2 S.C.R.

SUPREME COURT REPORTS

BRAJNANDAN SINHA v.

JYOTI NARAIN.

[BHAGWATI, B. P. SINHA and JAFER IMAM JJ.]

Public Servants (Inquiries) Act, 1850 (XXXVII of 1850)-A Commissioner appointed thereunder-Whethef a court within the meaning of Contempt of Courts Act, 1952 (XXXII of 1952).

Held, that a Commissioner appointed under the Public Servants (Inquiries) Act, 1850 (XXXVII of 1850) is not a court within the meaning of the Contempt of Courts Act, 1952 (XXXII of 1952).

Shell Co. of Australia v. Federal Commissioner of Taxation ([1931] A.C.275), Huddart, Parker&Co. v. Moordead([1909] 8C.L.

330) Rex v. Electricity Commissioners ( [ 1924 J 1 K.B. 171 ), Bharat Bank Limited v. Employees of Bharat Bank Ltd. ([1950] S.C.R. 459), Maqbool Hussain v. The State of Bombay ([1953] S.C.R. 730), Cooper

v. Wilson ([1937] 2 K.B. 309), S.A. Venkataraman v. The Union of India and Another ( [ 1954 l S.C.R. 1150), Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson ([1892] 1 Q.B. 431), Dawkins v. Lord Rokeby ([1873] L.R. 8 Q.B. 255), Kapur Singh

v. fagat Narain (A.LR. 1951 Punjab 49) and M. V. Raiwade v. Dr.

S. M. Hassan, (A.LR. 1954 Nag. 71), referred to.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 25 of 1954.

Appeal under Article 134(1)(c) of the Constitution from the judgment and order dated the 12th January 1954 of the Patna High Court in Criminal Miscellaneous Case No. 10 of 1953.

C. Setalvad, Attorney-General of India and Mahabir Prasad, Advocate-General of Bihar (Balbhadra

Prasad Sinha and P. G. Gokhale, with them) for the appellant.

Purshottam Trikamdas,

(R.

Patnaik, with him) for the respondent.

1955. November 8. The Judgment of the Court was delivered by

BttAGWATI J.-This appeal with certificate under article 134( 1) ( c) of the Constitution arises out of an application under section 2 of the Contempt of Courts 6-85 S. C. India/59

NoD1mb1r 8.

Brqjnandon Sillho

Jyoti Narain

BhagwatiJ.

Act (XXXII of 1952) and section 8 of the Public Servants (Inquiries) Act

(XXXVII of 1850) read with article 227 of the Constitution filed by the respondent against the appellant in the High Court of Judicature at Patna and raises an importl\Ilt question as to whether the Commissioner appointed under Act XXXVII of 1850 is a Court.

The respondent is a Member of the Bihar Civil Service (Executive Branch). The State Government received reports to the effect that the respondent had been guilty of serious misconduct and corrupt practices in the discharge of his official duties while employed as Sub-Divisional Officer at Aurangabad and they accordingly decided that an inquiry into the truth of the various charges against him should be made under the provisions of the Public Servants (Inquiries) Act, 1850 (Act XXXVII of 1850, hereinafter referred to as the Act) and Mr. Anjani Kumar Saran who was the then Additional District and Sessions Judge, Gaya, and was thereafter the District and Sessions Judge of that place was appointed Commissioner under the Act for making the inquiry. Gaya was fixed as the venue of the inquiry and the State Government also ordered that, during the pendency of the inquiry, the respondent will remain under suspension.

The Government made the appointment aforesaid after obtaining the concurrence of the High Court on its administrative side which was obtained on the condition that an extra-temporary post of Additional District and Sessions Judge was created by the Government for the period Mr. Saran was occupied with the inquiry.

The appointment was made on the 2nd June 1952 and it was expected that Mr. Saran would be able to complete the inquiry during a period of three months. The respondent, however, adopted dilatory tactics. He made various representations to the Government, one on the 6th June 1952 demanding that a Judge of the High Court be appointed as Commissioner under the Act to make the inquiry against him and that inquiry be made at Patna and not at Gaya, another on the 10th July 1952 protesting agaimt the appointment of Mr. Saran

as Commissioner to hold the inquiry against him and demanding that a confirmed District and Sessions Judge be appointed as Commissioner in his place, and a third on the 17th November 1952 in which he requested the Government to appoint three Commissioners instead of one for holding the inquiry against him and also to pay the entire cost of his defence at the same rates at which the Special Public Prosecutor engaged by the Government was being paid and also to reimburse other incidental expenses to be incurred by him. All these representations were turned down by the Government.

Being thus thwarted in his attempts to put off the inquiry on some pretext or the other, the respondent tried to evade the same and failed and neglected to reply to the queries made from him by the Commissioner. The Commissioner also could not communicate to him the orders passed by him from time to time because the respondent did not stay at the he.:idquarters and did not leave his proper address for communication either at Gaya or at Motihari. On the 24th November 1952 the Commissioner passed an order calling upon the parties to attend the hearing of the proceedings before him on the 8th December 1952 and forwarded a copy of this order to the appellanr for communication to the respondent. The District Magistrates of Champaran and Gaya who were requested to serve a true copy of the order upon the respondent could not do so as he was available neither at Motihari nor at Gaya and it was with great difficulty that he could be traced at Patna and the order served upon him. On the 18th December 1952, the Commissioner passed another order recording that he was feeling great difficulty in contacting the respondent and in communicating his orders to him.

He observed that this was a highly undesirable state of affairs and that it was necessary that his orders should be communicated to the respondent as early as possible. A copy of this order was forwarded by the Commissioner to the appellant along with his letter dated the 20th December 1952 for information and doing the needful. The appellant thereafter wrote the letter complained against to

Br~Sinha

Jyoti Narain

BhogwatiJ.

Brl!fattmdM Sinka

Jyoli NOl'din

Bhagwati ].

the Commissioner on the 26th December 1952 being D.O. No. II/3C-306/52A-11614 which ran as under:-

"Dear Mr. Saran, I am desired to refer to your memo. No. 8266 dated the 26th November 1952 and to say that Government are anxious not to allow Mr. Jyoti Narayan to adopt dilatory tactics and delay the progress of the inquiry against him. I am to request you to be vigilant against such tac.tics adopted by Mr. Narayan.

Yours sincere! y, (Sd.) B. N. Sinha".

The Commissioner acknowledged receipt of this letter by his D.O. letter No. 244, dated the 5th January 1953 stating that he would not allow the respondent to adopt any dilatory tactics and delay the progress of the inquiry against him.

On the 2nd February 1953, the respondent filed a petition before the Commissioni; r stating inter alia that he had not been able to engage any lawyer or counsel for want of necessary papers and copies and prayed for an adjournment of the inquiry. He also prayed for starting a contempt of Court proceeding against the appellant but the Commissioner rejected both his prayers. The order which was passed by the Commissioner . on these applications may as well be set out in extenso inasmuch as it has a bearing on the question whether the appellant was guilty of contempt of Court for having addressed the letter complained against to him :-

"3-2-53. Another point raised in the first petition of the accused was that Mr. B. N. Sinha, Deputy Secretary to Government in addressing his D.O. letter No. 11614, dated the 26th of December, 1952, was guilty of contempt because he had interfered in my judicial discretion. I do not find anything in this letter from which it can be inferred that the author of the letter intended to influence me in the exercise of my judicial function. This letter was sent to me in reply to my memo. No. 8266 dated 26-11-1952 whereby I had forwarded a copy of my order dated 24-11-1952 for communication to Mr. Narayan. Mr;

B.N. Sinha wrote in his letter dated the 26th of December 1952 that Government are anxious not to allow Mr. Jyoti Narayan to adopt dilatory tactics and to delay the progress of the inquiry. Now it is to be noted that Mr. Narayan in paragraph 11 of his petition has himself charged the State Government for delaying the inquiry and thereby causing harassment to him. Therefore, it is obvious that both parties, that is, the State and the accused are anxious that the inquiry should be expedited so what Mr. B. N. Sinha meant by writing the D.O. was that the inquiry should be expedited. This cannot by any stretch of imagination be construed to mean that the aforesaid officer in any way tried to influence me in the discharge of my judicial functions.

For these reasons I rejected the two prayers contained in the first petition of Mr. J. Narayan".

The respondent thereafter started proceedings in contempt against the appellant in the High Court of Judicature at Patna. A Rule was issued by the High Court against the appellant which was heard and finally disp0sed of on the 12th June 1954. The High Court was:; of the opinion that the Commissioner appointed miaer Act XXXVII of 1850 was a Court, that the Courf was subordinate to the High Court, that the lettet complained against amounted to a contempt ~£.Court and that the appellant was guilty of such contempt. It accordingly sentenced the appellant to pay a fine of Rs. 250 and in default to undergo simple imprisonment for a period of one month. The appellant obtained a certificate under Article 134( 1) ( c) of the Constitution from the High Court. The certificate was, however, limited to the question as to whether the Commissioner appointed under the Act is a Court.

At the hearing before us, the appellant filed a petition for urging additional grounds which included inter alia the ground that the High Court erred in holding that the Commissioner appointed under the Act is a Court subordinate to the High Court within the meaning of the Contempt of Courts Act for the mere reason that its orders are open to be reviewed

Brajrumdan Sinha

Jyoti Narain

Bhagwali].

Brqjnant!an Sinha

Jyoti Narain

Bhagwati].

judicially in exercise of the power vested in the High Court under article 227 of the Constitution and also the ground that the High Court erred in holding that the letter complained against tended to interfere with or obstruct the course of justice and constituted contempt of Court.

The learned Attorney-General for the appellant contended in the first instance that the Commissioner appointed under the Act is not a Court. He next contended that even if he is a Court, he is not a Court subordinate to the High Court within the meaning of the Contempt of Courts Act.

He lastly contended that the letter complained against did not tend to interfere with or obstruct the course of justice and did not constitute contempt of Court.

