G -

AHMEDABAD MILLOWNERS' ASSOCIATION & ANR.

l'.

I. G. THAKORE, PRESIDENT & ORS.

January 20, 1967

[M. ffIDAYATULLAH, V. BHARGAVA AND G. K. MITTER, JJ.j Bombay Industrial Relations Act 1946 (Bombay Act 11 o/ 1947), s. 2(3)-Appllcabillly of Act to cotton industry In Ahmedabad-Bombay Industrial Disputes Act 1938 whether repealed by the (Central) Industrial Disputes Act, 1947.

Constitution of India, Art 14-Re#rence of dispute by Union of Workmen under s. 13A of Bombay Act 11 of 1947-Section in not giving similar right to employers whether violates Art. 14.

A dispute regarding amendment of rules relating to privilege leave etc. arose between the Ahmedabad Millowners' Association and the union of workmen employed in tho textile industry. After conciliation proceedini:s

were declared by the Conciliator to have failed, the union referred the dispute to the Industrial Coun under s. 73A of the Bombay Industrial Relations Act, 1946. The Industrial Coun decided against the Millownen who filed a writ petition in the High Coun and thereafter appealed to this Coun. It was urged on behalf of tho appellants that (i) s. 73A was viola tive of Art. 14 of the Constitution since it gave a riht to the workers' union to make a reference but not to tho employer (ii) the Act bad not been made 3pplicable to the cotton industry at Ahmedabad under s. 2( 4) and it was not applicable under s. 2(3) because the Bombay Industrial Disputes Act, 1938 was repugnant to the (Central) Industrial Disputea Act, 1947 and must be deemed to havo been repealed.

HELD: (i) Section 73A was not violative of Art. 14.

Whenever any industrial dispute arises the employer can always emure arbitration of that dispute by making an offer to the union under s. 66 of the Act, whereupon a registered and approved union _is compelled to agree to submission of the dispute to arbitration. Clearly therefore there. wu no need to make any provision empowering the employer to make a refer once of the dispute for '1rbitration to the Industrial Court. On the other hand if a Union wants a dispute to be settled and even offers that tho dispute be submitted to arbitration under s. 66 of the Act, tho employer can refuse, whereupon the union would be left without any remedy. It is obvious that s. 73A was enacted to fill this gap and place the union on parity with the employer so as to enable the union to have any dute settled by arbitration even when the employer does not agree to arbitra tion. This section, in these circumstances did not at all require that the right grantd to the union should also be granted to the employer. [441

GHJ

There was no difference in the procedure to be followed by the Industrial Coun in a reference under s. 73A and that to be followed when the reference is under s. 66. In both the procedure under ,.. 92 bad to be followed. [443 BF]

(ii) Chapter V of the Bombay Industrial Disputes Act 1938 wu not repugnant to the Central Act of 1947 and therefore continued to be in force, and consequently under s. 2(3) of the Bombay Industrial Relatiom Act 1947 the latter Act became applicable to the industry of the appellants and did not require, a notification under s. 2(4) to make .it applicable

[446 G-H; 447 AB)

438 SUPllBIO OOUl.T UPOl.TS [1967] 2 S.C.lt.

Ez Parle McLean, 43 C.L.R. 472 Victoria and Others v, TM Com- A monw.ealth of A1utralia and Others, 58 CL.R. 618, Zaverbliai AmaidaJ v.

The State of Bombay, (1955) I S.C.R. 799, Ch. Tik4 Ramji & Ors. v.

The State o/ Uttar Pradesh & Ors., [1956) S.C.R. 392 and De.ep ChanJI v.

The Stale of Uttar Pradesh and Other:, (1959) Supp. 2 S.C.R. 8.

QVIL APPELLATE JURISDICTION: Civil Appeal No. 490of1965.

Appeal from the judgment and decree dated April 30, 1964 8 of the Gujarat High Court in Special Civil Application No. 39 of 1963.

S. T. Desai, P. B. Patwari, and 0. C. Mathur, for the appellants.

Respondent No. 2 appeared in person.

H. R. Gokha/e, S. P. Nayyar for R.H. Dhebar, for respondent No. 3.

The Judgment of the Court was delivered by

Bbugava, J. The appellants in this appeal arc the Ahmedabad Millowners Association, of which all the cotton mills in Ahmedac

bad local area are members, including the second appellant, the D Nagri Mills Ltd. The third respondent, the Textile Labour Association, Bhadra, Ahmedabad (hereinafter referred to as "the Union")

represents the workmen employed in the various mills which are members of the first appellant Association. Under Standing Orders settled under the Bombay Industrial Relations Act, 1946 (Bombay Act XI of 1947) (hereinafter referred to as "the Act"), conditions of l service, including those relating to leave, were prescribed in view of clause 6 of Schedule I of the Act. These Standing Orders were settled at a time when this clause 6 of the First Schedule to the Act read as follows:-

"Conditions, Procedure and Authority to grant leave." Sul>- scquently, Schedule I was amended so as to read as: f

"Procedure and authority to grant leave," and simultaneously, clause II was added in Schedule II which read as:

"All matters pertaining to leave and holidays, other than those specified in items 6 and 7 in Schedule I."

Consequent to this amendment in the Schedules, matters pertaining to leave could, thereafter, no longer be prescribed by Standing Orders, which were confined to matters contained in Schedule I only.

By a letter dated 21st April, 1961, the Union gave notice to the fir1t appellant, desiring that changes be made as specified in the Annexure to this letter. Those changes sought in the Annexure related to grant of privilege leave, sick leave, casual leave, and pay in lieu of privilege leave to all workers employed in the local textile industry in the same manner in which, under the earlier Standing

ff -

MILLOWNERS' ASSCN. v. I. G. THAKORE (Bhargava, I.) 439

Orders, the clerical and some other staff were granted these benefits.

This notice was given by the Union under s. 42(2) of the Act. The

d: .., ute was not amicably settled, and consequently, the matter was refe. 'd for conciliation. The conciliation proceedings also failed, and, tuereupon, the Conciliator, on 23rd June, 1961, issued a certificate that he had come to the conclusion from the discussions which the parties had before him that the dispute was not capable of being settled by conciliation. Thereupon, by the letter dated 29th July, 1961, the Union referred the dispute to the Industrial Court under section 73A of the Act. Before the Industrial Court, various pleas were taken on behalf of the appellants, and some of these pleas were the subject-matter of preliminary issues which were decided before the Industrial Court could proceed to give the final Award.

Though a number of such preliminary issues were decided by the Industrial Court, we are only concerned with two such issues, as they were the only two matters pressed before us on behalf of the appellants in this appeal. One issue raised was that s. 73A of the Act was ultra vires Article 14 of the Constitution as it granted a right to the Union to make a reference to the Industrial Court, while no such right was granted to the employers. The second point urged was that the Act did not apply to the cotton mills which were members of the first appellant Association, because it had not been made applicable to them under s. 2(4) of the Act, \vhile it could not become applicable to them under s. 2(3) of the Act, because the Bombay Industrial Disputes Act, 1938, was not in force in these industries immediately before the commencement of the Act.

Both these points were decided by the Industrial Court against the appellants. Consequently, the appellants moved a petition under Articles 226 and 227 of the Constitution in the High Court of Gujarat. The High Court rejected these preliminary pleas raised on behalf of the appellants and upheld the view of the Industrial Court that the reference was competent. The appellants have now come up to this Court under certificate granted by the High Courl against this order of the High Court.

