MOTJLAL JAIN

STATE OF BIHAR .t ORS.

March 27, 1968 (1. C. SHAH, S. M. Soou, R. S. BACllAWAT, G. K. MITTER,

C. A. VAIDIALINGAM AND K. S. HEGDE, 11.]

Preventive Detention Acl (4 of 1950), sa. 3(l)(a)(li/) and 4- Se.veral grount!s in order of detention--Some vague and non-exi.rtent- WMther order can be sustained,

 C The appellant-a partner in a grocery shop, was detained under s. 3(l)(a)(iii) and s. 4 of the Preventive Detenfion Act for indulgiDg in black-marketing of essential COllllllodities. He was supplied with an order detailing a number of groµnds In support of his detention. In one of the arounds viz., cl. (a) of tlie order the name of the shopkeeper to whOlll the t was said to have sold match boxes and soap "at a , price higher than that fixed for these C0111modities" was not mentioned. Neither the price fixed nor, the priee at which it was said to have been sold was D mentioned.

In another round vk.,.cl. (d) of the order a sale was alleged to K who was not e><istina in the 'described locality.· On the questi0n of the validity of the order of detention, this Court,

HELD : Tho order must be set aside.

The gi'ound mentioned ill cl. (a) was .vague. The futility of making representation in respect of an unknown man and of an ified price

can easily be imagined.

There waa no OllP<'rtilllity to the ap'pellant' to l8lilfy the Advilory. that .the alleged putchaaer was a :fictitious figure or that he ls an enemy of his or that the information given by him s!Jould otherwile be not accepted. [590 c.B]

. Furth", there was nothing to show that the Government had either fixed the sale price of the commodities or it had any power to do so.

Therefore the gfoulld in cl •. (a) wils not only vague but also irrele\>ant.

The ground mentioned in cl. (d) was. non....istenL The. State's e>tplanation. that the sale was made to K of another 1ocality and dne to typographical mistake the locality . wss wrongly described wss lbat apart, the appellant could not have made any l\tation in respect of the such a new allegation against him. ·

The State's coiltention that even if the grounds .mentioned in els. {a) and (d) are if11ored, still the 'detention of the appellant could be justi&ed oa the remain~ grounds mentioned in that Order, Was wholly untenable.

The defects noticed in the two grounds 'vit, els.· (a)' and (d) w"e sufiicient io vitiate . the order o! detention impugned In . these proceedinp as it was not .possible to . hold that those grounds could not have influenced the decision of. the detaining authority.

The constitutional requil'ement that the grounds must not be vigue must be satisfied .with respect to each of the rrounds C!)inmuilii:ated to !lie perion detained snbjeq to the claim of privilege under cl. ( 6) of Art. 22 of the Constitution, and where one of the grounds mentioned is "81!\l~. even !bough other grounds are not vague lbe detention iS .nat in accordante with the procedure estalished by law ind la tbetdfdle. lllOiat [S9t .,. C.DJ.

L7,!laP.Cl/68--13 .

Dr. Ram Kris/um B//ardwr.j v, State of Delhi, [i9S3] S.C.R. 708, S//ibban Lal Saksenr. v. State of U.P. [1954] S.C.R. 418, Dwarka Dass Bhatia\'. State of Janunu and Kash1nir, (1956] S.C.R. 948 and Rameshwar Lal Pmwr.ri v. State of Bihar, [19~8] 2 S.C.R. SOS, followed,

CRIMINAL

APPELLATE JURISDICTION : Criminal Appeal No. 34 of 1968.

Appeal by special leave from the Judgment and order dated December 15, 1967 of the Patna High Court in Crl. W.J.C.

No. 92 of 1966.

M. C. Chagla, A. N. Sinha and B. P. Jha, for the appellant U. P. Singh, for respondent No. I.

The Judgment of the Court was delivered by

Hegde, J. In this appeal by special leave, the question for decision is whether the appellant's detention under sub-cl. (iii) ofcl. (a) ofsub-s. (1) ofs. 3 andofs. 4ofthePreventiveDeten tion Act, 1950, (IV of 1950 )--to be hereinafter refen-ed to as "the Act", as per order of the Governor of Bihar No. A-DE-Pur-

1501/67-6357 /G dated September 25, 1967, is unlawful.

The appellant is a partner in the grocery shop by name "Shanti Stores" in Gulab Bagh where sugar, maida, soap, match boxes, kerosene oil and other articles are sold.

He is said to have indulged in black-marketing in essential commodities. As per the order of September 27, 1967 grounds in support of the appel lant's detention were supplied. They tead as follows :-

" (a) On 10-3 1967 he sold match boxes and soap to a shopkeeper of Purnea Court compound at a price higher than that fixed for these commodities and did not grant any receipt for the same.

(b) On 15-3-1967 it transpired from one Satyanarain Prasad a shopkeeper of Purnea Bus stand, that he (Shri Motilal Jain) sold him match boxes at Rs. 11/· per gross which was Rs. 2/· higher than the price fixed.

This was also substantiated by Nagendra Ramoli, a shopkeeper of Purnea Court compound who had also been supplied match boxes at the higher rate by him (Shri Motilal Jain). ( c) On 15-4-1967 it transpired from Chandradeb Sao, Shankerlal Modi, and Sitaram Sah, all of Guiab Bagh that they got supplies of sugar and maida from him in excess of the quantity allotted to them on ration cards at a price higher than those fixed by the Government.

(d) On 7-5-1967 he sold kerosene oil to one Kishun Bhagat of Guiab Bagh at Rs. 12/ • per tin

MOT!LAL JAIN v. lllHAR (Hegde, J.)

(excluding cost of tin) which was higher than the price fixed by the Government.

(e) On 4-7-1967 he sold sugar at Rs. 2/- per kg. to Shyamsunder Poddar and Jangli Singh of Dhamdaha.

The price charged by him was much higher than the rate fixed by the Government in this regard.

(f) On 7-8-1967 it was learnt from Nathu Sah, Chanderdeb Sah, Kusumlal Sah, and Ram Rattan Sah, all of Guiab Bagh, that he (Shri Motilal Jain) indulged in black-marketing of sugar, maida, kerosene oil and other controlled commodities, to deal in which he had obtained licence.

It was further learnt from Moti Sah a worker of Guiab Bagh Navayubak Sangh that he ( Shri Motilal Jain) obtained supplies of match boxes, vegetable oil from West Bengal to sell them in black market.

Though the appellant made representation against his order of detention to the Advisory Board, the said Board did not recommend his case for release.

Thereafter he approached the High Court of Patna in Cr. W.J.C. No, 92 of 1966 under Art. 226 of the Constitution and s. 491 of the Code of Criminal Procedure for a writ or order in the nature of habeas corpus directing his release from detention.

A Bertch of that High Court consisting of the learned Chief Jutice and B. N. Jha J., refused to entertain that petition with these observations ;

"We have also gone. through the grounds stated in annexure-'B' and find that specific instances with full particulars have been given. On the basis of those instances the detaining authority. has held that the petitioner has been indulging in black-marketing of essential commodities. lt1r. Balbhadra Prasad Singh challenged .the correctness of _the facts stated in the grounds and also filed affidavits by certain persons and urged that those. allegations of facts should not be believed.

This Court in its writ jurisdiction cannot sit in sec.ond appeal and examine whether specific instances of black marketing were established by satisfactory eviderice.

"For these reasons, we are not satisfied that this is a iit case for admission. The application is accordingly dismissed."

It is against that -0rder the appellant has come up in appeal to H this Court.

Mr. Chagla, iearned counsel for the appellant, content; led that each. one of the .grounds supplied to the appellant in suPl'ort

590 SUP.RBMB OO!mT llBPOl.TS

(1968] 3 S.C.R.

of the order. of detention is either vague or non-esting, and therefore the appellant's detention is clearly illegal.

After we have heard the learned counsel for the appellant as well as thQ learned counsel for the respondents in respect of the grounds mentioned in els. (a) and (d) of the order of September 27, 1967, we did not think it necessary to examine the remaining grounds as we were of the opinion that the ground set out in

cl. (a) is vague as well as irrelevant and that set OJ, lt in cl. ( d) is non-existing, and as such the impugned order of detention cannot be sustained.

On an examination of facts set out in cl. (a) of the order, it is seen that the name of the shopkeeper to whom the J!Ppellant is said to have sold match boxes and soap "at a price higher than that fixed for these commodities" is not mentioned. Neither the price fixed nor the price at which the appellant is said to have sold the match boxes and soap is mentioned. The futility of making representation against an unknown man in respect of an unspecified price can easily be imagined. There was no opportunity to the appellant to satisfy the Advisor}' Board that the alleged purchaser is a fictitious figure or that he is an eneniy of his or that the information given by him should otherwise be not accepted.

As things stood the appellant was left to attack a shadow. He could not also make any representation as regards the alleged sale or the price at which the goods were sold excepting making a bare denial of the accusations made against him.

That is not all.

The appellant' definitely averred in his special leave application that the Government neither fixed the sale price of the match boxes or soap nor it had any power to do so. This averment is not controverted; On the other hand what was stated in reply by the respondents was that the manufacturers had fixed the retail price of those articles and the appellant could not have sold them for a price higher than that fixed by the manufacturers.

It is. not the case of the respondents that the price fixed by the manufacturers-assuming that there was any such fixation and further assuming that the appellant had sold the articles in question at a price higher than the price fixed-had any legal sanction behind it.

A notification issued by the Bihar Government on January 20, 1967 and published on March 1. 1967, in exercise of the powers conferred on it by s. 3 of the Essential Commodities Act, 1955 (10 of 1955), read with the order of the Government of India in the Ministry of Commerce nublished under notification No. S.O. 1844 dated June 18, 1966, the only provision of law on which reliance was placed by the resoondents, prescrll, es that a dealer should obtain a price list showine; the wholesale and retail nrice of the commodity nurchased bv him or obtained by him from everv manufacturer, imnorter or distributor where such prices are fixed by \he manufacturer$ and disnlav at a consnicuous part of the place where he carries on his business the price list

and stock position of the scheduled commodities specified in Schedules I and II of that Order; further he should not withhold from sale except under specified circumstances any of the commodities mentioned in Schedule II thereto. That Order empowers the State Government by order to regulate the distribution of any scheduled commodity mentioned in Sch. Il by any manufacturer, producer or distributor in such area or areas and in such manner as may be specified. It is not the case of the respondents that the aplant had contravened the aforementioned Order in any manner. Hence, the ground set out in cl. (a) of the order of September 27, 1967 is not only vague but also irrelevant.