Prior to the enactment of the Contempt of Courts Act, 1952, there was in existence in India the Contempt of Courts Act, 1926 (XII of 1926). The various States also had their corresponding enactments. The Contempt of Courts Act, 1926 (XII of 1926) and the corresponding enactments in the States of Hyderabad, Madhya Bharat, Mysore, Pepsu, Rajasthan and Travancore-Cochin and the Saurashtra Ordinance II of 1948 were repealed by the Contempt of Courts Act, 1952 and a uniform Act to define and limit the powers of certain Courts in punishing contempts of Courts was enacted which extended to the whole of India except the State of Jammu and Kashmir. In section 2 of the Act, "High Court" was defined as meaning the High Court for a Part A State or a Part B State and including the Court of the Judicial Commissioner in a Part C State. Section 3 of the Act enacted :-

"3. ( 1) Subject to the provisions of sub-section

(2) every High Coun shall have and exercise the same jurisdiction, powers and authority,· in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to it as it has and exercises in respect of contempts of itself.

(2) No High Court shall take cognisance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an

offence punishable under the Indian Penal Code (Act

XLV of 1860)".

The word "Court" was not defined in the Act and the expression "Courts subordinate to the High Courts" would prima f acie mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration of justice throughout the Union.

It would be relevant, however, to notice the definitions of "Court" available elsewhere.

Coke on Littleton and Stroud defined the word "Court" as the place where justice is judicially administered.

According to Stephen, "In every Court, there must be at least three .constituent parts-the actor, reus and judex ; actor or plaintiff, who complains of an injury done ; the reus, or defendant, who is called upon to make satisfaction for it ; and the judex, or judicial power, which is to examine the truth of the fact, 8n<l to determine the law arising upon that fact, and if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy".

Section 3 of the Indian Evidence Act (I of 1872) defines "Courts" as including all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence.

This definition, however, has been held to be not exhaustive but framed only for the purpose of Indian Evidence Act and is not to be extended where such an extension is not warranted.

Sections 19 and 20 of the Indian Penal Code (Act XL V of 1860) define the. words "Court" and the "Court of Justice" as under :-

"Section 19. The word 'Judge' denotes not only every person who is officially designated as a Judge, but also every person-who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against would be definitive, or a judgment which, if confirmed by some other authority would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.

B nan dan Sinha v.

Jyoti Narain

Bhagwali

Brajnandan Sinha

Jyoti Narain

BhagwaJi].

Section 20. The words "Court of .Justice" denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially''.

The pronouncement of a definitive judgment is thus considered the essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court.

The Privy Council in the case of Shell Co. of Australia v. Federal Commissioner of Taxation ( 1 ) thus defined "Judicial Power" at page 295 :-

"Is this right ? What is "judicial power" ? Their Lordships are of opinion that one of the best definitions is that given by Griffith, C. J. in Huddart, Parker & Co. v. Moorehead (') where he says: "I am of opinion that the words 'judicial power' as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exer.cise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action".

Their Lordships further enumerated at page 297 certain negative propositions in relation to this subject :- "l. A tribunal is not necessarily a Court in this strict sense because it gives a final decision ;

2. Nor because it hears witnesses on oath ;

3. Nor l>-ecause two or more contending parties appear before 1. .between whom it has to decide ;

4. Nor bec'1\Jse it gives decisions which affect the rights of subjects ;

5. Nor because there 1s an appeal to a Court ;

6. Nor because it is a body to which a matter is referred by another body.

See Rex v. Electricity Commissioners( )"

(I) [1931] A.C. 275.

(2) [1909] B C.L.R. 330, 357.

(3) [1924] I K.B. 171.

' •

and observed at page 298 :

"An admiqistrative tribunal may act judicially, but still remairt an administrative tribunal as distinguished from a Court, strictly so-called.

Mere externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a Co.urt of Judicial power".

The same principle was reiterated by this Court in Bharat Bank Limited v. Employees of Bharat Bank Ltd. (1) and Maqbool Hussain v. The "State of Bombay( 2 ) where the test of a judicial tribunal as laid down in a passage from Cooper v. Wilson ( 3) was adopted by this Court :-

"A true judicial decision presupposes an ex1stmg dispute between two or more parties, and then involves four requjsites :-(1) The presentation (not necessarily orally) of their case by the parties to the dispute ; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence ; (3) if the dispute between them is a question of law, the submission of legal arguments by the parties ; and ( 4) a decision which disposes of the whole matter by a finding upon the facts in disput..: and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law".

Maqbool Hussain's case, above referred to, was followed by this Court in S. A. Venkataraman v. The

Union of India and Another\ ) where a Constitution Bench of this Court also laid down that both finality and authoritativeness were . the essential tests of a judicial pronouncement.

It is clear, therefore, that in order to constitute a Court in th~ strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are

(I) [1950] S.C.R.459.

(2) [1953] S.C.R. 730.

(3) [1937] 2 K.B. 309. 340.

(4) [1954] S.C.R. 1150.

Brqjnatidtm Sinha

v. ]Jou Narain

Bhagwati].

Brajnandan Sinlla

Jyoti Narain

BhagwaliJ.

the essential tests of a judicial pronouncement.

It was, however, urged by Shri Purshottam Tircamdas for the respondent that the word "Court" should not be limited to a Court of Justice or a Court of law but should be construed in a wide sense, including within the connotation, other Courts which, though not Courts of Justice, were nevertheless Courts according to law and he relied upon a decision of the Court of Appeal in England in Royal Aquariun and . Stemmer and Winter Garden Society Ltd. v. Parkinson ( ) and the observations of Fry, L.J. at page 446 therein :

"I do not desire to attempt any definition of a "court". It is obvious that, according to our law, a court may perform various functions.

Parliament is a court. Its duties as a whole are deliberative and . legislative : the duties of a part of it only are judicial.

It is nevertheless a court. There 1 are many other courts which, though not Courts of Justice, are nevertheless courts according to our law. There are, for instance, courts of investigation, like the coroner's court. In my judgment, therefore, the existence of the immunity claimed docs not depend upon the question whether the subject-matter of consideration is a Court of Justice, but whether it is a Court in law.

Wherever you find a Court in law, to that the law attaches certain privileges, among which is the immunity in question".

The question involved in that case was whether the defendant was entitled to absolute immunity from action for anything done by him while performing his duty as a member of the County Council in dealing with the applications for licences for music and dancing. It was coptended on behalf of the defendant that he was exercising a judicial function when he spoke the words complained of and therefore was entitled to absolute immunity in respect of anything he said. The argument that "wherever you find a Court in law, to that the law attaches certain privileges among which is the immunity in question" was used on behalf of the defendant and Fry, L. J. dealt with th: same as under at page 447 :-

(1) [1892] l Q.B.431.

"It was said that the existence of this immunity 1s based on considerations of public policy, and that, as a matter of public policy, wherever a body has to decide questions, and in so doing has to act judicially, it must be held that there is a judicial proceeding to which this immunity ought to attach. It seems .to me that the sense in which the word "judicial" is used in that argument is this : it is used as meaning that the proceedings are such as ought to be conducted with the fairness and impartiality. which characterize proceedings in Courts of Justice, and are proper to the functions of a judge, not that the members of the supposed body are members of a Court. Consider to what lengths the doctrine would extend, if this immunity were applied to every body which is bound to decide judicially in the sense of deciding fairly and impartially.

It would apply to assessment committees, boards of guardians, to the Inns of Court, when considering the conduct of one of their members, to the General Medical Council when considering questions affecting the position of a medical man, and to all arbitrators.

Is it necessary, on grounds of public polit.:y, that the doctrine of immunity should be carried as far as this ? I say not. I say that there is ample protection afforded in such cases by the ordinary law of privilege. I find no necessity or propriety in carrying the doctrine so far as this argument requires" .

. Lord Esher, M. R. expressed himself as follows while dealing with this argument at page 442 :-

"It is true that, in respect of statements made in the course of proceedings before a Court of Justice, whether by judge, or couQsel, or witnesses, there is an absolute immunity from liability to an action. The ground of that rule is public policy. It is applicable to all kinds of Courts of Justice ; but the doctrine has been carried further ; and it seems that this immunity applies wherever there is an authorized inquiry which, though not before a Court of Justice, is before a tribunal which has similar attributes. In the case of Dawkins v. Lord Rokeby( 1 ) the doctrine was extended

(I) L.R. 8 Q.B. 255; L.R. 7 H.L. 744.

Brajnanda11 Sinha

Jyoti Narain

BhagwatiJ.

Br'!jnant!an Sinha

v. ]7oli Narain

Bh•gwali J.

to a military court of inquiry. It was so extended on the ground that the case was one of an authorized inquiry before a tribunal acting judicially, . that is to say, in a manner as nearly as possible similar to that in which a Court of Justice acts in respect of an inquiry before it. This doctrine has never been extended further than to Courts of Justice and tribunals acting in a manner similar to that in which such Courts act.

Then can it be said that a meeting of the county council, when engaged in considering applications for licences for music and dancing, is such a tribunal ? It is difficult to say who are to be considered as judges acting judicially in such a case".

The case of Dawkins v. Lord Rokeby(') was a case where immunity was claimed by a witness who had given evidence before a military. Court of inquiry.

The case went to the House of Lords and the Lord Chancellor, in his speech at page 754, in 7 H.L. 744 observed:-

"Now, my Lords, adopting the expressions of the learned Judges with regard to what I take to be the settled law as to the protection of witnesses in judicial proceedings, I certainly am of opinion that upon all principles, and certainly. upon all considerations of convenience and of public policy, the same protection which is extended to a witness in a judicial proceeding who has been examined on oath ought to be extended, and must be extended, to a military man who is called before a Court 0f Inquiry of this kind for the purpose of testifying there upon a matter of military discipline connected with the army".