All we have mentioned earlier, the appellants had raised a number of pleas which were the subject-matter of preliminary issues before the Industrial Court and several of them were~ the subjectmatter of the petition before the High Court also. In this Court, however, reliance has been placed only on the two pleas, mentioned above. The first plea is based on the language of s-. 73A of the Act which, on the face of it, grants the right to a Union only to make a reference of an industrial dispute for arbitration to the Industrial Court and docs not grant any such right to an employer. It was, however, urged on behalf of the respondents that, in fact, this section was introduced in the Act for the very purpose of placing the employers and the Union on terms of equality, and that, instead of creating any discrimination between them, this section, on the

440 SUPUMB COUllT IU!P81.TS (1967] 2 s.c.R

contrary, was necessary to satisfy the requirements of Art. 14 of the Constitution.

To appreciate this submission made on behalf of the respondents, certain features of the Act have to be examined and their implication taken into account.

Section 73A grants a right of making a reference of an industrial dispute for arbitration to the Industrial Court only lo "a registered union which is a representative of employees and which is also an approved union." Further, under the proviso to that section, the reference cannot be made if the employer offers in writing before the Conciliator to submit the di>pute to arbitration under the Act and the Union refuses to agree to it. Two other conditions attached are that the dispute must first be submitted to the Conciliator and can be referred for arbitration to the Industrial Court only when the Conciliator certifies that the dispute is not capable of being settled by conciliation, and that no such dispute is to be referred if, under any provisions of the Act, it is required to be referred to the Labour Court for its decision.

It is the effect of all these detailed provisions, laying down limitations for reference under s. 73A, that requires examination.

Under s. 12 of the Act, the Registrar has to maintain registers of unions registered by him and a list of approved unions. A Union is entitle<j to registration only if, during the whole of the period of three calendar months immediately preceding the calendar month in which it so applies, the membership of the Union has been not less than 15 per cent of the total number of employees employed in the industry, when it can be registered as a Representative Union.

In case there is no such Representative Union, a Union can be also registered either as a Qualified Union or as a Primary Union.

But it is clear from the language of s. 73A that only a Representative

Union has been given the right under that section.

Further, section 73A requires that the Union must also be an approved

Union, which means that the Union must comply with the requirements of s. 23 of the Act and have its name entered in the approved list. Amongst the conditions required to be complied with by a Union to be brought on the approved list, the most important is one which lays down that its rules must provide that every industrial dispute, in which a settlement is not reached by conciliation, shall be offered to be submitted to arbitration, and that arbitration under Chapter XI shall not be refused by it in any dispute. It will thus be seen that the right of making reference under s. 73A is only granted to a Union which is registered as a Representative Union and, being on approved list, has already made rules laying down that the Union shall offer every industrial dispute for submission to arbitration and will also not refuse arbitration of any dispute if the employers offer to submit the dispute for arbitration under Chapter XI of the Act.

Section 66 makes provision for submission of an industrial dispute for arbitration. Sub-s. (1) of that section gives the power to make a

M!LLOWNERS' ASSCN. v. I. G. THAKORE (Bhargava, J.) 441

reference to any person chosen by agreement by the disputing parties, while sub-s. {2) gives the option that the submission of the dispute may be made to the arbitration of a Labour Court or the Industrial Court. Further, sub-s. (5) of s. 58 requires that before closing the conciliation proceedings before him, the Conciliator shall ascertain from the parties whether they are willing to submit the dispute to arbitration. These disputes, to which these provisions apply, can only be those not relating to matters in Schedules I and III, because, under sub-s. (1) of s. 42, and employer is given the right to give a notice of change in respect of any industrial matter specified in Schedule II, while, under sub-s. (2) of s. 42, the employee is granted a similar right to give a notice if a change is desired in respect of an industrial matter not specified in Schedule I or III. In respect of matters covered by Schedules I and III, provision is made in sub-s. ( 4) of s. 42 which lays down that such disputes are to be decided by making an application to the Labour Court; and, as we have indicated earlier, s. 73A does not apply to disputes which are required to be referred to a Labour Court. The result of all these provisions is that s. 73A of the Act comes into play only in cases where the dispute relates to matters not contained in Schedules I and III, the dispute is not resolved by private agreement or by conciliation, and there is no submission of the dispute to arbitration under s. 66 of the Act.

It is in this light that the provision which has to be made by the Union in its rules under s. 23(1)(v) assumes importance. Whenever a dispute is raised either by an employer or by a Union which can ultimately take advantage of s. 73A of the Act, the Union must invariably" offer that the dispute be submitted to arbitration, and, in the alternative, if the employer offers to submit the dispute to arbitration, the Union must not refuse it. The result is that in respect of any such dispute, the Union has no option but to offer or agree to arbitration of the dispute under s. 66 of the Act. On the other hand, there is no such limitation placed on the employer.

There is no provision in the Act making it compulsory for the employer either to submit the dispute to arbitration or to agree to the submission of the dispute to arbitration when offered by the Union.

Consequently, whenever any industrial dispute arises, the employer can always ensure arbitration of that dispute by making an offer to the Union under s. 66 of the Act, whereupon the Union is compelled to agree to submission of the dispute to arbitration. Clearly, therefore, there was no need to make any provision empowering the employer to make a reference of the dispute for arbitration to the Industrial Court. On the other hand, if a Union wants a dispute to be settled and even offers that the dispute be submitted to arbitration under s. 66 of the Act, the employer can refuse, whereupon the Union would be left without any remedy. It is obvious that s. 73A was enacted to fill this gap and place the Union on parity with the

442 SUPlll!lfB COUil T RBPO!l TS

[ 196 7] 2 S.C.R.

employer so as to enable the Uni.m to have anv dispute settled bv arbitratioJl even when the empluycr docs not ;\gree I<> arbi1ratio1{.

These provisions granting the rights to the employers and the Union arc, of course, in addition to, and without prejudice to, the provisions contained in sections 72 ar.d 73 of the Act, under \\hi ch the State Government is given the power to refer any industrial dispute between employees and employees, and employers and employees to the arbitration of a Labour Court or the Industrial Court on the basis of a report made by the Labour Officer, or c\'en otherwise. These provisions in sections 72 and 73 leave the discretion with the State Government to make a reference in appropriate cases, so that neither the employers nor the employees can, as of right, obtain a reference under these sections from the StGte Government. So far as they are concerned, the provisions contained in the Act require that the disputes between them must first go before a Conciliator for conciliation, and subsequently, either party can exercise its option of offering the submission of the dispute to arbitration when such an enquiry is made from them by the Conciliator under s. 58(5) of the Act. Thereafter, if the offer is by an employer, the Union, under its rules, is bound to accept the submission, so that whenever an employer desires that a dispute be decided by arbitratio • ., the Union is compelled t.:> agree to it.

Jn the reverse case, when a Union wants submission of the dispute to arbitration, the employer has discretion not to agree, and tl:cn only can the Union resort to s. 73A and refer the dispute to the Industrial Court. This section, in these circumstances did not at all require that the right granted to the Union should also he granted to the employer.

In this connection, two other points were urged by learned counsel for the appellants before us. One wa~ that, under s. 66 of the Act, the offer to submit the dispute for arbitration can be to any private individual also, and this did not give the right to the employer to have it decided by an Industrial Court so as to be equated with the right of the Union to have it decided by the Industrial Court.

We do not think that the provision contained in s. 66 of the Act places the employer under any such handicap. Under sub-s. (2) of s. 66, the employer can straight away offer that the dispute be referred to the arbitration of the Industrial Court, and thereupon the Union would be debarred from refusing to agree to that submission. In any case, even if the Union were to refuse to agree to it, the State Government will detennine under s.71 of the Act whether the dispute should be referred to the arbitration of the Labour Court or the Industrial Court and refer it to that body. The mere fact that the Union may not ai:ree to the offer of the employer to submit the dispute for arbitration to the Industrial Court whereupon the State Government can direct that the arbitration be made by a Labour Court or the Industrial Court does not, in our opinion, place the employer in any disadvantageous position, and we do not

MILLOWNERS' ASSCN. v. I. G. THAKORE (Bhargava, /.) 443

think, therefore, that there was any requirement that the employer should also be given a right corresponding to the right of the Union under s. 73A of the Act.

