s. 32( c)

s. 33

s. 33

s. 33( 1)

D. V. Narasinga Rao

M. S. K. Sastri

S. L. Chhibber

R. C. Prasad

VENKATARAMA AYYAR

Radha

Prasad Bhagat

Estates Act II of 1904

30th March, 1923

Talcher

27th April, 1923

14th April, 1923

Henry Tapp

10th April, 1923

18th November, 1933

Subordinate Judge of Berhampur

High Court of Patna

Babu.Ganesh Prasad Bhagat

Venkatarama Ayyar

Tapp

sections 32 and 33

Registration Act

Section 32

sections 31, 88 and 89

Section 33

section 32

section 33

sections 32 and 33

KishiJre Clandra

Venkatarama AY.yar

section 33

section 33

Cuttack

section 33

Sundaram

section 32

section 33

section 33

section 33

section 33

section 33

Bodogodo

Hindol

Kishore Chandra Singh Deo

Durga Mahtab Singh Deo

section 33

Sharat Chandra

Kis!iore Chandra

SingkDeo

Babu Ganesh Prasad Bhagat

Venkatarama

BabuGamsh Prasad Bhagat

enkatarama

Burdwan

Hazaribagh

Radha Prasad

Cuttaek

Hindol

section 32

section 32

section 33

section 33

section 33

5th day of April, 1923

P. Sundaram

section 32

Singh Deo

Venkatarama Ayyar

section 33

section 33

section 33

section 33

section 33(1)

section 33

Atkin

section 87

section 33

section 33

Estates Act II of 1904

section 4

YUSUF ABDUL AZIZ

STATE OF BOMBAY

HUSSEINBHOY LALJEE

CHAND

MAHAJAN

MuKHERJEA

S. R. DAs

VIVIAN BosE

GHULAM

HASAN

Constitution of India

arts. 14 and 15

Section 497

Indian Penal Code

s. 497

Indian Penal Code

arts. 14 and 15

article 132

Constitution of India

Chagla

Gajendragadkar

A. A Peerbhoy

Jindra Lal

I. N. Shroff

M. C. Setalvad

India

C.

K. Daphtary

Porus A. Mehta


Sri Sri Sri Kishore Chandra

Singh Deo v.

Babu Ganesh Prasad Bhagat and Others.

Venkatarama Ayyar J.

March 10.

SUPREME COURT REPORTS [1954]

representatives who are prosecuting them.

The property mortgaged is an estate governed by the Madras Impartible Estates Act II of 1904.

The plaintiffs alleged in their plaint that the mortgage was binding on the estate under section 4 of the Act.

Issue 6 was framed with reference to this allegation, and the finding of the trial court was that it was not binding on the estate.

But on appeal, the High Court held that the questior, could not be gone into in a suit laid against the mortgagor.

It accordingly discharged the finding, an<'1 left the question open to be determined in other Jud appropriate proceedings.

In view of this, we direct that the parties do bear their own costs in this court.

Appeals dismissed

YUSUF ABDUL AZIZ

THE STATE OF BOMBAY AND

HUSSEINBHOY LALJEE.

[MEHR

CHAND

MAHAJAN C.

J., MuKHERJEA, S. R. DAs, VIVIAN BosE and GHULAM

HASAN. JT.] Constitution of India, arts. 14 and 15-Section 497 of the Indian Penal Code (Act XLV of 1860)-Whether ultra vires the Constitution.

Held, that s. 497 of the Indian Penal Code does not offend arts. 14 and 15 of the Constitution.

CRIMINAL

APPELLATE JuR1sn1cnoN : Case No. 349 of 195 l.

Appeal under article 132 ( 1) of the Constitution of India from the Judgment and Order dated the 26th June, 1951, of the High Court of . Judicature at Bombay (Chagla c. J. and Gajendragadkar

J.) m Criminal Application No. 345 of 1951.

A. A Peerbhoy, Jindra Lal and I. N. Shroff for the appellant.

M. C. Setalvad, Attorney-General for India, and C.

K. Daphtary, Solicitor-General for India (Porus A. Mehta, with them) for respondent No. 1.

, . '/. B. Dadachanji and Rajinder Narain for respondent No. 2.

1954. March 10. The Judgment of the . Court was delivered by BosE J.-The question in this case is whether section 497 of the Indian Penal Code contravenes articles 14 and 15 of the. Constitution.

The appellant is being prosecuted for adultery under section 497 of the Indian Penal Code. As soon as the complaint was filed he applied to the High Court of Bombay to determine the constitutional question mentioned above under article .228 of the Constitution.

The High Court decided against him but granted him a certificate under articles 132 (1) and 134 (1) (c).

Under section 497 the offence of adultery can only be committed by a man but in the absence of , any provision to the contrary the woman would be punishable as an abettor.

The last sentence in section 497 prohibits this.

It runs- "In such case the wife shall not be punishable as an abettor." It is said that this offends articles 14 and J5. - The portion of article 15 on which the appellant relies is this: ' "The State shall not discriminate against any citizen on grounds only of. ......... sex."

But what he overlook; is that that is subject to clause (3) which runs-

"Nothing in this article shall . prevent the State from making 'any special provision' for 'jVOmen .......... "

The provision complained of is a special provision and it is made for women, therefore it is saved by clause (3).

It was argued provisionswhich be used td give crimes.

We are into the clause;

'that clause (3) should be confined to are beneficial to women and cannot them a licence to commit and abet

. unable to read any sucli restriction nor are we able to agree that a

Yusef Abdul. Aziz

V• The State ef Bombay and' Husstinbhoy

Laljee.

Bose].

-.- -·· .

• :~

rusuf Ahdul 4.ziz

"· The State of Bombay and Husseir, bhoy

l.Aljee.'

\ Bo"].

prov1S1on which prohibits punishment is tentamount to a licence to corp.mit the offence of which punishment has been prohibited.

Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights.

Sex is a sound classification and although there can be no discrimination in genera 1 on that ground, the Constitution itself provides for special provisions in the case of women and children.

The two articles read together validate the impugned clauk in section 497 of the Indian _Penal Code.

The appellant is not a citizen GC India. It was argued that he could not invoke articles 14 and 15 for that reason.

The High Court held otherwise. It is not necessary for us to decide this question in view of our decision on the other issue.

The appeal is dismissed.

Appeal dismissed.

Agent for respondent No. l : R. H. Dhebar.

GIPN-52-96 S.C. India/59-25-I0-61-l, OOO.

' •-

Kishore Chandra

Estates Act II of 1904

section 4

YUSUF ABDUL AZIZ

MAHAJAN

MuKHERJEA

S. R. DAs

VIVIAN BosE

HASAN

Constitution of India

arts. 14 and 15

Section 497

Indian Penal Code

s. 497

Indian Penal Code

arts. 14 and 15

article 132

Constitution of India

A. A Peerbhoy

Jindra Lal

I. N. Shroff

M. C. Setalvad

C.

K. Daphtary

Porus A. Mehta

B. Dadachanji

Rajinder Narain

section 497

Indian Penal Code

articles 14 and 15

section 497

Indian Penal Code

High Court of Bombay

articles 132

section 497

section 497

articles 14

article 15

Yusef Abdul. Aziz

State ef Bombay

State of Bombay

Article 14

section 497

India

articles 14 and 15

R. H. Dhebar


; [

S.C.R.

SUPREME COURT REPORTS

EBRAHIM VAZIR MAVAT

THE STATE OF BOMBAY AND OTHERS.