Both these cases, the one before the Court of Appeal and the other before the House of Lords, were concerned with the extension of the principle of immunity of members of a tribunal or witnesses in judicial proceedings and the Courts logically extended the principle of immunity beyond the Courts of Justice to tribunals or bodies of persons functioning in a manner and according to procedure which was assimilated to a judicial inquiry. The extension of the

(I) L.R. 8 Q.B. 255; L.R. 7 H.L. 744.

immunity to such tribunals or bodies would not, however, constitute them Courts of Justice or Courts of law.

The position is thus summarised in the following passage in Halsbury's Laws of England, Hailsham Edition, Volume 8, page 526 :-

"Many bodies are not courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as assessment committees, guardians committees, the Court of referees constituted under the Unemployment Insurance Acts to decide claims made on the insurance funds, the benchers of the Inns of Court when considering the conduct of one of their members, the General Medical Council, when considering questions affecting the position of a medical man".

We must, therefore, fall back upon the tests laid down above for determining what is a Court strictly so-called within the connotation of the term as used in the Contempt of Courts Act. It would be appropriate at this stage to note the relevant provisions of the Public Servants (Inquiries) Act (XXXVII of

1850) which would fall to be considered for determining whether the Commissioner appointed under the Act is a Court or not.

The Act was passed for regulating inquiries into the behaviour of public servants and the preamble runs :-

"Whereas it is expedient to amend the law for regulating inquiries into the behaviour of public servants not removable from their appointments without the sanction of Government, and to make the same uniform throughout India ; It is enacted as follows:-" Section 2 requires the articles of charges to be drawn out and a formal and public inquiry to be ordered whenever the Government shall be of opinion that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour by any such person. The inquiry may be committed under section 3 either to the Court,

BrajntwlQfl SiMa

Jyoti N orain

Bhagwati].

Brq/Mll4oo Siltlra ..

JyotfNarain

B/UJgwati j.

Board or other authorities to which the person accused is subordinate or to any other person or persons specially appointed by the Government, Commissioners for the purpose. Sections 4 to 7 contain provisions in regard to the conduct of the prosecution and section 8 prescribes the powers of the Commissioners.

This section has been particularly relied upon as constituting the Commissioners a Court, and runs as under :-

"Section 8. The comm1ss1oners shall have the same power of punishing contempts and obstructions to their proceedings, as is given to Civil and Criminal Courts by the Code of Criminal Procedure, 1898, and shall have the same powers fot the summons of witnesses, and for compelling the production of documents, and for the discharge of their duty under the commission, and shall be entitled to the same protection as the Zila and City Judges, except that all process to cause the attendance of witnesses or other compulsory process, shall be served through and executed by the Zila or City Judge in whose jurisdiction the witness or other persons resides, on whom the process is to be served, and if he resides within Calcutta, Madras or Bombay, then through the Supreme Court of Judicature thereto.

When the commission has been issued to a court, or other person or persons having power to issue such process in the exercise of ' their ordinary authority, they may also use all such power for the purposes of the commission".

Section 9 prescribes a penalty for disobedience to process issued as aforesaid for the purpose of the commission and sections 10 to 20 prescribe the procedure to be followed in the conduct of the inquiry. It may be noted that this procedure is assimilated as far as possible to the conduct of a prosecution in a Criminal Court of law and the person accused is given the fullest opportunity to enter upon his defence and lead evidence in ordr to clear himself of the charges levelled against him. Sections 21 and 22 lay down the functll)ns of the Commissioners in regard to the report to be mad~ by them to the Government of their .proceedings under the commission and the powers of

is.c.R.

SUPREME COURT REPORTS %9

the Government to pass final orders on such reports.

These sections have an important bearing on the question before us and they enact :-

"Section 21.-After the close of the inquiry the comm1ss1oners shall forthwith report to Government their proceedings under the commission, and shall send with the record thereof their opinion upon each of the articles of charge separately, with such observations as they think fit on the whole case.

Section 22.-The Government, on consideration of the report of the commissioners, may order them to take further evidence, or give further explanation of their opinions. It may also order additional articles of charge to be framed, in which case the inquiry into the truth of such additional articles shall be made in the same manner as is herein directed with respect to the original charges. When special commissioners have been appointed, the Government may also, if it thinks fit, refer the report of the commissioners to the Court or other authority to which the person accused is subordinate, for their opinion on the case ; and will finally pass such orders thereon as appear just and consistent with its powers in such cases".

These provisions were considered by this Court in the case of S. A. Venkataraman v. The Union of India and Another( 1 ). The question that arose for consideration there was whether an inquiry made and concluded under the Act amounted to prosecution and punishment for an offence as contemplated under article 20(2) of the Constitution. Articles of charge had been framed against the petitioner in that case and evidence had been led both by the prosecutor and by the defence arid witnesses on both sides were examined on oath and cross-examined and re-examined in the usual manner. The Commissioner had found, on a consideration of the evidence, that some of the charges had been ,:J"oved against the petitioner and had submitted a report to that effect to the Govvernment. The President had accepted the opinion of the Commissioner and, in view of the findings on

U) [1954] S.C.R. 1150.

Brandtm Sin/ia

v. ]µti Narain

B/iagwati ].

Brtgnll1llhn S'rn!ra

v. ]1.tiNMaio

B,.,,_. ].

the several charges arrived at by the latter, was provisionally of the opinion that the petitioner should be dismissed.

Opportunity was given to the petitioner under Article 311 (2) of the Constitution to show cause against the action proposed to be taken in regard to him and after considering his representation and after consultation with the Union Public Service Commission, the President finally decided to impose the penalty of dismissal upon him and he was according! y dismissed. After his dismissal, the police submitted a charge-sheet against him before the Special Judge. Sessions Court, Delhi, charging him with offences under sections 161 and 165 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act and upon that summons were issued by the learned Judge directing the petitioner to appear before his Court. The petitioner thereupon challenged the legality of this proceeding in a writ petition contending that the proceedings were without jurisdiction inasmuch as they amounted to a fresh prosecution for offences for which he had been prosecuted and punished already.

While considering whether under the circumstances there had been a violation of the fundamental right of the petitioner under Article 20(2) of the Constitution, this Court scrutinised the provisions of the Act and t)te position of the Commissioner appointed thereunder. Justice Mukherjea, as he then was, delivered the judgment of the Court and observed at page 1159 :-

"As the law stands at present, the only purpose, for which an enquiry under Act XXXVII of 1850 could be made, is to help the Government to come to a definite conclusion regarding the misbehaviour of a public servant and thus enable it to determine provisionally the punishment which should be imposed upon him, prior to giving him a reasonable opportunity of showing cause, as is required under article 311(2) of the Constitution. An enquiry under this Act is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses. It is a matter of convemence merely and

nothing else. It is against this background that we will have to examine the material provisions of the Public Servants (Inquiries) Act of 1850 and see whether from the nature and result of the enquiry which the Act contemplates it is at all possible to say that the proceedings taken or concluded under the Act amount to prosecution and punishment for a criminal

offence." ; and at page 1160 :-

"A Commissioner appointed under this Act has no duty to investigate any offence which is punishable under the Indian Penal Code or the Prevention of Corruption Act and he has absolutely no jurisdiction to do so. The subject-matter of investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant and it is only as instances of misbehaviour that the several articles of charge are investigated, upon which disci- plinary action might be taken by the Government if it so chooses. The mere fact that the word "prosecution" has been used, would nol make the proceeding before the Commissioner one for prosecution of an offence. As the Commissioner has to form his opinion upon lgal evidence, he has been given the power to summon witnesses, administer oath to them and also to .compel production of relevant documents. These may be some of the trappings of a judicial tribunal, but they cannot make the proceeding anything more than a mere fact finding enquiry. This is conclusively established by the provisions of sections 21 and 22 of the Act. At the close of the enquiry, the Commissioner has to submit a report to the Government regarding his finding on each one of the charges made.

This is a mere expression of opinion and it lacks both finality and authoritativeness which are the essential tests of a judicial pronouncement. The opinion is not even binding on the Government. Under section 22 of the Act, the Government can, after receipt of the report, call upon the Commissioner to take further evidence or give further explanation of his opinion.

When Special Commissioners are appointed, their report could be referred to the court or other authority

7-85 S.C India/59

Brajnandan Sinha v.

Jyoti JV arain

Bhagwati J.

Brajnandan Sinha

v . . Jyoti Narain

B!iagwati J.

to which the officer concerned is subordinate for further advice and after taking the opinion of the different authorities and persons, the Government has to decide finally what action it should take".

The Court. was no doubt concerned in that case with finding whether the inquiry before the Commissioner was tantamount to a prosecution of the petitioner.

While .considering the same, however, the position of the Commissioner was discussed and the conclusion to which the Court came was that he was a mere fact finding authority, that the report made by the Commissioner to the Government was merely his expression of opinion and it lacked both finality and authoritativeness which are the essential tests of a judicial pronouncement. This conclusion is sufficient to establish that the Commissioner appointed under the Act was not a Court and his report or findings were not a definitive judgment or a judicial pronouncement inasmuch as they were not binding and authoritative and lacked finality. We are also of the same opinion.

Apart from. the above considerations which weighed with the Court in that case. we have also the provisions of section 8 of the Act itself which go to show that the Commissioners are given certain powers of the Civil and Military Courts in regard to punishing contempts and obstruction to their proceedings, summoning of witnesses, compelling the production of documents and for service of their process as also the same protection as Zila and City Judges. The very fact that this provision had got to be enacted shows that the position of the Commissioners was not assil)'lilated to that of Judges and that they did not constitute Courts of Justice or Courts of law but were mere fact finding tribunals deriving whatever powers they could exercise under the very terms of the Act which created them.

The power of punishing contempts and obstruction -to their proceedings as is given to Civil and Criminal Courts by the Code of Criminal Procedure, 1898 was also similar in its nature and the very nature and extent of the power indicated that they were not Courts in the ordinary sense of the term, No such provision would have been

necessary to be enacted if in fact they were constituted Courts of Justice or Courts of law and it_ is no argument to say that these provisions were enacted even though they were not strictly necessary merel~· for the sake of abundant caution or clarification of

the position. We are of the opinion that the Commissioner appointed under the Act, having regard to the circumstances above set out, does not constitute a Court within the meaning of the term as used in the Contempt of Courts Act.