The second point urged by the learned counsel was that if the dispute is referred to the Industrial Court by a submission under s. 66(2) of the Act, that Court will proceed to give its award in accordance with the provisions of the Arbitration Act, 1940 in view of s. 68 of the Act, while if the dispute is referred at the instance of a Union under s.73A of the Act, the Industrial Court will deal with it as a judicial Tribunal and will give its decision in accordance with the regulations made under s. 92 of the Act. We consider that this submission is based on a misapprehension of the scope of s. 92 of the Act. The rules and regulations made by the Industrial Court under s. 92 are to govern the procedure of the Industrial Court in all proceedings before it irrespective of the fact whether those proceedings come up before it by a reference 'made by the State Government under. s. 72 ors. 73 of the Act, or 'by a reference made by the Union under s. 73A of the Act, or by a joint submission made by the parties under s. 66(2) of the Act. Section 68 of the Act is in very general terms, and lays down that proceedings in arbitration under the whole of the Chapter XI are to be in accordance with the provisions of the Arbitration Act, 1940; in so far as they may be applicable. The provisions of the Arbitration Act have, therefore, been made applicable not only to arbitrations by submission under s. 66 of the Act, but also to arbitrations on references made by the State Government under s. 72 or s. 73 or a reference made by a Union under s. 73A of the Act. If the submission or the reference happens to be to the Industrial Court, that Court must follow the rules and regulations made under s.92, and the provisions of the Arbitratio.n Act will only apply insofar as they may be applicable in view of those rules and regulations. Consequently, whether a dispute is referred for arbitration to the Industrial Court by submission under s. 66(2) of the Act, or by a reference under s. 73A of the Act, that Court has to proceed in the same identical manner and the parties seeking the reference obtain the award in both cases under identical circumstances.

In this connection, the regulations made by the Industrial Court, known as the Industrial Court Regulations, 1947, were brought to our notice. A perusal of these regulations shows that, in the matter of procedure of the Industrial Court for dealing with arbitrations made by submissions under s. 66, or by references under other sections, there is uniformity and no distinction is made between references under these different sections. The Industrial Court is required to proceed in the same manner in all cases and to give its decision under s. 87 of the Act. It is significant that s. 87, defining the duties of the Industrial Court, uses identical language in respect of all arbitrations by the Industrial Court; under clause (v) the duty

SUPREME COURT .REPORTS

[1967] 2 S.C.R.

of the Industrial Court is laid down to he to decide industrial disputes referred to it in accordance with submissions registered under s. 66 which provide for such reference to the Industrial Court, and under clause (vi), the duty of the Industrial Court is similarly defined to be to decide industrial disputes referred to it under sections 71, 72, 73 or 73A. The Industrial Court, in all cases, is required to give a decision on the dispute, and hence, in all these proceedings, the parties have identical rights in the matter of procedure of the Industrial Court of hearing and of obtaining a decision from it. This ir.akes it clear thats. 73A or the Act was required only to fill up a gap which would have exiskd, leaving no remedy to a Union to obtain arbitration of a dispute if the employers did not agree to that arbitration, and that no similar right was required to be conferred on the employers who, under the other provisions of the Act, could always obtain a reference of the dispute to arbitration by making a -submission under s. 66 which the Union was bound to agree to. The first point raised on behalf of the appellants has, therefore, no force and s. 73A of the Act cannot be held to be invalid.

On the second quest.ion, it has rightly been urged on behalf of the appellants that the Act was not applied by the State Government to the industries run by 'the appellants, whether generally or by specifying any local area by issue of a notification under sul>-s. (4) of s. 2 of the Act. On behalf of the respondents, reliance was placed on sul>-s. (3) of s. 2 for urging that the Act became applicable to the industries run by the appellants, because the Bombay Industrial Disputes Act, 1938 (hereinafter referred to as "the Bombay Act of 1938") was in for::e in these industries immediately before the commencement of the Act.

Admittedly, the Bombay Act of 1938 was made applicable to the entire cotton industry throughout the Province of Bombay by various notifications issued in the year 1939 under that Act by the then Provincial Government. Ahmedabad, where the industries of the appellants are situated, was then a part of the Province of Bombay. The Bombay Act of 1938 was never entirely repealed.

However, the Central Government enacted the Industrial Disputes Act No. 14 of 1947 which received the assent of the Govemor- General on 17th March, 1947, and was brought into force from April I, 1947. This Act did not, in terms, repeal the Bombay Act of 1938, but the contention on behalf of the appellants is that tho Bombay Act of 1938 and the Central Industrial Disputes Act, 1947 both covered the same field of industrial disputes, and consequently, it should be held that the Bombay Act of 1938 became void on the ground of repugnancy with the Industrial Disputes Act, 1947 under sul>-s. (1) of section 107 of the Government of India Act, 1935.

It was urged that the Bombay Act of 1938 as well as the Industrial Disputes Act, 1947 were both enacted under the power conferred on

MILLOWNERS' ASSCN. v. I. G, THAKORE (Bhargaia, I.) 445

the Bombay Legislature and the Central Legislature under item 29 of Part II of the Concurrent List Ill of the Seventh Schedule to the Government of India Act, 1935. The principle relied upon by the appellants is that, if two pieces of legislation cover the same field and each one of them contains a complete code making detailed provision for all aspects of the subject-matter of the legislation, repugnancy must be held to arise, even though one Act may not, in terms, repeal the other and may not correspond section by section with the other. For this principle, reliance was placed on the tests enumerated by Nicholas in his Australian Constitution, 2nd Edition, p. 303, to determine inconsistency or repugnancy between a State law and a Commonwealth law in Australia. The three tests were enumerated as follows:-

"(I) There may be inconsistency in the actual terms of the competing statutes;

(2) Though there may be no direct conflict, a Sate law may be inoperative because the Commonwealth law, D or the award of the Commonwealth Court, is intended to be a complete exhaustive code; and

(3) Even in . the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers-over the same subject matter."

.P,. ..

Thfa; riciple was.dduced from the decisions in Ex Parte McLean(!) and the Staie of • Victoria and Others v. The Commonwealth of Australia and Others(2). Reliance was also placed on decisions of this Court in Zl!verbhai Amaidas v. The State of Bombay('), Ch. Tika Ramji & Ors. v. The state of Uttar Pradesh & Ors.(4) and Deep Chand

v. The State of Uttar Pradesh and Others('). In the last of these cases; after quoting from Nicholas, this Court held: 'Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:-

(I) Whether there is direct conflict between the two provisions;

(2) Whether earliament intended to lay down an exhaustive1:odein respect of the subject matter replacing the Act of the State Legislature; and

(3) Whether the law made by Parliament and the aw made by the State Legislature occupy the same field."

(I) 43 C.L.R. 472.

(2) 58 C.L.R. 618.

(3) (1955) 1 $.C.R. 799 .

(4) (1956) S. C.R. 393.

(~) [1959) Supp. 2 S.C.R. 8.

446 SUPUMI oouaT UPO&TS

(1967) 2 S.C.P..

Relying on these principles, it has been urged that the Industrial Disputes Act, 1947 intended to lay down an exhaustive code in respect of settlement of all industrial disputes, and since the Bombay Act of 1938 was also on the same subject, it must be pnisumcd that the two statutes are repugnant, so that the Bombay Act of 1938 became void with effect from 1st April, 1947 when the Industrial Disputes Act, 1947 came into force. It has, however, been rightly pointed out by the High Court in the judgment under appeal that the Bombay Act of 1938 did not confine itself entirely to the subject of settlement of industrial disputes. Chapter V of that Act, containing sections 26 to 33 deals with a matter which is not covered by the Industrial Disputes Act, 1947 at all. These sections of the Bombay Act of 1938 lay down the procedure for prescribing Standing Orders regulating the relations between an employer and his employees, and for making changes therein. The prescribing of the Standing Orders and making of changes in them may not involve any industrial dispute at all.