(With Connected Appeals)

[MEHR

CHAND MAHAJAN c. J., MUKHERJEA, S. R. DAS, V1v1AN BosE and

GHULAM HASAN JJ.]

Constitution of India, arts. 13(1), 19(1) (<)-Influx from Pakistan (Control) Act, 1949 (Act XXII/ of 1949) s. 7-Wlwha ultra vires th~ Constitution.

He/ti, (Per

MEHR

CHAND

MAHAJAN

C. J., MuKHERJEA, V1vihN BosE and GttULA~I HAsAN JJ.; S. R. DAs J. dissenting) that s. 7 of the Influx from Pakistan (Control) Act, 1949 j, void under art. 13(1) in so far as it conflicts \.Vith the fundamental right of a citizen of India under art. !9(1)(e) of the Constitution and the order of physical removal of the citizen from India is there~ fore liable to be set aside.

Per DAs J.-In view of the circumstances the provisions of

~. 7 of the Act were reasonable restrictions within the n1eaning of

cl. 5 of art. 19 of the Constitution imposed in the interests of the gcner.il public upon the exercise by Indian citizen coming from

Pakistan without a permit of the rights conferred by art. 19(1) ( d) and (e) of_ the Constitution.

CRIMINAL

APPELLATE J URrso1cTION : Criminal Appeals Nos. 65 and 66 of 1952, 5 and 19. of 1953 and Petitions Nos. 170 of 1952, 19 and 57 of 1953.

Appeals from Orders, dated the 9th April, 1952, of the High Court of Judicature at Bombay in Crimin:il

Applications Nos. 707 and 708 of 1951, from the Judgment and Order, dated the 15th December, 1952, of the High Court of Judicature at Bombay in Criminal Application No. 1310 of 1952; from the Judgment and Order, dated the 29th November, 1952, of the Judicial Commissioners Court Vindhya Pradesh, Rewa, m Criminal Miscellaneous No. 49 of 1952; and petitions under article 32 of the Constitution of India. f. B. Dadachanji and Z. F. Bootwala for the 4ppellants in Criminal Appeals Nos. 65 and 66 of 1952 4nd 5 of 1953-

Daphtary, Solicitor-General for lndi11 G. N. foshi, with him) for respondents Nos. 1 :ind 2 in

February 15.

Ebrahim Vazir

Mavat v.

The State of

Bombay and Others.

Criminal Appeals Nos. 65 and 66 of 1952 and respondent No. 1 in Criminal Appeal No. 5 of 1953.

Asthana, for the appellant in Criminal Appeal No. 19 of 1953.

C. K. Daplitary, Solicitor-General for India, (Porus A. Mehta and G. N. Joshi, with him) for the respondent in Criminal Appeal No. 19 of 1953.

S. P. Sinha (Sri Narain Andley, with him) for the petitioners in petition No. 170 of 1952.

Gopalji Mehrotra for respondent No. 1 in petition No. 170 of 1952.

C. K. Daphtary, Solicitor-General for India (Porus A. Mehta, with him) for respondent No. 3 in petition No. 170 of 1952.

S. P. Sinha (S. N. Mukherji, with him) for petitioner in petition No. 19 of 1953.

Gopalji Mehrotra for respondent No. 1 m petition No. 19 of 1953.

G. N. foslzi for respondent No. 3 m petition No. 19 of 1953.

H. J. U mri gar, amicus curiae, for the petitioner in petition No. 57 of 1953.

K. .Daphtary, Solicitor-General for India (G. N. foshi, with him) for the respondents in petition No 57 of 1953. 1954.

February 15.

The Judgment of Mahajan C.J., Mukherjea, Vivian Bose and Ghulam Hasan JJ. was delivered by Ghulam Hasan J. Das J. delivered a separate judgment.

Criminal Appeals Nos. 65 and 66 of 1952.

CHUI.AM HASAN J.-This batch of appeals raises a common question of the constitutional validity of section 7 of the Influx from Pakistan (Control) Act (XXIII of 1949).

Section 3 of the same Act is also assailed on behalf of some of the appellants but for truo purpose of deciding these appeals it will not be necessary to deal with the latter question.

Criminal Appeals Nos. 65 and 66 of 1952, which are directed against the judgment and order of the High Court of Judicature at Bombay in two petitions under article 226 of the Constitution praying for the issue of

a writ of mandamus requiring the respondent not to remove them from India on the ground that the impugned section 7 is void may be treated as the leading case which will govern the other appeals.

The facts of each of these appeals are slightly different but they proceed upon the common assertion that the appellants are citizens of the Indian Republic.

This fact was assumed in the leading case but it is not disputed that the status of the appellants as Indian citizens in all the cases has not been investigated and determined by any of the courts below against whose decision the appeals have been brought.

Having heard the learned counsel appearing in support of the appeals and the learned Solicitor-General we have reached the conclusion that section 7 is void in so far as it infringes the right of a citizen of India under article 19(1) ( e) of the Constitution.

The Act in question .received the assent of the Governor-General on April 22, 1949, and was published in the Gazette of India Extraordinary on April 23.

It is a short Act containing nine sections. It is intituled an Act to "control the admission into, and regulate the movements in, India of persons from Pakistan". 'J'lie prea1nl, Je oprns with words "Whereas it is expedient to control the admission into, and regulate the movements in, India of persons from

Pakistan".

Section 2 (b) defines "officer of Government" as any officer of the Central Government and 2 (c) defines

"permit" as a "permit issued or renewed or the period where of has been extended in accordance with the rules made under this Act".

Section 3 says "No person shall enter India from any place in Pakistan, whether directly or indirectly, unless

(a) he is in possession of a permit or

(b) being a person not domiciled in India. or Pakistan, he is in possession of a valid passport as required by the Indian Passport Act, 1920 (XXXIV of

1920), or ( c) he is exempted from the requirement of being in possession of a permit by or in accordance with the rules made under this Act."

Ebrahim V azir

Mavai

"· Tfz~ Stat1 of

Bombay and Otlurs.

Chulam Hasan J.

Ebrahim V azir

Mav•t

Tiu Stole of Bombay and Otmrs.

Ghulam Has•n J.

Section 4 empowers the Central Government, by notification in the Official Gazette, to make rules:

(a) prescribing the authorities by which and the conditions subject to which permits may be issued or renewed or the period thereof extended, the condition to be satisfied by the applicants for such permits and the forms and classes of such permits;

(b) regulating the movements m India of any person who is in possession of a permit; ( c) providing for the exemption, either absolutely or on conditions, of any person or class of persons from the requirement of being in possession of a permit or from the operation of any rule made under the section ; and

(d) ............................................. . section 5 is the penal section which says

"(a) Whoever enters India in contravention of the provisions of section 3, or having entered India contravenes the provisions of any rule made under section 4, or commits a breach of any of the conditions of his permit, shall be punishable with imprisonment for a term which may extend to one year,, or with fine which may extend to one thousand rupees, or with both."

Section 6 confers power of arrest upon an officer of Government. Section 7 is as follows:-

"Without prejudice to the prov1S1ons contained in section 5, the Central Government may, by general or special order, direct the removal from India of any person who has committed, or against whom a reasonable suspicion exists that he has committed, an offence under this Act, and thereupon any officer of Government shall have all reasonable power necessary to enforce such direction."

Section 8 provides for protection to persons acting in good faith and section 9, repeals the Influx from Pakistan (Control) Ordinance, XXXIV of 1948.