In clause ( d) of that order it is mentioned that the appellant sold kerosene oil to one Kishun Bhagat of Gulab Bagh at Rs. 12/- per tin (excluding cost of tin) which was higher than the price fixed by the Government In his special leave application, among other things, the appellant asserted that there is no person by the name of Kishun Bhagat in Guiab {lagh. In the reply filed on behalf of the respondents that allegation is accepted as correct. The new case pleaded by the respondents is that the alleged sale was made to Kishun Bhagat of vi!lage Kishanpur, P. S. Dhamdaha, and there was typographical mistake in mentioning the name of the purchaser in the grounds supplied to the detenu. This is a curious explanation. That apart, quite clearly the appellant could not have made any representation in respect of the new allegation levelled against him. Hence the ground mentioned in

cl. ( d) must be held tci be non-existing.

It was strenuously ur~ on behalf of the respondents that even if the grounds mentioned in els. (a) and ( d) of die order of Government dated September 27, 1967 are ignored, still the detention of the appellant _can be justified on the basis of the remaining grounds mentioned in that order. We have no hesitation in rejecting this contention as being wholly .untenable. -

It must be remembered that in this case we are dealing with the_ liberty of a citizen of this country. The power given to the State under the Act is an extraordinary power. It is exercisable under special conditions and is subject io definite lirilltations. The nature of the power is such that the liberty of an individual can be deprived on the subjective satisfaction of the prescribed authority that there is sufficient cause for his detentfon. A detenu )las not the benefit of a regular trial or even an objective examination of the accusations made against him. - As observed by this Court in Dr. Ram Krishan Bhardwaj v. The State of Delhi('), preventive detention is a serious invasion of personal liberty and such

(I) [19531 S. C.R. 708.

592 SUPREME COURT llEPOllTS

( 1968) 3 S.C.R.

safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In that case this Court further laid down that under Art. 22 ( 5) of the Constitution, as interpreted by this Court, a person detained under the Act, is entitled, in addition to the right to have the ground of his detention communicated . to him, to a further right to have particulars as full and adequate as the circumstances pennit furnished to him as to enable him to make representation against the order of detention and the sufficiency of the particulars conveyed in the second communication is .a justiciable issue, the test being whether they lµ'e sufficient to enable the detained person to make representation which on being considered may give him relief. It is also laid dQwn in that decision that the constitutional requirement that the grounds must not be vague m11st be satisfied with respect to each of the grounds communicated to the person detained subject to the claim of privi- 1.ege under cl. { 6) of Art. 22 of the Constitution, and where one of the grounds mentioned is vague, even though the other grounds are not vague the detention is not in accordance with the proce, dure established by law and is therefore illegal.

The same view was reiterated by this Court in Shibban Lal Saksena v. The State of U.P.('). There it was found that out Of

the two grounds served on the deienu one was non-existent. The contention of the State that the detention of Shri Saxena should not be interfered with because one of the two grounds mentioned in the order is a gOod ground, was rejected by this Court with the observation that to say that the other ground which still remains is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute and in such cases the jlosition would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and that would vitiate the detention order as a whole.

In Dwarka Dass Bhatia v. The State of Jammu and K_ashmir('), Bhatia was ordered to be detained on the ground that

it w.as necessary to detain him with aview to preventing him from G acting in a manner prejudicial to the maintenance of supplies and services essential to the community. The said order was based ori the ground of alleged illicit smuggling by Bhatia of essential gs, .such as shatfon cloth~ zari and merc1icy to Pakistan. It was found that shaffon cloth and zari were not essential goods. It was not established that the smuggling attributed to Bhatia was .substantially only of mercury or that the smuggling as regards shaffon H cloth and zari was of an inconsequential nature. On th0se facts

(I) [195-1) S.C.R. 418. 12)

1956) S.C.R. 948.

this Court held that the order of detention was bad and must be quashed.

The subjective satisfaction of the detaining authority must be properly based on all the reasons on which it purports to be based. If some out of those reasons are found to be nonexistent or irrelevant, the court cannot predicate what the subjective satisfaction of the authority would have been on the exclusion of those reasons. To uphold the order on the remaining reasons would be to substitute the objective standards of the court for the subjective satisfaction of the authority.

The Court must, .however, be satisfied that ihe vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the authority.

In a recent case, Ramcshwar Lal Patwari v. The State of Bihar('), speaking for the Court, Hidayatullah, J. (as he then Was) observed :- ·

"The detention of a person without a trial, merely on the subjective satisfaction of an authority, however high, is a serious matter. It must requirethe closest scrutiny of the material on which the decision is formed, leaving no room for errors or at least avoidaole erroci.

The very reason that the courts do not consider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, mdicates the need for the greatest circumspection on the part of those who wield this power over others.

Since the detenu is not placed before a Magistrate and has only a right of being supplied the grounds of detention with a view to his making a representation to the Advisory Board, the grounds must not be vague or indefinite and must afford. a real "opportunity to make a representation against the detention.

Similarly, if a vital ground is shown to be non-existing so that it could not have and ought not to have played a part in the material for consideration, the Court may attach some importance to this fact."

The defects noticed in the two grounds mentioned above are sufficient to vitiate the order of detention impugned in these proceedings as it is not possible to hold that those grounds could not have. influenced the decision of the detaining authority.

Individual liberty is a cherished right, one of the most valuable fundamental rights guaranteed by our Constitution to the citizens of this country. If that right is invaded, excepting strictly in accordance with law, the aggrieved party is entitled to appeal to the judicial power of the State for relief.

We are not unaware of the fact that the ill'lerest of the society is no less important than

(I) [1968J 2 S.C.R. 505.

that of the individual. Our Constitution has made provision for safeguarding the interests of the society. Its provisions harmonise the liberty of the individual with social interest. The authorities have to act solely on the basis of those provisions. They Ciinnot deal with the liberty of the individual in a casual manner, as has been done in this case.

Such an approach does not _11dvance the true social interest.

Continued indifference to individual liberty is bound to errode the structure of our democratic sliciety.

We wish that the High Court had examined the complaint of the appellant more closely.

For the reasons mentioned above, this appeal is allowed and the order of detention impugned herein is set aside. The appellant is directed to be set at liberty forthwith.

Y.P.

Appeal allowed.

MOTJLAL JAIN

STATE OF BIHAR .t ORS

1968 (1. C. SHAH

S. M. Soou

R. S. BACllAWAT

G. K. MITTER

C. A. VAIDIALINGAM

K. S. HEGDE

s. 3(l)(a)(iii)

s. 4

Art. 22

M. C. Chagla

A. N. Sinha

B. P. Jha

U. P. Singh

Hegde

PreventiveDeten tion Act, 1950

September 25, 1967

Gulab Bagh

September 27, 1967

10-3 1967

Purnea Court

Satyanarain Prasad

Purnea Bus stand

Motilal Jain

Nagendra Ramoli

Chandradeb Sao

Shankerlal Modi

Sitaram Sah

Guiab Bagh

Kishun Bhagat

Shyamsunder Poddar

Jangli Singh

Dhamdaha

Nathu Sah

Chanderdeb Sah

Kusumlal Sah

Ram Rattan Sah

Moti Sah

Guiab Bagh Navayubak Sangh

West Bengal

High Court of Patna

Art. 226

s. 491

Code of Criminal Procedure

B. N. Jha

Balbhadra Prasad Singh

Chagla

Bihar Government

January 20, 1967

March 1. 1967

s. 3

Essential Commodities Act, 1955

Government of India

June 18, 1966

Schedule II

Guiab {lagh

P. S. Dhamdaha

Art. 22

Art. 22

Shibban Lal Saksena

Saxena

Bhatia

Pakistan

Hidayatullah


STATE OF ANDHRA PRADESH & ANR.

P. SAGAR March 27, 1968

(J. C. SHAH, V. RAMA.SWAMI AND G. K. MrrT!!ll, JJ.]

Constitution of India, Art. 15(1) and (4)-Slate preparing a ll&t of backward c/arses within the meaning of cl. ( 4 )-Claiming to have done so on advice of experts who were satl&fied-re/evant tests were appli~ Not placing any material before court to consider validity of Ii.rt which ex-facie included 'castes' and not classes-Whether court can hold such

Ust as valid.

By an order of the State Government, Andhra Pradesh, .issued on July 29, 1966, 20% of the Iola! number of seats for admission to medical colleges in the State were reserved fdr members of the backward classes described in a list prepared by the Government. This order and the list were challenged in writ petitions before the High Court on the ground that another list published by the State Govet on June 21, 1963 determining backward classes for the purpose of. Art. 15(4) of the Con- •tltlJtlon bad been declared invalid by the High Court in an earlier c:aae as being violative of Art. 15(1); it was contended that the State Govemment had adopted substantially the &anlO list of backward claases with slight modifications and as the new list also made the reservation in fainur of castes and not clasoes, it infringed the guarantee under Art. 15(1). On behalf of the State Government it. was urged that cute is one of the relevant tests in determining backwafdness, and cannot be ig nored in determining socially and educationally backward clas"'5 and if a group bas been classified as backward on other relevont considerations, the classification is not liable to be challenged as invalid on the ground that for the purpose of classifying, the 00.ignation of caste is . siven. It was stated in an affidavit on behalf of the State that the new list had been prepared by a Cabinet sub-committee and approved by the Cabinet after a detailed enquiry of the conditions of tho castes in qµestiQD and on expert advice of the Director of Social Welfare as well as under tho guidance of the Law Secretary; and that they were both satisfied that the correct tests were applied in the determination of the backward classeo.

The High Court held that the reservations of seats for the members of the backward classes described in the list prepared by the Government were in, lllid. The State appealed to this Court by special leave.