In fact, at the first stage, when Standing Orders are prescribed. no question would arise of any industrial dispute requiring settlement. The Industrial Disputes Act, 1947, did not contain any provisions at all dealing with this subject of prescribing Standing Orders and making changes therein. ConS\.· quently, e; ven if the submission made on behalf of the appellants be accepted that the Industrial Disputes Act, 1947, is an exhaustive code dealing with the question of settlement of industrial disputes, only those provisions of the Bombay Act of 1938 can be held to be repugnant and void on account of the repuenancy which also dealt with the same subject matter of settlement ef industrial disputes.

The provisions contained in Chapter V of that Act, which had nothing to do with settlement of industrial disputes, could not, therefore, be affected by the enactment of the Industrial Disputes Act, 1947, and hence, the enforcement of the Industrial Disputes Act, 1947 did not in any way affect the applicability of the provisions of Chapter V of the Bombay Act of 1938 to the industry run by the appellants. To the extent that Bombay Act of 1938 contained these provisions in Chapter V, that Act, therefore, continued in force and also continued to apply to the industries now in question. It was also urged that the Industrial Disputes Act, 1947 did not, similarly, make any provision for arbitration of indastrial disputes and, consequently, the provisions of the Bombay Act of 1938, relating to arbitration of industrial disputes, could not be held to have become invalid. It is not necessary to examine this further question in view of our decision that at least the provisions of Chapter V of the Bombay Act of 1938 continued in force. That Act did not stand repealed as a whole; at best, only a part of that Act can be held to have ceased to be effective because of the repugnancy with the Industrial Disputes Act, 194 7.

But, while another part of that Act continued to be in force, the Bombay Act of 1938 also continued to be applicable to the cotton industry in Ahmedabad

G .

MILLOWNBRS' ASSCN. v. I. G. THAKOlU! (Bhargava, I.) 447"

with which we are concerned. When the Bombay Industrial Relations Act, 1946 came into force on 29th September, 1947, therefore, the Bombay Act of 1938 was applicable to these industries, and consequently, under sub-s. (3) of section 2 of the Act, the Act became applicable to the industry of the appellants and did not require a notification under sub-s. ( 4) of s. 2 to make it applicable. This point was also therefore, rightly decided against the appellants, and the judgment of the High Court must be upheld.

The appeal is, therefore, dismissed with costs.

G.C.

Appeal dismissed.

AHMEDABAD MILLOWNERS' ASSOCIATION & ANR

I. G. THAKORE, PRESIDENT & ORS

January 20, 1967

V. BHARGAVA

G. K. MITTER, JJ

Bombay Industrial Relations Act 1946

s. 2(3)

Industrial Disputes Act, 1947

Constitution of India

Art 14

s. 13A

Art. 14

Ahmedabad Millowners' Association

s. 73A

Bombay Industrial Relations Act, 1946

Millownen

s. 73A

Art. 14

Ahmedabad

s. 2( 4)

s. 2(3)

Bombay Industrial Disputes Act, 1938

Industrial Disputea Act, 1947

Section 73A

Art. 14

s. 66

s. 66

s. 73A

s. 73A

s. 66

s. 2(3)

Bombay Industrial Relatiom Act 1947

s. 2(4)

v.

The State o/ Uttar Pradesh & Ors., [

QVIL APPELLATE JURISDICTION

S. T. Desai

P. B. Patwari

0. C. Mathur

H. R. Gokha

S. P. Nayyar

R.H. Dhebar

Bbugava

Ahmedabad Millowners Association

Ahmedac

D Nagri Mills Ltd.

Bombay Act XI of 1947

clause 6

Schedule I of the Act

clause 6

First Schedule

Schedule I

Schedule II

Schedule I

Schedule I

21st April, 1961

s. 42(2)

23rd June, 1961

29th July, 1961

section 73A

s. 73A

Article 14

s. 2(4)

s. 2(3)

Bombay Industrial Disputes Act, 1938

Articles 226 and 227

High Court of Gujarat

Art. 14

Section 73A

s. 73A

s. 12

s. 73A

section 73A

s. 23

s. 73A

Section 66

s. 58

s. 42

Schedule II

s. 42

Schedule I

s. 42

s. 73A

s. 73A

s. 66

s. 23(1)(v)

s. 73A

s. 66

s. 66

s. 66

s. 73A

sections 72

sections 72 and 73

s. 58(5)

s. 73A

s. 66

s. 66

s. 66

s. 73A

s. 66(2)

s. 68

s. 92

s. 92

s. 92

s. 72

s. 73A

s. 66(2)

Section 68

s. 66

s. 72

s. 73

s. 73A

s. 66(2)

s. 73A

Industrial Court Regulations, 1947

s. 66

s. 87

s. 87

s. 66

sections 71, 72, 73

s. 66

s. 73A

s. 2

s. 2

Bombay Industrial Disputes Act, 1938

Bombay

Central Government

Industrial Disputes Act

17th March, 1947

April I, 1947

Central Industrial Disputes Act, 1947

Industrial Disputes Act, 1947

section 107

Government of India Act, 1935

Industrial Disputes Act, 1947

Nicholas

Australia

Parliament

Industrial Disputes Act, 1947

1st April, 1947

Industrial Disputes Act, 1947

Chapter V of that Act

sections 26 to 33

Industrial Disputes Act, 1947

These sections of the Bombay Act

Industrial Disputes Act, 1947

Industrial Disputes Act, 1947

Industrial Disputes Act, 1947

Industrial Disputes Act, 1947

Chapter V of the Bombay Act

To the extent that Bombay Act

Industrial Disputes Act

29th September, 1947

section 2

s. 2


V ALLIAMMAI ACHI A

NAGAPPA CHE'ITIAR & ORS.

January 23, 1967

{K. N. WANCHOO, R. S. BACHAWAT AND J. M. SHELAT, JJ.] ll

Hhrilll Law-Joint family property bequeathed by will-Effect on character of property.

Indian Succession A.ct, (39 of 1925) s. lS~Scope of el!ction under.

A Hindu died after making 4 will in respect of certain joint family properties and appointed bis son as the executor. The son obtllioed proc balo of the will, provided for the legacies indicated therein and came into possessiOn of the residue of the property.

Thereafter, be adopted the plaiotl1f. The adoptive father died after Ute Hindu Succession Act came iolo force and the plaintiff filed the suit claiming two-thirds share of the properties left by his father. The defendants (viz .. the widow and mother of ihtitr's adoptive father) contended that the conduct of the plaintiff's ve father in obtaining the probate of the will and carrying out ill terms amounted to 1111 election and therefore the father became absolute D owner of the residue of the properties bequeathed ro him by the will, ar.d as the election to take under the will would bind the plaintiff also he could not claim half the property on the ground that it was joint family property of himself and his father.

The trial Court decreed the suit, which in appeal was upheld by the High Court. The defendants appealed to this Coun.

HELD: The appeal must be dismissed.

The character of the property did not change because of the will and it would still be joint family property in the hands of the plaintiff's father as far as his male issue was concerned.

Further, as soon as the plaintiff was adopted be acquired interest in the joint family property in the bands of his adoptive father and this interest of his was independent of that of his father.

In such circumstllnces even if his father could be said to have made an election there could be no question of the plaintiff being bound F by that election, for he was not claiming through his father. [453 C, E-Fl

Election under s. 180 of the Indian Succession Ac~ would only arise where the legatee derives some benefit from the will to which be would not be entitled except for the will.

