AJAIB SINGH

STATE OF PUNJAB

February 2, 1965

B [K. SuBBA RAO, K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH

AND S. M. SIKRI, JJ.]

J..11fmc1 of India A.ct, 1962 (A.ct 51 of 1962), s. 3(2)(15)(i)- De/mc• of India Rule., 1962 r. 30A.-Power of Detention-Exercise-- By whom.

Code of Criminal Procedure, 1898 (A.ct 5 o/ 1898), n. 10(1), C 10(2) & lldditional District Magistrate-/n¥tsted with powers under s. 10(2)-Whether District Magistrate-Officer Incharge of District Magistrate's Office-But absence of Appointment under s. 10(1)-I/ District Magistrate.

The Additional District Magistrate of Amritsar who was invested with the powers of a District Maptrate under s. 10(2) of the Code of Criminal Procedure, 1898 was under instructioo& from the State Government in charge of the office of the District Magistrate, when the D District Magistrate was transferred.

No order appointing him aa District Magistrate as required by s. 10( 1) of the Code was however passed. During the period he was in charge of the office of the District Magistrate he passed an order detaining the appellant under r. 30(1)(b) of the Defence of India Rules, 1962. In appeal by special leave from Punjab High Court, it was contended by the appellant, Iha~ in the absence of an order under a. 10(1) of the Code the Additional District Map E trate could n<>i be the District Magistrate for the purpose of passing an order of detention under Defence of India Act and the Rules, and consequently the order Qf detention passed by him was without authority and liable to be set aside.

HELD : The order of detention was not in accordance with the Defence of India Act and Rules and must be set aside, as be was not then the District Magistrate, but only an Additional District Magistrate.

[852 FJ

The Defence of India Act and the Rules show unmistakably that the powers of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate. An Additional Dmrict Magistrate is below the rank of a District Magistrate. (849 E-F;

851 H-852 A] G Even if an Additional Di.strict Magistrate hid been appointed with all the powexs under the Code and also under any other law for the time being in force, be was still not the District Magistrate unless the Government appointed him as such under s. 10(1) of the Code of Criminal Procedure. [850 D-E) Even if an officer was exercising the powers of the District Magiatrate on there being a vacancy in the office of the District Magistrate he H was still not the District Magistrate until be was appointed as such under s. 10(1) of the Cede of Criminal Procedure._ [850 F-0]

The instructions could not take the place of a notification under s. 10(1) of the Code. (851 C-D]

846 SUPllBMB COUllT llBPOR.TS

[1965) 2 S.C.R.

CllIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

A 252 of 1964.

Appeal by special leave from the judgment and order dated July 30, 1964 of the Punjab High Court in Criminal Miscellaneous No. 742 of 1962.

M. C. Setalvad, and Naunit Lal, for the appellant.

I. N. Kaushal, Advocate-General for the State of Punjab and R. N. Sachthey, for the respondents.

The Judgment of the Court was delivered by

Wanchoo J.

This appeal by special leave from the judgment C of the Punjab High Court was heard on January 20, 1965. We then pronounced a short order allowing the appeal and directing the release of the detenu and indicated that reasons would follow later. We now proceed to give the reasons.

fl' The appellant was detained under r. 30 (I) (b) of the Defence D of India Rules (hereinafter referred to as the Rules) by an order passed by Shri Lall Singh on June 30, 1964.

That order was passed by Shri Lall Singh as District Magistrate of Amritsar. The only point that has been urged before us on behalf of the detenu is that Shri Lall Singh was not the District Magistrate of Amritsar on June 30, 1964 and therefore he had no power to pass the order E

of detention under the Defence of India Act, No. 51 of 1962, (hereinafter referred to as the Act) and the Rules.

It is necessary to set out certain facts with respect to the position Shri Lall Singh was occupying on June 30, 1964 when the

order of detention was passed. It appears that Shri P. N. Bhalla y was the District Magistrate of Amritsar in April 1964. He was ordered to be transferred to the Secretariat by an order passed on April 23, 1964. At that time Shri Lall Singh was the Additional District Magistrate of Amritsar and had been inter alia invested under s. 10 (2) of the Code of Criminal Procedure (hereinafter referred to as the Code) with all the powers of a District Magistrate G under the Code or under any other law for the time being in force by an order which had been passed on April 10, 1963. Further when the order of transfer of Shri Bhalla was made, instructions were issued that Shri Bhalla should hand over charge to Shri Lall Singh, Additional Deputy Commissioner, Amritsar who would hold the current charge of the post of Deputy Commissioner, H Amritsar, till further orders.

It appears that Shri Bhalla handed over charge of the office of the Deputy Commis-

AJAIB SINGH v. STATE (Wanchoo, /.) 847

A sioner to Shri Lall Singh on the afternoon of May 15, 1964 in accordance with the instructions above mentioned, and thus Shri Lall Singh was in current charge of the office of Deputy Commissioner, Amritsar from May 16, 1964. No order appointing Slui

Lall Singh as District Magistrate of Amritsar as required under s. 10 (1) of the Code was passed.

But as Shri Lall Singh was B already invested as an Additional District Magistrate with all the powers of the District Magistrate under the Code and under any other law for the time being in force, he carried on the duties of the office of the District Magistrate also. At the same time.it may be noted that no other officer was posted as District Magistrate C from May, 16 till June 30, 1964 when the order of detention was passed. The new District Magistrate Shri Iqbal Singh took over charge as District Magistrate, Amritsar; on July 1, 1964 and Shri Lall Singh was then appointed as District Magistrate, Hissar.

On these facts the contention on behalf of the detenu is that D Shri Lall Singh was not the District Magistrate of Amritsar on June 30, 1964, even though he signed himself as District Magistrate when he passed the order of detention. It is submitted that in the absence of an order under s. 10 (1) of the Code appointing

Shri Lall Singh as District Magistrate of Amritsar, he could not be the District Magistrate of Amritsar for the purpose of passing I: an order of detention under the Act and the Rules, whatever might be his powei;:s to carry on the administration of the district as an Additional District Magistrate and Additional Collector under the powers conferred on him by various notifications of April 1963.

Consequently the order of detention passed by him on June 30,

F 1964, was without authority and liable to be set aside.

In reply, the learned Advocate General for the State of Punjab has raised two points. In the first place he urges that the notification delegating to all District Magistrates the State Government's powers to detain persons under r. 30 of the Rules is law and relies in this connection on the decision of this Court in I ayantila/ A mrat- G lal Shodhan v. F. N. Rana(1). It is further contended that by the notification of April 1963, Shri Lall Singh was invested with all the powers of a District Magistrate under the Code and under any other law for the time being in force and would therefore have the power to detain persons under the law contained in the notification delegating the power of detention to all District H Magistrates. In the second place it is urged that as Shri Lall

I, A.I.R. 1964 S. C. 648.

SUPREME COURT REPORTS (1965] 2 S.C.ll.

Singh was holding charge of the current duties of tile office of A the Deputy Commissioner and as no one else had been posted in Amritsar between May 16 and June 30, 1964 as District Magistrate he was in fact and in law the District Magistrate of Amritsar.

We do not think it necessary for purposes of this case to decide the first point raised by the learned Advocate General, for B we l)ave come to the conclusion that no officer other than the District Magistrate of a District can pass an order of detention under r. 30 of the Rules in view of the provisions of the Act and of the Rules to which we shall now refer.

Section 3(1) of the Act gives power to the Central Government by notification in the Olli- C cial Gazette to make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of community.

Section 3 (2) then provides for the making of rules for various purposes without D prejudice to the generality of the powers conferred by s, 3 (1 ), and the 15th clause thereof provides for detention. The relevant portion of that clause necessary for our purposes reads thus :-

"(15). Notwithstanding anything in any other law for the time being in force-

(i) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain {the authority empowered to detain not being lower in rank than that of a District Magistrate), suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or having acted, acting, being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India's relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military oJierations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner."

It would be seen that s. 3 (2) (I 5) (i) which is the source <if power to detain according to the Rules to be framed thereunder itself

' '

• AJAIB SINGH v. STATE (Wonchoo, /.) 849

A Jays down that the authority empowered to detain shall not be lower in rank than that of a District Magistrate.

Then we came to s. 40 (2) of the Act, which gives power to the State Government to delegate its powers to any officer or authority subordinate to it.

This power of delegation, however, B must be read harmoniously with s. 3 (2) (15) and therefore under s. 40 (2) the State Government cannot delegate its power to detain to any officer below the rank of a District Magistrate.

Rule 30 of the Rules then provides for detention and under that rule the power is conferred on the Central Government or the State Government to detain any person.

That power of the c State Government can however be delegated under s. 40 (2) to any officer subordinate to it. But as we have already indicated the power of delegation must be read harmoniously with s. 3(2)(15) and therefore the State Government cannot delegate the power to detain to any officer who is lower in rank than the District Magistrate.