Our attention was, however, drawn by Shri Purshottam Tricamdas to a decision of a Division Bench of the Punjab High Court in Kapur Singh v. fagat Narain( ). That was a case directly in point and on all fours with the case before us. The learned Chief Justice of the Punjab High Court had been appointed a Commissioner under the Act in the matter of an inquiry against Sardar Kapur Singh, I.C.S., and Lala Jagat Narain, the editor, printer and publisher of an Urdu Daily newspaper published at Jullundur called The Hindu Samachar, was called upon to show cause why he should not be punished under section 3 of Contempt of Courts Act with regard to a leading article which appeared in his name in the issue of the paper dated the 12th March 1951.

A preliminary objection was taken on his behalf that the Court had no jurisdiction to take proceedings against him for contempt and the argument was that the Court of the Commissioner appointed to hold an inquiry under the Act was not a Court and in any event was not a Court subordinate to the High Court. Mr. Justice Falshaw who delivered the judgment of the Court observed at page 50 in connection with this argument : "The Public Servants (Inquiries) Act itself seems clearly to indicate that a Commissioner or Commissioners appointed under the Act constitute a Court as they are given all the powers of a Court regarding the summoning of witnesses and other matters, and the only ground on which the learned counel for the respondent could base his argument that the Com- :missioner does not constitute a Court was that he can

(I) A.I.R. 1951 Punjab 49

Brajnandan Sinha

Jyoti Narain

B/iagwali J.

Brajnandan Sinha

\".

Jyoti Narain

B!iagwaJi],

five no final decision, but merely has to draw up a teport giving his findin gs on the charge or charges against the respondent, which is to be forwarded to the Government. In my opinion, however, this fact

:lone is not sufficient to make the Commissioner or Commissioners any thing other than a Court and ir is to be noted that the definition of Court in section 3, Evidence Act, is very wide indeed as it reads :

"'Court' includes all Judges and Magistrates and all persons, except arbitrators, legally authorised to take

evidence".

The learned Judges there relied upon the definition of Court given in section 3 of the Indian Evidence Act which, as has already been noted, is £ramed only for the purposes of the Act and is not to be extended where such an extension is not warranted.

This definition does not help in the determination of the question whether the Commi~· sioners appointed under the Act constitute a Court and the attentio11 of the learned Judges was not drawn to the position that finality and authoritativeness are the essential tests of a judicial pronouncement.

We are of the opinion that the decision reached by the learned Judges of the Punjab High Court in that case was wrong and cannot help the respondent.

Our attention was also drawn to another decision of the Nagpur High Court in M. V. Rajwade v. Dr.

S. M. Hassan( 1 ). The question which came to be considered by the Court in that case was whether a commission appointed under the Commissions of Inquiry Act, 1952 was a Court within the meaning of section 3 of the Contempt of Courts Act, 1952, and while considering the provisions of that Act, the learned Judges of the Nagpur High Court incidentally considered the provisions of the Public Servants (Inquiries) Act,

1850. They rightly observed that "the term 'Court' 1-ias not been defined in the Contempt --£ Courts Act, 1952.

The Act, however, does contemplate a 'Court of Justice' which as defined in section 20, Indian Penal Code, 1860, denotes 'a judge who is empowend by law to act judicially'. The least that is requirf'.d of a Court is the capacity to ddiver a "definitive judg-

(t) A.I.R. 1954 N"-g. 71.

ment'', and ur.less this power vests in a tribunal in any particular case, the mere fact that the procedure adopted by it is of a legal character and it has the power to administer an oath will not impart to it the status of a Court'', and came to the conclusion that the commission appointed under the Commissions of Inquiry Act, 1952 is not a Court within the meaning of the Contempt of Courts Act, 1952. The learned Judges were merely considering the provisions of the Commissions of Inquiry Act, 1952 and were not concerned with the construction of the provisions of the Public Servants (Inquiries) Act, 1850 and whatever obsen-1tions they made in regard to the provisions or the latter Act by way of comparing the same with the provisions of the former which they were there considering would not have the effect of putting cr1 the provisions of the latter Act a construction which would be any avail to the respondent before us. The

rati0 which was adopted by the learned Judges was quite correct but it appears that they digressed into a consideration of the provisions of the Public Servants (Inquiries) Act, 1850 in order to emphasize the character and position of the commission appointed under the Commissions of Inquiry Act, 1952 ev":n though it" was not strictly necessary for the purpose of arriving :it their decision, though it must be mentioned that while discussing the nature and function of the commission they expressed themselves correctly as under:-

"The Commission governed by the Commissions of Inquiry Act, 1952 is appointed by the State Government "for the information of its own mind'', in order that it should not act, in exercise of its executive power, "otherwise than in accordance with the dictates of justice & equity" in ordering a departmental enquiry against its officers.

It is, therefore, a fact finding body meant only to instruct the mind of the Government without producing any docummt of a judicial nature".

We are of the opinion that neither of these cases which have been relied upon l-y hri I-urshottam Tricamdas is of any help to the respondent or detracts

Brl!feandan Sinha

Jyoti J( araiR

BhagwatiJ.

!955

Braj'ft01fdan Sinha

Jyoti Narain

BhagwatiJo

from the true position as we have laid down above.

The only conclusion to which we can come on a consideration of all the relevant provisions of the Act is that the Commissioner appointed under the Act is not a Court within the meaning of the Contempt of Courts Act, 1952.

In view of the conclusion reached above, we do not think it necessary to go into the question whether the Commissioner appointed under the Act is a Court subordinate to the High Court within the meaning of the Contempt of Courts Act.

Nor do we think it necessory to express any opinion as to whether the letter complained against constituted a contempt of Court.

We may, however, note in passing that the circumstances under which the letter came to be addressed by the appellant to the Commissioner, the terms thereof and the order which was passed by the Commissioner on the application made by the respondent to proceed against the appellant in contempt on date the 2nd February 1953 lend support to the argument which was advanced on behalf of the appellant that the letter complained against did not constitute contempt of Court.

The result, therefore, is that the appeal will be allowed, the order passed against the appellant by the Court below will be set aside and the original Criminal Miscellaneous Petition No. 10 of 1953 filed by the respondent in the High Court of Judicature at Patna will stand dismissed. The fine if paid will be refunded.

BRAJNANDAN SINHA

JYOTI NARAIN

BHAGWATI

JAFER IMAM JJ.

Contempt of Courts Act, 1952

Article 134(1)(c)

C. Setalvad

Mahabir Prasad

Balbhadra

Prasad Sinha

P. G. Gokhale

Purshottam Trikamdas

R.

Patnaik

BttAGWATI

article 134( 1)

section 2

Brqjnandon Sillho

Jyoti Narain

section 8

article 227

High Court of Judicature at Patna

Aurangabad

Anjani Kumar Saran

Additional District and Sessions Judge, Gaya

Saran

2nd June 1952

6th June 1952

Patna

Gaya

10th July 1952

17th November 1952

Motihari

24th November 1952

8th December 1952

District Magistrates of Champaran and Gaya

18th December 1952

Jyoti Narayan

Narayan

B. N. Sinha

2nd February 1953

26th of December, 1952

B.N. Sinha

26th of December 1952

J. Narayan

12th June 1954

Article 134( 1)

Contempt of Courts Act

Brajrumdan Sinha

Jyoti Narain

article 227

India the Contempt of Courts Act, 1926

Contempt of Courts Act, 1926

Hyderabad

Madhya Bharat

Mysore

Pepsu

Contempt of Courts Act, 1952

Jammu and Kashmir

section 2

Section 3

Indian Penal Code

Littleton

Stroud

Stephen

Section 3

Indian Evidence Act

Indian Evidence Act

Sections 19 and 20

Indian Penal Code

Section 19

Section 20

Griffith

section 71

Maqbool Hussain

Brqjnatidtm Sinha

Brqjnatidtm Sinha

v. ]Jou Narain

Bhagwati].

Jou Narain

Brajnandan Sinlla

Purshottam Tircamdas

England

Fry

Esher

Brajnanda11 Sinha

BhagwatiJ.

7oli Narain

Bh•gwali

Section 2

section 3

Sections 4 to 7

section 8

Section 8

Civil and Criminal Courts by the Code

Zila

Calcutta

Madras

Bombay

Supreme Court

Section 9

sections 10 to 20

Sections 21 and 22

Section 21

Section 22

article 20(2)

Brtgnll1llhn S'rn!ra

v. ]1.tiNMaio

B,.,,_. ].

Article 311

Special Judge. Sessions Court, Delhi

sections 161 and 165

Indian Penal Code

section 5(2)

Prevention of Corruption Act

Article 20(2)

Mukherjea

article 311(2)

Indian Penal Code

Prevention of Corruption Act

sections 21 and 22

section 22

Brajnandan Sinha

Bhagwati

Jyoti Narain

B!iagwati

section 8

Code of Criminal Procedure, 1898

Purshottam Tricamdas

Punjab High Court

Sardar Kapur Singh

Lala Jagat Narain

Jullundur

section 3

Contempt of Courts Act

12th March 1951

Falshaw

Brajnandan Sinha

section 3

section 3

Indian Evidence Act

Nagpur High Court

Commissions of Inquiry Act, 1952

section 3

Contempt of Courts Act, 1952

Courts Act, 1952

section 20

Indian Penal Code, 1860

Commissions of Inquiry Act, 1952

Commissions of Inquiry Act, 1952

I-urshottam Tricamdas

Jyoti

Contempt of Courts Act

Contempt of Courts Act


2 S.C.R.

SUPREME COURT REPORTS

RAJ BAHADUR KANWAR RAJ NATH

AND OTHERS

PRAMOD C. BHATT, CUSTODIAN OF

EVACUEE PROPERTY.