In such a case he has to elect whether to confirm the will or dllsent from it. But where there is no question of the legatee deriving <1ny benefit from the will to which he would not be entitled except for the will the fact that be confirm5 the will and accepts G what the will provides would not amount to election, for he would have in any case got what the will gave him. Thus election only arises where the legatee has to choose between his own property which might have been testator and which the testator has given to the legatee by the will. [451

H-452 C]

CIVIL APPELlATE JURISDICTIO:'ol: Civil Appeal No. 806 of 1964.

Appeal by special leave from the judgment and decree dated JulY 13, 1962, of the Madras High Court in Appeal No. 347 of

1958.

C. B. Agarwala, B. Dutta, T. S. Kris/111aswamy lyeng.tr, P. L.

Meyyappan and J. B. Dadachanji, for the appellant.

A. K. Sen and R. Ganapathy Iyer, for respondent No. I.

K. R. Chaudhuri and K. Rajendra Chaudhury, for rc; po.ndent No. 2.

The Judgment of the Court was delivered by

Wattchoo, J. This is an appeal by special leave against te judgment of the Madras l; figh Court. The facts. are not now m dispute and may be bnefly narra.ted. A smt was brought by Nagappa Chettiar, respondent No. I (hereinafter referred to as the respondent) against Villiammi Achi appellant and Nachiammai Achi now dead and represented by her legal representative.

The respondent claimed two-thirds share of the properties left by his father, Pallaniappa and prayed for a decree for separate possession of that share after partition. The facts on which this claim was based are not now in dispute and are these.

The respondent is the adopted son of i>allaniappa having been adopted in 1941. The appellant is the widow of Pallaniappa and Nachiammai Achi was Pallaniappa's mother. Pallaniappa's father also named Nagappa had considerable properties. This Nagappa made a will on June IO, 1934 by which after making certain dispositions in favour of certain persons including his own wife he gave the residue of his property absolutely to Pallaniappa and appointed him as the executor of the will. In one place the will stated that all the property e1:cept a small part was the exclusive and self-acquired property of the testator while at the end the testator said that he had made the will with the full consent of his son Pallaniappa After Nagappa's death in July 1934 Pallaniappa obtained probate of the will and after providing for the legacies to others as indicated therein came into possession of the residue of the property. In.

1941 the respondent was adopted by Pallaniappa.

In the trial court there was a dispute between the parties whether Pallaniappa and his father were members of a joint Hindu family a'ld whether properties left by Pallaniappa's father were the joint family properties of both. But it has been found that all the properties left by Pallaniappa's father were joint family properties of Pallaniappa and his father which Pallaniappa could acquire by survivorship on his father's death. This finding was upheld by the High Court and is. not now in dispute. We have to proceed on the basis that even though Pallaniappa's father said in the will that the properties, except a small part, were his self-acquired prnperties . ip. fact all te. propees mentioned in the will of Pallaniappa'; father were JOtnt fanuly properties of Pallamappa and his father.

The case the appellant was ~3:t even t):iough the properties. left by Pallamappa's father were JOtnt family properties which MlSup.CI/67-15

SUPlllllll OOUIT lllPtJITS (1967] 2 S.CJl.

Pallaniappa could acquire hy survivorship. the conduct of Pallaniappa iiJ obtaining prohate of the will and carrying out its terms amounted to election and thereafter l'allaniappa hecame bsolule owner of the residue of the propertic:s bequeathed to him by th~ will. The consequence of this was that when Pallaniappa adopted the respondent in 1941 long after he had hecome the absolute owner of tbe properties. the respondent acquired no interest in the properties left by his grand-father by virtue of the adoption. Pallaniappa died on September 16. 1956 after the Hindu Succession Act, (No.

30 of 1956) came into ; orce.

As there was no joint family property of Pallaniappa and the respondent at the time of Pallaniappa's death. the respondent could not claim half the property on the ground that it was joint family property of himself and Pallaniappa, as Pallaniappa's elec'tion to take under the will of his father would bind the respondent also.

Reliance in this connection was placed on s. 180 of the Indian Succession Act, (No. 39 of 1925) also.

The reply on hehalf of the respondent to this contention was l wo-fold.

In the first placc.'it was urged that there was no question -0f election even by Pallaniappa in this case and s. 180 of the Indian Succession Act would not apply. It was further urged that even

suming that there could be election by Pallaniappa the respondent would not be bound by that election as the property left by his grand-father was joint family property and the respondent would acquire interest therein as soon as he was adopted by Pallaniappa, even though Pallaniappa might have been the sole co-parccner for sometime i.e. between 1934 and 1941. This interest of the respondent in the joint family property was independent of his father Pallaniappa and even though Pallaniappa might be bound by any election that he might have made the respondent would not be so bound and would he entitled to treat the property as joint family property in the hands of Pallaniappa in which he would acquiro interest on being adopted.

In the second place the respondent's case was that in any case after his adoption Pallaniappa threw the entire property into the family hotch-pot and therefore it became joint family properly hy blending.

Two questions therefore arose for consideration in this case namely-{i) whether there was election by Pallaniappa and if so whether the respondent would be bound by it, and (ii) whether Pallaniappa threw the entire property into the family botch-pot after adoption of the respondent and therefore it became joint fall'ily property in any case. The trial court accepted the case put forward on behalf of the respondent and decreed the suit passing a preliminary decree giving two-thirds share to the respondent and one-sixth each to the appellant and the mother of Pallaniappa.

The appellant then appealed to the High Court. The High C.ourt dismissed the appeal. On the question of election, the

High Court held that as Pallaniappa and his father were members of a joint Hindu family and as the entire property left by Pallaniappa's father was joint family' property, Pitllaniappa had interest in the residue as a survivor and in consequence there was no question of election by Pallaniappa for all the property he got by will would have come to him by survivorship. In such a case there could be no question of election, for Pallaniappa had title to the property irrespective of the will. The High Court also held that in any case the claim of the respondent as a member of the joint family was not under his father but independent of him and therefore the respondent would not be bound, even if Pallaniappa were held to have made an election. The High Court also found in favour of the respondent on the question whether the property was thrown into family botch-pot after the adoption of the respondent and in the result dismissed the appeal.

The High Court having refused to grant a certificate to appeal to this Court, the appellant applied for and obtained special leave from this Court; and that is how the matter has come before us.

The same two questions, as indicated above. arise for consideration in this appeal. We shall filst consic!e1 :he question of election in the background of the fact that the entire pr:>perty left by Pallaniappa's father was joint family property of himself and Pallaniappa and that Pallaniappa had interest in . that property as a member of a joint Hindu family. Section 180 of the Indian Succession Act which enunciates the doctrine of election as known to English law for this country is in these terms :

"Where r person, by his will professes to dispose of something which he has no right to dispose .of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will."

It is urged on behalf of the appellant that s. 180 would apply to the facts of the present case for the property willed by Pallaniapp" 's father was not his which he could will away as it was joint family property in which Pallaniappa who was the residuary legat•e had also equal interest. Therefore Pallaniappa had either to confirm the disposition or dissent from it, and his conduct showed that he had confirmed it for he took out probate. Therefore it must be held that after probate was taken out the residue became the absolute property of Pallaniappa and lost its character as joint Hindu family '.)roperty.

Now it is clear from s. 180 that after the legatee elects to dissent from the will he must give up any benefits provided for him by' the will. This shows that election under s. 180 would only arise

51JPRBME COURT REPORTS

[ 1967] 2 S.C.R.

where the Jega1ce derives some benefit from the will to which he would not be entitled except for the will.

In such a case he has to elect whether to confirm the will or dissent from it.

But where there is no question of the legatee deriving any benefit from the will to which he would not be entitled except for the will, the fact that he confirms the will and accepts what the will provides would not amount to election, for he would have in any case got what the will gave him.

Thus election only arises where the legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by the will.