The position is further clearly brought out D in r. 30-A which provides for review of a detention order made by an officer. It is made clear there also that the officer shall in no case be lower in rank than a District Magistrate.

The effect of these provisions thus is that the power of detention can either be exercised by the State Government or by its delegate who however can in no case be lower in rank than a District J: Magistrate. The Act and the Rules therefore show unmistakably that the power of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate.

F We may in this connection contrast the language of s. 3 (2) of the Preventive Detention Act, No. 4 of 1950, which lays down that any of the following officers, namely :-

(a) district magistrates,

(b) additional district magistrates specially em- G powered in this behalf by the State Government,

(c) ..

(d) ..

may exercise the powers conferred by s. 3 (1) (a) (ii) and (iii). If the intention under the Act and the Rules was that the Additional H District Magistrate may also exercise the power of detention conferred thereunder we would have found a provision similar to that contained in the Preventive Detention Act.

850 SUPIUIM'.11 COtmT REPORTS

[1965) 2 S.C.R.

Two questions then arise on the view we hold that no A officer below the rank of a District Magistrate can exercise the power of detention under the Act and the Rules.

The first is whether Shri Lall Singh was the District Magistrate of Amritsar on June 30, 1964. Secondly if he was not the District Magistrate on that date, could he as Additional Disb.ict Magistrate exercise B the power of detention and that would depend upon whether an Additional District Magistrate is of the same rank as the District Magistrate or below him in rank? Nows. 10 (I) of the Code provides for the appointinent of a District Magistrate and lays down that "in every district outside the presidency-towns, the State Government shall appoint, a Magistrate of the first class, C who shall be called the District Magistrate". The appoinb.nent of a District Magistrate therefore has to be made under s. IO (I).

Section 10(2) then gives power to the State Government to appoint any Magistrate first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a Disb.ict Magistrate under the Code or D under any other law for the time being in force as the State Government may direct. But even if an Additional District Magistrate has been appointed with all the powers under the Code and also under any other law for the time being in force, he is still not the District Magistrate unless the Government appoints him as such under s. 10 (1) of the Code. Further s. 11 of the E Code envisages the contingency of the office of the District Magistrate becoming vacant. It provides that where this contingency arises, any officer succeeding temporarily to the chief executive administration of the district shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by the Code on the District F Magistrate. But even if an officer is exercising the powers of the District Magistrate on there being a vacancy in the office of the District Magistrate he is still not the District Magistrate until he is appointed as such under s. 10(1) of the Code.

We have therefore to see whether Shri Lall Singh was appointed G as District Magistrate of Amritsar under s. IO (I) of the Code.

As to that it is admitted that there was no notification appointing Shri Lall Singh as the District Magistrate of Amritsar under s. 10(1) of the Code.

All that the Advw.., ate General can point out is the instruction issued by the Governor of the Punjab when transferring Shri Bhalla who was the District Magis- H Irate of Amritsar to the effect that Shri Bhalla should hand over charge to Shri Lall Singh who will hold the current

AJAIB SINGH v. STATB (Wanchoo, /.) 851

A charge of the office of the Deputy Commissioner, Amritsar. This means that there was a temporary vacancy on the transfer of Shri Bhalla and Shri Lall Singh temporarily succeeded to the chief executive administration of the district As such he would be entitled to exercise the powers of the District Magistrate under the Code under s. 11. Further as he had been empowered as B Additional District Magistrate to exercise powers of the District Magistrate under any other law for the time being in force, he would exercise those powers also by virtue of being so authorised.

But even though Shri Bhalla may have gone away after handing over charge on the afternoon of May, 15, 1964 Shri Lall Singh could not and did not become the District Magistrate of Amritsar C in the absence of a notification under s. l 0 { l ) of the Code by the State Government.

The instructions to which we have already referred cannot in our opinion take the place of a notification under s. IO (l) of the Code. Therefore though Shri Lall Singh may be exercising all the powers of the District Magistrate D by virtue of his being an Additional District Magistrate under the notification issued in Apnl 1963 and also by virtue of s. 11 of the Code he was not the District Magistrate of Amritsar in Jaw on June 30, 1964.

It is true that when passing the order he showed his designation as District Magistrate and that may be because Shri Bhalla who was the District Magistrate had gone E away and no other officer had replaced him till June 30, 1964.

The transfer of Shri Bhalla would not automatically make Shri Lall Singh, the District Magistrate of Amritsar, in the absence of a notification under s. l 0 (I) of the Code. When we say this we should not be understood to mean that a notification appointing a District Magistrate must necessarily recite in terms that it was F being made under s. 10 of the Code; all that we mean is that there must be an order of the State Government appointing an officer as District Magistrate of the district.

In the absence of such an order no officer can claim to be the District Magistrate of the district. The instructions which were issued in this case however do not say that Shri Lall Singh was being appointed the G District Magistrate of the district in place of Shri Bhalla. If that were so, we would have found a proper notification to that effect, published in the Gazette. We, therefore, hold that Shri Lall Singh was not the District Magistrate of Amritsar when he made the order on June 30, 1964.

H The next question is whether an Additional District Magistnte can be said to be of the same rank as the District Magistr-.i..e.

We are clearly of the opinion that an Additional District Magis-

852 SUPIUIMB COURT llEPOllTS

[196S) 2 S.C.R.

trate is below the rank of a District Magistrate and cannot be A said to be of the same rank as the District Magistrate. We may in this connection refer to s. 10(2) of the Code which shows that an Additional Distdct Magistrate need not necessarily be conferred with all the P9Wers of the District Magistrate under the Code or .any other law for the time being in force. He can be an Additional District Magistrate though he may be exercising B only some of the powers of the District Magistrate.

Clearly, thereforel an Additional District Magistrate must be an officer below the rank of the District Magistrate. Further sub-s. (3) of s. 10 bears this out. That sub-section says that for certain purposes, the Additional District Magistrate shall be deemed to be subordinate to the District Magistrate.

Therefore even if the c Additional District Magistrate is invested with all the powers of a District Magistrate under the Code or under any other law for the time being in force he is still below the District Magistrate for certain purposes mentioned in s. 10(3) of the Code. Besides - there is only one District Magistrate in a district and all other 0 magistrates whether they be Magistrates first class or even Additional District Magistrates must obviously be belw him in rank.

As s. 3 (2) ( 15) of the Act provides that the power of detention cannot be exercised by any officer below the rank of the District Magistrate, such power cannot be exercised by an Additional District Magistrate who is in our opinion an officer below the rank E of a District Magistrate. The order of the detention passed by Shri Lall Singh on June 30, 1964 when he was not the District Magistrate of Amritsar but only an Additional District Magistrate is not in accordance with the Act and the Rules and must be set aside.

F Appeal alluwed.

AJAIB SINGH

STATE OF PUNJAB

February 2, 1965

K. SuBBA RAO

K. N. WANCHOO

M. HIDAYATULLAH, J

C. SHAH

S. M. SIKRI, JJ.

s. 3(2)(15)(i)

Code of Criminal Procedure, 1898

s. 10(2)

s. 10(1)

s. 10(2)

Code of Criminal Procedure, 1898

s. 10( 1)

Defence of India Rules, 1962

Punjab High Court

Defence of India Act and the Rules

s. 10(1)

Code of Criminal Procedure

s. 10(1)

s. 10(1)

M. C. Setalvad

Naunit Lal

I. N. Kaushal

R. N. Sachthey

Wanchoo

Lall Singh

Lall Singh

Amritsar

June 30, 1964

P. N. Bhalla

April 23, 1964

s. 10

Code of Criminal Procedure

District Magistrate G under the Code

April 10, 1963

Bhalla

May 15, 1964

Slui

Lall Singh

s. 10

May, 16 till June 30, 1964

Iqbal Singh

July 1, 1964

s. 10

June 30,

F 1964

State of Punjab

Lall

SUPREME COURT REPORTS (1965] 2 S.C.ll.

Singh

May 16 and June 30, 1964

Section 3(1)

Central Government

India

Section 3

s. 3

s. 40

s. 3

s. 40

s. 40

s. 3(2)(15)

s. 3

s. 3

Section 10(2)

s. 10

s. 11

s. 10(1)

s. 10(1)

s. 11

May, 15, 1964

s. 11

s. 10

s. 10(2)

s. 10

s. 10(3)

s. 3


.POORAN SINGH AND ANOTIIER

STATE OF MADHYA PRADESH

February 3, 1965

[P. B. GAJENDRAGADKAR, C.J., M. Hll>AYATULLAH, I. c. SHAH

ANDS. M. SIKRI, JI.]

Motor Vehicles Act, 1939 (4 of 1939), •· 130(1}-Endorsement on •ummo-Failure-Whether vitiates.