LB. K. MuKHERJEA C. J., VENKATARAMA AYYAR ana

JAFER IMAM JJ.]

Evacuee Property-Lease granted by Custodian-Notice to cancel-Custodian's power-Administration of Evacuee Property Act, 1950 (XXXI of 1950), s. 12(1).

By s. 12, sub-s. 1, of the Administration of Evacuee Property Act, 1950 (XXXI of 1950) as amended by Act XLII of 1954, "notwithst:; nding anything contained in any other law for the time being in force, the Custodian may cancel any allotment or terminate any lease or ainend the terms of any lease or agreement under which any evacuee property is held or occupied by a person, whether such allotment, lease or agreement was granted or entered into before or after the commencement of this Act".

The respondent who was the Custodian of evacuee property gratned a lease to the appellants and subsequently issued a notice to them, among other things, calling upon them to show cause why the lea:-c should not be cancelled for committing breaches of the conditions on which the proprties had been leased to them. The appellants contended that the respondent had no power to cancel the lease on the ground that under s. 12( 1) of the Act the power of the Custodian to cancel the lease could be exercised only so as to override a bar imposed by any law but not the contract nder which the lease was held and relied on the language of the non-obstante clause contained in the section.

Held, that the operative portion of the section which confers power on the Custodian to cancel a lease is unqualified and absolute and could not be abridged by reference to the non-obstante clause which was only inserted ex abundanti cautela with a view to repel a oossible contention that the section does not by implication repeal •tatutes conferring rights on lessees.

Observations in Aswini Kumar Chose v. Arabinda Bose ([1953]

".C.R.

I, 21, 24) and Dominion of India v. Shrinbai A. Irani ([1955] I S.C.R. 206, 213), on the scope of a non-obstante clause. •die•.! on.

C1v1L

APPELLATE

JURISDICTION ; Civil Appeal No. 205 of 1954.

On appeal from the judgment and order dated the

N001mber 10.

!955

Rai Bahatlur Kanwar Rqj }lath

and olherJ

Prarnod C. Bhatt,

CUJtodian of Evacuee Prop.rty

13th April 1954 of the Bombay High Court in Appeal No. 49 of 1954 arising out of the order dated the 31st day of March 1954 of the said High CoUrt exercising its Ordinary Original Jurisdiction in Misc.

Petitien No. 55 of 1954.

K. T. Desai, P. N. Bhagruati, Rameshwar Nath and Rajinder Narain, for the appellants.

C. K. Daphtary, Silicitor-General of India, (Porus A. Mehta and R. H. Dhebar, with him), for. the respondent. 1955.

November 10. The Judgment of the Court was delivered by

VENKATARAMA AYYAR J.-This appeal raises a question as to the powers of a Custodian of Evacuee Property to cancel a lease granted by him unrkr section 12 of the Administration of Evacuee Property Act (XXXI of 1950), hereinafter referred to as the Act. Messrs Abdul Karim and Brothers owned, along with certain other properties which are not the subject-matter of the present appeal, three mills with bungalows and chawls at Ambernath in Thana District and the Bobbin Factory at Tardeo in , Bombay.

They have migrated to Pakistan, these properties were declared by a notification dated 12-9-1951 issued under section . 7 of the Act as evacuee property, and under section 8 ( 1) of the Act, they became vested in the respondent as the Custodian for the State. The appellants are displaced persons, and on

JQ.:8-1952 the respondent entered into an agreement with them, Exhibit A, which is, as aptly characterised by learned counsel for the appellants, of a composite character, consisting of three distinct matters. There was, firstly, a demise under which the mills and the factory in question were leased to the appeallants for a period of five years on the terms and conditions set out therein.

Secondly, there was a sale of the stock of raw materials, unsold finished goods, spare parts, cars, trucks and other movables which were in the mills and the factory, with elaborate provisions for the determination and payment of the price therefor in

due course. And thirdly, there was an agreement to sell the mills and the factory to the appellants in certain events and subject to certain conditions.

There was also a clause for ref erring the disputes between the parties to arbitration.

In pursuance of this agreement, the appellants were put in possession of the mills and the factory on 31-8-1952.

On 12-2-1954 the respondent issued a notice to the appellants, Exhibit C, wherein he set out that the appellants had systematically committed breaches of the various terms on which the properties had been leased to them, and called upon them to show cause why the lease should not be cancelled and why they should not be evicted. The notice then went on to state that the respondent considered it necessary to issue certain directions for the "preservation of the demised premises and the goods and stock in trade, etc., lying in the demised premises", arid the appellants were accordingly required not to remove the stock or raise any money on the security thereof, and to send daily reports to the Custodian, of the transactions with reference thereto. Presumably, these directions were given under section 10 of the Act.

On 13-2-1954 the appellants appeared before the respondent, and contended that he had no authority to issue the notice in question under section 12, and that it was therefore illegal. Apprehending that the lease might be cancelled, and that they might be evicted, the appellants filed on 16-2-1954 the application out of which the preseht appeal arises, for a writ of certiorari for quashing the notice, Exhibit C, and for a writ of prohibition restraining the respondent from taking any further action pursuant thereto.

In support of the petition, the appellants urged that section 12 under which the respondent purported to act authorised the cancellation of only leases granted by the evacuee and not by the Custodian himself, and that no directions could be given under section 10 as it applied only to properties of the evacuee, and that by reason of the sale, the movables in question had become the property of the appel-

Rai Bohadur Aanwar Raj Nath

and otMrs

Pramod C. Bhatt,

CttStodian of E1JOCU11• Prop.rl.1

Venkatararna

, War].

Roi ll1d1tul18 Kt111warRiijNa0

mu/ others

Pranwd c. llha#,

Cwtodian of 11•-· Proper<]

V1nk<zlarama

JIJ!)'ar ].

!ants. The petition was heard by Tendolkar, J., who stated the points for determination thus : ( 1) "Whether the Custodian has power under section 12 of the Administration of Evacuee Property Act, 1950, to terminate a lease granted by himself, and

(2) Whether the directions given by the Custodian are beyond the jurisdiction conferred upon him by section 10 of the said Act ?" On the first question, he held that section 12 applied only to leases granted by the evacuee and not by the Custodian, and that therefore the notice, Exhibit C, was ultra vires the powers of the Custodian under that section. On the second question, he held that section 10 applied only to properties of the evacuee, and that the movables in respect of which directions were given, ceased to be the property of the evacuee by reason of the sale in favour of the appellants, and that in consequence, the directions with reference to them were unauthorised. In the result, the application was allowed.

The respondent took the matter in appeal, and that was heard by Chagla, C.J. and Dixit, J.

By their judgment dated 13-4-1954, they held that on the plain language of section 12 it would apply whenever there was a lease, and that lease was in respect of property belonging to the evacuee, that there was no warrant for imposing a further limitation on that section that that lease should also have been granted by the evacuee, and that accordingly the Custodian had power to issue the notice, Exhibit C, for cancelling the lease. As regards movables, however, they agreed with Tendolkar, J. that for the reasons given by him the Custodian had no authority under section

10 to issue any directions with reference thereto. The appeal was accordingly allowed in so far as it related to the lease but dismissed as regards movables.

Against this judgment, the appellants have preferred this appeal on a certificate granted by the High Court under article 133(1) (b), and the only point that arises for determination therein is as to whether the Custodian has the power under section 12 to

cancel a lease granted by himself and not by the evacuee. But that question is no longer open to argument, as there has been subsequent to the decision of the court below legislation which concludes the matter.

Section 5 of the Administration of Evacuee Property (Amendment) Act, 1954 (XLII of 1954) enacts the following Explanation to section 12 of Act XXXI of 1950 :

"In this sub-section 'lease' includes a lease granted by the Custodian and 'agreement' includes an agreement entered into by the Custodian" And it provides that the Explanation "shall be inserted and shall be deemed always to have bel'n inserted" in the section.

Mr. Desai, learned counsel for the appellant~, concedes that this amendment which is retrospective in operation would govern the rights of the parties in the present appeal, and that under the section as it now stands, the Custodian has the power-and had always the power-to cancel leases created not merely by the evacuees but also by himself. But he contends that this power could be exercised only so as to override a bar imposed by any law but not the contract under which the lease is held, and this result flows according to him from the language of the nonobstante clause, which is limited to anything contained in any other law for the time being in force", and does not include "or any contract between the parties".

This was a contention which was open to the appellants on the terms of the section as it stood even before the amendment, but it was not put forward at any stage prior to the hearing of this appeal and that by itself would be sufficient ground for declining to entertain it which it may be noted is now sought to be raised by a supplemental proceeding under Order 16, rule 4 of the Supreme Court Rules. On thl' merits also it is without any substance.

The section expressly authorises the custodian to vary the terms of the lease, and that cannot be reconciled with the contention of the appellants that it confers no authority on him to go back upon his own contracts. The operative portion of the section which confers power OD

Rai Bahatlur Kanwar Roj Noth

and othlrs

Pramod C. BhlaJ,

Custodian of Exacute Properly

V enkalarama

Ayyar}.

.Rai BaiuidUT Kanwar Rllj NaJh

and others

Pramod C. Bhatt,

Custodian of Evacuee l'ToJMrl7

Ye nkatarama

Ayyar].

the Custodian to caned a lease or vary the terms thereof is unqualified and absolute, and that power cannot be abridged by reference to .the provision that it could be exercised "notwithstanding anything contained in any other law for the time being in force".

This provision is obviously intended to repel a possible ct>ntention that section 12 does not by implication repeal statutes conferring rights on lesees, and cannot prevail as against them and has been inserted ex abundanti cautela.

It cannot be construed as cutting down the pbin meaning of the operative portion of the section. Vide the observations in Aswini Kumar Ghosh v. Arabi11da Bose(1 ) and the Dominion of India v. Shrinbai A. Irani(') on the scope of a non-obstante clause.