HEID : dismissing the appeal,

Tho impugned list prepared by the State was ex-facle based on c:asle8 or communities and was substantiallv the same list which had been struck down by the High Court as invalid in the earlier case. No materials were placed on the record to enable the Court to decide whether the criteria laid down for detmnining that the list prepared by the Government cmformed to the requirements of cl. (4) or Art. IS we!re followed.

Article IS guarantees by the first . clause a fundamental right of farreaching importance. Clause ( 4) is an exception engrafted upon .the

guarantee in cl. (I), but being m the nature of an exceptfon condition• which justify departure must be strictly shown to exist. When a dispute is raised before a Court that a particular law which is inconsistent with the guarantee against disc:'rimination is valid on the plea that if is permitted

under cl. ( 4) of Art. 15, the mere assertion by the State that the officers of the State had taken into consideration the criteria which had hn adopted by the courts for determining who the socially and educationaJh backward classes of the Society are, or that the authorities had acted in good faith in determining the socially and educationally hack\\'ard clas:1es of citizens, \\IOuld not be sufficient to sustain the validity of the clain1.

It a question arises \Vhethcr a la\v 'vhich prbna facie infringes a funda111cntal right is within an exception, the validity of that Jaw has to be determined

by the courts on materials placed before them. By merely assertin~ that the law was made after full cons!deration of the relevant cvi<lcncl!' anJ criteria which have a bearing thereon, and was within the exception, the jurisdiction of the courts to determine whether by makin2 the law o fundamental right bas been infringed is not excluded. [603 c, GJ.

Case law referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1336 c of 1967.

Appeal by special leave from the judgment and order dated October 7, 1966 of the Andhra Pradesh High Court in Writ Petition No. 1268 of 1.966.

P. Ram Reddy and A. V. V. Nair, for the appeJlants.

K, Narayana Rao and G. Narayana Rao, for the intervener.

The Judgment of the Court was delivered by Shah, J.

Against ihe order passed by the High Court of Andhra Pradesh declaring invalid the "reservatioIT for backward dasses under Rule 4A and SA respectively of the Telangana and the Andhra Rules, and the directions in respect of the President's Scouts and Guides", under Government orders Nos. 1135 & 1136-Health, Housing & Municipal Administration Department dated June 16, 1966, as modified by G.O. M.S. 1880 dated July 29, 1966 for the Telangana region, and by G.O.M.s: 1789 dated August. 2, 1966 for the Andhra Region, the State of Andhra Pradesh has appealed to this Court with special leave.

The State of Andhra Pradesh is divided into two areas-Telan- _gana and Andhra areas.

In the Telangana area there are two Medical Colleges having in the aggregate 270 seats for entrants 10 the medical degree course. In Andhra area there are four Medi- Cal Colleges having in the aggregate 550 seats for new entrants.

In admitting candidates for the medical degree course by Gov• errunent orders Nos. 1135 & 1136 Health, Housing and Municipal Administration Department dated June 16, 1966, seats were reserved for Centraf Government nominees, for N.C.C., A.C.C., President's Scouts & Guides, for candidates with sports and extra- curricular proficiency, for children of ex-Service army personnel. for children of displaced goldsmiths, for candidates from Scheduled

Cates and .Tribes, for .women candidates, for candidates appearlilg froin H.S.C.

Multipurp<ise I.S.C. & P.U.C.

Examinations,

ANDHRA PRADESH v. P. SAGAR (Shall, J.) 597

and for candidates who had secured the M.Sc. & B.Sc. degrees.

By Government order No. 1880 dated July 29, 1966, twenty per cent. of the total number of seats were reserved for backward classes in each area, and pursuant thereto the Telangana Rules were atnended by G.O. M.S. No. 1784-Health and the Andhra Rules were amended by G.0. M.S. No. 1783-Health dated Augnst 2, 1966.

The :alidity of the Government orders Nos. 1135 & 1136 was challe11ged on the ground that they infririged the fundamental freedoJl>.S guaranteed under Arts. 15(4), 16(4) and 29(2) of the Constitution.

The High Court held that in reserving seats for nominees of the Central Government and from other States, for cultural scholars, for women, for graduates and for students from H.S.C. & P.U.C. Courses, no fundamental rights were infringed, but the reservations for members of the backward classes described in the list prepared by the Government of Andhra Pradesh were invalid.

By Art. 15 of the Constitution, as originally enacted, it was provided that ;.:_

"(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2)

(3) Nothing in this article shall prevent the State from making any special provisions for women and children." Article 29(2) provided that:

"No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them."

By Art. 46, which occurs in Ch. IV relating to Directive Prin- Ciples of Stale Policy, the State was enjoined to promote the edu cational and economic interests of the weaker sections of the people, but Arts. lS and 29 as originally framed prohibited the making of any discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. In the State of Madras v .. Shrimati Champakam Dorairajan(') an order issj!ed by the Government of the State of Madras fixing the number of seats for particular communities for selection of candidates for admission to the Engineering and Medical Colleges in the State was challenged on the ground that it violated the uarantee against discrimination. under Art. ~9(2) of the Constitution. T)lis Court held that the Government order constituted a violation of the

(l). (1951 S.C.R. 525.

SUPRBMB COURT RBPO&TS [1968)

.CR

fundamental right guaranteed to the citizens of India by Art. 29(2) A of the Constitution, notwithstanding the directive principles of State policy laid down in Part IV of the Constitution. The Parliament thereafter added cl. ( 4) in Art. 15, by the Constitution (First Amendment) Act, 1951, providing that:

"Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes." On July 31, 1962, the State of Mysore, in supersession of all previous orders made under Art. 15 ( 4) divided backward classes

c into two categories : backward classes and more backward classes, and reserved 68% of the seats in the Engineering and Medical Colleges and other technical institutions for the educationally and socially backward classes and the Scheduled Castes and Scheduled Tribes, and left 3 2 % seats for the merit pool. That order was challenged by a group of writ petitions under Art. 32 of the Constitution before this Court. This Court in M. R. Balaji &: others D

v. State of Mysore(1) held that the order passed by the State of Mysore "was a fraud on the constitutional power conferred on the State by Art. 15(4)" and was liable to be quashed, because the order categorised, contrary to the plain intendment of Art. 15(4), the backward classes on the sole basis of caste. A similar order

G.O. M.S. No. 1880-Health issued by the State of Aiidhra Pradesh E on June 21, 1963, µotifying a list of castes for the purpose of selecting candidates from the backward classes in the Medical Colleges in the State of Andhra Pradesh was declared invalid by the High Court of Andhra Pradesh on the ground that the order which classified the backward classes solely on the basis of caste subverted the object of Art. 15 ( 4) of the Constitution : see P.

Sukhadev and others v. The Government of Andhra Pradesh (1).

On February 3, 1964, the. previous order issued by the State of Andhra Pradesh was cancelled.

Thereafter it is claimed by the State of Andhra Pradesh that it took steps to prepare a fresh list

G of backward classes consistently with the provisions of the Constitution. 'fhe Chief Secretary of the Government cf Andhra Pradesh has sworn in his affidavit that the Council of Ministers appointed a Sub'.Committee to draw up a list of backward classes, inter alia, for the purpose of admission of students to profession.al Colleges.

The Committee invited the Law Secretary and the Director of Social Welfare to attend the meetings of the Sub-Committe, and letters were written to the other States calling for information about the criteria adopted by thole States for determining H backward classes for purposes of Arts. IS ( 4) !Ind 16 ( 4 J of tho

(I) (1963] Supp. I S.C.R. 439.

(2) (1966) I Andhra W.R. 294.

A Constitution, that after considering the replies received from the Chief Secretaries of the various States it was resolved that the existing list of backward classes pertaining to Andhra and Telangana areas he scrutinised with a view to selecting from that list those castes or communities which are "considered

backward on account of the low standard of living, education, poverty, places of habitation, inferiority of occupations followed B etc."; that at another meeting it was resolved that the list of 146 backward communities prepared by the Director be re-arranged in "the order of priority in consultation with the Law Secretary, taking into consideration the criteria given by Law Secretary in his note to the Cabinet Sub-Committee and that in doing so such of the cric teria as capable of being practically possible for consideration may be taken into account", and, accordingly the Law Secretary and the Director of Social Welfare considered the representations made by certain communities to the Government from time to time and

"drew up a list of the order of priority as called for by the Cabinet Sub-Committee'', that thereafter the Cabinet Sub-Committee made its recommendations which were considered by the Council of D Ministers on July 4, 1966, and that the Council of Ministers considered the social, educational and economic conditions of the backward classes named in the lists submitted to them, and dealt with each individual class and deleted certain items or classes in the lists, changed the denomination of certain classes "for the more precise effectuation of concessions to those classes only who

really need them", and consolidated the backward classes into one list, ruling out the priorities suggested by the Director of Social

Welfare in accordance with the opinion of the Cabinet Sub-Committee, and thereafter published resolution No. G.0. 1880 pursuant to which the rules were amended reserving 20% of the seats for the backward class11s mentiOned in the list prepared by the Cabinet of the State.

The list prepared on the basis of reservations for socially and educationally backward classes is indisputably a list communitywise.

On behalf of the petitioners it was contended in the High Court that the Government of Andhra Pradesh had adopted the same list of backward classes which was struck down by the High

Cou~ in P. Sukhadev's case(') with some slig!u modifications and the new list also having made a reservation in favour of castes and not classes, it infringed the guarantee under Art. 15(1). On behalf of the State it was urged that caste is one of the relevant tests in determi!ling backwardni; ss, and cannot be ignored in determining the socially and educationally backward classes : if a group has been classified as backward on other relevant considerations the classification is not liable to be challenged as invalid on the grund that for the purpose of classifying, the designation of caste is given. The High Court held that the earlier G.O. was struck down

in P. Cukhadev's case(') on the ground that it was based on caste alone, and since the G.O. under challenge was again prepared on the same basis it could not be sustained as falling within the exception provided in Art. 15(4). Counsel for the State contends that the High Court erred in holding that the impugned rules reserving seats for backward dasses made caste the determining factor.

In the context in which it occurs the expression "class" means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. In determining whether a particular section forms a class, caste cannot be excluded altogether.

But in the detennination of a class a test solely based upon the caste or community cannot also be accepted.