For offences under ss. 112 and 124 of the Motor Vehicles Act, the C Magistrate issued process against the appellants for their appearance in llDllrt by pleader, but did not make any endorsement thereon in terms of s. 130(1 )(b) of the Act. The appellants submitted that the SUllllllDDS

served on them were not according to law and the failure to make this endorsement had deprived them of their right conferred by the Act to intimate without appearing in Court their plea of guilty and remitting an amount not exceeding Rs. 25 as may be specified. The trial Magis- D Irate rejected this plea, but on being moved by the appellants, the Sessions Judge made a reference to the High Court recommending that the order passed by the Magistrate be set aside. The High Court declined to accept tho reference. In appeal by certificate :

HELD : The Magistrate was not obliged in offences not specified in Part A of the Fifth Schedule to make an endorsement in terms of s. 130( I )(b) of the Act. (857 D]

E The Magistrate taking cognizance of an offence was bound to issue summons of the nature prescribed by sub-<;. (I) of s. 130. But there is nothing in that sub-<; ection which indicates that he must endorse the summons in terms of both els. (a) & (b) : to hold that he was commanded would be to convert the conjunotion "or" into "and". (855 H-856 A]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

F 215 of 1963.

Appeal from the judgment and order dated April 30, 1963 of the Madhya Pradesh High Court in Criminal Revision No. 24 of 1963.

Ravinder Narain, 0.C. Mathur and J. B. Dadachanji, for the appellants.

I. N. Shroff, for the respondent.

The Judgment of the Court was delivered by

Shah, J. Station House Officer, Gharsiwa filed an information in the Court of the Magistrate, First Class, Raipur against the H two appellants complaining that they had on March 10, 1962 allowed three passengers to occupy the font seat in a public carrier and had loaded goods in excess of the sanctioned weight, and had

854 SUPllBMB COUllT RBPORTS

[1965] 2 S.C.R.

thereby committed offences punishable under ss. 124 and 112 of A the Motor Vehicles Act 4 of 1939. The Magistrate issued process against the appellants for their appearance in Court by pleader, but did not make any endorsement thereon in terms of s. 130( I )(b) of the Act. The appellants submitted that the summonses served upon them were not according to law and the Magistrate by failing B to make an endorsement on the summonses as required by cl. (b) of sub-s. (1) of s. 130 of the Act had deprived them of the right conferred by the Act to intimate without appearing in Court their plea of guilty and remitting an amount not exceeding Rs. 25/- as may be specified. The Magistrate rejected this plea and directed that the case against the appellants be "proceeded further accord- C ing to law".

The Sessions Judge, Raipur in a petition moved by the appellants made a reference to the High Court of Madhya Pradesh recommending that the order passed by the Magistrate be set aside, for in his view the Trial Magistrate having failed to D comply with the mandatory terms of s. 130( 1) (b) the proceeding against the appellants was unlawful. The High Court of Madhya Pradesh declined to accept the reference.

Against that order, with certificate granted by the High Court, the appellants have preferred this appeal.

Section 130 of the Motor Vehicles Act which occurs in Ch. E IX which relates to "Offences, penalties and procedure" provides:

" ( 1 ) A Court taking cognizance of an offence under this Act shall, unless the offence is an offence specified in Part A of the Fifth Schedule, state upon the summons to be served on the accused person that he-

(a) may appear by pleader and not in person, or

(b) may by a specified date prior to the hearing of the charge plead guilty to the charge by registered letter and remit to the Court such sum not exceeding twenty-five rupees as the Court may specify.

(2) Where the offence dealt with in accordance with sub-section (I ) is an offence specified in Part B of the Fifth Schedule, the accused person shall, if he pleads guilty of the charge, forward his licence fo the

POORAN SINGH V. STATE (Shah, /.) 855

Court with the letter containing his plea in order that the conviction may be endorsed on the licence. ( 3) Where an accused person pleads guilty and remits the sum specified and has complied with the provisions of sub-section ( 2) , no further proceedings in respect of the offence shall be taken against him, nor shall he be liable to be disqualified for holding or obtaining a licence by reason of his having pleaded guilty." Offences under ss. 112 & 124 of the Act with which the appellants were charged are not included in the first part of the C Fifth Schedule to the Act, and the Magistrate was therefore bound to comply with the tenns of s. 130 ( 1 ) . There can be no doubt on the plain tenns of s. 130(1) that the provision is mandatory.

But there was difference of opinion about the nature of the duty imposed by sub-s. (1) upon the Court taking cognizance of the complaint.

The Sessions Judge held that a D Magistrate taking cognizance of an offence of the nature specified had, by virtue of s. 130 ( 1 ) , to make an endorsement on the summons in terms of els. (a) & (b) and thereby to give an option to the person charged either to appear by pleader or to plead guilty to the charge by registered letter and remitting therewith the sum specified in the summons, and if the Magistrate failed E to give that option, the proceedings initiated would be liable to be set aside as infringing the mandatory provision of the Act.

The High Court was of the view that sub-s. (I) of s. 130 left an option to the Magistrate exercisable on a consideration of the materials placed before him when taking cognizance of an offence F to issue a summons without requiring the accused to appear by pleader to call upon him to plead guilty to the charge by registered letter and to remit the fine specified in the summons. According to the High Court therefore the Magistrate had the option to issue a summons with an endorsement in tenns of sub-s. (1 )(a) or of sub-s. (I) (b) and only if a summons was issued with the endorse- (; ment specified by sub-s. (l)(b) it was open to the accused to avail himself of the option to plead guilty and to claim the privilege mentioned in sub-s. ( 3) .

In our judgment the High Court was right in the view it has taken. The Magistrate taking cognizance of an offence is bound to issue summons of the nature prescribed by sub-s. (I) of s. 130. But H there is nothing in that sub-section which indicates that he must endorse the summons in tenns of both the clauses (a) & (b): to hold that he is so commanded would be to convert the conjunc- IASup./65-S

856 SUPllBMB COURT REPORTS

[1965) 2 S.C.R ·

tion "or" into "and". There is nothing in the words used by the A Legislature which justifies such a conversion, and there are strong reasons which render such an interpretation wholly inconsistent with the scheme of the Act.

The procedure in sub-s. (1) of s. 130 applies to cases in which the offence charged is not one of the offences specified in B Part A of the Fifth Schedule, but. applies to the other offences under the Act.

The maximum penalty which is liable to be imposed in respect of these offences defined by the Act is in no case Rs. 25 /- or Jess. It could not have been the intention of the Legislature that the offender, even if the case was serious enough to warrant the imposition of the maximum penalty which is permis- C sible under the section to which the provision is applicable, to avoid imposition of a higher penalty than Rs. 25 /- by merely pleading guilty. Section 130, it appears, was enacted with a view to protect from harassment a person guilty of a minor infraction of the Motor Vehicles Act or the Rules framed thereunder by 0 dispensing with his presence before the Magistrate and in appropriate cases giving him an option to plead guilty to the charge and to remit the amount which can in no case exceed Rs. 25 /-.

H the view which prevailed with the Sessions Judge were true, a person guilty of a serious offence meriting the maximum punishment prescribed for the offence may by pleading guilty under E sub-s. ( 1 )(b) escape by paying an amount which cannot exceed Rs. 25 /-. Again the Magistrate is authorised under s. 17 of the Act in convicting an offender of ari -offence under the Act, or of an offence in the commission of which a motor vehicle was used, in addition to imposing any. other punishment to pass an order declaring the offender unfit for holding a driving licence generally, F or for holding a driving licence for a particular class or description of vehicle. Such an order may be passed if it appears to the Court, having regard to the gravity of the offence, inaptitude shown by the offender or for other reasons, that he is unfit to obtain or hold a driving licence. But if the offender avails himself of the option given to him by the Magistrate of pleading G guilty, no further proceeding in respect of the offence can in view of sub-s. ( 3) of s. 130 be taken against him, and he will not be liable to be disqualified for holding or obtaining a licence, though he may otherwise eminently deserve to be disqualified for holding a licence.

It is true that to an offence punishable with imprisonment in the commission of which a motor vehicle was used s. 130(1)

RAM DIAL v. STATE (Wanchoo, /,) 8 57

A does not apply: s~ Sch. Five Part A Item 9. But there arc offences under the Motor Vehicles Act which do not fall within that description and also do not fall under other items, which arc punishable with imprisonment e.g. s. 113(2). There are also certain offe_nces which, if repeated but not otherwise, are liable to be punished with imprisonment e.g. certain offences under B ss. ll8A and under s. 123 of the Act. It would be difficult to hold that the Legislature could have intended that irrespective of the seriousness or gravity of the offence committeed, the offender wouldbe entitled to compound the offence by paying the amount specified in the sunimons, which the Magistrate would be bound C to accept, if the contention raised by the appellants is correct.