We must accordingly hold that the respondent was acting within his authority in issuing Exhibit C in so far as it concerned the lease granted in favour of the appellants.

It was next contended by Mr. Desai that even if the Custodian had the power under section 12 to cancel the lease in favour of the appellants, he had no power under that section to cancel the agreement to sell the mills and the factory to them, which was one of the matters contained in Exhibit A, that the notice, Exhibit C, was to that extent without jurisdiction, and that the respondent should accordingly be prohibited from cancelling that portion of Exhibit A in pursuance of Exhibit C. But the notice in terms refers firstly to the lease which it is proposed to cancel, and secondly to the movables in respect of which certain directions were given. In their petition under article 226, it was the validity of the notice, Exhibit C, with reference to these two matters that the appellants challenged. Tendolkar, J. stated in his judgment-and quite correctly-that these were the two points that arose for determination. The question of the rights of the appellants in so far as they related to the purchase by them of the mills and the factory was not raised in the petition, and no contentions were put forivard in support thereof at any. stage of

the proceedings. It is for the first time in the argu-

(1) (1953] S.C R 1, 21, 24.

(2) (1955) 1 S.C.R. 206,213.

ment before us that those rights are sought to be

agitated. Under the circumstances, we must decline to consider them. It will be suflicient if we observe that the rights of the appellants, if any, other than those arising out of the lease, are left open to the determinati9n of the appropriate authorities, and that nothing in our decision should be taken as a pronouncement on those rights.

In the result, the apal fails and is dismissed with costs.

SHRIMATI VIDYA VERMA, THROUGH NEXT

FRIEND R. V. S. MANI v.

DR. SHIV NARAIN VERMA.

[S. R. DAs, VIVIAN BosE, BHAGWATI. fAGANNADHA

oAs and B. P. SINHA JJ.l

Fundamental Ri[!ht, Infringement of-Detention by private person-ls.iue of writ-Power of Supreme Court-Constitution of [ndia,

Arts. 21, 3:t.

No question of infringement of any fundamental right under Art. 21 arises where the detention complained of is by a private per- >On and not by a State or under the authority or orders of a State. and the Supreme Court will not, therefore, entertain an application for a writ of habeas corpus, under Art. 32 of the Constitution.

Consequently a petition under Art. 32 of the Constitution for a writ of habeas corpus founded on Art. 21 and directed against a father for alleged detention of his daughter does not lie.

A. K. Gopalan v. The State of Madras ([1950] S.C.R. 88) and P. D. Shamdasani v. Central Bank. of India ([1952] S.C.R. 391), relied on.

ORIGINAL JuR1so1cT10N : Petition No. 262 of 1955.

Under Article 32 of the Constitution for a Writ in the nature of Habeds Corpus.

R. V. S. Mani. the next friend, in person.

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

Joshi and Porus A. Mehta, with him).

N aunit Lal, for the respondent.

Raj Bahadur Kanwar Raj .Nath

and 0th.rs

Pramod C. Bhatt., Custodian of Evacuee Properey

Venkatarama Ayyar ].

.November 11

RAJ BAHADUR KANWAR RAJ NATH

AND OTHERS

LB. K. MuKHERJEA

JAFER IMAM JJ.

s. 12(1)

s. 12

s. 1

s. 12( 1)

Rai Bahatlur Kanwar

Prarnod C. Bhatt

K. T. Desai

P. N. Bhagruati

Rameshwar Nath

Rajinder Narain

C. K. Daphtary

Porus A. Mehta

R. H. Dhebar

section 12

Abdul Karim

Ambernath

Thana District

Tardeo

Bombay

Pakistan

section 8

section 10

section 12

section 12

section 10

Pramod C. Bhatt

Tendolkar

section 12

section 10

section 12

section 10

Chagla

Dixit

section 12

section

10

article 133(1)

section 12

Section 5

section 12

Desai

Order 16, rule 4

Supreme Court

Rai Bahatlur Kanwar Roj Noth

Pramod C. BhlaJ

.Rai BaiuidUT Kanwar Rllj NaJh

Pramod C. Bhatt

section 12

section 12

article 226

(1955) 1 S.C.R. 206

SHRIMATI VIDYA VERMA

SHIV NARAIN VERMA

S. R. DAs

VIVIAN BosE

BHAGWATI. fAGANNADHA

B. P. SINHA

Arts. 21, 3

Art. 21

Art. 32

Art. 32

Art. 21

Article 32

R. V. S. Mani

M. C. Setal.vad

G. N.

Joshi

N aunit Lal

Raj Bahadur Kanwar Raj .Nath

Venkatarama Ayyar


2S.C.R.

SUPREME COURT REPORTS 983

ment before us that those rights are sought to be

agitated. Under the circumstances, we must decline to consider them. It will be suflicient if we observe that the rights of the appellants, if any, other than those arising out of the lease, are left open to the determinati9n of the appropriate authorities, and that nothing in our decision should be taken as a pronouncement on those rights.

In the result, the apal fails and is dismissed with costs.

SHRIMATI VIDYA VERMA, THROUGH NEXT

FRIEND R. V. S. MANI v.

DR. SHIV NARAIN VERMA.

[S. R. DAs, VIVIAN BosE, BHAGWATI. fAGANNADHA

oAs and B. P. SINHA JJ.l

Fundamental Ri[!ht, Infringement of-Detention by private person-ls.iue of writ-Power of Supreme Court-Constitution of [ndia,

Arts. 21, 3:t.

No question of infringement of any fundamental right under Art. 21 arises where the detention complained of is by a private per- >On and not by a State or under the authority or orders of a State. and the Supreme Court will not, therefore, entertain an application for a writ of habeas corpus, under Art. 32 of the Constitution.

Consequently a petition under Art. 32 of the Constitution for a writ of habeas corpus founded on Art. 21 and directed against a father for alleged detention of his daughter does not lie.

A. K. Gopalan v. The State of Madras ([1950] S.C.R. 88) and P. D. Shamdasani v. Central Bank. of India ([1952] S.C.R. 391), relied on.

ORIGINAL JuR1so1cT10N : Petition No. 262 of 1955.

Under Article 32 of the Constitution for a Writ in the nature of Habeds Corpus.

R. V. S. Mani. the next friend, in person.

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

Joshi and Porus A. Mehta, with him).

N aunit Lal, for the respondent.

Raj Bahadur Kanwar Raj .Nath

and 0th.rs

Pramod C. Bhatt., Custodian of Evacuee Properey

Venkatarama Ayyar ].

.November 11

Shrimati Vi<lya V mna, through

Lnext friend R., V. S. Mani v.

Dr. Shiv Narain

Verma

1955. November 11. The Judgment of the Court was delivered by BosE J .-This is a petition under article 32 of the Constitution for a writ of habeas corpus. The petition was presented by Mr. R. V. S. Mani, an advocate of the Nagpur High Court, on behalf of Shrimati Vidya Verma and was directed against her father Dr.

Shiv Narayaq Verma of Nagpur.

Mr. Mani had no power of attorney from the lady and when the office pointed out that he could not present a petition without producing the necessary authority he amended the petition and described himself as the next friend of the lady.

When the matter first came up for hearing we directed a notice to issue to the father but later the same day it was brought to our notice that the opposite party was not either the Union of India or a State, nor wa~ it some official acting under the orders of one or the other, but a private person. The question therefore arose of our power under article 32 to issue a writ of. this kind against a private party. Ac- . cordingly, before the notice was sent out we recalled it and set the matter down for further hearing.

Mr. Mani appeared again on the appointed date and was robed as he had been on the previous occasion.

He was asked to clarify his position and when he said he had no power of attorney and explained that he was appearing in a private capacity as next friend he was told that at the next hearing he must address the Court without his robes.

He was also warned that if he lost he might have to bear the costs of the other side personally.

After hearing Mr. Mani for a time we decided to fix a date for the hearing of a preliminary question only, namely, whether a fundamental right is involved when the detention complained of is by a private person and not by a State or under the authority or orders of a State. We directed that notices be issued to the .opposite party as well as to the Attorney-General of India.

At the adjourned hearing Mr. Mani appe; ired in person, unrobed as directed, but with the advocate on

record sitting by his side. He asked for permission to address us himself. We declined to hear him unless he discharged the advocate on record. He did that on the spot and then proceeded to address us in person.

As the question that arises here has been discussed at length in two earlier decisions of this Court we need not examine the matter in any detail.

The fundamental right that is said to be infringed is the one conferred by article 21 : the right to personal liberty. In A. K. Gopalan v. The State of Madras( 1 ) four of the six learned Judges who were in that case held that the word "law" in article 21 referred to State-made law and not to law in the abstract. They rejected the contention that this was the same as the due process clause in the American Constitution. One learned Judge dissented and one expressed no opinion on this point. Patanjali Sastri, J. (as he then was) said at page 204 that as a rule constitutional safeguards are directed against the State and its organs and that protection against violation of rights by individuals musf be sought in the ordinary law ; and S. R. Das, J. dealing with the question of preventive detention said at page 324 that article 21 protects a person against preventive detention by the executive with1mt the sanction of a law made by the legislature.

This principle was applied to articles 19(1)(f) and 31(1) by a Bench of five Judges in P. D. Shamdasani

v. Central Bank of India( ) who held that violation of rights of property by a private individual is not within the purview of these articles, therefore a person whose rights of property are infringed by a private individual must seek his remedy under the ordinary law and not under article 32. Article 21 was not directly involved but the learned Judges referring to article 31(1) said at page 394:

~'It is clear that it is a declaration of the fundamental right of private property in the same negative form in which article 21 declares the fundamental right to life and liberty. There is no express reference to the State in article 21. But could it be

(; U [195!>] S.C.R. 88.

(2) [195i] S.C.R. 391,

Shrimati V idya Verma, through

next friend R. V. S. Mani v.

Dr. Shio Narain

Vmna

Bost].

Skrimati Vid;'a Verma. through

ntxtfriend R. V. S. Mani

Dr. Shiv Narain

Verma

Bose].

suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals ? The words 'except by procedure established by law' plainly exclude such a suggestion".