The matter is brought out in Halsbury's Laws of England, Third Edition, Vol. 14, at p. 588, para 1091 in the following words :-

"Where a testator by hfs will purports to give property to A which in fact belongs to B and at the same time out of his own property confers benefits on B .... in such circumstances ... B is not allowed.to take th~ full benefit given him by the will unle~ he is prepared to carry into effect the whole of the testator's dispositions.

He is accordingly put to his election to take either under the instrument or against it. If he ele.:ts to take under the will he is bound and may be ordered to convey his own property to A; if he elects to take against the will and to keep his own property, and so disappoints A, then he cannot take any benefits under te will without compensating A out of such benefits to the extent of the value of the property of which A is disappointed."

Following this principle the High Court held that as the P• operty which the will gave to Pallaniappa would in any case have come to him as a member of the joint family, there was no question of election even by Pallaniappa in this case. This view appears to us to be correct.

But even assuming that there was some kind of ele.:tion by Pallaniappa we cannot see how the nature of Jhe property left by Pallaniappa's father would change merely because Pallaniappa's father made a will giving the residue absolutely to pallaniappa and Pallaniappa took out probate of the will.

The property being joint family property Pallaniappa's father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa.

A fathe{ cannot turn joint family property into absolute property of his son by merely making a will, thus depriving sons of the son who might be born thereafter of their right in the joint family property.

It is well settled that the share which a co-sharer ohtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether

VALLIAMMA! v. NAGAPPA (Wanclwo, I.) 453

they arc in existence at the time of partition or are born subsequently : [see Hindu Law by Mulla, Thirteenth Edition p. 249, para 223 (2) (4)1. If that is so and the character of the ancestral property does not change so far as sons are concerned eveQ after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the B joint family property (after making certain bequests) to the son.

A father in a Mitakshara family has a very limited right to make a will and Pallaniappa's father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are therefore of opinion that merely because Pallanappa's father made the will and P'!llaniappa probably as a dutiful son took 011t probate and carried out th~ wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues are concerned.

Further it is equally well settled that under the Mitakshara law each son upon his birth taxes an interest equal to that of his father in ancestral property, whether it be movable or immovable.

It is very important to note that the right which the son takes at his birth in the ancestral property is wholly indepenc!ent of his father.

He does not claim through the father .... " (see Mulla's Hindu Law, Thirteenth Edition, p. 251, para 224). It follows therefore that the character of the property did not change in this case because of the will of Pallaniappa's father and it would still be joint farr.ily property in the hands of Pallaniappa so far as his male issue was concerned. Further as soon as the respondent was adopted he acquired interest in the joint family property in the hands of Pallaniappa and this interest of his was independent of his father Pallaniappa. In such circumstances even if Pallaniappa could be said to have made an election there can be no question of the respondent being bound by that election, for he is not claiming through his father.

In this view of the matter, it is unnecessary to consider the question whether Pallaniappa, after the responden.'s adoption, threw the property into the family botch-pot.

The appeal therefore fails and is hereby dismissed with costs.

Y.P.

Appeals dismissed.

M1Sup.Clj67-l6

V ALLIAMMAI ACHI

A

NAGAPPA CHE'ITIAR & ORS

January 23, 1967

K. N. WANCHOO

R. S. BACHAWAT

M. SHELAT, JJ.

Hindu Succession Act

ihtitr

s. 180

CIVIL APPELlATE JURISDICTIO:'ol

Madras High Court

B. Agarwala

B. Dutta

T. S. Kris/111aswamy lyeng.tr,

P. L.

Meyyappan

J. B. Dadachanji

A. K. Sen

R. Ganapathy Iyer

K. R. Chaudhuri

K. Rajendra Chaudhury

Wattchoo

Nagappa Chettiar

Villiammi Achi

Nachiammai Achi

Pallaniappa

allaniappa

Nachiammai Achi

Nagappa

June IO, 1934

Pallamappa

September 16. 1956

Hindu Succession Act

s. 180

Indian Succession Act

s. 180

Indian Succession Act

Pitllaniappa

Section 180

Indian Succession Act

s. 180

Pallaniapp

s. 180

s. 180

51JPRBME COURT REPORTS

[ 1967] 2 S.C.R.

England

pallaniappa

Mulla

Pallanappa

P'!llaniappa


STATE OF MADHYA PRADESH & ANR.

THAKUR BHARAT SINGH January 23, 1967

[K. SUBBA RAO, C. J., J, C. SHAH, J. M. SHEi.AT, V. 8HARGAVA

AND G. K. MITreR, JJ.]

Madhya Pradesh Public Security Act, 1959, s. 3(1) (b)-Authoruln11 making of an order requiring a ptrro11 to reside 111 specified placo provuion for malnt1nance or submtence-wlrether /mp<ntd IUIJ'tarOMbl•

rutrict/Dn-Tllere/or~ whether violative of Art. 19.

Constitution of India-Art. 358-Scoge of-ugi.slatwe or .txecuti., act/Dn In/ringing rl11hts of cltliens or 01her1 taken durin11 emef(l1ncy undtr

A,... 3S2-Action without lawful authority-whether protected by Art. 358.

On April 24, 1963, tho State Government made an order under •· 3 of the Madhya Pradesh Public Security Act, 1959, directing that tho respondent (i) shall not be in any place in Raipur District, (i1) shall immediately proceed to aad reside in a named town and (iii) shall report dally tn a police station in that town. The respondent challenaed 1he order by a writ petition under Articles 226 and 227 of 1he Constitution on tho ground inter u/ia, that s. 3 infringed the fundamental rishts guaranteed under Art. 19(t ), (d) and (e) of the Comtitution.

A Single Judge of the High Court declared clauses (ii) and (iii) of the Order invalid on tlie view that clauses (b) and (c) of s. 3(1) on which they were based contravened Arr. 19. A Division Bench, in a5pea!,

confirmed the order of the Single Judge holding that s. 3(1) (b was violative of Art. 19(1) (d) and that cl>US<S (ii) and (iii) of the impur, ned order, being inerricably woven, were both invalid.

In appeal to this Court it was contended, i11ter a/i,1, on behalf of the appellant sate (i) that clause J(l)(b) did not impose an unreas.>nable restriction; (ii) that so long as the state o: emergency declared on October 20, 1962, by tl>a President under Art. 352 was in force, the respondent could not move the High CoUrt by a petition under Art. 226 of the Constitution on the plea that by the impugned order his fundamental right aranteed under Art. 19(l)(d) of the Constitution was infiingcJ; and (•ii) that even ifs. 3(l)(b) wu held to be void, Att. 358 protects legislative and e.ecutive action taken after the proclamation of emergency and therefore any executive action taken by an officer of the State coulJ not be challenged as infrin8ing Arr. 19.

HELD : The Order mae h)'. the State in exerci"' of the authority conferred bys. 3(l)(b) W8' invalid; and for the aci. done to the prejudice of the respondent after the declaration of emergency under Art 3~2 no immunity from the process of the Court could be claimed uiider Art. 358 of the Constitution, since the order was not supported by any valid legislation. [462 CJ

(i) ~.High Court was right in. oldin,1 that s. l(IJ(b) authorised the 1mpos111on of unreasonable restricttons 1n so far as it required any per5?n to. reside or remain in such place or within such area 15 may be specified m the order .. The Act does not give any opportunity to the person concerned of being heard before the place where he is ro remain

H -

ar reside 11 selected. lbe place selected may be one In which be may have no ruldenllal accommodation, and no means of subsisteni:e. S. 3 (I)

(b) does not Indicate the extent of the place or lbe area, Its distance from the residence of the pmon extemed and whelher lt may be hnbltated or lnhabltated; and lt makes no provision for his residence, maintenance or means of livelihood in the place selected. [4S8BE]

(ii) The Act was brought inlo force before the declaration of emer gency and it was therefore open to the respondent to invoke Art. 19.