Having regard to the phraseology used by the Legislature which prima facie gives a discretion to the Magistrate exercisable at the. time of issuing the summons, and having regard also to the scheme of the Act, we are of the view that the High Court was right in holding that the Magistrate is not obliged in offences not D specified in Part A of the Fifth Schedule to make an endorsement in terms of cl. (b) of sub-s. (1) of s. 130 of the Act. We are of the opinion that the view to the contrary expressed by the High Court of Allahabad in State of U.P. v. Mangal Singh(') and the High Court of Assam in State of Assam v. Suleman Khan(') on E which the Sessions Judge relied is not correct.

The appeal therefore fails and is dismissed.

(1) (1962) I Cr.LI. 684.

(2) (1961) 2 Cr.LI. 869.

Appeal dismissed.

POORAN SINGH AND ANOTIIER

STATE OF MADHYA PRADESH

February 3, 1965

P. B. GAJENDRAGADKAR, C.J.

I. c. SHAH

ANDS. M. SIKRI

Motor Vehicles Act, 1939

ss. 112 and 124

Motor Vehicles Act

s. 130(1 )(b)

Fifth Schedule

s. 130( I )(b)

s. 130

Ravinder Narain

J. B. Dadachanji

I. N. Shroff

Shah

ss. 124 and 112

Motor Vehicles Act

s. 130( I )(b)

s. 130

Sessions Judge, Raipur

High Court of Madhya Pradesh

s. 130( 1)

Section 130

Motor Vehicles Act

Fifth Schedule

Fifth Schedule

ss. 112 & 124

Fifth Schedule

s. 130

s. 130(1)

s. 130

s. 130

s. 130

S

856

s. 130

Fifth Schedule

Section 130

Motor Vehicles Act

s. 17

s. 130

s. 130(1)

s. 113(2)

s. 123

Fifth Schedule

s. 130

High Court of Allahabad

High Court of Assam


RAM DIAL AND OTHERS v.

THE STATE OF PUNJAB

With connected Writ Petition

February 3, 1965

[K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH,

J. R. MUDHOLKAR AND S. M. S!KRI, JJ.]

Punjab Municipalities Act (Ill of 1911), s. 14(e)-Power l>f. Government to remove member in public interest_;_No provision for haring-- Similar power under •· 16(1) subject to hearing-Whether •· 14(e) C violative of Art. 14-.r. 14 giving power to Government to determine what

it deemed to be in 'public interest'-Power whether unconstitutionaL

The appellants, who bad been elected members of the Mnnidpal Committee, Batala, challenged the Notification issued under s. 14(e) <A the Punjab Municipalities Act (III of 1911) directing their -ai and

disqualifying them from election for '3 period of one year. It was contended on their behalf that there were two provisions in the Act, I.e. L 14(e) D and s. 16(1) clauses (a) to (g) under which a member could be removed in the public interest; and whereas action could only be taken under s. 16(1) after notice and an opponunity for a bearing to the member concerned there was no such requirement in the case of s. 14(e). This section was therefore hit by Article 14 and consequently the Notillcaliom were invalid.

HELD: (per Wanchoo, Hidayatullab, Shah and Sikri, JJ.) H the E State Government intended to remove a person for any of the reasons given under s. 16(1) cuases (a) to (g)-it could take action under s. 14(e) and thus circumvent the provision ins. 16(1) for a bearing. The

relevant pan of s. 14(e) entirely covered s. 16(1) but was more drastic.

It was therefore obviously discriminatory and violative of Art 14 of the

Constitution. [863 C-E]

Shri Radeshayam Khare v. The State of Madhya Pradesh [1959] S.C.R. 1440, distinguished.

F No assistance could be derived by the respondent State from the~ that under the proviso to s. 24(3), the State Government bad power to

refuse to notify the election of a person elected ou any of the grounds mentioned in s. 16( I) and there was no provision in this connection for notice and hearing of the person elected. Apan from the question of the constitutionality of this provision, there wa~ no connection between the viso to s. 24(3) and the provision contained in s. 14(e). The proviso to G s. 24(3) was complete in itself and dealt with a situation where the State Government refused to notify the election of a person who bad been

elected. Section 14(e) on the other hand provided for the vacation of the seat of a member after he bad taken the oath of office. Therefore the

constitutionality or otherwise of s. 14 ( e) would depend upon its 'contrast with s. 16( l) which also provided for the removal of a member. [864

A-CJ

Per Mudholkar, J.-The power conferred by s. 14 upon the State H Government to require that the seat of any member shall be. vacated "f" any reason which it may. deem to affect the public interest" is wli1 ... tional. The expression 'public interest' Is of wide import and what would

A be a matter which is in the public interest would necessarily depend upon the time and place and ci::cum tances with reterence to which the consideration of the question arises. But it is not a vague or indefinite ground_

There is no guidance in the Act for determining \vhat matters, though not in public inte:est may yet be capable of being deemed to affect the public interest. [866 E-G; 867 A-CJ

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 300- B 302 of 1964.

Appeals from the judgment and order dated March 16, 1962, of the Punjab High Court in Civil Writ Nos. 1194 to 1198 of 1961.

WITH

C Writ Petition No. 126 of 1964.

Under Art. 32 of the Constitution of India for enforcement of the fundamental rights.

N. C. Chatterjee, V. S. Sawhney, S. S. Khanduja, S. K. Manchanda, B. R. Kohli and Ganpat Rai, for the appellants (in all D the appeals) the petitioner (in the Writ Petition). /. N. Kaushal, Advocate-General for the State of Punjab, B. K. Khanna and R. N. Sachthey, for the respondent (in all the appeal> and the writ petition).

The Judgment of WANCHOO, HIDAYATULLAH, SHAH and SIKRI E JJ. was de1ivered by WANCHOO, J. MUDHOLKAR J. gave an independent judgment.

Wanchoo, J.

These three appeals are against the judgment of the Punjab High Court on certificates granted by that Court.

The writ petition has been filed by Uma Shankar appellant in this F Court and raises the same question as in the ap"eals, namely, whether s. 14(e) of the Punjab Municipalities Act, No. III of 1911 (hereinafter referred to as the Act) i0• unconstitutional inasmuch as it violates Art. 14 of the Constitution. The appeals and the writ petition will therefore be dealt with together.

We may add that we are not concerned in these appeals with s 14 (a) and G

(b) and that part of s. 14 (e) which provides for recall at the request of the majority of the electors, and express no opinion in that behalf.

The question arises in this way. The appellants were elected to the l\1unicipal Committee, Batala in elections held on January H

22. 1961. The result of the elections was notified in the Punjab Goverrunent Gazette on February 27, 1961. The new members took oath on March 16, 1961 and ''egan functioning from that date.

On August 4, 1961, notifications dated July 26, 1961

SUPREME COURT REPORTS

[1965] 2 S.C.R.

were issued in which it was stated that the Governor of Punjab for A reasons of public interest was pleased to direct that the seats of the three appellants shall be vacated from the date of the publication of the notifications in the State Gazette and to direct further that under sub-s. ( 3) of s. 16 of the Act, the three appellants mall be disqualified for election for a period of one :'ear from the date specified.

No notice was issued to the appeilants to B show cause why their seats be not vacated and no hearing was given to them before the action in question was taken by the Governor of Punjab.

The appellants' case was that after the notifications vacating their seats and disqualifying them had been issued, theY. came to know that these notifications had been issued C on the basis of a resolution passed by the out-going municipal committee on March 13, 1961 to the effect that the appellants had taken part in a demonstration on March 10, 1961 and had broken some glass panes of the municipal building. The appellants' further case was that the outgoing municipal committee had been dominated by members belonging to the Congress Party; D but these members had mostly been defeated in the fresh elections held on January 22, 1961 and it was in consequence that the resolution was passed mala fide by these persons in order to harm the appellants. A number of grounds were taken in the petitions filed before the High Court challenging the order of the Governor of Punjab. Now however we are only concerned with one ground, E namely, that the provision contained in s. 14(e) was discriminatory and hit by Art. 14 of the Constitution. It appears however that this ground was not urged before the High Court and that is why the writ petition has been filed in this Court specifically raising this point again, and thus in the present appeals and the writ petition we are only concerned with the question whether F s. 14 ( e) of the Act is bad as it violates Art. 14 of the Constitution.

We are of opinion that the appeals must succeed on this point.

It is necessarv in this connection to refer to s. 14(e), s. 16 and s. 24 ( 3) of the Act.