They held that the language of article 31 ( 1) was similar and decided that article 31(1) did not apply to invasions of a right by a private individual and consequently no writ under article 32 would lie in such a case. For the same reasons we hold that the present petition which is founded on article 21 does not lie under article 32. It is accordingly dismissed.

As regards costs Mr. Mani has no power of attorney and has chosen to appear as next friend despite the warning given to him at the last hearing.

This is the fourth time the matter is being agitated in the Courts. The first attempt was an application under section 100 of the Criminal Procedure Code made by the person who, according to Mr. Mani, is the husband of the lady in whose interests he says he is acting. It was filed on 10-9-1954 and asked for a search warrant for the recovery of the lady. The application was dismissed and a revision filed against the order of dismissal also failed.

The same gentleman then applied to the High Court at Nagpur on 18-10-1954 under section 491 of the Criminal Procedure Code. The learned Judges examined the lady, who is 25 years old, in person, on 20-10-1954 and on the strength of her statement, which they recorded, they held that she was not under any restraint either in the house or outside and so dismissed the application on 10-11-1954.

Mr. Mani then took up the cudgels and filed a second petition in the High Court on 6-12-1954, also under section 491. The learned Judges again examined the lady, this time on two successive days. On 20-12-1954 she said that she did not want to live with her father but wanted to live with her uncle at Waraseoni.

She appeared again the next day and clarified this by saying that she would go to her uncle in the company of her father. She said that she had no discomfon in living witn her father but was not at ease with him

-"·

and \vould have more peace of mind with her uncle.

She also said :

"I have no need of any counsel and have nothing to talk to Shri R. V. S. Mani".

The girl was allowed to go to her uncle. Mr. Mani then applied for leave to withdraw the petition. This was allowed on 24-1-1955 and no order was made about costs.

Then cam:e the present -petition on 22-8-1955. The petition does not discl05e that Mr. Mani . made any attempt to consult the person who he says is the husband of the lady (a fact which is disputed and on which we express no opinion) nor does it show that he made any attempt to contact either th~. lady or her father or even her uncle. He has had three hearings in this Court despite the warning he was given about costs and the learned - Attorney-General - was also asked by us to appear. When the arguments were fully concluded and Mr. Mani found that we were against him he adopted the same tactics as in the Nagpur High Court and asked for permission to withdraw the petition.

That was refused. We invited him to show cause why he should not be made to pay the costs and have heard all he has to say. _ In the circumstances set out above, we fed this is a case in which he should be made to pay the costs personally.

We dismiss the petition and direct that Mr. Mani pay the costs of the opposite party personally in addition to those of the learned Attorney-General and that he bear his own, also personally. •

8-3> :;.c. India.(59

Shrimali Vidya Vtrma, through

mxlfriend R. V. S. !1.fani v.

Dr. S/, iD Narain

Verma

Bost].

SHRIMATI VIDYA VERMA, THROUGH NEXT FRIEND R>V>S MANI

SHIV NARAIN VERMA

S. R. DAs

VIVIAN BosE

BHAGWATI

B. P. SINHA JJ

Arts. 21, 3

Art. 21

Supreme Court

Art. 32

Art. 32

Art. 21

Article 32

R. V. S. Mani

M. C. Setal.vad

G. N.

Joshi

Porus A. Mehta

N aunit Lal

Raj Bahadur Kanwar Raj .Nath

Pramod C. Bhatt

Shrimati Vi<lya V mna

article 32

Shrimati Vidya Verma

Shiv Narayaq Verma

Mani

Union of India

article 32

India

article 21

article 21

Patanjali Sastri

S. R. Das

article 21

articles 19(1)(f) and 31(1)

article 32

Article 21

article 31(1)

article 21

article 21

Shiv Narain

Verma

article 31

article 31(1)

article 32

article 21

article 32

section 100

High Court at Nagpur

section 491

section 491

Waraseoni

R. V. S. Mani

Nagpur High Court

Shrimali Vidya Vtrma


Octobtr 28

SUPREME COURT REPORTS [1955]

RAJA BAHADUR KAMAKSHYA NARAIN

SINGH AND OTHERS

THE COLLECTOR AND DEPUTY COMMIS-

SIONER OF HAZARIBAGH AND OTHERS.

[S. R. DAs, ACTING C.J., VIVIAN BosE, JAGANNADHA-

DAS, JAFER IMAM and CHANDRASEKHARA AIYAR JJ.]

Bihar Land Reforms Act, 1950 (Bihor Act XXX of 1950), ss. 3(1), 4(a), 4(h), 5, 7-Buildings standing on the land comprised in

the estate-Transfer after the first day of January, 1946-Estate notified as having become vested in the State-Notice to the transferee under s. 4(h)-Notification purporting to vest in the State the transferred properties-Validity-S. 4(h ), whether ultra vires.

On the 29th of December, 1947, petitioner No. I executed a lease to C (a company) of certain properties consisting of land• and buildings comprised in the estate belonging to him.

Subsequently, in 1949 he executed a deed of settlement whereby he transferred the properties to three trustees, namely, himself and petitioners 2 and 3. Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) came into force on the 25th of September, 1950, and on the 3rd of November, 1951, the State of Bihar issued a notification under s. 3( I) of the Act declaring that the estate of petitioner No. I had passed to and become vested in the State. A notice under s. 4(h) of the Act was issued by the Collector to C and on the 4th of March, 1954, the State GoYCrrunent issued a notification under s. 3(1) purporting to vest in the State the properties in question. It was contended for the petitioners that the buildings standing on the land comprised in the notified estate did not vest in the State, on the ground (I) that the estate of the petitioner No. I did not vest in the State under s. 3 of the Act but by virtue of the provisions of s. 4, (2) that the definition of "estate" in the Act speaks of land only and not of any building on it, (3) that on the date of vesting, the buildings were not used as office or cutchery for the collection of rent of the notified estate within the meaning of>. 4(a), and (4) thats. 4(h) is ultra vires the Constitution as it iiuposes an unreasonable restriction on the fundamental right of the petitioners to realise rent from the company.

Held, that (1) , vhether the estate of petitioner No. 1 vested in the State by reason of the publication of the notification under s. 3 or by virtue of the provisions of s. 4 was of little consequence as in either case a vesting took place ;

(2) although in the definition of "estate" the word land is uoed and there is no mention of the word building, the provisions of ss: .._, 5 and 7 sho'v the intention of the legislature to include something more than merely the land of a notified estate as vesting in the State.

Under s. 4(a), buildings of a certain description and other things vest in the State absolutely on the publication of a notification under s. 3. Under ss. 5 and 7, the buildings mentioned therein are deemed to be settled by the State with the intermediary and this could only be on the supposition that the buildings vested in the State, the intermediary being a settlee under the State ;

(3) ss. 4(a) and 4(h) must be read together. Under. s. 4(h), the use to which the building was put previous to its transfer after the first day of January, 1946, and not thereafter was what the Collector was concerned with and not to what use it had been put after its transfer after the. first day of January, 1946. If a transfer was made after the first day of January, 1946 of a building comprised in the notified estate which was used immediately previous to the date of transfer primarily as office or cutchery for the collection of rent of such estate the transfer would be liable to be annulled under s. 4(h) and the building would vest absolutely in the State on the publication of the notification and the provisions of s. 4(a) must be read accordingly ; and

( 4) the Collector's powers under s. 4(h), wide as they are, are not quite so absolute or arbitrary as suggested. S. 4(h) is a part of a validly enacted law of acquisition of estates and is an integral part of the machinery by which acquisition of an estate takes place.

The Act or s. 4(h) of it imposing any unreasonable restriction on the fundamental right of the petitioners, therefore, does not arise. The Act including s. 4(h) of it, is protected by Art. 31-A of the Constitu ti on.

ORIGINAL

JURISDICTION ; Petition No 217 of 1955.

Under article 32 of the Constitution of India for the enforcement of Fundamental Rights.

N. C. Chatterjee, (Vir Sen Sawhney and Ganpat Rai, with him), for the petitioners.

Lal Narain Sinha, (Bajrang Sahai and S.

Verma, with him), for respondent No. 2.

1955. October 28.

The Judgment of the Court was deJ.ivered by

IMAM J.-The pet1t1oners have .filed this application under article 32 of the Constitution claiming that the buildings and lands as set out in the Schedule annexed to the petition and marked "A" . (hereinafter referred to as the disputed properties) did not vest in the State of Bihar under the provisions of the

Raja Bahadur

Kamalc.rhya Narain Singh

and others~

The Collector and Deputy Commissioner of Hazaribagh and ot/ters

Raja Bahat!ur

Kamakshya Narain Singh

and others

The Collector and Depu'.'Ji Commissioner 1f Hazaribaglt anc? others

lmam].

Bihar Land Reforms Act, 1950 (hereinafter referred to as the Act). Petitioner No. 1 in his individual capacity was at one time the owner of the disputed properties which lie within Touzi No. 28 of the Collectorate of Hazaribagh. On the 29th of December, 1947 petitioner No. 1 as owner leased out the disputed properties to a Company known as Mineral Deveiopment Ltd. (hereinafter referred to as the Company).

The company took possession of the disputed properties and has been paying rent. On the 7th of April, 1949 petitioner No. 1 in his individual capacity executed a deed of settlement whereby he transferred the disputed properties to three trustees, namely, himself and petitioners 2 and 3. The Company has been paying rent to the trustees since then.

The Act came into force on the 25th of September,

1950. On the 3rd of November, 1951 the State Government issued a notification under section 3(1) of the Act declaring that the estate of petitioner No. 1 in his individual capacity specified therein had passed to and become vested in the State. On the 26th of October, 1953 a notice under section 4(h) of the Act was issued by the Collector to the Company, and on the 4th of March, 1954 the State Government issued a notification under section 3(1) of the Act purporting to vest in the State the propc:ties covered by the above-mentioned deed of settlement and anothe~ deed of settlement with which we are not concerned. The Company instituted a title suit No. 33 of 1951 aga; nst the State of Bihar in the Court of the Subordinate Judge, Hazaribagh basing its claim on a mining lease executed by petitioner No. 1 in his individual capacity the genuineness of which was challenged by the State.