The use of the word 'person' in section 7, read with the title and preamble of the Act leaves no doubt that the Act applies to citizens and non-citizens alike.

far as a non-citizen is concerned, it is not contended before us that the executive Government has no authority to direct his removal from India and the on! y contention raised before us is whether the Central Government has any power to direct the removal of an Indian citizen on either of the grounds mentioned in section 7.

Section 7, it is contended, confers upon the Central Government unfettered power to direct the removal from India not only of a person who has committed an offence punishable under section 5 of the Act but also one against whom a reasonable suspicion exists that he has committed such an offence.

That an Indian citizen visiting Pakistan for any pur• pose whatsoever and returning to India may be required to produce a permit or passport as the case may be before he can be allowed to enter the country, may well be regarded as a proper restriction upon entry but to say that if he enters the country without a permit or on an invalid permit or commits a breach of any of the conditions of the permit he may, on conviction for such offence, be ordered to be removed from the country is tantamount to taking away his fundamental right guaranteed under article 19(1) (e), "to reside and settle in any part of the territory of lnclia".· The order is sought to be supported by the learned Solicitor-General on the ground that it falls within exception

(5) of article 19.

The proposition that the order imposes in the interest of the general public a reasonable restriction on the exercise of the right conferred upon an Indian citizen to reside and settle in any part of the territory of India is hardly statablc. lt is possible to conceive of an Indian citizen being guilty of serious prejudicial Acts such as espionage and disloyalty to his country in which case he may render himself liable to the gravest penalty which the Government may think fit by law to impose upon him but it would be repugnant to all notions of democracy and opposed to the fundamental rights guaranteed in Part III of the Constitution to order his expulsion from the country, for to hold otherwise would be tantamount to destroying the right of citizenhi11 conferred by Part JI of the Constitution. This

Er4hi'" Va.cir

Maoat

Tiu State of

Bombay •Ni Others.

Ghulam Hasan J~.

Ebrahim Vair

Afavat

The State of Bomba)' and Others.

Ghulam Hasan J.

result / is permissible only by recourse to article 11 of the Constitution. Again it will be noticed that section 7 imposes the penalty of removal not only upon a conviction under section 5 but goes further and brings about the same result even where there is a reasonable suspicion entertained by the Central Government that such an offence has been committed. The question whether an offence has been committed is left entirely to the subjective determination of the Government.

The inference of a reasonable suspicion rests upon the arbitrary and unrestrained discretion of the Government, and before a citizen is condemned all that the Government has to do is to JSSUe an order that a reasonable suspicion exists in their mind that an offence under section 5 has been committed.

The section cloes not provide for the issue of a notice to the person concerned to show cause against the order nor is he afforded any opportunity to clear his conduct of the suspicion entertained against him.

This is nothing short of a travesty of the right of citizenship.

The learned Solicitor-General argued that the provision must be viewed in the back-ground of the events which took place at the time of the partition and the unsatisfactory relations existing between India and Pakistan up to the present day. Even so the penalty imposed upon a citizen by his own Government merely upon a breach of the permit Regulations, however serious it may be and, more, upon a reasonable suspicion only by the executive authority of his having violated the conditions of the permit is utterly disproportiomte to the gravity of the offence and is in our opinion indefensible.

A law which subjects a citizen to the extreme penalty of a virtual forfeiture of his citizenship upon conviction for a mere breach of the permit Regulations or upon a reasonable suspicion of having committed such a breach can hardly be justified upon the ground that it imposes a reasonable restriction upon the fundamental right to reside and settle in the country in the interest of the public. The Act purports to control admission into and regulate the movements in India of persons entering from Pakistan but section 7 oversteps the limits of .control

and regulation when it provides for removal of a citizen from his own country.

To use the language of this court in Chintaman Rao v. The State of Madhya Pradesh and Ram Krishna v.

The State of Madrya Pradesh('), "The effect of the provisions of the Act, however, has no reasonable relation to the subject in view but is so drastic in scope that it goes much in excess of that object".

It may be s.aid that the sentry on guard at any of the check-posts on the frontier between the two countries can prevent not only unauthorised entry of a citizen by force but" can also throw him out if the person has managed to enter surreptitiously.

Exactly what the sentrys' duties are was not argued before us.

They would naturally vary according to the circumstances and the orders which he receives but ordinarily we apprehend that the duty of a sentry at the border would be to prevent as far as lay in his power unauthorised entry into India.

If any person claims to have the right to enter, the sentry's duty would be to hand him over to the Commander or the Guard and normally it would be the duty of that Commander to hand him over to the proper authority empowered to determine the right which he claims. In the case of an unauthorised entry, ordinarily the duty of the sentry is to arrest a man and hand him 9ver to the proper authority for punishment and in extreme cases he may have the right to shoot the person who does not halt on his command and explain his presence at the outpost.

In normal circumstances we doubt if the sentry would have the right to forcibly expel a man who crosses the border.

The learned Chief Justice ( Chagla C. J.) took the view that section 7 is consequential to section 3 and held . that if section 3 controlling admission by means of a permit is valid, section 7 must be held to be equally valid.

This argument is fallacious.

In the firs! place, section 7 is by no means wholly consequential to section 3. The first part no doubt renders the pcrso!l concerned liable to removal upon conviction under section 5 but further empowers the Central Government

(r) [Ig,; o] S.C.R.759.

Ebrahim V azir

Mavat v.

Th1, State of

Bombay arid Othtrs.

Ghulam Hasan J.

Ebrahim V .zir

Miwot

Tl1' State •f

Bombay an! Others.

Ghulam Hasen J.

to pass the same order independently of these prov1S1ons even where there is no conviction and a. reasonable suspicion exists that an offence has been committed.

Assuming, however, that section 7 is consequential to section 3 it gives no opportunity to the aggrieved person to show cause against his removal. There is no forum provided to which the aggrieved party could have recourse in order to vindicate his character or meet the grounds upon which it is based. !'{either the Act nor the rules framed thereunder indicate what procedure is to be followed by Government in arriving at the conclusion that a breach of section 3 or of the rules under section 4 bas taken place.

In Shabbir Hussain v. The State of Uttar Pradesh and Anotlzer( 1 ' the Allahabad High Court held that a law allowing the removal from a territory of India of any citizen is in contravention of article 19 (1) (d) and ( e) of the Constitution and is void in view of article 13 (1).

The order which challenged before them was one passed under section 7 and was set aside.

In Criminal Writ No. 147 of 1951 decided on December 11, 1951, a Bench of the Punjab High Court (Weston C. J. and Harnam Singh J.) while setting aside the order under section 7 against a citizen of India who had entered India without a permit and was first convicted and then ordered to be extcrned observed : "The powers of removal or banishment given by section 7 of the Influx from Pakistan (Control) Act, 1949, connot be invoked against citizens of India. No doubt, she committed an offence under section 3 of that Act which applied to all persons, but that cannot justify her removal even though her entry may have been contrary to the provisions of the Act." W c are not prepared to accede to the contention urged by the Solicitor-General that a citizen of India who returns to the country witl1out a permit or without a valid permit commits such a grave offence as to justify his expulsion from the country. The object of the Act is not to deport Indian nationals

(I) A.I.R. 1952 All. 257.

committing a breach of the permit or passport Regulations but merely to control admission into and regulate movements in India of persons from Pakistan and therefore there is no substance in the argument that section 7 was intended to achieve the objective of expelling Indian citizens, by and large, if they brought themselves within the mischief of section 3.