By cl. (1 ), Art. 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. By cl. (3) of Art. 15 the State is, notwithstanding the provision contained in cl. (!), permitted to make special provision for women and children. By cl. ( 4) a special provision for the advancement of any socially and educationally backward Classes of citizens or for the Scheduled Castes and Scheduled Tribes is outside the purview of cl. (I). -But cl. (4) is an exception to

cl. (1). Being an ext'eption, it cannot be extended so as in effect to destroy the guarantee of cl. (!). The Parliament has by enacting d. (4) attempted to balance as against the right of equality of citizens the special necessities of the weaker sections of the people by allowing a provision . to be made for . their advancement. In order that. effect may be given to cl. (4), it must appear that the beneficiaries of the special provision are classes which are. backward socially and educationally and they arc other than the Scheduled Castes and Scheduled Tribes; arid thai the provision made is for their advancement. Reservation may be adopted to advance the interests of weaker sections of society, but in doing so, care must be taken to see that deserving and qualified candidates are not excluded from admission to higher educational 'institutions.

The. criterioll' for. determining the hackwardiles's n'nist not be b:red solely on religion, race, caste, sex, or place of birth, and the backwardness being soeial and .educational must 'be simifar to the backwardness from which the Scheduled Castes and the Scheduled Tribes suffer. . These are the principles which have been enuncited in the decisiOn of this Court in M. R. Balaji's case(') and R. Chitralekha & Another v. State of Mysore and others(').

Tn R. Chitralekha's case('), Subba Rao, J., speaking for the majority of the Court Observed at p. 388 : ·

(l) (1963)Supp, 1S.C.R.439.

(2) (1964) 6 S. C. R. 368

"The important factor to be noticed in Art. 15(4) is that it does not speak of castes, but only speaks of classes. If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes. Though it may be suggested that the wider expression "classes .. is used in cl. (4) of Art. 15 as there are communities without castes, if the intention was to equate classes with castes, nothing prevented the makers of the c.onstitution from using the expression "backward

classes or castes''. The juxtaposition of the expression "backward classes" and "Scheduled Castes", in Art. 15(4) also leads to a reasonable inference that the expression "classes" is not synonymous with castes. It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or not, his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong." In a recent judgment of this CoUrt P. Rajendran & Ors. v. The State of Madras and others('), Wanchoo, C.J., speaking for the Court observed :

" .... if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Art. 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citi7.ens within the meaning of Art. 15(4). . . . It is true that in the present cases the list of socially and educationally backward classes has been specified by caste. But that does not necessarily mean that caste was the sole consideration and that persons belonging to these castes are also not a class of socially and educationally backward citizens." Tliat case makes no departure from. the rule enunciated in the earlier cases.

The list dated June 21, 1963, of castes prepared by theArtdhra Pradesh Government to determine backward classes for the purpose of Art. 15(4) was declared invalid by the High Court of Andhra Pradesh in P. Sukhadev's case('). A fresh list was pub-

~~ed under the amended rules with some modifications, but the

602 SUPllBMB COUllT llBPOll'ql [1968] 3 s.c.R.

basic scheme of the list was apparently not altered. It is true that the affidavits filed by the Chief Secretary in the High Court and the Director of Social Welfare in this Court have set out the steps taken for preparing the list of backward classes. It is also stated in the affidavit of the Director of Social Welfare that he considered the representations made to him, consulted the Law Secretary and certain publications relating to the study of backward classes e.g.

Thurston's "Caste and Tribes" and Sirajul- Hasan's "Castes and Tribes", and made his recommendations which were modified by the Sub-Committee appointed by the Council of Ministers and ultimately the Council of Ministers prepared a final list of backward classes. But before the High Conn the materials which the Cabinet Sub-Committee or the Council of Ministers considered were not placed, nor was any evidence led about the criteria adopted by them for the purpose of determining the backward classes. The High Coun observed :

"A perusal of this affidavit (Chief Secretary's affidavit) as well as that of the Director of Social Welfare,

. which are filed on behalf of the Government do not say what was the material placed before the Cabinet Sub-Committee or the Council of Ministers, from which we could conclude that the criteria laid down by their Lordships of the Supreme Court have been applied in preparing the list of backward classes.

After referring to the opinion of the Law Secretary and the views E -Of the Director of Social Welfare they observed :

" .... We are not able to ascertain whether any material, 1µ1d if so, what material was placed before the Cabinet Sub-Coll)Illittee, upon which the list of backward classes was drawn. On the other hand, it is stated that the Law Secretary and the Director of Social Welfa£e sat together and drew up a list, the former specifying the legal requirements and the latter as an expert advising on the social and educational backwardness of class or Classes."

It was urged before the High Court that expert knowledge of the Director of Social Welfare and of the Law Secretary was brought to bear upon the consideration of the relevant materials in the preparation of the list and they were satisfied that the correct tests were applied in the determination of backward classes and on that .account the list should be accepted by the High Court. The High Court in dealing with the argument observed :

" .... the impugned backward classes list cannot be and has not been sustained by the Government as

coming within the exception provided in Art. 15(4) on any material placed before this Court. In fact, there is a total absence of any material, from which we can say that the Government applied the criteria enunciated by their Lordships of the Supreme Court in the above referred cases, in preparing the list of backward classes.

We cannot accept the contention of the learned Advocate General that "once there is proof that the Government bona fide coidered the matter it is sufficient".

Acceptance of this argument would make for arbitrariness, absolving the party on whom the burden of proof to bring it within the exception rests, from proving it.

The mere fact that the act is bona fide and that there was total absence of ma/a fides, is not relevant." Article 15 guarantees by the first clause a fundamental right of far-reaching importance to .the public generally. Within certain defined limits an exception has been engrafted upon the guarantee of the freedom in cL (1), but being in the nature of an exception, the conditions which justify departure must be strictly shown to exist. When a dispute is raised before a Court that a particular law which is inconsistent with the guarantee against discrimination is valid on the plea that it is permitted under cl. (4) of Art. 15, the assertion by the State that the officers of the State had taken into consideration the criteria which had been adopted by the Courts for determining who the socially and educationally backward classes of the Society are, or that the authorities had acted in good faith in determining the socially and educationally backward classes of citizens, would not be sufficient to sustain the validity of the claim.

The Courts of the country are invested with the power to determine the validity of the law which infringes the fundamental rights of citizens and others and when a question arises whether a law which prima facie infringes a guaranteed fundamental right is within an exception, the validity of that law has to be determined by, the Courts on materials placed. before them. By merely asserting that the law was made after full consideration of the relevant evidence and criteria which have a bearing thereon, and was within the exception, the jurisdiction of the Courts to determine 'Yhether by making the law a fundamental right has been infringed is not excluded. '

The High Court has repeatedly observed in the course of their judgment that. no materials at all were placed on the record to enable them to decide whether the criteria laid down by this Court for determining that the list prepared by the Government conformed to the requirements of cl. (4) of Art. 15 were followed. On behalf of the State it was merely asserted that an enquiry was in fact made with the aid of expert officers and the Law Secretary and the question was examined from all points of view by the L7Sup.C.I/68-14

officers of the State, by the Cabinet Sub-Committee and by the Cabinet.

But whether in that examination the correct criteria were applied is not a matter on which any assumption could be made especially when the list prepared is. exfacie based on castes or communities and in substantially the list which was struck down by the High Court in P. Sukhadev's case(').

Honesty of purpose of those who prepared and published the list was not and is not challenged, bl!! the validity of a law which .apparently infringes the fundamental rights of citizens cannot be upheld merely because the law-maker was satisfied that what he did was right or that he believes that he acted in manner consis.- tent with the constitutional guarantees of the citizen. The test of the validity of a law alleged to irifringe the fundamental rights of a citizen or any act done in execution of that law lies not in the belief of the maker of the law or of the person executing the law, but in the demonstration by evidence and argument before the Courts that the guaranteed right is not infringed.

The appeal therefore fails and is dismissed.

R.K.P.S.

Appeal dismissed.

STATE OF ANDHRA PRADESH & ANR

P. SAGAR

March 27, 1968

C. SHAH

Constitution of India

Art. 15(1)

June 21, 1963

Art. 15(4)

Art. 15(1)

Art. 15(1)

Art. 15

October 7, 1966

Andhra Pradesh High Court

P. Ram Reddy

A. V. V. Nair

K, Narayana Rao

G. Narayana Rao

Shah

June 16, 1966

S. 1880

July 29, 1966

Telangana

August. 2, 1966

Andhra Region

State of Andhra Pradesh

Andhra

Health and the Andhra Rules

Augnst 2, 1966

Arts. 15(4), 16(4) and 29(2)

Central Government

H.S.C. & P.U.C. Courses

Government of Andhra Pradesh

Art. 15

Article 29(2)

Art. 46

Government of the State of Madras

SUPRBMB COURT RBPO&TS [1968)

Art. 29(2)

Parliament

Art. 15

article 29

July 31, 1962

State of Mysore

Art. 15

Art. 32

Art. 15(4)

Art. 15(4)

State of Aiidhra Pradesh

Andhra Pradesh

High Court of Andhra Pradesh

Art. 15

February 3, 1964

July 4, 1966

P. Sukhadev

Art. 15(1)

P. Cukhadev

Art. 15(4)

Art. 15

Art. 15

M. R. Balaji

R. Chitralekha

Subba Rao

(1964) 6 S. C. R. 368

Art. 15(4)

Art. 15

Art. 15(4)

Wanchoo

Art. 15(1)

Art. 15(4)

theArtdhra Pradesh Government

Art. 15(4)

Thurston

Sirajul- Hasan

Supreme Court

Art. 15(4)

Article 15

Art. 15

Art. 15


KISHANCHAND NARSINGHDAS BHATIA v.

STATE TRANSPORT APPELLA1E AUTIIORITY & ORS.

March 28, 1968 [M. HlDAYATULLAH C.J., R. S. BACHAWAT, C. A. VAIDIALJNGAM,

K. S. HEGDE AND A. N. GROVER, JJ.]

Constitution of India, 1950, Art. 13&- Decision on question of fact by State Transport Authorities-Interference by Supreme Court in appeal by special leave.