Petitioner No. 1 in his individual capacity was made a party to this suit.

The Company also instituted a title suit No. 9 of 1954 against the State of Bihar to which petitioner No. 1 in his individual capacity was made a party challenging the legality of the issue of notice dated 25-10-1953 under section 4 (h) of the Act. On the 11th of November, 1954 the State of Bihar filed title suit No. 53 of 1954 to which the Company,

petitioner No. 1 in his individual capacity, the three trustees and others were made part!cs.

By this suit the State of Bihar challenged the genuineness of the lease in favour of the Company and the deed of settlement in favour of the trustees.

The real question for deternfr:iation it, what vested in the State on the publication of the notifcation under section 3 and by virtue of the provisions of section 4(a) of the Act? According to Mr. Chatterjee the disputed properties did not vest in the State, whatever else may have.

Having regard to the definition of "estate" in the Act, if anything vested in the State on the publication of a notification it was the land comprised in the notified estate.

Although the disputed properties stood on the land in the notified estate, they did not vest in the State, because the definition of "estate" speaks of land only and not of any building on it.

The notification under section 3 was a mere declaration and actual vesting took place under section 4(a).

On the date of vesting the disputed properties were not used as office or cutchery for the collection of rent of the notified estate of petitioner No. 1, who had parted with his right, title and iHterest therein long before the Act was enacted and the publication of the notification under section 3.

Mr. Sinha on behalf of the State of Bihar, on. the other hand, contended that on a perusal of the provisions of sections 4, 5 and 7 of the Act, it would appear that the Act contemplated something more than the land in an estate vesting in the State and the disputed properties could and did vest in the State on the publication of the notification under section 3.

In our opinion, it is of little consequence in the present case whether the notified estate vested in the State by reason of the public:ition of the notification under section 3 or by virtue of the provisions of section 4 of the Act, becaue in either case a vesting did t:ike place. Although the word land is used in the definition of "estate'', the provisions of sections 4, 5 and 7 show the necessary intentio)l to include something more than the land when an estate vests in the State. Under section 4(a) it is not only the

Raja Bahadur

K amllkslrJa Narain Singh and otMrs ....

The Collector and Depu!Y Ccmmissioner nf Hazarihagh '!!'~ _ot/v.rs

Imam].

Raja Bahadur

K amllkshya }{ arain Sinth

and others

T/1' Ccl11etor and Inpuiy Ccm>nissioner of Hari

l11igh and others

Imam].

estate but also buildings of a certain description and other things which vest in the State absolutely on the publication of a notification under section 3.

Under sections 5 and 7 the buildings mentioned therein also vest in the State, because the buildings in question are deemed to be settled by the State with the intermediary in possession. This could only be on the supposition that these buildings vested in the .State and the person in possession held the same as settlee under the State.

In the present case on the date of the publication of the notification under section 3 the disputed properties were said to be in the possession of the Company as lessee and the petitioner No. 1 had no right, title or interest therein as he had transferred his lessor's reversion to trustees by a deed of settlement.

We may assume, therefore, that on the date of publication of the notification tl1e disputed properties were not used primarily as office or cutchery for the collection of rent of the notified estate of petitioner No. 1.

It becomes, therefore, necessary to interpret the word "used" occurring in section 4(a). It is to be noticed that this clause of section 4 does not expressly state that a building used primarily as office or cutchery for the collection of rent must be so used at the date of the publication of the notification. In this clause the words "used primarily as office or cutchery for the collection of rent of such estate" must be read in the light of the provisions of section 4(h) where similar words are employed. Under section 4(h) the Collector has the power to make inquiries in respect of any transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate, if the transfer had been made at any time after the first day of January,

1946. If on due inquiry the Collector is satisfied that such transfer was made with the object of defeating the provisions of the Act or causing loss to the State or obtaining higher compensation, then the Collector may, after giving notice to the parties concerned and hearing them and with the previous sanction of the State Government, annul the transfer and dissess the person claiming under it. These prov1s1ons clearly indicate that if any building was used primarily as office or cutchery for the collection of rent and such building had been transferred after the first day of January, 1946, the transfer could be annulled if the circumstances mentioned in section 4(h) had been established. That is to say, under these provisions the use to which the building was put previous to its transfer after the first day of January, 1946 and not thereafter was what the Collector was concerned with and not to what use it had been put after its transfer after the first day of January, 1946. To hold otherwise would be to make the provisions of section 4(h) meaningless. When a proprietor transfers any such building, it necessarily follows that the building thereafter was not .used by him as office or cutcherv for the collection of rent of his estate. If the transfr was made before the first day of January, 1946 the provisions of section 4(h) would not apply and such a transfer would not be liable to be annulled and the building so transferred would not vest in the State on the date of the publication of the notification covering the estate on which such building stands. If, on the other hand, this transfer was made after the first day of January, 1946, a building comprised in a notified estate, which was used immediately previous to the date of the transfer primarily as office or cutchery for the collection of rent of such estate the transfer would be liable to be annulled under section 4(h) and it would vest absolutely in the State on the publication of the notification and the provisions of section 4(a) must be read accordingly.

It would be unreasonable to construe the provisions of section 4(a) in the way suggested by Mr. Chatterjee. The scheme of the Act has to be borne in mind and the provisions of sections 4(a) and 4(h) have to be read together. The petitioners had not asserted in their petition that the disputed properties were not used as office or cutchery for the collection of rent of the notified estate of petitioner No. 1 before the first of January, 1946 or before the lease in favour of the Company.

On behalf

Rqja Bahadur

Kamaksh"a Narain Singh

; and others

The Collector and Depu{Y Commissioner of Hazaribagh and others

Imam].

Raja Bafiadur

Kamaks4Ja Narain Sing!i

and otitrs

v The r;,., fleetor arid Deputy CJmmissioatr of Hazaribagll and :)t.1.ers '-- Imam].

of the State, on affidavit, it has been stated that the disputed properties were all along used as cutchcry before the creation of .the lease and that they were not being used in connection with any mining operation. In our opinion, if as a re.suit of the inquiry under section 4(h) the transfer of the disputed properties by the petitioner No. 1 is annulled the disputed properties must be regarded as having vested in the State, because they were used as office or cutchery for the collection of rent previous to the transfers made by the petitioner 1'1o. 1.

It was next contended that section 4(h) is ultra vires the Constitution, because it imposed an unreasonable restriction on the fundamental right of the petitio11ers to realize rent trom the Company, as the transfer in its favour was imperilled by the notice issued to it under section. 4(h).

No appeal or review was provided in the Act against the order of the Collector issuing notice or an order of annulment made by him. The Collector was left with absolute power to annul a transfer and to dispossess a person in possession thereunder.

Section 4(h), however, does direct' the Collector to give reason.able notice to the parties concerned and to hear them. Such annulment or dispossession which he may order, must be with the previous sanction of the State Governrrient and he is compelled to do so on terms which may appear to him fair and equitable.

The power is, therefore, not quite so absolute or arbitrary as suggested.

Assuming, however, that the Collector has very wide powers, it is to• be remembered that section 4(h) is a part of the law of acquisition of estates as enacted by the Act and is an integral part of the machinery by which acquisition of an estate takes place. The Act is a valid lavr of acquisition and its v1hole purpose may be defeated unless there was some such provision as

containd in section 4(h). The Act being a law for acquisition of estate the question of it or section 4(h) of it imposing any unreasonable restriction on the fundamental rights of the petitioners does not arise.

In any c\e11t the Act including sect!on 4(h) is . protectd by ; irticle 31-A of the Constitution.

The petition is accordingly dismissed with cqsts.

THE COLLECTOR AND DEPUTY COMMIS SIONER OF HAZARIBAGH AND OTHERS

S. R. DAs

VIVIAN BosE

JAFER IMAM

CHANDRASEKHARA AIYAR JJ.

Bihar Land Reforms Act, 1950

Bihor Act XXX of 1950

ss. 3(1), 4(a), 4(h), 5, 7

s. 4(h)

S. 4(h )

29th of December, 1947

Bihar Land Reforms Act, 1950

Bihar Act XXX of 1950

25th of September, 1950

3rd of November, 1951

s. 3( I)

s. 4(h)

4th of March, 1954

s. 3(1)

s. 3

s. 4

s. 3

s. 4

s. 4(a)

s. 3

ss. 5 and 7

ss. 4(a) and 4(h)

s. 4(h)

s. 4(h)

s. 4(a)

s. 4(h)

S. 4(h)

s. 4(h)

s. 4(h)

Art. 31

article 32

Constitution of India

N. C. Chatterjee

Vir Sen Sawhney

Ganpat Rai

Lal Narain Sinha

Bajrang Sahai

S.

Verma

IMAM

article 32

Kamakshya Narain Singh

Bihar Land Reforms Act, 1950

Mineral Deveiopment Ltd.

7th of April, 1949

25th of September,

1950

section 3(1)

26th of October, 1953

section 4(h)

section 3(1)

State of Bihar

section 4

11th of November, 1954

section 3

section 4(a)

Chatterjee

section 3

section 4(a)

section 3

Sinha

sections 4, 5 and 7

section 3

section 3

section 4

sections 4, 5 and 7

section 4(a)

Raja Bahadur

section 3

sections 5 and 7

section 3

section 4(a)

section 4

section 4(h)

section 4(h)

first day of January,

1946

section 4(h)

section 4(h)

first day of January, 1946

section 4(h)

section 4(h)

section 4(a)

section 4(a)

sections 4(a) and 4(h)

Rqja Bahadur

Raja Bafiadur

section 4(h)

section 4(h)

Section 4(h)

section 4(h)

section 4(h)

section 4(h)