The relevant part of section 14 ( e) with G which we are concerned provides that notwithstanding anything in the foregoing sections of Chapter III, which deals with constitution of committees, appointment and election of members, term of office of members of municipal committees, the State Government may, at any time, for any reason which it may deem to affect the public interest, by notification, direct that the seat, of H any specified member, whether electd or appointed, shall be vacated on a given date, and in such case, such seat shall be

A vacated accordingly, notwithstanding anything in the Act or in the rules made thereunder. Further sub-s. ( 3) of s. 16 provides that "~ person whose seat has been vacated under the provisions of secon 14 ( e) may be disqualified for election for a period not exceedmg five years." There is no provision for giving notice to B a member against whom action is taken under s. 14 ( e) and he is

not entitled to any hearing before action is taken against him.

Further action can be taken against a member for any reason which the State Government may deem to affect the public interest.

Section 16 is another provision which gives power to the C State Government to remove any member of a municipal committee. This power is exercised for reasons given in cl. (a) to

cl. (g) of s. 16 (1). The proviso to s. 16 (1) lays down that "before the State Government notifies the removal of a member under this section, the reasons for his proposed removal shall be D communicated to the member concerned, and he shall be given an opportunity of tendering an explanation in writing." The proviso therefore requires a hearing before the State Government takes action under s. 16 (l). Sub-section (2) of s. 16 provides for disqualification and says inter alia that any person removed under s. 16 (l) shall be disqualified for election for a E period not exceeding five years. There is a slight difference here inasmuch as under this provision there must be disqualification for some period not exceeding five years, though if a member's seat is vacated under s. 14 ( e) the disqualification is entirely in the discretion of the State Government and is not imperative.

That however has no effect on. the question whether the relevant F part of s. 14 (e) is unconstitutional as it is hit by Art. 14.

Reference may now be made to s. 24 on which reliance has been placed en behalf of tl1e State.

Section 24 ( 1) inter alia prescribes the oath before a member can begin to function.

Section 24 ( 2) lays down inter aiia that if a person omits or G refuses to take the oath as provided in sub-s. ( 1) within. three

monilis of the date of the notification of his election or within such further period as the State Government may consider reasonable, his election becomes invalid.

Sub-section ( 3) of

11. 24 provides inter alia that where the election becomes invalid under sub-s. (2), a fresh election shall be held.

The proviso to H sub-s. (3) on which stress has been laid on behalf of the State 1ays down inter alia that the State Government may refuse to notify the election as member of any person who could be

162 SUPJlBMB COURT RBPORTS

(1965] 2 S.C.R

removed from office by the State Government under any of the A provisions of s. 16 or of any person whom the State Government for any reason which it may deem to affect the public interests may consider to be unfitted to be a member of the committee, and upon such refusal the election of such person shall be void.

The argument on behalf of the appellants is that s. 16 which B gives power to the State Government to remove a member provides that before that power can be exercised, reasons for the removal have to be communicated to the member concerned and he is to be given an opportunity of tendering his explanation in . writing. So it is urged that before action can be taken to remove a member under s. 16, the proviso thereof requires that the memc ber concerned is to be given a hearing as provided therein: The argument proceeds that the relevant part of s. 14 ( e) also provides in effect for the removal of a member though it actually says that the seat shall be vacated and that this removal has to be for any reason which in the opinion of the State Government affects the public interest. It is urged that whens. 16( I) provides D for removal for reasons given in els. (a) to (g), that removal also is in the public intere•t.

Therefore there are two provisions in the Act for removal of a member in the pub!icinterest, one contained in s. 14( e) and the other in s. 16. Where the Stnte Government takes action under s. 16 ( 1), it has to give a hearing in terms of the proviso thereof to the member concerned, but if for exactly the same reason the State Government chooses to take action under s. 14(e) it need not give any opportunity to the member to show cause why he <hould not be removed. Further

it is submitted that though s. 14 ( e) may be said to be wider inasmuch as els. (a) to ( g) may in a conceivable case not com- F pletely cover all that may be included in the term "public interests", the removal for reasons given in els. (a) to (g) in s. 16(1) is in public interest and therefore what is contained in s. 16 (I ) is certainly all covered by s. 14 ( e). In consequence there are two provisions in the Act for removing a member, one contained in s. 16 where the State Government cannot remove the member 'without giving him a hearing in the manner provided in the proviso, and the other in s. 14 ( e) where no hearing is to be given and the member is not even called upon to show cause.

Finally it is urged that it depends entirely on the State Government to use its powers either under s. 14(e) or under s. 16(1), where the two overlap and therefore there is clear discrimination, as the provision in s. 14 ( e) is more drastic and does not even 'provide for hearing the member concerned.

llAM DIAL v. STATE (WlilllChOO, /,) 863'

A We arc of opinion that these contentions on behalf of the appellants are correct. There is no doubt that the removal contemplated in s. 16(1) for reasons in els. (a) to (g) thereof, as their content shows, is in the public interest and the proviso to s. 16 ( 1 ) provides for a hearing in the manner indicated therein.

On the other hand s. 14 ( e) which also provides for removal in B the public interest makes no provision for hearing the member to

be removed. . Even if s. 14 ( e) is wider than ~. 16 (1 ) , there is no doubt that all the reasons given in els. (a) to (g) are in the public interest and therefore even if the State Government intends to remove a person for any reasons given in els. (a) to (g) it can C take action under s. 14 ( e) and thus circumvent the provisions contained 4' the proviso to s. 16 ( 1) for hearing. Thus there is llP doubt thats. 14(e) which entirely covers s. 16(1) is more drastic than s. 16(1) and unlikes. 16(1) makes no provision for even calling upon the member concerned to explain.

In this view of the matter it is clear that for the same reasons the State D Government may take action under s. 16 (1) in which case it

will have to give notice to the member concerned and take his explanation as provided in the proviso to s. 16 (I ) ; on the other hand it may choose to take action under s. 14 ( e) in which case it need not give any notice to the member and ask for an explanation from him.

This is obviously discriminatory and therefore :S this part of s. 14(e) must be struck down as it is hit by Art. 14 of the Constitution.

Reliance in this connection is placed on behalf of the State on the proviso to s. 24(3). Section 24(1) to (3) inter alia provides for what happens where a member omits or refuses to I' take oath as provided therein. Then comes the proviso to s. 24 (3), which gives power to the State Government to refuse to notify the election of a person elected on any of the grounds mentioned in s. 16(1). It is not necessary for us to decide whether the State Government can take action under this proviso read with s. 16 (I) without giving notice as provided in the G proviso to s. 16 (1). That question may have to be decided in a case where the State Government takes action under this part of the proviso to s. 24(3) without giving notice to the person concerned under the proviso to s. 16 (1) and without giving him any opportunity of hearing as provided therein. The provi"o to s. 24 ( 3) further provides that the State Government may refuse H to notify the name of any person elected if in its opinion he is unfit to be a member of a municipal committee on ground ot public interest. It is urged that there.is no provision in this cori-

864 SUPll.B'MB COURT 11.BPORTS

(1965] 2 S.C.11.

nection for notice and hearing of the person elected.

That A seems to be so, but again the question may arise in a proper case whether this provision would be constitutional. We see no connection between the proviso to s. 24 ( 3) and the provision contained in s. 14(e). The proviso to s. 24(3) is completll in itself and deals with a situation where the State Govemme11.t refuses to notify the election of a person who has been elected.

B Section 14(e) on the other hand provides for vacation of the seat of a member after he has taken the oath of office. Therefore the constitutionality or otherwise of s. 14 ( e) will depend upon its contrast with s. 16 ( 1) which also provides for removal of a ruember.

As we have already indicated on comparing the two C provisions both of which provide for removal of a member in public interest we find that the provision contained in s. 14(e)

as compared to the provision in s. 16(1) is more drastic and arbitrary and denies the member concerned an opportunity being heard as provided in s. 16(1) by the proviso thereof. Consequently we are of opinion that this part of s. 14(e) is discrimina D tory and must be struck down as unconstitutional under Art. 14 of the Constitution.

In this connection our attention is drawn to Shri Radeshyam Khare v. The State of Madhya Pradesh(') on which reliance is

placed on behalf of the State. In that case this Court was con E cemed with ss. 53A and 57 of the C.P. and Berar Municipalities Act which to a certain extent were held to overlap. The argument under Art. 14 did not really arise in that case because the two provisions dealt with two different situations. Under s. 57 the State Government had the power to dissolve a committee after giving it a reasonable opportunity to furnish its explanation. r . Under s. 53A the committee was not dissolved, but the State

Government had the power to appoint an executive officer and confer upon him such powers of the committee, its president, vice-president or secretary as it thought fit, though the reason for taking action under s. 53A (I) apparently overlapped the reasons for di•solving a committee under s. 57 (1).

Because of this G difference in the scope of the two provisions contained in ss. 53A and 57, there could be no question of application of Art. 14 to that case.

In the present case, however, s. 16(1) which deals with removal of a member for reasons given in els. (a) to (g) is com- H pletely covered by s. 14(e) which deals with vacationof a SC!lt

(!) (1959] s. c. 11. 1440.