The Regional Transport Authority renewed a stage carriage permit in C favour of the appellant. The State Transport Appellate Authority set aside the order in apl""'I, and granted the permit to the 3rd respondent.

One of the considerallons that prevailed with the Appellate Authority was that the 3rd :respondent bad offered to put into service an air cooled 1965-model vehicle. The order of the Appellate Authority was confirmed by the High Court in a writ petition.

In appeal to this Court under Art. 136, it was contended that after the renewal of the permit in his favour by the R.T.A. the appellant ac- D quired a 1966-i11odel bus whicli would have been equally serviceable; but this fact of acquisition of a new bus was not relied upon by the appellant before the Appellate Authority. It was also contended that the appellant was entitled to preference in the matter of renewal on the facts establish ed in the present case.

HELD : This Court would be reluctant to interfere with or disturb the decision of specially constituted authorities or tribunals under the E Motor Vehicles Act, especially when the legislature has entrusted the task of granting cir renewing the stage carriage permits to such authorities which are expected to be fully conversant with the procedure and practice and the matters relevant under the provisions of the Act. This Court will not decide a matter brought before it by special leave, under Art. 136, as if it we're an appellate court. It will not examine or review findings of fact unless it can be shown that they are perverse or shocking to the judicial conscience. Tho power being of an exceptional and over F riding nature has to be exercised sparingly and with caution and only in special and extraordinary situations when justice so requires. [608 FH;

609 A-BJ.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 740 of 19~. .

Appeal by special leave from the judgment and order dated G December 19, 1967 of the Madhya Pradesh High Court in Misc.

Petition No. 225 of 1967.

M. C. Chagla, G. L. Sanghi and A. G. Ratnaparkhi, for the appellant.

S. V. Gupte and S. K. Gambhir, for respondeD, t No. 3.

The Judgment of the Court was delivered by Grover, J.. This appeal by special leave is from the judgment of the High Court of Madhya Pradesh dismissing a petition filed under Arts. 226 & 227 of the Constitution challenging an

SUPREME COURT REPORTS

[1968] 3 S.C. R.

order made by the State Transport Appellate Authority in res A pect of a stage carriage permit for the route, Digthan Indore via Ghata Billod.

The appellant had applied for renewal of his stage carriage permit for that route. Respondent No. 3 and another person of the name of Balwantrao Gaikwad and the Madhya Pradesh Road Transport Corporation filed applications for grant of a fresh permit for the same route. As the application of Balwantrao Gaikwad was not ripe for hearing and the Corporation withdrew its appli cation, the Regional Transport Authority considered the rival claims of !)le appellant and respondent No. 3. The latter made an offer at the hearing that he would run an air-cooled 1965 model vehicle. The Transport Authority, however, took the view that the offer had been made by way of a competitive bid. In its opinion both the applicants were at par in the matter of coverage and adverse remarks, but the appellant was superior in experience and provision of facilities for passengers. The permit of the ap pellant was renewed fora period of three years from the date of its expiry on (he existing terms. Respondent No. 3 preferred an appeal under s. 64 of the Motor Vehicles Act, 193 9 (hereinafter referred to as the Act) which was disposed of by the State Trans port Appellate Authority. The Appellate Authority gave weight to the fact that whereas respondent No. 3 had offered to run an air-cooled vehicle of 196;> mooel, 110 such offer had been made by the appellant who was operating the route with a vehicle of 1957 mooel. It further found that the appellant had not been running the bus on the kachha portion of the-road during the rainy season in the years 1962 and 1963. This was taken to an1ount to "adverse record of considerable significance" against the appellant. The Appellate Authority therefore decided that respon dent No. 3 was entitled to the grant of the permit as against the renewal of the perinit in favour of the appellant.

It made a direction that a permit be issued to respondent No. 3 for a period of three years provided he put into service an air-cooled vehicle within four months.

The appellant moved the High Court by means of a writ peti ti on. It appears ff"lll the order of the Division' Bench that the following points were presed on behalf of the appellant: (!) Res pondent No. 3 had not applied for the grant of a fresh permit for the same route for which renewal had been applied for by the appellant.

(2) The Appellate Authority had taken into account an extraneous consideration when it regarded respondent No. 3's offer of operating an air-cooled bus as giving material snperiority.

(3) The finding that the appellant had been guilty of non-main tenance having not operated service on the kachha section of the route during the rainy season for two years was not well-founded.

( 4) The Appellate Authority did not give due weight to all the relevant considerations.

The High Court found that the Appellate Authority had rightly regarded the application of respondent No. 3 as one made for the same route aud that the offer of operating an air-cooled bus was a perfectly relevant consideration and cou14 not be regarded as extraneous vide : Samrathmal v. State Transport Appellate Authority & Ors('). It was further of the opinion that the Appellate Authority had rightly not accepted the. explanation of the appellant that the kachha section of the route was not operable during the rainy season, because respondent No. 3, who held a permit for Indore-Digthan route (which was the same as the Digthan- Indore route), had maintained the service even during the rainy season without finding it risky to do so. The High Court repelled the last contention raised before it by relying on Sri Rama Vilas Service (P) Ltd. v. C. Chandrasekaran &: Otherl(') according to which it was for the Transport Authority to appreciate how public interest would be best served and in doing so it was entitled to D take the view that one consideration was more likely to effectuate it than the other.

Mr. S. V. Gupte for respondent No. 3 sought to ask for revocation of the special leave on the ground that it had been obtained by a mis-statement of material facts, but it is altogether unnecessary to go into that matter as this appeal cannot succeed for other E reasons.

Mr. M. C. Chagla for the appellant laid a great deal of emphasis on the acquisition of a vehicle of 1966 model by the appellant after the renewal of his permlt had been ordered by the Regional Transport Authority. It was pointed out that respondent No. 3 had been. hitherto running a vehicle of 1957 model. and F had only made an offer to put into service an air-cooled 1965 model vehicle at the time of hearing. According to Mr. Chagla the 1966 model vehicle would have been equally, if not more, convenient and serviceable and jt was wholly unjust to deprive the appellant of the permit which he had held for the past several years. He further sought to attack the finding of the Appellate Authority about the adverse record of the appellant and the route for which the application for the permit had been made by the G

contending parties. Finally, he forcefully raised the question whether under the second proviso to sub-s. (2) of s. 58 of the Act, the appellant was entitled to preference in the matter of renewal on the facts established in the present case.

According to him the appellant's permit should have been renewed, although it was open to the Authority concerned to impose a condition under cl. (ix)

(I). C.A. 503 of 1965 decided on 2Sth August 1965.

(2) t1964J 5 S.C.R. 869.

608 SUPREME COURT llBPORTS

(1968] 3 S.C.R.

of sub-s. (3) of s. 48 of the Act that the appellant should acquire an air-cooled bus within a specified-period. It was maintained that the High Court failed to approach a consideration of the case by keeping in view the aforesaid provisions of the Act which were of material consequence. It may be mentioned that the second proviso to sub-s. (2) of s. 58 of the Act is to the effect that other conditions being equal an application for renewal shall be given preference over new applications for permilS.

According to sub-s. (3)(ix) of s. 48 of the Act the Regional Transport Authority while granting the permit may attach the condition, among other conditions, that vehicles of specified types fitted with bodies conforming to approved specifications shall be used.

It is significant that the acquisition of a 1966 model bus by the appellant found no mention in the order of the Appellate Authority which would show that either that fact was not brought to its notice or was not stressed before it. The findings or conclusions on questions of fact could hardly be re-examined or disturbed by the High Court since the decision rendered by the ap propriate authority under the Act could not be interfered with under Art. 226 unless the well recognised tests in that behalf were satisfied vide : Sri Ram Vilas Service(').

The other question which according to Mr. Chagla is of wide importance and relates to the scope and ambit of the second proviso to s. 5 8(2) of the Act does not appear to have been canvassed before the High Court and has not been raised in an appropriate manner in the petition for special leave and even in the additional grounds sought to be introduced by means of Civil Misc., Petition No. 934 of 1968. We did not permit Mr. Chagla to address us at any length on the point.

In cases of the present kind this Court would be naturally reluctant to interfere with or disturb the decision of specially constituted authorities or tribunals under the Act, especially when the legislature bas entrusted the task of granting or renewing the stage carriage permits to the aforesaid authorities or tribunals which are expected to be fully conversant with the procedure and practice anii the relevant matters which should engage their attention tmder the provisions contained in the Act.

The present case has not been shown to contain any such infirmity as would justify interference under Art. 136 of the Constitution. The limitation on the exercise of power under that Article cannot be defined with any precision; but as observed in Dhakeswari Cotton Mills Ltd. v. Commissioner of Income tax, West Bengal(") the power being of an exceptional and overriding natnre it has to be exercised sparingly and with caution and only in special

(j) (1964] S S.C.R. 869.

(2) [19SSJ I S.C.R. 941.

A and extraordinary situations. It is well known by now that this Court will not decide a matter brought before it by special leave as if it were an appeal court and examine or review findings of fact unless it can be shown that they are perverse or are such as are shocking to judicial C!>nseience or the like, the paramount consideration always being the perpetuation of justice.

B For all these reasons, this appeal must fail and is dismissed with costs.

V.P.S.

Appeal dismissed.

KISHANCHAND NARSINGHDAS BHATIA

March 28, 1968

R. S. BACHAWAT

K. S. HEGDE

A. N. GROVER, JJ.

Constitution of India

Art. 13

STATE TRANSPORT APPELLATE AUTHORITY & ORS

Art. 136

Motor Vehicles Act

Art. 136

M. C. Chagla

G. L. Sanghi

A. G. Ratnaparkhi

S. V. Gupte

S. K. Gambhir

Grover

High Court of Madhya Pradesh

Arts. 226 & 227

Pradesh Road Transport Corporation

Balwantrao Gaikwad

s. 64

Motor Vehicles Act

Indore

S. V. Gupte

M. C. Chagla

Chagla

s. 58

2Sth August 1965

s. 48

s. 58

s. 48

Art. 226

Ram Vilas

s. 5

Art. 136


IMAN ALI &. ANR. v.

STATE OF ASSAM

March 28, 1968

[V. RAMASWAMI, J. M. SHELAT AND V. BHARGAVA, JJ.]