It was faintly contended that the order of physical removal from India, in addition to the punishment imposed under section 5 of the Act, amounted to what

my be called "double jeopardy" and is in conflict with article 20 (2) of the Constitution.

The short answer to this contention is that there is no second prosecution for the same offence and therefore no question of double jeopardy arises. See Maqbool Hussain v.

The State of Bombay etc.( 1 ) .

As a result of the foregoing discussion we declare section 7 to be void under article 13(1) in so far as it conflicts with the fundamental right of a citizen of India under article 19(1)

(e) of the Constitution and set it aside.

The order will, however, operate only upon proof of the fact that the appellants are citizens of India.

The case will, therefore, go back to the High Court for a finding upon this question.

It will be open to the High Court to determine this question itself or refer it to the court of District Judge for a finding.

Parties will be given full opportunity to file affidavits or give other evidence which they may wish to produce.

Criminal Appeal No. 5 of 1953.

GHULAM HASAN J .-The appellant in this case is a resident of Godhra, District Panchmahals, in the State of Bombay.

He went to Pakistan in March, 1948, and returned to India on May 30, 1949, after obtaining a permit for permanent return to India from the High Commissioner for India. In January, 1950,. he was prosecuted under section 5 of Act XXIII of 1949 for having obtained a permit which was not in accordance with the provisions of the Act.

The prosecution w:is withdrawn after 2t years. Subsequently on December 5, 1952, he was served with a notice

( ) [1953] S. C.R. 730.

Ebrahim V azir

Mavat v.

Tht State of Bombay and Others.

Ghulam Hasan J.

ordering him to leave India for Pakistan within 10 days else he would be bodily removed to the Indo-Pakistan border. Thereupon the appe!lant filed a petition under article 226 contending that section 7 was contrary to his fundamental rights under articles 14 and 19 of the

Constitutio11 and that the same provided no opportunity to the appellant to put his case before the Government officers, nor was any such opportunity afforded to him.

He asserted that he was a citizen of India.

The application was summarily dismissed on December 15, 1952, whereupon leave to appeal to this court was granted under article 132 (1) of the Constitution.

As th.is appeal also raises the question of the constitutional validity of section 7, it will be governed by the decision which we have arrived at in appeals Nos. 65 and 66 of 1952. ·

Criminal Appeal No. 19 of 1953.

GHuLAM

HASAN.

J.-The appellant, Haji Faqir Ahmad, is a resident of Rewa in Vindhya Pradesh and alleges that he is a citizen of India. He was prosecuted under section 5 of Act XXIII of 1949 on the ground that he had entered India from Pakistan without a permit and convicted and sente_nced.

Thereafter he was by an order passed under section 7 bodily removed out of India. His father applied under article 226 of the Constitution and section 491 of the Code of Criminal Procedure for setting aside the order.

The learned Judicial Commissioner dismissed the application summarily holding that section 7 was not f!itra vires the Constitution.

Mr. Asthana, who appeared on behalf of the appellant, raised a further question that the order was void under article 14 inasmuch as it discriminated against members of a particular community coming from Pakistan.

There is no warrant for this contention.

The Act applies to citizens as well as non-citizens. It applies to all commumt1es irrespective of caste or creed.

It is contended that the Act must be held to be discriminatory not only by virtue of its provisions but because of the disriminatory manner in which those provision have been applied.

This argument is

) •

to be mentioned only to be rejected, for there is no material whatsoever placed before us to justify the statement.

The case in Yick W o v. Peter Hopkins( 1 ) is wholly inapplicable to the facts of the present case.

We accordingly reject the contention.

This case will also he governed by the decision in Appeals Nos. 65 and 66 of 1952.

Petition No. 170 of 1952.

AND Petition No. 19 of 1953.

GHuLAM HAsAN J.-These petitions under article 32 of the Constitution raise the constitutional validity of section 7 of the Influx from Pakistan (Control) Act, XXIII of 1949.

Mr. S. P. Sinha, who appears for the petitioners, withdraws these petitions and undertakes to file two petitions under article 226 of the Constitution within a fortnight from this day before the High Court.

When these have been filed, they will automatically be governed by the decision given in Appeals Nos. 65 and 66 of 1952.

No other order is called for. The petitions are allowed to be withdrawn.

Petition No. 57 of 1953.

GHULAM HASAN J.-This is a petition under article 32 of the Constitution by Inamullah Khan alias Qamar Jamali for the issue of a writ in the nature of habeas 'corpus directing that the petitioner, who is illegal! y arrested and detained be brought before the court and set at liberty and for the issue of a writ of certiorari calling for the said order for arrest and detention and the relevant papers and for setting them aside as being void and inoperative. It is further prayed that the State of Bhopal and the Superintendent of Central Jail, Bhopal, where he was being detained be restrained from putting into effect the said order.

The petition was made on March 11, 1953.

It is stated that the petitioner is a citizen of India having been born in Bhopal in 1922,.. He was employed in Bhopal for 5 years immediately preceding

{I) 118 U.S. 356; 30 Law. Ed. 220.

Ebrahim Vazir

Mavat v.

The State of Bombay and Others .

Ghi:.lam Ha.ran J.

Ebrahim V azir

Mavai

The State of

Bombo,1 and Othtrs.

Ghulam Hasan J.

the commencement of the Constitution of India. He also edited a weekly paper "Tarjuman" from Bhopal.

His name appears as a voter in the voters list of the Bhopal Legislative Assembly (1951-52), as wdl as in the electoral roll of the Municipal Board, Bhopal. He was arrested on November 24, 1952, by the Sub-Inspector of Police at Ibrahimpura, Bhopal, under section 7 of the Influx from Pakistan (Control) Act, XXIII of 1949 and was told that he would be removed to Pakistan.

At the time of the arrest the petitioner was being tried under section 448, Indian Penal (', ode, in the court of 1st Class Magistrate, Bhopal, and was on bail.

The petitioner alleges that he never went to Pakistan, nor entered India without a permit and was never tried and convicted under the Influx from Pakistan (Control) Act of 1949. He challenges the order under section 7 as being void under article 19(d) and ( e) and articles 21 and 22.

The fact that the petitioner is a resident of Bhopal and was employed in the State is not denied on behalf of the State.

The affidavit on behalf of the State mentions that the petitioner had gone to Pakisun in May, 1952, and returned in August, 1952, without a permit.

He was arrested on November 24, 1952, without any pnor notice but was told at the time of the arrest that he was to be removed out of India.

The petitioner filed an application through his uncle before the Judicial Commissioner, Bhopal, under article 226 on November 25, 1952, challenging the order.

The Judicial Commissioner granted an interim stay order on the same d:iy. The petition was dismissed on February 23, 1953, and the interim order was vacated on March 10, 1953.

It is admitted that an oral request was made to the J udici:il Commissioner for leave to appeal to this court and it was prayed that pending the grant of leave the order of stay should continue. Leave was refused on the 5:1me day and the stay order was vacated. •

Thete is an affidavit by the Chief Secretary of the State admitting that the petitioner on the same day handed an application to the Superintendent of Jail

addressed to this court.

The Superintendent of Jail sent it to the Chief Secretary on March 13, 1953. It was put up before him on the 14th when he forwarded it to the Law Department for opinion on March 16.

The petition was returned to him on the 19th with the remark that it should be forwarded to the Supreme Court. It was sent to this court on March 22. On the same day a telephonic communication was sent by the Registrar of this court through the States Ministry directing that the petitioner should be detained if he was still in India, but it appears that the petitioner had been handed over to the Rajasthan Police at Kotah on March 12, 1953, and a reply was

received by the Inspector-General of Police, Jaipur, that the petitioner had crossed the border on March 18, 1953.