A in the public interest, and it is open to the State Government either to proceed under one provision or the other for exactly the same reasons.

One of the provisions provides for notice and hearing while the other does not and is therefore more drastic and arbitrary. In these circumstances there is in our opinion a clear discrimination in view of Art. 14 and the State Government can- B not take advantage of the decision in Shri Radeshyam Khare's

case(').

We therefore allow the appeals as well as the writ petition and declaring s. 14{ e) insofar as it gives power to the State Government to vacate a seat on the ground of public interest to C be unconstitutional, set aside the notifications vacating the seats of the appellants.

The direction as to disqualification therefore also fails.

The appellants will get their costs from the State throughout. One set of hearing fee. No costs in the writ petition.

Mudholkar, 1. I have read the judgment prepared by my D brother Wanchoo and while I agree with him that the appeals

must be allowed 1 would prefer to give my own reasons for that conclusion.

The appellants in these three appeals were elected to the Municipal Committee, Batala in the elections held on January 22, E

1961. On August 4, 1961, that is, after these persons started functioning as members of the Municipal Committee the Government of Punjab issued a notification under s. 14, cl. ( e) of the Punjab Municipalities Act, 1911 in which it was stated that the Governor of Punjab for reasons of public interest was pleased to direct that the seats of these appellants shall be vacated from the F date of publication of the notification and further stated that they would be disqualified for election for a period of one year from the date specified.

This notification is challenged by the appellants on the ground that the provisions contained in s. 14 ( e) of the Act under which it was issued being discriminatory were G rendered void by Art. 14 of the Constitution

Section 14 of the Act as it now stands runs thus :

"Notwithstanding anything in the foregoing sections of this chapter, the State Government may at any time for any reaSOI\ which it may deem to affect the public H intere1ts, or at the request of a majority of the electors, by notification, direct-

(!) [19S9J S. C. R. 1440.

(a) that the number of seats on any committee shall A be increased or reduced;

(b) that any places on a committee which are required to be filled by election shall be filled by appointment, if a sufficient number of members has not been elected; B

(e) that the seat, of any specified member, whether elected or appointed, shall be vacated on a given date, and in such case, such seat shall be vacated accordingly, notwithstanding anything in C this Act or in the rules made thereunder."

It would be clear from a perusal of the above provision that powers conferred by s. 14 can be exercised by the State Government (i) for any reason which it may deem fit to affect the public interest or (ii) at the request of the majority of the electors. We D are not concerned in this case with the second circumstance and, therefore, it is unnecessary to consider whether that part of s. 14 which enables the State Government to take action at the request • of a majority of electors is valid or not.

Similarly we are not concerned in these appeals with t!J.e powers exercisable by the State Government under els. (a) and (b). All that arises for E consideration before us is whether the conferral of power upon the State Government to require that the seat of any specified member of the Committee shall be vacated "for any reason which it may deem to affect the public interest" is valid. The expression "public interest" is of wide import and what would be a matter F which is in the public interest would necessarily depend upon the time and place and circumstances with reference to which the consideration of the question arises. But it is not a vague or indefinite ground, though the Act does not define what matters would be regarded as being in the public interest. It would 0eem

that all grounds set out in s. 16, which confers upon the State G Government the power to remove any member of a Committee and sets out a number of grounds uoon which this could b~ done, would be in the public interest. Section 14, however, apart from the fact that the power it confers upon the State Government is not limited to matters set out under s. 16. confrs u,., on the Government the power to determine not merely what is in the nublic H interest but also what "for any reason which it may deem to affect th.e public interest." This would suggest that the power so

A conferred would extend to matters which may not be in the public interest. For, that would be the effect of introducing the fiction created by the words "for any reason which it may deem". There is no guidance in the Act for determining what matters, though not in public interest, may yet be capable of being deemed to be in the public interest by the State Government. In the circum- B stances it must be held that the power which conferred upon the

State Government being unguided is unconstitutional.

For this reason I hold that s. 14 in so far as it confers power on the State Government to require a seat of a member of a committee to be vacated for any reason which it may deem to affect public interest c as violative of Art. 14 of the Constitution and, therefore, unconstitutional. In the result each of the appeals is allowed with costs and I accordingly do so.

Appeals allowed.

RAM DIAL AND OTHERS

THE STATE OF PUNJAB

February 3, 1965

K. N. WANCHOO

M. HIDAYATULLAH, J

C. SHAH,

J.

R. MUDHOLKAR

Punjab Municipalities Act

s. 14(e)

Art. 14

s. 14(e)

s. 16(1)

s. 16(1)

s. 14(e)

Article 14

Sikri, JJ.

s. 16(1)

s. 14(e)

s. 14(e)

s. 16(1)

Art 14

s. 24(3)

s. 16( I)

s. 24(3)

s. 14(e)

s. 24(3)

Section 14(e)

s. 14

s. 16( l)

s. 14

CIVIL APPELLATE JURISDICTION

Art. 32

Constitution of India

V. S. Sawhney

S. S. Khanduja

S. K. Manchanda

B. R. Kohli

Ganpat Rai

N. Kaushal

B. K. Khanna

R. N. Sachthey

WANCHOO

HIDAYATULLAH

SHAH

SIKRI

MUDHOLKAR

Punjab High Court

Uma Shankar

s. 14(e)

Art. 14

s 14

s. 14

l\1unicipal Committee, Batala

January H

22. 1961

August 4, 1961

SUPREME COURT REPORTS

[1965] 2 S.C.R.

Punjab

s. 16

March 13, 1961

March 10, 1961

January 22, 1961

s. 14(e)

Art. 14

s. 14

Art. 14

s. 14(e)

s. 16

s. 24

section 14

s. 16

s. 14

Section 16

s. 16

s. 16

s. 16

s. 16

s. 16

s. 14

s. 14

Art. 14

s. 24

Section 24

Section 24

s. 16

s. 16

s. 16

s. 14

s. 14( e)

s. 16

s. 16

s. 14(e)

s. 14

s. 16(1)

s. 16

s. 14

s. 16

s. 14

s. 14(e)

s. 16(1)

s. 14

s. 16(1)

s. 16

s. 14

s. 14

s. 14

s. 16

s. 16(1)

s. 16(1)

s. 16

s. 16

s. 14

s. 14(e)

Art. 14

s. 24(3)

Section 24(1)

s. 24

s. 16(1)

s. 16

s. 16

s. 24(3)

s. 16

s. 24

s. 24

s. 14(e)

s. 24(3)

Section 14(e)

s. 14

s. 16

s. 14(e)

s. 16(1)

s. 16(1)

s. 14(e)

Art. 14

ss. 53A and 57

Berar Municipalities Act

Art. 14

s. 57

s. 53A

s. 53A

s. 57

ss. 53A and 57

Art. 14

s. 16(1)

s. 14(e)

Art. 14

Radeshyam Khare

s. 14

Mudholkar

Wanchoo

January 22, E

1961

Government of Punjab

s. 14

Punjab Municipalities Act, 1911

s. 14

Art. 14

Section 14

s. 14

s. 14

s. 16

Section 14

s. 16

s. 14

Art. 14


JOSEPH POTHEN

STATE OF KERALA

February 3, 1965

[K. SUBBA RAO, K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH AND s. M. Snw, JJ.]

Travancore Ancient Monuments Preservation Regulation (1 of 1112/ M.E~1936-31)-Whether impUed repealed by extension of Central Act VII of 1904 to Statt>-<>r by the Central Acts LXXI of 1951 and XXIV of 1958-State issuing Notification under the Regulation declaring Fort wall as a monument-Whether valid.

Constitution of India-Entry 61 (List 1)-Entry 12 (List II) Entry 40 (List lll)-Scope of.

By a Notification under the Travancore Ancient Monuments Preaer- , vation Regulation (1 of 1112/M.E.-1936-37 A.D.), the State Government declared a fort wall, which was within certain property purchased by the petitioner, to be protected monu1ne11t for the purposes of the Regulation.

D The petitioner challenged the Notification as infringing hio fundamental

right under Art. 19(1) (f).

It was contended on behalf of the petitioner that the impugned Notification had no legal force as Reguiation 1 of 1112/M.E., though validly made when it was passed, was impliedly repealed by the extension to the State in 1951 of the Ancient Monuments Preservation Act, 1904 (Central Act Vll of 1904) as that Act covered the same field occupied by the State Government, and in any event there was an implied repeal of the Regulation by the Central Acts LXXI of 1951 and XXIV of 1958. It was also contended that the disputed wall was not an ancient 'monument' but fell within the term 'archaeological sites or remains' and as the latter subject was in the Concurrent List, upon the extension of the Central Act VII of 1904 .in 1951 to the State, the Central Act occupied practically the entire field covered by the State Act and thereby impliedly repealed the State Act.