Code of Crbninal Procedure, ss. 367, 439-Jndian Penal Code. ss. 396, 302-Accused convicted of 1nurder during dacoit; v-Trial Court passing Sentence of life imprison1nent lvit/Jout givbzg reasons-High Court en/Jc; ncing sentence to that of death-Considerations for interfering with discretion of trial court-Different considerationv do not necessaril." apply lihen conviction is under s. 396 and not s. 302 of I.P.C.

The appellants were convicted by the court of sessions for an offence punishable under s. 396 of the Indian Penal Code and sentenced to imprisonment for life.

Ty were held to have shot dead two inmates of a house in which along with others they had gone to commit dacoily.

One of the appellants filed an appeal in the High Court against his con viction. The High Court thereafter gave notice to both the appellants to shO\V cause why the sentence of impi'isonment passed againsteach of th.em should not be enhanced to death. After hearing them the High.

Court sentenced them both to death. The order was challenged in this Court and it wos urged that the High Court should not have interfered with the discretion of the Sessions Judge in the matter of passing the appropriate sentence and that the considerations which app]y to a sentence under s. 302 J.P.C. would not apply to a case under s. 396 I.P.C.

HELD : (i) The offence committed by the appellants was heinous and committed in cold blood with the sole object of committing dacoity. It was not a case of constructive liability but the appellants had themselves committed the murders and therefore no advantage could be taken of the fact that the conviction was under s. 396 and not under s. 302. On the above facts the enhancement of sentence by the High Court from life imprisonment to death was justified especially whea the trial court had not given any reasons for _awarding the lesser s-cntencc.

Jn Dalip Singh's cnse this Court only cautioned the appcl1ate court against interfering if the discretion of the trying judge is exercised for reasons recorded by him' and if it appears from the :reasons that he had exercised a judicial mind in not awarding the sentence of death. (612 F-613BJ.

Dalip Singh & Ors. v. State of Punja/>. [1954] S.C.R. 145, 156. explained.

Lal Singh v. Emperor, A.I.R. 1938 Alld. 625, distinguished.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 232 of 1967.

Appeal by special leave from the judgment and order dated August 30, 1967 of the Assam and Nagaland High Court in Criminal Appeal No. 115 of 1964.

K. Rajentlra Chaudhuri, for the appellants.

Naunit Lal, for the respondent.

The Judgment of the Court. was delivered by Bbargava, J.

The appellants, Iman Ali and Jogesh Chan_dta.

Arjya, were convicted by the court of Session for an offence pumsh able under section 396 of the Indian Penal Code and sentenced to imprisonment for life.

The facts found by the <:ourt of Ses sion for convicting the appellants were that, on the mght between-

11th and 12th Mav 1962, between 1 and 2 a.m., the appellants, along with about fi or 13 others, com.nitted dacoit~ in the boue of 1 Tenu Arjya. At the time of comm1tmg the daco1ty the daco1ts broke open the door of the house with the crossbar of a plough ..

Four dacoits, including the two appellants, entered the house, while the remaining persons remained standing outside. As soon' as the door was broken, Golapi, the wife of Tenu Arjya, was shot at with a gun by Iman Ali appellant, and then the other appellant Jogesh Chandra Arjya shot Tenu Arjya.

Both Golapi d her husband Tenu Arjya fell down dead. Thereafter, the dacmts de· mantled money from Hari Charan Arjya, the son of the two de ceased persons; They took away a sum of Rs. 2,500/. which.was. kept in a quilt and also removed the gold eaMings, on~ silver necklace and one waist band from the person of Golap1.

The commission of this offence in the manner descdbed above was held by the Sessions Court to be proved on the basis of the evidence given by the prosecution, and, thereupon, finding both the appel !ants guilty of the offence punishable under s. 396, I.P.C., that court sentenced each of these appellants to imprisonment for life ..

Iman Ali appellant filed an appeal in the High Court of Assam and Nagaland. The learned Judges of the High Court, on pcrus ing the judgment, were of the prima facie opinion that, if the con viction of Iman Ali was to be upheld, there was no justification for not awarding to him the sentence of death and, consequently, they issued notice to Iman Ali to show cause why the sentence should not be enhanced. At the same time, a notice was also issued to the other appellant Jogesh Chandra Arjya by the learned Judges suo motu to show cause why his sentence should also not be en hanced to sentence of death. Thereafter, tlie appeal of Iman Ali was heard and both the appellants were heard in respect of the show cause notices issued to them. Opportunity was, in addition. offered to Jogesh Chandra Arjya to urge whatever could be said" on his behalf against his conviction also. The High Court affrnl ed the findings of fact of the Court of Session and enhanced the

ente.nce of both thse appellants, so that the sentence of rigorous 1mpnsonment for hfe was altered to sentence of .death with the

direction that they be hanged by the neck till they are d; ad. Doth the appellants sought leave from the High Court to appeal to this Cou:t, but leave was refused. Thereupon, both of them sought special leave under Article 13~ of the Constitution. By an order dated 8th December, 1967, this Court ranted special leave limit

SUPREME COURT REPORTS

[1968) 3 S.C.R.

ed to the question whether, in this case, the enhancement of the sentence from life imprisonment to sentence of death was justified.

Consequently, in this appeal, the only point that falls for determination is whether th~ order of the High Court enhancing the sentence of the appellants from life imprisonment to death was justified and should be upheld.

Learned counsel for the appellants, in challenging the justification for the order of enhancement of sentence by the High Court, relied on the principle laid down by this Court in Dalip S, ingh and OtMrs v. State of Punjab('), which was explained in the followinj! words :-

"In a case of murder, the death sentence should ordinarily be imposed unless the trying Judge for reasons w.hicJi should normally be recorded considers it proper tb award the lesser penalty.

But the discretion is his and if he gives reasons on which a judicial mind could properly be found, an appellate court should not interfere. The power to enhance a sentenee from transportation. to death should very rarely be exercised and only for the strongest possible reasons. It is not enough for till appellate court to say, or think, tl1at if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial Judge and the only ground on which an appellate court can interfere is that the discretion has been improperly exercised, as for example, where no reasons are _given and none can be inferred from the circumstances of the case, or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty." It appears to us, however, that, in the .present case, this principle is of no assistance to the appellants for challenging the step taken by tile High Court.

This Court cautioned the appellate court against interfering if the discretion of the trying Judge is exercised for reasons recorded by him and if it appears from the reasons that he had exercised a judicial mind in not awarding the sentence

of death. In the present case, as mentioned by the High Court G and as is apparent from the judgment of the Court of Session, the trial court awarded the sentence of imprisonment for life without giving any reasons at all for adopting that course. It is true that the appellants were not convicted in the present case for the offence of murder aimpllclter imder seefion 302, I.P .C.; but that, in our opinion, is immaterial. The conviction of the appellants under s. 396, I.P.C., was not based on constructive liability as members of the gang of dacoits. There was clear finding by the

(i) [1954) S.C.R. "145 at p, 156.

Court of Session which has been upheld by the High Court that each of these appellant& committed a cold-blooded murder by shooting two inmates of the house simply with the object of facilitating commission of dacoity by them. Those persons were shot and killed even though they had not even tried to put up any resistance.

The offence under s. 396, I.P.C., was therefore, no less heinous than an offence under s. 302, l.P.C. In these circumstances, when the Court of Session gave no reason at all for not awarding the sentence of death and for sentencing them to imprisonment for life only, it cannot be held that the High Court was not justified in interfering with that order.

Learned counsel in this connection referred us to a decision of a Division Bench of the Allahabad High Court in Lal Singh v.

Emperor('), where it was held :

"We do not consider that as a general rule a sentence of death should necessarily follow a conviction under s. 396, 1.P.C., and this Section differs from s. 302, D l.P.C., in that respe.ct. The rule is under s. 302, that a sentence of death should follow unless reasons are shown for giving a lesser sentence.

No such rule applies to s. 396, 1.P.C."

Again, we do not think that the learned Judges of the Allahabad High Court intended to lay down that, even in cases where a per- E son is convicted for the offence under s. 396, l.P.C., and there is clear evidence that he himself had committed a cold-blooded murder in committing the dacoity, a sentence of death should not follow. Clearly, the view expressed was meant to apply to those cases where there could be no definite finding as to which person committed the murder and all the members of the gang are held F constructively guilty of the offence punishable under s. 396; I.P.C.

A principle enunciated for such a situation cannot be applied to !\ case where there is direct evidence that a particular accused committed the murder himself, as is the finding i.n the present case.

In these circumstances, the order made by the High Court must be held to be justified and the appeal is dismissed.

G.C.

Appeal dismissed.

(I) A.I.R. 1938 Alld. 62S.

IMAN ALI &. ANR

STATE OF ASSAM

March 28, 1968

V. RAMASWAMI, J.

M. SHELAT

V. BHARGAVA, JJ.

ss. 367, 439

Jndian Penal Code

ss. 396, 302

s. 396

s. 302

I.P.C

s. 396

Indian Penal Code

s. 302

s. 396

I.P.C

s. 396

s. 302

Dalip Singh

K. Rajentlra Chaudhuri

Naunit Lal

Bbargava

Iman Ali

Jogesh Chan_dta.

Arjya

section 396

Indian Penal Code

Golapi

Tenu Arjya

Iman Ali

Jogesh Chandra Arjya

Hari Charan Arjya

s. 396

I.P.C

High Court of Assam and Nagaland

Jogesh Chandra Arjya

Article 13

8th December, 1967

s. 396

I.P.C

s. 396

I.P.C

s. 302

Allahabad High Court

s. 396, 1

s. 302

s. 302

s. 396, 1

s. 396

s. 396

I.P.C


STATESMAN (PRIVATE) LTD. v.

H. R. DEB & ORS.

April 2, 1968

[M. H!DAYATULLAH, C.J., V. RAMASWAMI, C, A. VA!DIALINGAM, ..

K. S. HEGf>E AND A. N. GROVER, JJ.J

Industrial Disputes Act (14 of 1947), ss. 7(3)(d) and 2•"11ldicial Of!ic1", if inc/udea office of Magistrate-Writ of Quo Warranto-/n.ru•

ance.