If the power conferred by s. 3 (I) (b) authorised the imposition of UD• reasonable restrictions, the clause must be deemed to be void. when enacted and it was not revived when the proclamation of emergency was made by the President. [459 B-C)

(iii) All executive action which operates to the prejudice of any pen; on must have the authority of law to support it, and the terms of Art 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 3S8 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may be taken in pun; uance of lawful autharity, which if t!ie provisions of Art. 19 were operative would have been invalid. [459 FJ

There was no force in the contention that by virtue of the provisions of Art. 162, the State or its officers may, in exercise of executive authority,

withou~ a >y legislation in suppart thereof infringe the rights of citizens merely because the LegMature of the State bas the power to legislate in regard to the subject on which the executive order is issued. [462 BJ

Ra/ Sahib Ram lawaya Kapur v. The State of Punjab [1955] 2 S.C.R. 22S, distinguished:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1066 of 1965.

Appeal from the judgment and order dated December 4, 1963 of the Madhya Pradesh High Court in Letters Patent Appeal No. 28 of 1963.

B. Sen, and /. N. Shroff, for the appellants.

The respondent did not appear.

The Judgment of the Court was delivered by

Shah, J. On April 24, 1963, the State of Madhya Pradesh made an order in exercise of powers conferred by s. 3 of the Madhya Pradesh Public Security Act, 1959-hereinafter called 'the act'- directing the respondent Thakur Bharat Singh-

(i) "that he shall not be in any place in the Raipur district;

(ii) "that he shall reside in the municipal limits of Jhabua town, district Jhabua, Madhya Pradesh, and shall proceed there immediately on the receipt of this

prder; and

456 SUPIU!MB COURT llBPOllTS

[1967] 2 3.C.R

(iii) that he shall notify his movements and report himself

personally every day at 8 a.m. and 8 p.m. to the Police Station Officer, Jhabua."

The respondent moved a petition in the High Court of Madhya Pradesh under Arts. 226 & 227 of the Constitution challenging the order on the grounds, inter alia, that ss. 3 & 6 and other provisions of the Act which autho11sed imp0sition of restrictions on movements and actions of person were 1:/tra vires in that they infringed the fundamental freedoms guaranteed under Art. 19(1)

(d) & {e) of the Constitution of India and that the order was "discriminatory, illegal and violated principles of natural justice." Shivdayal, J., declared cl. {i) of the order valid, and declared els.

(ii) and (iii) invalid.

In the view of the learned Judge the provisions of s. 3(1)(a) of the Act were valid and therefore the directions contained in cl. (i) of the order could lawfully be made by the State, but els. (b) & (c) of s. 3(1) of the Act were invalid because they contravened the fundamental freedom of movement guaranteed under Art. 19 of the Constitution, and therefore the directions contained in els. (ii) & (iii) of the order were invalid. Against the order passed by Shivdayal, J., two appeals were filed under the Letters Patent of the High Court. A Division Bench of the High Court held that els. (a) & (c) of s. 3(1) of the Act were valid, but in their view cl. {b) of s. 3(1) was not valid because it violated the fundamental guarantee under Art. 19(1) (d) of the Constitution.

The High Court however confirmed the order of Shivdayal, J., since in their view the direction contained in cl. (iii) of. the order was "inextricably woven" with the directions in cl. (ii) and was on that account invalid. Against the order of the High Court, the State of Madhya Pradesh has appealed to this Court.

The relevant provisions of the Act may be briefly set out.

Section 3 of the Act provides :

(1) "If the State Government or a District Magistrate is satisfied with respect to any person that he is acting or is likely to act in a manner prejudicial to the security of the State or to the maintenance of public order, and that, in order to prevent him from so acting it is necessary in the interests of the general public to mak~ an order under this section, the State Government or the District Magistrate, as the case may be, may make an order-

(a) directing that, except in so far as he may be permitted by the provisions of the order, or by such authority or persons as may be specified therein, he shall not be in any such area or place in Madhya Pradesh as may be specified in the order;

c ...

H ...

I!'

(b) requiring him to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the order and if he is not already there to proceed to that place or area within such time as may be specified in the order ;

(c) requiring him to notify his movements or to report himself or both to notify his movements and report himself in such manner, at such times and to such authority or person, as may be specified in the order ;

( d) imposing upon him such restrictions as may be specified in the order, in respect of his association or communication with such persons as may be mentioned in the order ;

(e) prohibiting or restricting the possession or use by him of any such article or articles as may be specified in the order.

(2)

(3) .. --;4':- -

( 4) If any person is found in any area or place in contravention of a restriction order or fails to leave any area or place in accordance with the requirements of such an order, then, without prejudice to the provisions of sub-section (5), he may be removed from such area or place by any police officer.

(5) If any person contravenes the provisions of any restriction order, he shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."

Section 4 authorises the State to revoke or modify "the restriction order", and s. 5 authorises the State to suspend operation of the "restriction order" unconditionally or upon such conditions as it deems fit and as are accepted by the person against whom the order is made. Section 6 requires the State tO disclose the grounds of the "restriction order''. Section 8 provides that in every case where a "restriction order" has been made, the State Government shall within thirty days from the date of the order place before the Advisory Council a copy thereof together with the grounds on which it has been made and such other particulars as have a bearing on the matter and the representation, if any, made by the j:ti:rson affected by such order. Section 9 provides for the procedure of the Advisory Council, and s. 10 requires the State to confirm; modify or cancel the "restriction order" in accordance with the opinion of the Advisory Council.

l 5S SUPlllMB 00\IRT lllPOl\TS

[1967] 2 S C.R.

By cl. (ii) of the order the respondent was required to reside within the municipal limits of Jhabua town after proceeding to that place on receipt of the order. Under cl. (b) of s. 3(1) the Stnte is authorised to order a person to reside in the place where he is ordinarily residing and also to require him to go to any other area or 'place within the State and stly in that area or place. If the person so ordered fails to carry out the direction, he may be removed to the area or place designated and may also be punished with imprisonment for a tem1 which may extend to one year, or with fine, or with both. The Act it may be noticed does not give any opportunity to the person concerned of being heard before the place where he is to reside or remain in is selected. The place selected may be one in which the person concerned may have no residential accommodation. and no means of subsistence. 1 t may not be possible for the person concerned to honestly secure the mans of subsistence in the place selected.

Sub-section 3(l)(b) of the Act does not indicate the extent of the place or the area, its distance from the residence of the person externed and whether it may be habitated or inhabitated: the clause also no where provides that the person directed to be removed shall be provided with residence, maintenance or means of livelihood in the place selected.

In the circumstances we agree with the High Court that cl. (b) authorised the imposition of unreasonable restrictions insofar as it required any person to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the order.

Counsel for the State did not challenge the view that the restrictions which may be imposed under cl. (b) of s. 3(1) requiring a person to leave his hearth, home and place of business and live and remain in another place wholly unfamiliar to him may operate seriously to his prejudice, and may on that account be unreasonable.

But he contended that normally in exercise of the power under cl.

(b) a person would be ordered to remain in the town or village where he resides and there is nothing unreasonable in the order of the State restricting the movements of a person to the town or place where he is ordinarily residing. It is true that under cl.

(b) an order requiring a person to reside or remain in a place where he is ordinarily residing may be passed. But in exercise of the power it it also open to. the State to direct a person to leave the place of his ordinary residence and to go to another place selected by the authorities and to reside and remain in that place. Since the clause is not severable, it must be struck down in its entirety as unreasonable. If it is intended to restrict the movements of a person and to maintain supervision over him, orders may appropriately be made under els. (c) and (d) of s. 3(1) of the Act.