HELD: By virtue of Entry 67 of the Union List, Parliament could make a law in respect of ancient and historical monuments declared by or under a law made by it to be of national importance. but the Central Act of 1904 did not embody the requisite declaration. Therefore the Regulation, which fell under Entry 12 of the State List, continued ID hold the field despite the extension cf the Central Att ro the State. [873 F-0]

Similarly. the Central Acts I.XX! of 1951 and XXIV of 1953 applied C only to ancient or historical monuments specifi'd in P•rt I of the Schedule ID the 1951 Act or expressly notified by the Central Government under s. 4 of the 1958 Act. As neither of these Acts covered-the monument in question, the State RsuJation continued ID be applicable in respect of it; it therefore followed lhat the Notification issued under the State Act was valid. [873 H; 874 A-El

1 The . contention based on the argument that the disputed wall was not H a monument but an archaeological site or remain could not be ad!:epted. because it was clear from the evidence before the court that the Fort wall was not an archaeological site for exp!Oration and study but that it wa>

A an aisling structure surviving from a former period and, as 811Ch, a monument. The State Government was therefore within its rights in issuing the impugned notification unders. 3 of Regulation 1of1112/M.E. (875 H; 876 A-Bl ORIGINAL JURISDICTION: Writ Petition No. 95 of 1964.

Petition under Art. 32 of the Constitution for enforcement of B fundamental rights.

T. N. Subramonia Iyer, Arun B. Saharaya and Sardar Bahardur for the petitioner.

V. P. Gopa/a Nambiar, Advocate-General for the State of Kera/a and V. A. Seyid Muhammad, for the respondent.

C The Judgment of the Court was delivered by Sobba Rao, J.

This is a petition under Art. 32 of the Constitution for issuing an appropriate writ to quash the order and notification dated October 3, 1963, issued by the respondent and to restrain it from interfering with the petitioner's right in the pro- D perty compi, ised in survey Nos. 646 to 650 in Trivendrum City.

Kizhakke Kottaram (i.e., Eastern Palace), 2 acres and 57 cents. in extent, comprised in survey Nos. 646 to 650 and consisting of land, trees, buildings, out-houses, the surrounding well on all sides, gates and all appurtenants, in the City of Trivendrum originally belonged to His Highness the Maharaja of Travancore.

E Under a sale deed dated January 7, 1959, the Maharaja sold the same to the petitioner. The petitioner's case is that the eastern wall now in dispute is a portion of the Palace wall and is situate in survey Nos. 646 to 650 and that since the purchase he has been in possession of the same.

On October 3, 1963, tl1e Government of Kerala passed an order, G.O. (MS) No. 661/63/Edn., F purporting to be under the provisions of the Travancore Ancient Monuments Preservation Regulation 1 of 1112/M.E. (-1936-

37 A.O.) Under that order the Government considered the Fort walls around the Sree Padmanabhaswamy Temple as of archaeological importance and that they should be preserved as a protected JllOnument.

Under that order the said WBlls are G described as being situated. among others, in the aforesaid survey numbers also. Pursuant to that order the State Government issued a notification dated October 3, 1963, declaring the said walls to be a protected monument for the purpose of the said Regulation.

The petitioner, alleging that the part of the said walls situate in the said survey numbers belonged to him and he was in possession H thereof and that the said notification infringed his fundamental right under Art. 19(1) (f) of the Constitution, filed the present writ petition.

SUPREME COURT REPORTS

[1965] 2 S.C.R.

The State filed a counter-affidavit in which it admitted that A the Kizhakke Kottaram was purchased by the petitioner from the Maharaja of Travancore, but contended that the wall which bounded the Kizhakke Kottaram on the east was part of the fort wall which had always remained and continued to remain to be the property of the Travancore-Cochin, and later on Kerala, Govermnent. It was further alleged that though the said wall B was part of the historic fort wall, the petitioner deliberately "intermeddled" with it.

In short, the respondent claimed that the said wall was part of the historic fort wall and, therefore, the said notification was validly issued in order to preserve the same and that the petitioner had illegally encroached upon it.

It is not necessary to state the different contentions of the parties at this stage, as we shall deal with them separately.

The learned Advocate-General of Kerala raised a preliminary objection to the maintainability of the application on the ground D that the petition is barred by the principle of res ; udicata in that a petition for the same relief was filed before the High Court of Kerala and was dismissed.

The petitioner filed O.P. No. 1502 of 1960 in the High Court of Kerala at Ernakulam for a relief similar to that now sought in this petition.

The said petition came up before Vaidialingam, J., who dismissed that petition on E the ground that it sought for the declaration of title to the property in question, that the said relief was foreign to the scope of the proceedings under Art. 226 of the Constitution and that claims based on title or possession could be more appropriately investigated in a civil suit. When an appeal was filed against that order a Division Bench of the High Court, consisting of Raman Nair F and Raghavan, JJ., dismissed the same, accepting the view of Vaidialingam, J., that the proper forum for the said relief was a civil Court. It is, therefore, clear that the Kerala High Court did not go into the merits of the petitioner's contentions, but dismissed the petition for the reason that the petitioner had an effective G remedy by way of a suit. Every citizen whose fundamental right is infringed by the State has a fundamental right to approach this Court for enforcing his right. If by a final decision of a competent Court his title to property has been negatived, he ceases to have the fundamental right in respect of that property and, therefore, he can no longer enforce it. In that context the doctrine of res

judicata may be invoked. But where there is no such decision H at all, there is no scope to call in its aid. We, therefore, reject this contention.

A The next question is whether the petitioner has any fundamental right in respect of the wall in dispute within the meaning of Art. 19(1)(f) of the Constitution. The sale deed under which the petitioner has purchased the Eastern Palace from the Maharaja is filed along with the petition as Annexure A-2. Under the said sale deed, dated January 7, 1959, the Maharaja sold the Eastern B Palace situate in survey Nos. 646 to 650, 2 acres and 57 cents, in extent, to the petitioner.

The outer compound walls of the said Palace building were also expressly conveyed under the sale deed.

In the schedule of properties annexed to the sale deed the eastern boundary is given as a road. Prima facie, therefore, the sale deed establishes that the Maharaja conveyed the eastern wall of the C building abutting the road to the petitioner. In the counter-affidavit the State, while admitting the title of the Maharaja to the Eastern Palace and the execution of the sale deed by him conveying the said Palace to the petitioner, asserted that the disputed wall is part of the historic Fort wall. According to the State, Sree Padmanabhaswamy Temple is surrounded by the historic Fort D wall and the disputed wall is a part of it. In support of this contention, the State has given extracts from the Travancore State Manual, the list of forts furnished to the Government by the Chief Engineer in 1886, the history of Travancore by Sri K. P. Sankunni Menon, the Memoir of the Survey of Travancore and Cochin E States by Lieutenants Ward and Conner, and the Trivendrum District Gazetteer published in 1962. The said extracts describe the history of the Fort wall. It is not possible, without further evidence, on the basis of the affidavits filed by the petitioner and the State to come to a definite conclusion whether the disputed part of the wall is a part of the historic Fort wall.

We are, therefore.

F withholding, our final decision on this point, as we are satisfied that the petitioner has purchased the disputed wall from the Maharaja and is in physical possession thereof.

Indeed, the fact that he is in possession has been admitted by the State in its counter-affidavit. It is stated therein that the petitioner has "intermeddled" with the wall. The petitioner has possessory title G in the wall and is, therefore entitled to be protected against interference with that right without the sanction of law.

The next question is whether the Travancore Ancient Monuments.

Preservation Regulation (Regulation 1 of 1112/M.E.) ceased to be law in the State of Kerala and, therefore, the said notification issued thereunder had no legal force.

It was con- H tended that Regulation 1 of 1112 M.E. was impliedly repealed by the extension of the Central Act, i.e., the Ancient Monuments Preservation Act, 1904, in the year 1951 to Kerala, as the -said USup./65-9

872 SUPREME COUllT REPORTS

(1965] 2 S.C. R.

Act covered th1~ same field occupied by the State Act, or at any rate the said Regulation was impliedly repealed by the Ancient and Historical Monuments and Archaeological Sites and Remains

(Declaration of National Importance) Act, 195 l (Act LXXI of

1951) and the Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1958 (Act XXIV of 1958). To appreciate this contention it would be convenient at the outset to notice the relevant legislative fields allotted to the Central and State Legislatures by the entries in the three Lists of the Seventh Schedule to the Constitution.

The following are the relevant entries in the said Schedule :

Entry 67 of List I (Union List) : Ancient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance.

Entry 12 of List II (State List) Libraries, museums and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance.