Section 7(3)(d) of the Industrial Disputes Act provides that no person shall be qualified for appointment as the presiding officer. of a l.abour Court, unless he has held any judicial office for not less than seven years.

Since 1940 the first respondent held the Office of Sub-Deputy Collector and was vested with Magisterial powers. In 1959 he was appointed the presiding officer of a Labour Court and he gave an award aaainst the appellant. TM appellant questioned the appointment on the ground that the first respondent had not held 'judicial office' for 7 yeal'S prior to his appointment.

HELD : A Magistrate holds a judicial office.

That his duties are partly judicial and partly other does not in any way del!racl from the position that while acting as a Magistrate he is a judicial officer. An office means no more than a position to which certain duties are attached.

A public office is one which entitles a man to act in the affairs of others without their appointment or permission. The office of a Magistrate is a correct expl'css1on in English and in law.

The word 'office' has been applied to Magistrates. The Judicial Officers Protection Act. is illlended

to prouict not Civil Judges alone hut also Magistrate. (620 p:621 CJ,

The functions of a Labour Court are of great public importance and quasi civil in nature.

Men of. experience on the civil side of the law are more suitable than Magistrates.

Persons employed on multifarious duties and in addition performing some judicial functions may not truly answer the requirement of s. 7.

For it cannot be denied thac the express.ion "holding a judicial office" signifies more than discharge of judi cial functions while holding some other office.

The phrase postulalies that there is an office and that office is prilllMily judicial. In this case the distinction was unsubstantial because the Magistrate was holding a fixed position for nineteen years and performing functions primarily Of judicial character. [622 B-DJ.

Even if there be some doubt that is to be resolved in favour of upholding the appointment on the ground that the legislature itself by s. 9 contemplatea that such appointments should not be called into queation.

Although the provisions of s, 9 cannot shut out an inquiry (if there is a clear usurpation) for purposes of a writ of quo warranto at least in an unclear case the intent of the le)lislature is entitled to great weight The High C.mrt in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement of the law.

(621 D-FJ.

CIVIL APPELLATE JURISDICTION: Civil APPCal No. 647 of 1967.

STATESMAN LTD. v. H. R. DEB (flidayatullah, C.J.) 615

Appeal from the judgment and order dated January 5, 1967 of the Calcutta High Court in Appeal from Original Order

No. 134 of 1966.

Sachin Chaudhuri, !. K. Glzoslz and D. N. Gupta, for the appellant.

B S. C. Mazumilar and A. K. Mitter, for respondent No. 2.

B. Sen, G. S. Chatterjee for P. K. Bose, for respondent No. 3.

The Judgment of the Court was delivered by

Hidayatullah, C.J. This appeal on certificate arises from a C petition under Art, 226 of the Constitution of India filed in the High Court at Calcutta by the appellant, the Statesman Private Ltd. This company prints 'and publishes daily and weekly newspapers and undertakes general printing work at Calcutta.

By that writ petition the Company asked for a writ of certiorari against the Second Labour Court, West Bengal with a view to quashing an award, 21 September 1960, reinstating one Sheikh D Kaloo, one of its employees. The Company had dismissed the said Kaloo after holding an inquiry but the Second Labour Court ordered his reinstatement with half wages for the period of his 'forced unemploymenf.

The writ petition was heard by B. N.

Banerjee J. and by his order, 15 February, 1962, the petition was granted and the order of the Tribunal was quashed.

The E workmen who had sponsored the case of Kaloo appealed in the High Court. During the course of the appeal an application was filed by the Company stating that the Tribunal presided over by Mr. H. R. Deb was not qualified in law to agj_udicate upon the dispute inasmuch as the appointment of Mr. Deb was in violation of the provisions of s. 7(3)(d) of the IndustriaJ Disputes Act.

1947. On June 16, 1964 by another affidavit the particulars of F the services of Mr. Deb were stated to show that Mr; Deb had not held a 'judicial office' in India for not less than 7 years and as this was a condition precedent his appointment was illegal and the award made by him was a nullity. The Company stated that this was so held in another matter (Matter No. 120/1961 decided on July 28, 1965 between Shree Hanuman Foundries v. H. R. Deb G and others. The appeal was heard and allowed and the order of B. N. Banerjee J. was set aside but liberty was given to the Company, oa terms as to costs, to amend the original petition and the learned Judge was directed to hear and determine the amended petition. The amendment was effected on August 5, 1964. On September 3, 1964 the Divisional Bench in Hanuman Foundries H case delivered judgment. Two separate judgments were delivered.

Bachawat J, held that the provisions of 11. 7(3) (d) of the Industrial Disputes Act were directory while Basu, J. held them to be mandatory. Bachawat J. also held that even if the appointment

of Mr. Deb was not regular, the doctrine of de facto determination by a Court apparently possessed of jurisdiction applied and the order could not be questioned. Basu J. held to the contrary. The matter was then referred to Sinha J. (as he then was) who held that (a) Mr. Deb had not held judicial office for 7 years prior to his appointment; (b) thats. 7 (3)(d) of the Industrial Disputes Act was mandatory; ( c) a writ of quo warranto must therefore issue against him; ( d) that the de facto doctrine applied; and ( c) proceedings for a writ of certiorari was collateral and, therefore, not available to quash the award of Mr. Deb.

The case of Hanuman Foundries as decided by the Full Bench was followed in the present writ petition by B. C. Mitra J. on June 6, 1966 and the writ petition was dismissed. The Company appealed against the judgment of B. C. Mitra J. Sinha C.J. and A. K. Mookerjee J. dismissed the appeal, January 5, 1967 but granted a certificate and this appeal is the result.

Although this appeal is quite separat"' from the Hanuman Foundries case, the decision in that case was the one canvassed before us. After hearing the arguments in the case we are satisfied that the appeal must fail on the ground that Mr. Deb was competent to exercise jurisdictiiln and his appointment cannot be called in question. In this view of the matter the vecy interesting and learned discussion of the de facto doctrine need not detain us and we express no opinion about it.

The question falls to be considered on the words and scheme of s. 7 and some other sections. To approach the problem we may first see some other provisions.

The Act is intended to make provision for the investigation and settlement of industrial disputes. Chapter II names the authorities under th.e Act. They are Works Committee (s. 3), Conciliation Officrs (s. 4), Boards of Conciliation ( s. 5), Courts of Inquiry ( s. 6), LabOur Courts ( s. 7), Tribunals ( s. 7 A), National Tribunals ( s. 7B). Each of these sections prescribes the qualifications of the persons fit to be appointed. They are either wholly or partially different as we

shall see presently. Section 7C, however lays dowti that no person shall be appointed to, or continue in, the office of the presiding officer of a Labour Court, Tribunal or National Tribunal if (a) he is not an iildejiendent person; or (b) he has attained the age of 65 years.

Section 8 deals with vacancies and then comes s. 9 laying down the finality of orders constituting Boards etc. We shall read 1t presently.

We are concerned with s. 7 which provides for the constitution. of Labour Courts and prescribes the qualifications for appointment. The section may be read here :

"7. Labour Courts."

(1) The appropriate Government may, by notifica tion in the Official Gazette, constitute one or more Labour Courts for the adjudication of imfustrial disputes relating to any matter specified in the Second Schedule and for performing such other functions a&-

may be assigned to them under this Act

( 2) A Labour Court shall consist of one person only to be appointed by the appropriate Government.

( 3) A .person shall not be qualified for appointment as the presiding officer of a Labour Court, unless-

(a) he is, or has been, a Judge of a High Court; or

(b) he has, for a period of not less than three years, been a District Judge or an Additional District Judge or ( c) he has held the office of the chairman or any other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal} Act, 1950, or of any Tribunal, for a period of not less than two years; or

(d) he has held any judicial oflice in India for not less than seven years; or ( e) he has been the presiding officer of a Labour Comt constituted under any Provincial Act or State Act for not less than five years."

This matter is covered only by cl. ( d) of the third sub-section •.

It may, however, be noticed that no special qualifications are prescribed for Works Committees. Conciliation Officers, Boards F of Conciliation and Courts of Inquiry such as are to be found in s. 7 quoted here.

Special qualifications of the members are 10 be found only in respect of Labour Courts, Tribunals and National Tribunals. These are one-man bodies and tlle qualification of the member is stated. In the case of Tribunals the qualification is : G

"7 A. Tribunals.

(I)

(2) ..... . .... . ....

(3) A person shall not be qualified for appointment as the presiding officer of a Tribunal unless--

( a) he is, or has been, a Judge of a High Court; or

(aa) he has, for a period of not less than three years,

been a District Judge or an Additional District Judge; or

( b) he has held the office of the chairman or any other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950, or of any Tribunal, for a period of not less than two years."

:.and in the case of National Tribunals the qualifications are :

"7B. National Tribunals.

( 1) .•...

(2) .....

( 3) A person shall not be qualified for appoint- :ment as the presiding officer of a National Tribunal :unless-

(a) he is, or has been, a Judge of a High Court; or

(b) he has held the office of the chairman or any other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950, for a period of not less than two years." The selection thus is most restricted in the case of National Tribunals, and in varying degree less and less restricted as we pass to Tribunals and Labour Courts. Thus National Tribunals can be presided over only by a person who is or has been a Judge of ; a High Coun or has held the office of the chairman or any other member of the Labour Appellate Tribunal for a period of not Jess than two yeaci.

There qualifications do not admit of any doubt or exception since the incumbent's qualifications are quite clearly set down. In the case of Tribunals the range of selection is made wider by including a District Judge or an Additional District Judge, who has held this office for a period of not less than 3 years.

The selection is made still wider in the case of Labour Courts by making competent in addition presiding officers of LabQur Courts constituted under any Provinciru Act of State Act for not Jess than 5 years, and persons holding judicial office for not less than seven years. There is, however, no definition of judicial office and here the difficulty arises.

Mr. Deb, tlie incumbent of the office in the present case, had ; at his back the following career :.

(a) Sri Hem Ranjan Deb was first appointed on 23rcl January 1940 as a Sub Deputy Collector on probation and on 24tb January 1940 was appointed as Sub-Deputy Collector and Circle Officer.

,..