The Superintendent of Jail has also filed an affidavit supporting the Chief Secretary and has admitted that it was wrong on his part not to have

sent the petition submitted by the prisoner immediately to this court and that he in good faith beli-eved that as the order for stay had been vacated by the Judicial Commissioner, he should first send it to the Registrar of that court.

It is obvious that the 'Superintendent was grossly in error and his action in not submitting the petition resulted in the unlawful removal of the petitioner out of the country. He has made amends by tendering an unqualified apology and nothing further need be said about it. In Ebrahim

Wa>1ir Mavat v. The State of Bombay and Others and Noor Mohammad Ali Mohammad v. The State of Bombay and Othrs (Criminal Appeals Nos. 65 and 66 of

1952) in' wh1ch we have just delivered judgment we have held that section 7 of the Act is void as against a citizen of India being an encroachment on his fundamental right under article 19 (1) (e) of the Constitution.

Following that decision we hold that the order of removal of the petitioner is liable to be set :1.side .

Mr. Umrigar, who appeared for the petitioner, pointed out that the Judicial Commissioner has ; i]ready held that the petitioner is a citizen of India and that it will serve no useful purpose by remanding

Eirahim V azir

Mavai

The State of

Bombay and Oth; rs.

Ghulam Hasan J.

Ebrahim Vazir

Mavat v.

The State af Bombay and Otkrs.

Ghuh.m Hasan J.

the case to him for an inquiry into the question. The Solicitor-General on behalf of the Union of India has read to us the order of the Judicial Commissioner and admits that this is so.

It is, therefore, not necessary to adopt the course that we have taken in the aforesaid appals involving the validity of section 7. We accordingly hold that the order passed against the petitioner is void and set it aside.

Mr. Umrigar requests that the order should be communicated to the petitioner through the High Commissioner for India in Karachi to whom the petitioner sent a representation praying that he should be allowed to return to India.

This request is granted.

Criminal Appeals Nos. 65 and 66 of 1952, No. 5 of 1953 and No. 19 of 1953 and Petitions No. 170 of 1952, No. 19 of 1953 and No. 57 of 1953.

DAs J.-I regret I am unable to agree with the judgment just delivered.

Four Criminal Appeals namely, Criminal Appeals Nos. 65 and 66 of 1952, No. 5 of 1953 and No. 19 of 1953 and three Criminal Miscellaneous Petitions, namely Petition No. 170 of 1952, No. 19 of 1953 and No. 57 of 1953, were posted for hearing and were heard by us one after another.

In each one of those appeals and petitions the appellants or the petitioners, as the case may be, challenged the constitutional validity of the Influx from Pakistan (Control) Act, 1949 (Act XXIIl of 1949).

Learned advocate appearing in support of petitions No. 170 of 1952 and No. 19 of 1953 asked for leave to withdraw them with liberty to file fresh petitions in the High Court. Such leave having been given, nothing further need be said about those two petitions. The facts of each of the remaining appeals and the remaining petition have been set out in. the judgment just delivered and need not be repeated. Suffice it to say that the appellants in Appeals Nos. 65 and 66 of 1952 first came to India from Pakistan on temporary permits issued by the High Commissioner for India in Pakistan but stayed on after the expiry of the

period and were convicted under section 5 of the Act.

Later on they returned to -Pakistan on a temporary permit issued by the High Commissioner for Pakistan in India and eventually came back to India on a permanent permit issued by the High Commissioner for India in Pakisµn.

That permanent permit was cancelled on the allegation that it had been obtained on the strength of a "no objection" certificate which had been obtained by them by the suppression of material facts, namely, that they had previously come to India on a temporary permit.

The appellant in Appeal No. 5 of 1953 came to India from Pakistan on a permanent permit which was subsequently cancelled ori the allegation that it had been obtained by fraud.

The appellant in Appeal No. 19 of 1953 came to India from Pakistan without any permit and was prosecuted and convicted under section 5 of the Act and later on arrested and sent back to Pakistan. The petitioner in Petition No. 57 came to India without any permit at all. On this petitioner as well as on the appellants orders had been made under section 7 of the impugned Act to the effect, that unless they left India within the time specified in the respective orders they would be bodily removed from India. '.fhese orders were made on the ground that they had entered India in violation of section 3 of the Act and/ or the rules and order made thereunder. Each of these persons claimed that they were citizens of India and complained that the orders made against them violated their fundamental rights under Chapter III of the Constitution of India. .

It will be recalled that on the 15th August, 1947, there was a partition of India and two Dominions were formed under the Indian Independence Act,

1947. A grave emergency arose on the partition of India resulijlg in mass-migration of population from one Dominion to the other accompanied , by riots, arson, murder, rape and loot. Intense bitterness and hatred were generated in the minds of the people of one Dominion against those of the other Dominion.

Even in one Dominion there was suspicion in the 2-97 S. C. India/59

Ebrahim V azir

Mavat v.

The State of Bombay and Ot/; ers.

./Jas J.

Ebrahim V az:ir

Maval v.

The State of Bombay and Otf.ers.

Das].

minds of the members of one community against those of the other. In those circumstances the uncontrolled and indiscriminate entry of persons, Hindu or Muslim, from Pakistan into India was naturally regarded as fraught with the possibility of espionage and sabotage the prevention of which was essential for the security of the Dominion of India. Further, an uncontrolled entry of large numbers of people was calculated to place and in fact placed a tremendous strain on the economy of India and on the law and order situation in the country.

It was in order to prevent such result that it was necessary to exercise some control over such influx of persons from Pakistan into India. Accordingly, the Influx from West Pakistan (Control) Ordinance (XVII of 1949) was promulgated on the 19th July, 1948, by the Governor-General in exercise of the powers conferred on him by section 42 of the Government of India Act, 1935.

The preamble to that Ordinance recited that an emergency had arisen which made it necessary to control the admission into and regulate the movements in India of persons from Pakistan.

Thereafter the Influx from Pakistan (Control) Ordinance (XXXIV of 1948) was issued on the 10th November, 1948, replacing the earlier Ordinance.

This Ordinance applied to persons entering into India from both West Pakistan and East Pakistan.

It substantially reproduced all the sections of the previous Ordinance. Finally, on the 22nd April, 1949, the Influx from Pakistan (Control) Act (XXIII of 1949) replaced the second Ordinance.

Sections 3 and 7 of this Act substantially reproduced the provisions of sections 3 and 7 of the Ordinance. The Permit Srtem Rules of 1948 were replaced on the 20th May, 1949, by the Permit System Rules of 1949.

This Act, however, was repealed on the 15th October, 1952, by Act LXVI of 1952.

Section 3 of this repealing Act, howe'""r, expressly preserved the application of section 6 of the General Clauses Act, 1897.

Although the In.flux from Pakistan (Control) Act, 1949 has been repealed and the number of persons who, like the appdlants and the petitioners before. us, are affected by tht Act is small, nevertheless the matter has t)

be scrutinised ciosely, for our decision may conceivably affect the passport regulations which have replaced, the permit system.

The contention advanced in these appeals and the petition is that sections 3 and 7 of the Act have, since the commencement of the Constitution, become void in that they violate the fundamental rights guaranteed by articles 14 and 19(1) (d) and (e) of the Constimtion.

The provisions of these two sections, which have been sufficiently set out in the judgment just delivered, will at once show that they applied to all persons coming from Pakistan, whether they were citizens or noncitizens and irrespective of the community to which they belonged or the religion which they professed.