Counsel for the State urged that in any event so long as the State of emergency declared on October 20, 1962, by the President

M. P. STATI! v. BHARAT SINGH (Shah,!.) 459

under Art. 352 was not withdrawn or revoked, the respondent could not move the High Court by a petition under Art. 226 of the Constitution on the plea that by the impugned order his funda mental right guaranteed under Art. 19(1 )( d) of the Constitution was infringed. But the Act was brought into force before the declaration of the emergency by the President. If the power co11. fcrred by s. 3(1)(b) authorised the imposition of unreasonable res trictions, the clause must be deemed to be void, for Art. 13(2) of the Constitution prohibits the State from making any law which takes away or, abridges the rights conferred by Part IIJ, and laws made in contravention of Art. 13(2) are to the extent of the contra vcntion void. Section 3(l)(b) was therefore void when enacted and was not revived when the proclamation of emergency was made by the President. Article 338 which suspends the provisions of Art. 19 during an emergency declared by the President under Art. 352 is in terms prospective: after the proclamation of emergency n'.}thing in Art. 19 restricts the power of the State to make laws or to take any executive action which the State but for the provi sions contained in Part III was competent to make or take. Article 358 however does not operate to validate a legislative provision which was invalid because of the constitutional inhibition before the proclamation of emergency. Coifnsel for the State while con

eding that if s. 3(l)(b) was, because it infringed the fundamental freedom of citizens, void before the proclamation of emergency, and that it was not revived by the proclamation, submitted that Art. 35.8 protects action both legislative and executive taken after proclamation of emergency and therefore any executive action taken by an officer of the State or by the State will not be liable to be challenged on the ground that it infringes the fundamental freedoms under Art. 19. In our judgment, this argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have the authority of Jaw to support it, and the terms of Art. 358 do not detract from that rule. Article

358. expressly authorises the State to take legislative or executive action provided such action wa~ competent for the State to make or.take, but for the provisions contained in Part Ill of the Constitution. Article 358 does not purport to invest the State with ar bitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws -may be enacted, and executive ac'.ion may be taken in pursuance of lawful authority, which if the provisions of Art. 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles : (I) the sovereignty of the people with limited Government authority i.e. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have ben confer-

460 SUPRBMI! COUllT UPOR.TS

red upon them by the people ; (2) There is distribution of powers between the three organs of the State-legislative, executive and judicial-each organ having some check direct or indirect on the other ; and (3) the rule of law which includes judicial review of arbitrary executive actions. As pointed out by Dicey in his "Introduction to the study of the Law of the Constitution", 10th &In., at p. 202 the expression "rule of law" has three meanings, or may be regarded from three different points or view. "It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretio11ary authority on the part of the government." At p. 188 Dicey points out :

"In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the government in England : and a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects."

We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails. Every Act done by the Government or by its officers n.ust, if it is to operate to the prejudice of any person, be supported by soc-..e legislative authority.

Counsel for the State relied upon the terms of Art. 162 of the Constitution, and the decision of this Court in Rai Sahib Ram Jmraya Kapur v. The State of Punjab<.') in support of the et.ntention that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate on the subject in respect of which action is taken. Article 162 provides that subject to the provisions of the Constitution, the executive power of a State sh~Jl extend to the matters with respect to which the Legislature of the State has power to make laws.

But Art. 162 and Art. 73 are concerned primarily with the distribution of executive power between the Union on the one hand and the States on the other, and nm with the validity of its exercise. Counsel for the State however strongly relied upon the

observation~ of M ukherjea, C. J., in Roi Sahib Ram Jawaya Kapur 's case( 1) : ----

(11 [ 1955 J 2 S.C.R. 225.

M. P. STATE V. B-aARAT SINGH (Shah, J.) 461

"They do not mean, · · that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand: the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legisfate and are not confined to matters over which legislation has been passed already."

These observations must be read in the light of the facts of the case.. The executive action which was upheld in that case was, it is true, not supported by legislation, but it did not operate to the prejudice of any citizen. In the State of Punjab prior to 1950 the text-books used in recognized schools were prepared by private publishers and they were submitted for approval of the Government. In 1950 the State Government published text books in certain subjects, and in other subjects the State Government approved text-books submitted by publishers and authors. In 1952 a notification was issued by the Government inviting only "authors and others" to submit text-books for approval by the Government. Under agreements with the authors and others the copyright in the tet-books vested absolutely in the State and the authors and others received royalty on the sale of those text-books. The petitioners-a firm carrying on the business of preparing, printing, publishing and selling text booksthen moved this Court under Art. 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdn.w the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guaranteed under the Ccnstitution. It was held by this Court that the action of the Government did not amount to infraction of the guarantee under Art. 19(l)(g) of the Constitution, since no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government done in furtherance of their policy of nationalisation of text-books for students. It is trur that the dispute arose before the Constitution (Seventh Amendment) Act, 1956, amending, inter alia, Art. 298, was enacted, and thre was no legislation authorising the State Government to enter the field of business of printing, publishing and selling text-book~. It was contended in support of the petition in Rai Sahib Ram Jawaya's case(') that without legislative authority the Government of the State could not enter the business of printing, publishing and selling text-books. The Court held that by the action of the Government no rights of the petitioners were infringed, since a mere chance or prospect of having particular customers cannot be said to a be

0) [!955] 2 S.C.R. 225 .

462 SUPllEMB COU1T IBPOITS

(1967) 2 S.C.R.

tight to property or to any interest or undertaking. It is clear that the State of Punjab had done no act which infringed a right of any citiz.en: the State had merely entered upon a trading venture.

By entering into competition with the citizens, it did not infringe their rights. Viewed in the light of these facts the observatipns relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citiz.ens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issued.

We are therefore of the view that the order made by the State in exercise of the authority conferred by s. 3(J)(b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts done to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under Art. 358 of the Constitution, since the order was not supported by any valid legislation.

The appeal therefore fails and is dismissed.

R.K.P.S.

Appeal dismissed.

STATE OF MADHYA PRADESH & ANR

THAKUR BHARAT SINGH

January 23, 1967

K. SUBBA RAO

C. SHAH, J.

s. 3(1)

Art. 19

Constitution of India

Art. 358

Art. 358

Raipur District

Articles 226 and 227

s. 3

Art. 19(t )

s. 3(1)

s. 3(1)

Art. 19(1)

October 20, 1962

Art. 352

Art. 226

Art. 19(l)(d)

Art 3

Art. 358

S. 3

Art. 19

s. 3

Art 358

Article 358

Article 3S

Art. 19

Art. 162

[1955] 2 S.C.R. 22

Madhya Pradesh High Court

B. Sen

N. Shroff

Shah

April 24, 1963

State of Madhya Pradesh

s. 3

Thakur Bharat Singh-

Raipur district

Jhabua

High Court of Madhya Pradesh

Arts. 226 & 227

ss. 3 & 6

Art. 19(1)

Constitution of India

Shivdayal

s. 3(1)(a)

s. 3(1)

Art. 19

s. 3(1)

s. 3(1)

Art. 19(1)

Section 3

Madhya Pradesh

Section 4

s. 5

Section 6

Section 8

Section 9

s. 10

Jhabua town

s. 3(1)

section 3(l)(b)

s. 3(1)

s. 3(1)

Art. 352

Art. 226

Art. 19(1 )( d)

s. 3(1)(b)

Art. 13(2)

Art. 13(2)

Section 3(l)(b)

Article 338

Art. 19

Art. 352

Art. 19

Article 358

s. 3(l)(b)

Art. 35

Art. 19

Art. 358

Article

358

Article 358

Art. 19

Dicey

England

Art. 162

Article 162

Art. 162

Art. 73

M ukherjea

Roi Sahib Ram Jawaya Kapur

Parliament

article 162

Punjab

Art. 32

Art. 19(l)(g)

Art. 298

Rai Sahib Ram Jawaya

Government of the State

State of Punjab

s. 3(J)(b)

Art. 352

Art. 358