- -

(b) On 1st July 1940 he was vested wi~ power of a third class Magistrate. He was confirmed m the post of a Sub-Deputy Collector on 23rd January, 1941.

(c) On 1st July 1950 the said Hem Ranjan Deb was vested with Powers of a Second class Magistrato

and on 1st April 1951 he was vested with powers of a FJl'St Class Magistrate •••

On July 27, 1959 Mr. Deb was appointed the p,:esiiling officer of the Second Labour Court by Notification No. 3422-IR/IR/ 3A-9/59. The notification read:

"In exercise of power conferred by Sul!-sections

(2) and (3) of S.T. of the Industrial Disputes Act 1947 read with S. 7C of the sai<l Act, the Governor is pleased to appoint Hem Ranjan Deb who is an independent person and has not attained the age Of 65 years and has held a judicial office in India for not less than 7

years to be . the Presiding Officer of the Second Labour Court constituted under the Government of West BengaI's notification No. 1727-IR/IR/3A-1/58 dated 26th April 1958 vide Shri Probodh Chandra Maitra

(Calcutta Gai.ettee, 6th August 1959)".

The notification took into account the provisions of s. 7C already analysed by us and also declared that he was qualified under E s. 7 ( 3 )( d). Government apparently considered the office held by him from January 23, 1940 to July 27, 1959 a.~ a judicial office necessary for appointment. Since the period for which he held his earlier office is well in excess of 7 years the only question is whdher it was a 'judicial office'. If it was then undoubtedly Mr. Deb was qul&lified. If there be a dispute then the matter falls F to be considemi. In doing so we must take into further account the provisions of s. 9 of the Act as substituted by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1936 (36 of 1956). That amending Act also recasts. 7 in its present fo~ 11!1d ad<ied ss. 7 A, 7B and 7C. Section 9 may now be read

but 1t JS not necessary to read beyond the first sub-section :

"9. Finality of orders constituting Boards, etc.

(1) No order of the appropriate Government or of the .Central Government appointing any person as the chairman or any other member of a Board or Court or as t!'e presi<!ing officer of a Labour Court, Tribunal or National Tnbunal shall be called in question in any manner; and no act or proceeding before any Board or Court shall be called in question in any manner on the ground. merely of .. the. existence of any vacancy in, or defect m the conshtuuon of, such Board or Court." L7 Sup.Cl/68-JS

It may be noticed that the first part refers to the appointment of any person as the chairman or any other member of a Board or Court or as the presiding officer of a Labour Court, Tribunal or National Tribunal. The second part deals with Board or Court and in view of the definition of 'Board' and 'Court' in s. 2 ( c) and (f) refers to a Board of conciliation or Court of Inquiry constituted under the Act. With these we are not concerned and the second part of s. 9, therefore, has no bearing although in the High Court that part alone was considered and the first part ignored.

Now the points for us to decide are first whether Mr. Deb held a 'judicial office' and next even if our opinion be that he did not can we declare his appointment to be invalid when s. 9 prohibits the calling in question of an appointment by Government.? Before we deal with these points in the light of the arguments addressed to us, we may say a few words about how these points were viewed by the High Court.

Banerjee J. who first heard the Hanuman Foundrit!s case made a distinction between 'judicial office' and 'judicial function' and came to the conclusion that although magistrates perform judicial functions, they could not be said to hold 'judicial office'.

Bachawat J., distinguished between 'judicial office' and 'judicial o; ervice'. He referred to the provisions of the Constitution bearing upon the appointment of Judges of the High Court and the District and subordinate courts, where these expressions occur and demon strated the difference.

In his view magistrates could be said to occupy judicial office, but they did not belong to judieia! service.

The approach of Sinha and Basu JJ., was the same as that of Banerjee J., although the matter was stated with great elaboration and copious references to the Criminal Procedure Code, and Eng lish and American cases, and text books.

It is not necessary to go over this field. All learned Judges seem to agree that a magistrate exercises judicial functions. '11tls does not admit of any doubt and no reasons are required. That his duties are partly judicial and partly other does not in any way detract from the position that while acting as a inagistrilte

he is a judicial officer. The dispute, therefore, really reduces it- G self to this : Does the magistrate hold an "office".

An office means no more than a position to which certain duties are attached.

According to Earl Jowitt's Dictionary a public offiee is one which entitles a man to act in the affairs of others without their appoint men! or permission. The 'office of a magistrate' is a correct expression in English and in law. Indeed the well-known maxim H of Coke on .Littleton (234a) officio magistratus non. debent esse

venalia (the offices of a magistrate ought not be saleable) clearly brings out that the word office can be applied to magistrates. Thus '

< H

there may be an office of a judge ( ofjicii judicis) which in ecclesiastical law at least was said to be promoted when criminal proceedings were taken. But there may be also the office of a magistrate.

Cicero in his De Legibus and De officiis makes no difietcnce between a magistratum and a judex. His famous .saying MagiJtratum /egem esse loquentem, legem autem mutum magis-' tratum (The Magistrate is a speaking law., but the law is a silent magistrate) was intended to apply to all judges of all kinds. The word 'office' has been applied to magistrates by Tacitus, Ovid

and others. Bachawat J. has given m'any references to bear out the meaning we have given and has very pertinently pointed out that the Judicial Officers Protection Act, is intended to protect not Civil Judges alone but also Magistrates. The distinction between judicial function and judicial office in this context is artificial and unsubstantial.

We agree with Bachawat J., that a magistrate holds a judicial office.

Once this is so held the appeal must fail.

Bu~ we cannot overlook the fact that even jf there be some doubt that is to be resolved in favour of upholding the appointment on the ground that the Legislature itself contemp!ates that such appointments should not be called into question.

Although the provisions of s. 9 cannot shut out an inquiry (if there is a clear usurpation) for purposes of a writ of quo warranto but at least in an unclear case the intent of the legislature is entitled to great weight. The Legislature has created the conditions of appointment and with its last voice has shut out inquiry.

The provisions of s. 7 ( 3 )( d) therefore, are not so absolute as to be wholly mandatory in the same way as the provisions of other clauses .are since they admit of no doubt, and therefore do not require construction.

The High Court in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement ol the law .. If a station master were appointed we can r.eadily question the appointment but when a per.son exercising judicial functions is appointed one cannot be too astute to say that the person does not hold a judicial office when it must at least be conceded that he holds an office of some kind. Nor does the argument that magistrates will claim to be appointed Judges of the High Court need detain us. The scheme of Chapter V of Part VI of the Constitution has its on .ect OD; te meaning of the expressions 'judicial office' '.1fld 1ud1c1al semce . In any case the use of the same expression m any other enatmet J;!Ot in pari materia can have no bearing upon the Industnal Disputes Act and vice versa. In the Constitution these words must bear the meaning which the context dictates and in that connection the history of appointment of Judges cannot be overlooked.

J..e:; t our maning be extended by Government to cases undeservmg of savmg .under s. 9, we wish to make it clear that the

622 SUPUMI! COtmT JUIPO&TS

(1968] J S.C.R.

intention of the Legislature really is that men who can be described as independent and with sufficient judicial experience i:nust

be selected. The :iru; ntion of High COllfl Judges and District Judges earlier in the same section indicates that Ordinarily judicial officers from the civil judiciary must be selected at last so long as the separation of judiciary from the Executive in the public services is not finally achieved. The appointment of a person from the ranks: of civil judiciary carries with it an assurance "'.hich is unique. The functions of a Labour Court are of great pµblic importal)ce and quasi civil in nature. MeJ! ot experience on the civil side of the law are more suitable than Magistniles. Persons employed on .multifarious duties and in addition performing some judicial functions, may not truly answer the requirement of s. 7 and it may be open in a quo warranto proceeding to question their appointment on the ground that they do not hold essentially a judicial office because they primarily perform other functions.

For it cannot be denied that the expression "liol!iing a judicial office" signifies more than discharge Of judicial functions while holding some other office. The phrase postulates that there is an office and that that offic!l is primarily judicial. Office means a fixed position for performance of duties. In this case the distinction was unsubstantial because the Magistrate was holding a fixed position for nineteen years and performing functions primarily of a judicial character. The case was not fit for interference by a writ in view of the provisions of s. 9 of the Act.

In the result we are o( opinion that the judgment under appeal is right although the reasons justifying the conclusion are different from those accepted by the Divisional Bench from the earlier case of the same Court. Tue appeal fails and will be dismissed with costs.

Y.P.

Appeal dismissed.

STATESMAN (PRIVATE) LTD

H. R. DEB & ORS

April 2, 1968

V. RAMASWAMI

A. N. GROVER, JJ

Industrial Disputes Act

ss. 7(3)(d) and 2

Section 7(3)(d)

Industrial Disputes Act

Judicial Officers Protection Act

s. 7

s. 9

Sachin Chaudhuri

K. Glzoslz

D. N. Gupta

B S. C. Mazumilar

A. K. Mitter

B. Sen

G. S. Chatterjee

P. K. Bose

Hidayatullah

Constitution of India

High Court at Calcutta

Statesman Private Ltd.

Calcutta

Sheikh D Kaloo

B. N.

Banerjee

15 February, 1962

Kaloo

H. R. Deb

Deb

s. 7(3)(d)

June 16, 1964

India

July 28, 1965

B. N. Banerjee

5, 1964

September 3, 1964

Hanuman Foundries

Bachawat

Industrial Disputes Act

Basu

Sinha

Industrial Disputes Act

B. C. Mitra

June 6, 1966

B. C. Mitra J. Sinha

A. K. Mookerjee

January 5, 1967

s. 7

s. 3

s. 4

s. 5

s. 6

s. 7

s. 7

s. 7B

Section 7C

Section 8

s. 9

s. 7

Second Schedule

s. 7

Hem Ranjan Deb

Industrial Disputes Act 1947

S. 7C

Government of West BengaI

Probodh Chandra Maitra

s. 7C

s. 7

s. 9

ss. 7

Section 9

s. 2

s. 9

s. 9

Banerjee

Hanuman Foundrit!s

Earl Jowitt

Cicero

Tacitus

Ovid

Judicial Officers Protection Act

s. 9

s. 7

s. 9

s. 7

s. 9