It will also appear that, as regards citizens they did not touch all citizens but affected only such of them as came from Pakistan, whether they were Hindus, Muslims or Christians.

It is, therefore, quite clear that the Act applied to a small well defined class of persons who were grouped together on an obviously reasonable basis of classification as explained in the previous decisions of this court.

In this view of the matter no question of unconstitutional discrimination can arise at all and, indeed, the plea based on the equal protection clause of the Constitution has not been seriously pressed.

The main contest has centred round the question whether these two sections offend against the provisions of article 19(1)(d) and (e) of the Constitution.

The learned Solicitor-General appearing for the respondents contends that those sections are protected by article 19(5) as being reasonable restrictions on the exercise of the rights guaranteed by sub-clauses ( d) and ( e) of clause ( 1) of that article.

In State of Madras v.

Row ) Patanjali Sastri

C. J. observed:-

"It is important in this context to bear in mind that the test of reasonableness, wherever 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.

(I) [r:52] 3 S. C. R .. 597 at p. 607

. 1954

Ebf'ahiTir Vazir

Mavat

The State qf

Bombay and Othtr.r.

Das].

Ebrahim Vatir

Mavat v. 7 he State of Bombay and Otkrs.

Da.s J.

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 into 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 authonsmg the imposition of the restrictions, considered them to be reasonable."

The impugned sections have, therefore, to be examined in the light of the above observations.

I find nothing unconstitutional about section 3 of the impugned Act. It does not debar the entry of any person absolutely.

It only requires that a person entering India from any place in Pakistan must be in possession of a permit or a valid passport or be exempted from such requirements.

Passport regulations obtain in every civilised country including even those the constitutions whereof confer similar fundamental rights on their citizens, e.g., Switzerland (articles 43-45), Wiemer Germany (article III), Czechoslovakia (article 108), Jugoslavia (article 10), Danzig (article 75) and Albania (section 202). Such regulations serve to check up the persons who enter the territories of the State and are necessary for the safety of the State.

Seeing that such regulations obtain everywhere and have a definite utility for the protection of the general public by securing the safety of the State I have no manner of doubt in my mind that such restrictions as are contemplated by section 3 must be regarded as reasonable restrictions permissible under

clause (5) of article 19 of the the objection of section 3 has pressed before us.

Constitution. Indeed, not been seriously

The main objection urged by learned counsel appearing i11 support of these appeals and petitions was directed to the question of the validity of section 7.

In the first place, it is clear that no objection can be taken to section 7 in so far as it affected persons who were not citizens of India, for article 19 guarantees certain fundamental rights to the citizens of India only. In the next place, this section did not affect all citizens but touched only a well defined small class of citizens, namely, those who went to Pakistan and intended to return to India.

The question is whether qua these citizens section 7 can also be regarded as a reasonable restriction within the meaning of clause (5) of article 19.

The High Court of Bombay has held, and in my opinion quite correctly, that the provisions of section 7 cannot but be regar.ded as consequential to the provisions of section 3.

Suppose at the check-post a person from Pakistan, whether a citizen or not, tried to cross the broder without a permit.

Surely, the officer at the check-post would have been well within the law to prevent a violation of section 3 of the Act and with that end in view to prevent that person, who had no permit, from crossing the border and entering India.

I have no doubt that the officer might also have prevented a person from Pakistan from crossing the border if he suspected that the permit produced by the person was forged or otherwise irregular and left him to take up the matter with the higher authorities from Pakistan.

Suppose the man who sought to enter India without a permit or with - a permit which was suspected to be spurious forcibly crossed the border and took a step or two on our side of the line, the Indian officer would certainly have been entitled to throw him back to the other side of the line. Surely, such, a person could not be permitted to take advantage of his own wrong and could not be heard to say that, in such circumstances, he. had, by his wrong doing, acquired a better right. than the person

Ebrahim V azir

Mavat v.

The State of

Bombqy and Others.

Das]

Ebrahim V Mir

Mavat v.

The State of Bombay and Others.

Das].

who had not the temerity to violate the provisions of section 3.

If this is so then, logically, I can see no difference if the man ran into the Indian territory for some distance and the Indian officer ran after him, overtook him and took him back to the. check-post and pushed him out of our side of the line.

It is futile, in such a situation, to expect or to say that the officer should have held a judicial enquiry and come to a judicial decision after hearing an argument as to the validity of the permit or as to the status of the permit holder or the fundamental rights of a citizen of India to move freely in India and to settle anywhere he liked in .India.

The truth and substance of the matter are that in acting in the way indicated above the officer simply performed an executive act and prevented a person who held no permit or held a permit which appeared to the officer to be spurious from entering India from Pakistan in violation of section 3 of the Act.

To throw out such a person was not to inflict any punishment on him or to do him any greater injury than what was imposed on or done to a person who, not having a permit, was stopped at the check-post and not allowed to enter India at all. The man thus thrown out was placed under no greater disability than the man who had initially been prevented from entering India at the check-post barrier.

In both cases such a person might, while staying in . Pakistan, have taken steps to obtain a permanent permit upon proof of his status as an Indian citizen and if such permit was illegally withheld from him he might have through some agent in India taken proceedings in Indian courts for appropriate reliefs.

To my mind the position of the person who entered India on a temporary permit but who, in violation of the rules or order made under the Act, stayed on after the period of the permit expired, was, as from that date, logically the same as that of the person who entered India without a permit.

To arrest such a person, after the expiry of the period of the temporary permit, with a view to sending him back to where he came from and to actually send him back there did not involve or

constitute a judicial act all but was a rough and ready executive act for enforcing giving effect to the provisions of section 3 of the Act. To arrest and send such a person back to Pakistan was not to inflict a punishment but was only to restore the status quo and to put him back to the position he would have been in but for his illegal act.

In my opinion the act authorised by section 7 was, in essence a purely executive act for implementing the provisions of section 3.

Without such a provision it would have been impossible for the State to control the admission into India of persons from Pakistan and to prevent the concomitant dangers referred _to above.

The act authorised by the section being an executive act, discretion had perforce to be left to the executive Government which, by reason of the information available to it, was in a much better position than the courts to know and judge the antecedents of such a person and his ultimate purpose.

Suppose an Indian citizen, no matter whether he was a Hindu or a Muslim, had entered India from Pakistan without a permit and suppose be was, upon confidential reports which could not be safely disclosed, suspected to be engaged in espionage in the interests of Pakistan, would it have been safe enough in those hectic days to have only nrosecuted him under section 5 and inflicted on him a fine of rupees one thousand or a term of imprisonment not exceeding a year and then to have left him free, after the term of imprisonment was over, to surreptitiously carry on his nefarious activities of espionage and sabotage against our State wh.ile embarking upon a protracted judicial enquiry to ascertain the truth or otherwise of his claim to Indian citizenship ? It cannot be overlooked that there are long common borders between Pakistan and India both on the west and on the east. The Kashmir situation had also aggravated the emergency brought above by the partition of India.

Having regard to all the circumstances, the tension, bitterness and hatred between the two countries that were generated at the time of the partition and all which must enter into the judicial verdict, the provisions of section 7 appear' to me to have been eminently reasonable restrictions imposed in the interests of the

Ebrahim Vazir

Mavai

The State of Bombay and Others.

Das].

Ebrahim Vazir

Mar; at

The State of Bombay and Others.