Entry 40 of List III (Concurrent Lr'st) : Archaeological sites and remains other than those declared by or under law made by Parliament to be of national importance.

ft will be noticed that by reason of the said entries Parliament could only make Jaw with respect to ancient and historical monu- F lnents and archaeological sites and remains declared" by PHrliament to be of natio!'al importance. Where the Parliament h~'

not declared them to be of any national importance, the State Legislature has exclusive power to make law in respect of ancient and historical monuments and records and both Parliament and the State Legislature can make kws subject to the other constitu- G tional provisions in respect of archaeological sites and remains'.

Regulation 1 of 1112 M.E. is of the year 1936 A.D. It was a State law and it is not disputed that it was validly made at the time it was passed.

After the Travancore-Cochin State was formed, under the Travancore-Cochin Administration and Appli- H cation of Law Act. 1125 M.E. (Act VI of 1125 M.E.) (1949 A.D), the existing laws of Travancore were extended to that part of the area of the new State which before the appointed day

A formed the territory of the State of Travancore.

The result was that the said Regulation continued to be in force in the Travancore area of the new State. The Part B States (Laws) Act, 1951 (Act No. III of 1951) was made by Parliament: and thereunder the Ancient Monuments Preservation Act, 1904, was extended to the new State of Travancore-Cochin. A comparative study of the B two Acts, i.e., the Ancient Monuments Preservation Act, 1904,

and the Travancore Ancient Monuments Preservation Regulation 1 of 1112 M.E., shows that they practically covered the same field.

If there was nothing more, it may be c; intended that the State Act was impliedly repealed by the Central Act.

But s. 3 of the Part B States (Laws) Act, 1951, made the application of the C Central Act to the State subject to an important condition. The said s. 3 reads :

"The Acts and Ordinances specified in the Schedule shall be amended in the manner and to the extent therein specified, and the territorial extent of each of the said D Acts and Ordinances shall, as from the appointed day, and in so far as any of the said Acts or Ordinances or any of the provisions contained therein relates to matters with respect to which Parliament has power to make laws, be as stated in the extent clause thereof as so

E amended."

The condition is that the said Act shall relate to matters with respect to which Parliament has power to make laws. The question, therefore, is whether Parliament can make a law in respect of ancient monuments with respect whereof the State had made the impugned Regulation. As we have pointed out earlier, the F Parliament can make a law in respect of ancient and historical monuments and records declared by or under law made by it to be of national importance, but the Central Act of 1904 did not embody any declaration to that effect.

Therefore, the Central Act could not enter the field occupied by the State Legislature under List II. If so, it follows that the State Act held the field G notwithstanding the fact that the Central Act was extended to the

State area.

Nor can the learned counsel for the petitioner call in aid the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Import'!nce) Act, 1951 (Act H LXXI of 1951), to sustain his argument. That Act applied to ancient and historical monuments referred to or specified in Part I of the Schedule thereto which had been declared to be of nation.al importance.

In Part I of the Schedule to the said Act

874 SUPllBMB COUllT llBPOllTS [1965] 2 S.C.ll •.

certain monuments in the District of Trichur in the Travancore- A Cochin State were specified.

The monument in question was not included in the said Schedule.

The result is that the State Act did not in any way come into conflict with the Central Act LXXI of 1951.

The State Act, therefore, survived even after the passing of the said Central Act.

The next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (Act XXN of 1958). It repealed the Central Act LXXI of 195 I. Under s. 3 thereof all ancient and historical monuments declared by Central Act No. LXXI of 1951 to be of national importance should be deemed

to be ancient and historical monuments and remained declared C to be of national importance for the purpose of the said Act.

Section 4 thereof enabled the Central Government to issue a notice of its intention to declare any other monument to be of national importance which did not come under s. 3 of the said Act. But the Central Government did not give any notice of its intention to declare the monument in question as one of national D importance. If so, that Act also did not replace the State Act in regard to the monument in question.

For the aforesaid reasons it must be held that notwithstanding the extension of the Central Act VIl of 1904 to the Travancore area and the passing of Central Acts LXXI of 1951 and XXIV of E 1958, the State Act continued to hold the field in respect of the monument in question. It follows that the notification issued under the State Act was valid.

The next argument of the learned counsel may be briefly stated thus : The disputed wall is not an ancient !llonument, but an archaeological site or remains; the said matter is covered by entry F 40 of the Concurrent List (List III) of the Seventh Schedule to the Constitution; when. Act VIl of 1904 was extended by Part B States (Laws) Act ill of 1951 to the Travancore area, it occupied practically tlte entire field covered by the State Act and, therefore, the latter Act was impliedly repealed by the former Act.

Assuming that that is the legal position, we find it not possible to hold that the Fort wall is not an andent monument but only an archaeological site or remains.

The argument of the learned counsel is built upon the definition of "ancient monument" in

the State Act (Regulation 1 of 1112 M.E.) and that in the Ccn- H tral Act of 1904. It is not necessary to express our opinion on the question whether the definition is comprehensive enough to take in an archaeological site or remains, and whether the Acts

\. '

A apply to both ancient monuments strictly so called and to archaeological site or remains. If the definition was wide enough to cover both--0n which we do not express any opinion-that State Act may be liable to attack on the ground that it, in so far as it deals with archaeological site or remains, was displaced by the Central Act.

But the State Government only purported to notify B the Fort wall as an ancient monument and, therefore, if the State Act, in so far as it dealt with monument is good, as we have held it to be, the impugned notification was validly issued thereunder.

The Constitution itself, as we have noticed earlier, maintains a clear distinction between ancient monuments are archaeological C site or remains; the former is put in the State List and the latter, in the Concurrent List.

The dictionary meaning of the two expressions also brings out the distinction between the two concepts. "Monument" is derived from monere, which means to remind, to warn. "Monu- D ment" means, among others, "a structure surviving from a former period"; whereas "archaeology" is the scientific study of the life and culture of ancient peoples.

Archaeological site or remains, therefore, is a site or remains which could be explored in order to study the life and culture of the ancient peoples.

The two expressions, therefore, bear different meanings.

Though the E demarcating line may be thin in a rare case, the distinction is clear.

The entire record placed before us discloses that the State proceeded on the basis that the Fort wall was a monument; the notification dated October 3, 1963, issued by the State Govem- F ment described the wall as a protected monument.

The petitioner questioned the notification on the ground that it was not a monument but a part of the boundary wall of his property.

He did not make any allegation in the petition filed in the High Court that it wa'. ill archaeological site or remains and, therefore, the Central Act displaced the State Act.

Nor did he argue before the High G Court to that effect.

In the petition filed in this Court he cpiestioned the constitutional validity of the State Act onlv on the

ound that the Ancient Monuments Preservation Act, 1904, impliedly repealed the State Act relating to monuments. He did not allege that the Fort wall was an archaeological site or remains and, therefore, the State Act as well as the notification were in- H valid.

The present argument is only an afterthought.

The extracts given in the counter-affidavit filed by the State from the relevant Manuals and other books and documents show

SUPUMI OOU1T REPORTS

(1965) 2 s.c.R.

that the Fort wall was a historical monument and was treated as A such, being the wall built around the famous Sree Padmanabhaswami Temple. It is not an archaeological site for exploration and study, but an existing structure surviving from a former period.

For the aforesaid reasons we hold that th.: Fort wall is a monument and the State Government was within its rights to issue the impugned notification under s. 3 of the State Regulation B I of 1112 M.E. We are not deciding in this case whether the wall in dispute is part of the Fort wall.

Such and other objections may be raised under the provisions of the Act in the manner pre1cribed thereunder.

In this view, it is not necessary to express our opinion on the c question whether Art. 363 of the Constitution is a bar to the maintainability of the petition.

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

Petition dismissed.

JOSEPH POTHEN

STATE OF KERALA

February 3, 1965

K. SUBBA RAO

K. N. WANCHOO

M. HIDAYATULLAH, J

C. SHAH

Constitution of India

Art. 19(1)

Central Act VII of 1904

Parliament

Schedule ID

s. 4

Art. 32

T. N. Subramonia Iyer

Arun B. Saharaya

Sardar Bahardur

V. P. Gopa

State of Kera

V. A. Seyid Muhammad

Sobba Rao

Art. 32

Trivendrum City

Trivendrum

Travancore

January 7, 1959

October 3, 1963

Government of Kerala

Art. 19(1)

Kerala

High Court of Kerala

High Court of Kerala at Ernakulam

Vaidialingam

Art. 226

Raman Nair F

Raghavan

Kerala High Court

Art. 19(1)(f)

K. P. Sankunni Menon

Seventh Schedule

PHrliament

Travancore-Cochin

s. 3

s. 3

Trichur

Travancore- A Cochin

Central Act LXXI of 1951

s. 3

Section 4

Central Government

s. 3

Act also did not replace the State Act

Seventh Schedule

s. 3

Art. 363