Das].

general public upon the exercise by Indian c1t1zen coming from Pakistan without a permit of the rights conferred by article 19(1)(d) and (e) of the Constitution.

The Indian citizen who was thrown out for not having the proper permit or who was suspected to have violated the provisions of the Act was placed in no worse position than an Indian citizen who, not having a permit, had not been permitted to enter into India at ail.

They were by no means without remedy. They could from the other side of the border take steps under the rules to obtain valid permanent permits upon proof of their citizenship of India and if such permits were illegally withheld from them they could move the appropriate High Court under article 226 or even this court under article 32 while they were outside India and might, on proof of their citizenship, have got appropriate writs or orders directing the State or its officers to issue suitable permits and to desist from otherwise preventing them from entering India or interfering with their movement while in India. It is said that if such a person would have been entitled to a permit on proof of his status as an Indian citizen then why should he have been thrown out at all unless and until he failed to establish his claim to Indian citizenshio ?

There occur to mv mind several answers to this 'question.

In the first . place, it would have been putting a vremium on wrong doing.

In the second place, the person would have been left free to carrv on his secret activities, if any, while judicial proceedings would have been going on for ascertaining his status.

In the third place. if the person could not be thrown out before his status had been judicially determined there would have been no incentive on his part to take proceedings in court to establish his status and it would have thrown upon the State the duty of initiating proceedings and of discharging the onus of proving the negative fact of his not being a citizen of India. In view of all the circumstances prevailing at the time the law was enacted and remained in force and in view of the considerations hereinbefore alluded to I have no doubt in my mind-except what

arises out of my respect for the opinions of my Lord and other learned brothers-that the provisions of section 7 were necessary and reasonable and fell within clause (5) of article 19. In my Judgment the four appeals as well as Petition No. 57 of 1952 should be dismissed.

Appeals allowed, cases remanded.

Agents for the appellants and petitioners : S.

Shukla, R.

Govind, Sardar Bahadur and P. K.

Chatterji.

Agents for the respondents: G. H. Rajadhyaksha and C. P. Lal.

SARDAR SOMA SINGH AND OTHERS

tJ.

THE STATE OF PEPSU AND UNION OF INDIA.

[MEHR CHAND MAHAJAN C. J., MuKHERJEA, S. R. DAs ..

VIVIAN BoSE and GHULAM HASAN JJ.J Constitution of India, art. 286(3)-The Patiala and East Punjab States Union General Sales Tax Ordinance, 2006 (XXXIII

of 2006)-Whether ultra vires the Constitution.

Held, that the Patiala and East Punjab States Union General Sales Tax Ordinance, 2006 (No. XXXIII of 2006) promulgated on 6th November, 1949, is not ultra vires art. 286(3) of the Constitution.

Clause (3) of art. 286 conten1plates a post-Constitution law, for it must be a law made by a "Legislature of a State" which must refer to the legislature of a State created by the Constitution.

ORIGINAL JuRISDICTJON : Petition No. 325 of 1953.

Petition to the Supreme Court under article 32 of the Constitution of India for enforcement of fundamental rights.

S. P. Sinha (Bakshi Man Singh, with him) for the petitioners.

C. K Daphtary, Solicitor-General for India' and ]. N. Kaushal (P. G. Gokhale, with them) for respondent No. 1.

C. K. Daphtary, Solicitor-General for India (Porus A. Mehta and P. G. Gokhale, with him) for respondent No. 2. ·

Ebrahim V a.tir

Mavat v.

The State of Bombay and Others.

March 11.

EBRAHIM VAZIR MAVAT

THE STATE OF BOMBAY AND OTHERS

CHAND MAHAJAN

MUKHERJEA

S. R. DAS

V1v1AN BosE

GHULAM HASAN JJ.

Constitution of India

arts. 13(1), 19(1)

s. 7

s. 7

art. 13(1)

India

cl. 5

art. 19

art. 19(1)

High Court of Judicature at Bombay

article 32

Constitution of India

B. Dadachanji

Z. F. Bootwala

Daphtary

Ebrahim Vazir

Ebrahim Vazir

Mavat v.

The State of

Bombay and Others.

State of

Bombay

Asthana

Asthana, for the appellant in Criminal Appeal No.

C. K. Daplitary

Porus A. Mehta

G. N. Joshi

S. P. Sinha

Narain Andley

Gopalji Mehrotra

C. K. Daphtary

S. N. Mukherji

G. N. foslzi

H. J. U

H. J. U mri gar, amicus curiae, for the petitioner in petition No.

K. .Daphtary

G. N. foshi

Mahajan C.J.

Mukherjea

Vivian Bose

Ghulam Hasan

CHUI.AM HASAN

section 7

Section 3

article 226

section 7

section 7

article 19(1)

April 22, 1949

Pakistan

Section 2

Central Government

Section 3

Indian Passport Act, 1920

Ebrahim V azir

Ebrahim V azir

Mavai

"· Tfz~ Stat1 of

Bombay and Otlurs.

Chulam Hasan

Chulam Hasan J.

Ebrahim V azir

Mav•t

Tiu Stole of Bombay and Otmrs.

Ghulam Has•n

Section 4

section 5

section 3

section 4

Section 6

Section 7

section 5

Section 8

section 9

section 7

section 7

Section 7

section 5

article 19(1)

article 19

Ebrahim Vair

State of Bomba

article 11

section 7

section 5

section 5

section 7

Chagla

section 7

section 3

section 3

section 7

section 7

section 3

section 5

Ebrahim V azir

Ebrahim V azir

Mavat v.

Th1, State of

Bombay arid Othtrs.

State of

Bombay arid Othtrs

Ebrahim V .zir

Ghulam Hasan J.

Ebrahim V .zir

Miwot

Tl1' State •f

Bombay an!

Ghulam Hasen

section 7

section 3

section 3

section 4

Allahabad High Court

article 19

article 13

section 7

December 11, 1951

Punjab High Court

Weston C.

Harnam Singh

section 7

section 7

section 3

section 7

section 3

section 5

article 20

section 7

article 13(1)

article 19(1)

GHULAM HASAN

Godhra

Bombay

May 30, 1949

section 5

December 5, 1952

article 226

section 7

articles 14 and 19

December 15, 1952

article 132

section 7

GHuLAM

HASAN

Haji Faqir Ahmad

Vindhya Pradesh

section 5

section 7

article 226

section 491

Code of Criminal Procedure

section 7

Asthana

article 14

Yick

GHuLAM HAsAN

article 32

section 7

article 226

article 32

Inamullah Khan alias Qamar Jamali

State of Bhopal

March 11, 1953

The petition was made on March 11, 1953.

Bhopal

S. 356

State of Bombay

Ebrahim Vazir

Mavat v.

The State of Bombay and Others .

State of

Bombo,1

Constitution of India

November 24, 1952

section 7

section 448

1st Class Magistrate, Bhopal

section 7

article 19(d)

articles 21 and 22

Pakisun

article 226

November 25, 1952

February 23, 1953

March 10, 1953

March 13, 1953

Supreme Court

Kotah

March 12, 1953

Jaipur

March 18, 1953

section 7

article 19

Umrigar

State af Bombay

Ghuh.m Hasan

Ghuh.m Hasan J.

the case to him for an inquiry into the question.

section 7

Karachi

section 5

section 5

section 7

section 3

Constitution of India

15th August, 1947

India and two Dominions were formed under the Indian Independence Act

Dominion of India

West Pakistan

19th July, 1948

section 42

Government of India Act, 1935

10th November, 1948

East Pakistan

22nd April, 1949

Sections 3 and 7

sections 3 and 7

20th May, 1949

15th October, 1952

Section 3

section 6

General Clauses Act, 1897

sections 3 and 7

articles 14 and 19(1)

article 19(1)(d)

article 19(5)

Ebf'ahiTir Vazir

1954

Ebf'ahiTir Vazir

Mavat

The State qf

Bombay and Othtr.r.

State qf

Bombay

section 3

Switzerland

articles 43

Czechoslovakia

article 108

Jugoslavia

article 10

Danzig

article 75

Albania

section 202

section 3

article 19

section 3

section 7

section 7

article 19

section 7

article 19

High Court of Bombay

section 7

section 3

section 3

section 3

section 3

section 3

section 7

section 3

section 5

section 7

Ebrahim Vazir

article 19(1)(d)

article 226

article 32

section 7

article 19

S.

Shukla

R.

Govind

Sardar Bahadur

P. K.

Chatterji

G. H. Rajadhyaksha

Agents for the respondents: G. H. Rajadhyaksha and C. P. Lal.

C. P. Lal

SARDAR SOMA SINGH

STATE OF PEPSU

UNION OF INDIA

MEHR CHAND MAHAJAN

VIVIAN BoSE

Constitution of India

art. 286(3)

art. 286(3)

art. 286

article 32

Constitution of India

Bakshi Man Singh

S. P. Sinha (Bakshi Man Singh, with him) for the petitioners.

C. K Daphtary

C. K Daphtary, Solicitor-General for India' and ].

N. Kaushal

N. Kaushal (P. G. Gokhale, with them) for respondent No.

P. G. Gokhale

C. K. Daphtary


S.C.R.

SUPREME COURT REPORTS 955

arises out of my respect for the opinions of my Lord and other learned brothers-that the provisions of section 7 were necessary and reasonable and fell within clause (5) of article 19. In my Judgment the four appeals as well as Petition No. 57 of 1952 should be dismissed.

Appeals allowed, cases remanded.

Agents for the appellants and petitioners : S.

Shukla, R.

Govind, Sardar Bahadur and P. K.

Chatterji.

Agents for the respondents: G. H. Rajadhyaksha and C. P. Lal.

SARDAR SOMA SINGH AND OTHERS

tJ.

THE STATE OF PEPSU AND UNION OF INDIA.

[MEHR CHAND MAHAJAN C. J., MuKHERJEA, S. R. DAs ..

VIVIAN BoSE and GHULAM HASAN JJ.J Constitution of India, art. 286(3)-The Patiala and East Punjab States Union General Sales Tax Ordinance, 2006 (XXXIII

of 2006)-Whether ultra vires the Constitution.

Held, that the Patiala and East Punjab States Union General Sales Tax Ordinance, 2006 (No. XXXIII of 2006) promulgated on 6th November, 1949, is not ultra vires art. 286(3) of the Constitution.

Clause (3) of art. 286 conten1plates a post-Constitution law, for it must be a law made by a "Legislature of a State" which must refer to the legislature of a State created by the Constitution.

ORIGINAL JuRISDICTJON : Petition No. 325 of 1953.

Petition to the Supreme Court under article 32 of the Constitution of India for enforcement of fundamental rights.

S. P. Sinha (Bakshi Man Singh, with him) for the petitioners.

C. K Daphtary, Solicitor-General for India' and ]. N. Kaushal (P. G. Gokhale, with them) for respondent No. 1.

C. K. Daphtary, Solicitor-General for India (Porus A. Mehta and P. G. Gokhale, with him) for respondent No. 2. ·

Ebrahim V a.tir

Mavat v.

The State of Bombay and Others.

March 11.

Sardar Soma

Singh and Otf, ers

The State of Pepsu and Union

of India.

Das].

1954.

March 11.

The Judgment of the Court was delivered by DAs J.-The short point raised on this petition filed in this court under article 32 of the Constitution is whether the Patiala and East Punjab States Union General Sales Tax Ordinance, 2006 (No. XXXIII of

2006) which was promulgated on the 6th November, 1949, has become void since the date of the commencement of the Constitution.

Article 286 ( 3) of the Constitution of India runs as follows:-

"286.

(3) No law made by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent."

The Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act, 1952 (Central Act No.

LII of 1952) declared certain commodities as essential for the life of the community.

In the schedule appended to the Act item 8 relates to "all cloth, woven on handlooms, coarse and medium cotton cloth made in mills or woven on power looms." Section 3 of the same Act provides as follows :-

"3.

Regulation of tax on sale or purchase of essential goods :- No law made after the commencement of this Act by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any goods declared by this Act to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent."

The petitioners are dealers in coarse cloth and medium cloth and their contention is that these commodities having been declared as essential for the life of the community they are not liable to pay sales tax on them.

In the petition an allegation has been made that section 3 of Act LII of 1952 is in direct contravention of article 286(3) of the Constitution.

There

does not appear to be any substance in this contention. Section 3 is in line with article 286(3) and there is no inconsistency between that section and the relevant provision of the Constitution.

The peut10ners are sought to be taxed under the Ordinance XXXIII of 2006, which, as an existing law ; has been continued by article 372.

The question is whether that Ordinance contravenes the provisions of article 286(3)

or, has since been altered, repealed of amended by any competent legislative authority. It is quite clear that section 3 of Act LII of 1952 does not affect the Ordinance, for the Ordinance was not made after the commencement of that Act.

The only question, therefore, is whether the Ordinance runs counter to clause (3) of article 286 of the Constitution. A perusal of that clause will at once indicate that that clause contemplates a post-Constitution law, for it must be a law made by a "Legislature of a State" which must 'refer to the Legislature of a State created by the Constitution.

Further, and what is more important, it contemplates a law which can be but has not been reserved for the consideration of the President and has not received his assent.

This provision clearly points to post-Constitution law, for there can be no question of an existing law continued by article 372 being reserved for the consideration of the President for receiving his assent.

As we are concerned in this application with a pre-Constitution law, it is not necessary for us to express any opinion as to the validity or otherwise of a law made after the commencement of the Constitution but before the coming into operation of Act LI! of 1952.

The result, therefore, is that there is no substance in this petition and we dismiss it with costs.

Petition dismissed.

Agent for the petitioners : Sardar Singh.

Agent for respondent No. 1 : R. H. Dhebar .

Sardar Soma

Singh and Others

Th, State of Pepsu and Union

of India.

Das].

section 7

article 19

S.

Shukla

R.

Govind

Sardar Bahadur

P. K.

Chatterji

G. H. Rajadhyaksha

C. P. Lal

SARDAR SOMA SINGH AND OTHERS

THE STATE OF PEPSU AND UNION OF INDIA

MEHR CHAND MAHAJAN

MuKHERJEA

S. R. DAs

VIVIAN BoSE

GHULAM HASAN JJ

Constitution of India

art. 286(3)

art. 286(3)

art. 286

Supreme Court

article 32

Constitution of India

S. P. Sinha

Bakshi Man Singh

C. K Daphtary

N. Kaushal

P. G. Gokhale

C. K. Daphtary

Porus A. Mehta

Ebrahim V a.tir

Mavat v.

The

State of Bombay

Sardar Soma

Singh

State of Pepsu

article 32

Article 286

Constitution of India

Parliament

Section 3

section 3

article 286(3)

Section 3

article 286(3)

article 372

article 286(3)

section 3

article 286

article 372

Sardar Singh

R. H. Dhebar

Sardar Soma

Singh

State of Pepsu